The Taricco saga and the consolidation of judicial dialogue in the European Union
| DOI | 10.1177/1023263X18773046 |
| Author | Matteo Bonelli |
| Published date | 01 June 2018 |
| Date | 01 June 2018 |
| Subject Matter | Articles |
Article
The Taricco saga and the
consolidation of judicial
dialogue in the European Union
CJEU, C-105/14 Ivo Taricco and others,
ECLI:EU:C:2015:555; and C-42/17
M.A.S., M.B., ECLI:EU:C:2017:936
Italian Constitutional Court, Order no. 24/2017
Matteo Bonelli*
Abstract
In December 2017, the Court of Justice of the European Union delivered its awaited decision on
the Taricco II case, responding to a preliminary reference from the Italian Corte Costituzionale. The
latter, unhappy with the outcome of the earlier Taricco I decision, asked for a re-interpretation of
Article 325 TFEU and threatened the Court of Justice with the possible activation of its controlimiti
doctrine. The CJEU partially ‘corrected’ its previous ruling and prevented an open conflict between
EU law and Italian constitutional law. This case note discusses the saga and its t hree episodes
against the background of the growing constitutional conversation between top European
courts. It argues that Taricco is a positive episode of judicial dialogue and may further contribute
to its consolidation: on one hand, constitutional courts are increasingly willing to ‘play the game’
and refer to the CJEU under Article 267 TFEU; on the other, the Court of Justice seems more
reactive than in the past to constitutional courts’ claims and now considers them with increasing
attention and detail. Finally, the case note reflects on the partially diverging languages for con-
stitutional dialogue: national courts use the language of constitutional identity, while the CJEU
prefers to refer to the ‘common constitutional principles of the EU’.
Keywords
EU law, Constitutional courts, Judicial dialogue, Fundamental rights, Constitutional identity, Court
of Justice
* PhD researcher, Maastricht University, Netherlands
Corresponding author:
Matteo Bonelli, Faculty of Law, Maastricht University, Bouillonstraat 1-3 6211 LH, Netherlands.
E-mail: matteo.bonelli@maastrichtuniversity.nl
Maastricht Journal of European and
Comparative Law
2018, Vol. 25(3) 357–373
ªThe Author(s) 2018
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DOI: 10.1177/1023263X18773046
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1. Introduction
It was not long ago that the Italian Constitutional Court (ICC) concluded that it did not consider
itself a ‘court of tribunal’ under Article 267 TFEU
1
and was therefore not authorized to send
preliminary references to the Court of Justice of the European Union (CJEU).
2
Still quite
recently, the attitude of national constitutional courts towards the Court of Justice was described
as one of ‘splendid isolation’,
3
as most of them refused to request preliminary rulings from
Luxembourg. Yet much has changed in the past few years. The Corte Costituzionale has now
sent three separate references to the European Court under Article 267 TFEU.
4
Several other
constitutional courts have finally engaged in direct
5
conversation with the CJEU through the
instrument of preliminary references.
6
Despite some disappointing answers from Luxembourg,
at least from their perspective,
7
constitutional courts have been increasingly more willing to talk
to the Court of Justice. In turn, the latter seems now more open to listen to national const itutional
courts and fully engage in this form of judicial dialogue. The decision of the CJEU in M.A.S.,
M.B. (hereinafter: Taricco II) on a preliminary reference from the Corte Costituzionale very well
shows the more receptive attitude of the Court of Justice towards the concerns of national
constitutional courts.
8
Nonetheless, communication between the two sides is not yet perfect.
National and European courts often use different languages, as will be explained in the following
pages.
Taricco II was an eagerly expected decision, especiallyin Italy. The earlier episodes in the saga –
the ruling of the Court of Justice in Taricco I and the following preliminary reference of the ICC,
suggesting the possible activation of the controlimiti doctrine
9
– provoked a flood of academic
1. Then Article 177 TEC.
2. See (IT) ICC, Judgment no 536/1995, and the earlier Judgment no. 13/1960.
3. M. Bobek, ‘The Impact of the European Mandate of Ordinary Courts on the Position of Constitutional Courts’, in M.
Claes et al. (eds.), Constitutional Conversations in Europe (Intersentia, 2012).
4. On the evolution of the ICC position, see O. Pollicino, ‘From Partial to Full Dialogue with Luxembourg: The Last
Cooperative Step of the Italian Constitutional Court’, 10 European Constitutional Law Review (2014); G. Repetto,
‘Pouring New Wine into New Bottles? The Preliminary Reference to the CJEU by the Italian Constitutional Court’, 16
German Law Journal (2015); S. Sciarra and G. Nicastro, ‘A New Conversation – Preliminary References from the
Italian Constitutional Court’, 23 Maastricht Journal of European and Comparative Law (2016); B. Guastaferro, ‘The
Unexpectedly Talkative ‘‘Dumb Son’’:The Italian Constitutional Court’s Dialogue with the European Court of Justice
in Protecting Temporary Workers’ Rights in the Public Education Sector’, 13 European Constitutional Law Review
(2017).
5. Conversation can also take place through indirect or informal channels. See infra, Section 5 and the conclusion.
6. The Belgian, Austrian, Italian, and Lithuanian Constitutional Court had already sent preliminary references before 2012,
when current Advocate General Michal Bobek used the expression ‘splendid isolation’. Since then, the Spanish Con-
stitutional Court (Tribunal Constitucional), the French Constitutional Court (Conseil Constitutionnel), the German
Federal Constitutional Court (Bundesverfassungsgericht), and the Slovenian Constitutional Court (Ustavno sodis
ˇ
c
ˇe)
have also referred questions to the CJEU under Article 267 TFEU.
7. In particular Case C-399/11 Melloni, EU:C:2013:107. For critical views, see A. Torres Perez, ‘Melloni in Three Acts:
From Dialogue to Monologue’, 10 European Constitutional Law Review (2014); L. Besselink, ‘The Parameters of
Constitutional Conflict after Melloni’, 4 European Law Review (2014). From the perspective of judicial dialogue, both
the result and the reasoning of the CJEU, in particular the lack of engagement with the three interpretations of Article 53
of the Charter that were suggested by the Spanish Constitutional Court, were disappointing.
8. For further examples, see infra Section 5.A.
9. First affirmed in: (IT) Frontini: ICC, Judgment No. 183/1973 and then developed in Judgment No. (IT) 170/1984
(Granital) and (IT) 232/1989 (FRAGD).
358 Maastricht Journal of European and Comparative Law 25(3)
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