Procedimenti pregiudiziali e applicazione di parametri costituzionali ed europei a tutela dei diritti fondamentali

In its judgment n. 269 of 14th December 2017 the Italian Constitutional Court (ICC) redefined its relationship with Italian judges in cases of incompatibility between national legislation and constitutional provisions that are equivalent to those contained in the Charter of Fundamental Rights of the European Union (CFREU). According to the previous ICC case law, Italian judges have to set aside national legislation conflicting with EU law (after a reference for a preliminary ruling to the European Court of Justice, where necessary). The ICC has now established that when the national provision infringes both Constitutional and the CFREU provisions, any Italian Court has first to ask the ICC to declare the unconstitutionality of the Italian norm. It is clear that if the previous solution was maintained, the setting aside of a national norm conflicting with a provision of the CFREU equivalent to a constitutional provision would entail, de facto, a check of constitutionality of Italian statute by Italian judges, a check which is an exclusive competence of the ICC in the Italian legal order. This revirement of the ICC raises a number of questions; in particular this paper discusses the issue of the order of precedence between preliminary rulings and the consequences of different evaluations of the ICC and of the ECJ concerning provisions of the CFREU corresponding to Constitutional provisions.