Archimedes’ lever:the role of fundamental rights in multilevel systems

by Marzia Barbera and Giulio ItzcovichUniversity of Brescia

First draft. Not to be quoted

Summary: 1. Introduction.- 2. The counter-limits doctrine in the Federfarma decision.- 3. The Federfarma case - 4. The roots of the counter-limits doctrine. Old and new fundamental rights - 5. Equality and fundamental rights in ECJ case law before the European Charter of Fundamental Rights- 6. The first effects of the Charter - 7. Conclusions. Competences, sovereignty and limits in European integration

1. Introduction

In decision no. 41 of 2000, the Italian Constitutional Court, pronouncing itself on the inadmissibility of an abrogative referendum relating to fixed-term work contracts, made two curious assertions, which, although of no importance in deciding the case, together identify some fundamental theoretical and practical problems of European integration from a legal perspective.

First of all, the Constitutional Court affirms that «despite an unchanged Constitution, the progressive integration of the national and community legal orders has resulted in deep changes in the domestic order». This affirmation is true; it is so widely acknowledged by Italian legal doctrine that it can be candidly included as an obiter dictum in a decision by the Constitutional Court. But the problems that this description of integration entails are also obvious: if the Constitution has remained unchanged, how has the domestic order been so profoundly modified? How can an order be transformed so radically if its constitution has not changed? How can this transformation be conceived (described and/or justified) as legal? Law changes, because «major changes to the domestic order» occur, but such changes are not entirely regulated by domestic law. If a legal order is a set of norms that regulates its own

1

amendment in the course of time – for instance, by means of a Constitution – then the integration among legal orders is a sort of process of “legal dis-ordering”1. It is a process that produces, as the constitutional Court seems to admit, a deficit of constitutional legality and of certainty of law, and therefore, ultimately, a deficit of legitimacy2.

The Constitutional Court goes on to affirm: «Indeed, since the binding norm, in the fields regulated by the Treaty, is the one issued by the Community institutions under the provisions of the (...) Treaty, in the face of such a norm (...) the domestic order withdraws and is no longer operative». The «indeed» which introduces the affirmation hides the lack of a logical connection – it is nothing short of a theoretical paradox. The Court states that the domestic order has been modified, and yet («indeed») the order is no longer operative in the fields regulated by the Treaties. So it would seem that the order has not been modified, but simply that “it is not applied”. When the Constitutional Court says that the domestic order is not operative, it withdraws, it does not apply, etc., it means that, in the case of conflict, Community law has supremacy over domestic law, but cannot modify it. The orders stay separate and thus domestic law may “withdraw”, but Community law cannot affect its content or the validity of its norms.

The paradox is evident: the order integrates by withdrawing, but, if it withdraws, it does not integrate. It remains separate, different and autonomous. The integration process has not amended the domestic order, which the Court acknowledges as having been deeply modified, despite an unchanged Constitution, but has simply lead to its disapplication, given the “pluralistic” separation between the legal orders. This theoretical paradox is the consequence of a practical difficulty: in the obiter dictum the constitutional Court identifies, perhaps unintentionally, a problem of legal theory that is also a constitutional issue. On the one hand, there appears to be a process of legal dis-ordering – the legal order stops regulating its own transformation – with a

1 See more broadly G. Itzcovich, Integrazione giuridica. Un’analisi concettuale, in “Diritto pubblico”, 3, 2005, pp. 749-786, which discusses the topic of the legitimacy crisis in the light of different conceptions of the legal order.2 Such is the case if we assume that power’s legitimacy may depend on the legality of its exercise – an assumption typical of the “ideological” legal positivism (according to the terminology of N. Bobbio, Il positivismo giuridico, Torino, Giappichelli, 1996, pp. 233 ss.) and of Weber’s sociology of power. Obviously, the legitimacy deficit may depend on other factors, such as the widely discussed “democratic deficit”. We will not discuss the topic.

2

consequent deficit of legality and of certainty of law; on the other, this deficit cannot be remedied if, as the Constitutional Court states, the legal orders remain separate and they therefore express autonomous claims to validity, which are potentially in conflict with each other.

