Viva Italia

December 17, 2009

Italian Supreme Court Decision Signals Sovereign Resistance to European Overreach
By Piero A. Tozzi, J.D.


(NEW YORK – C-FAM) A little-publicized decision by Italy's Constitutional Court last month may have significant implications concerning the direction of Europe, strengthening national sovereignty as a bulwark against transnational overreach by European institutions. It also signals the continued importance of national constitutions, despite the entry into force of the Lisbon Treaty earlier this month.

In Sentenza N. 311, the Italian Constitutional Court stated that where rulings by the European Court of Human Rights (ECHR) conflict with provisions of the Italian Constitution, such rulings "lack legitimacy." Sources close to the Italian judiciary told the Friday Fax that the decision was intended as a warning that activist rulings by the Strasbourg-based ECHR overstepping jurisdictional boundaries will not be given deference.

Sources point to the timing of the decision, which followed an early November ECHR ruling, Lautsi v. Italy, directing that crucifixes be removed from the Italian classroom. The Italian government is appealing that decision to the full Grand Chamber.

According to Roger Kiska, European legal counsel for the Alliance Defense Fund, Lautsi is flawed on a number of grounds, including overreach – the ECHR is not a constitutional court – and its disregard for "the cultural sovereignty of each Member State." The Constitutional Court decision – which deals with civil service matters entirely unrelated to the crucifix case – signals that Italy may be prepared to break with the ECHR if it were to lose its appeal.

Kiska also notes that the ECHR recently heard arguments in the case A, B, & C v. Ireland, which involves a direct challenge to Ireland's constitutional protection of unborn life. The Italian court decision could embolden Ireland's Supreme Court in the event of an adverse decision.

Underlying the debate is the question of what role "subsidiarity" will play in post-Lisbon Europe. Subsidiarity is the notion that decisions are best made at the local level closest to the people affected by them, guaranteeing that national norms and values will not be overrun by top-down-dictates.

Observers note that the foundational documents of a united Europe – the 1957 Treaties of Rome establishing the European Economic Community – enshrine the concept of subsidiarity, and a protocol to the Lisbon Treaty states that European institutions shall "ensure constant respect for the principles of subsidiarity and proportionality."

By asserting that Italy's Constitution is the final word when confronted with decisions by transnationalist bodies, the Constitutional Court is drawing a line in the sand similar to that drawn by the United States (US) Supreme Court in 2008, when it rejected a directive from the World Court in The Hague as incompatible with the US Constitution.

Italy has two High Courts – one dealing with constitutional issues, and a second, the Corte Suprema di Cassazione, which is the court of final resort on all issues other than those with constitutional implications. The ECHR, a Council of Europe body, is distinct from the European Court of Justice, which is the European Union's highest court