This situation is a source of considerable tension on legal reasoning. Since there appears to be no “meta-order” able to integrate and guarantee the differences within the framework of a unitary federal system, jurists are beginning to reason in terms of a “legal space” to describe this generic space whose dis-ordering is generated by separate legal orders which express autonomous claims to authority3. The concept of multi-level governance has been borrowed from political science to describe a decision-making structure within which separate levels of government operate without any hierarchical relations; governance differs from government because there is no power that can conclusively decide on the conflicts between actors endowed with differing authority and different legitimacies4.

All forms of rigidity must be avoided in the judicial management of the multilevel legal space: the distinction between validity of a norm (stable membership of the legal order) and its applicability in concrete cases (which can always be suspended in the event of a conflict between legal orders or between principles) becomes crucial5; the concept of “defeasibility” of legal

3 C. Harding, The Identity of European Law: Mapping Out the European Legal Space, in “European Law Journal”, 6/2, 2000, pp. 128-147; S. Cassese, Lo spazio giuridico globale, Roma, Laterza, 2003; G. Santini, L’Europa come spazio giuridico unitario: un'armonia nel rispetto delle dissonanze, Padova, CEDAM, 1996; M. P. Chiti, Mutazioni del diritto pubblico nello spazio giuridico europeo, Bologna, CLUEB, 2003.4 The concept of multilevel governance has been borrowed from political sciences and has been applied to constitutional theory by I. Pernice, Multilevel Constitutionalism and the Treaty of Amsterdam: European Constitution-Making Revisited?, in “Common Market Law Review”, 36, 1999, pp. 703 ss.; Id, Multilevel Constitutionalm in the European Union, in “European Law Review”, 27, 2002, pp. 511-529; I. Pernice, F. Mayer, La costituzione integrata dell’Europa, in G. Zagrebelsky (ed.), Diritti e Costituzione nell’Unione europea, Roma-Bari, Laterza, 2003, pp. 43-68; F. Mayer, The European Constitution and the Courts – Adjudicating European Constitutional Law in a Multilevel System, Jean Monnet Working Paper No.9/03, http://www.jeanmonnetprogram.org/papers/03/030901-03.html; N. Bernard, Multilevel Governance in the European Union, The Hague, Kluwer, 2002. In the Italian doctrine see A. D’Atena, P. Grossi (eds.), Tutela dei diritti fondamentali e costituzionalismo multilivello. Tra Europa e Stati nazionali, Milano, Giuffrè, 2004; P. Bilancia, E. De Marco (eds.), La tutela multilivello dei diritti. Punti di crisi, problemi aperti, momenti di stabilizzazione, Milano, Giuffrè, 2004; P. Bilancia, F. G. Pizzetti, Aspetti e problemi del costituzionalismo multilivello, Milano, Giuffrè, 2004. 5 In German legal doctrine and subsequently in Italian legal doctrine from the ’60 and ’70, the distinction has been traced in terms of Geltungsvorrang (hierarchical supremacy, which has often been denied to EC law) and Anwendungsvorrang (precedence in application, which has been provided to EC law).

3

norms, and in particular of principles, becomes attractive6. If a coherent system of sources is unachievable, the conflicts must be decided on a case by case basis, through hermeneutic criteria and balancing tests; criteria of formal validity and exclusive rules tend to be replaced by fundamental legal principles i.e. self-validating principles, principles whose validity and applicability do not depend on their belonging to a particular legal order.

The premise behind this paper is that the discourse on fundamental rights and on the principle of equality intervenes in this situation of legal dis-ordering, and produces two effects. On the one hand, due to their “fundamental” nature, due to their rhetorical and legitimising force, principles seem to intervene to resolve, or mitigate, the deficit of legitimacy, by providing the actors of multi-level governance with additional legitimation: they provide not only a formal, but also a substantive grounding to their claims to authority7. In addition, principles can transform the conflicts between legal orders from political or “institutional” ones, into legal and justiciable conflicts, by means of a highly flexible technique of adjudication: a technique that is negotiable, adjustable from case to case, and “translatable” between the legal systems involved8. The conflicts between autonomous legal orders can thus be 6 A norm is defeasible when it may be overridden by sufficiently compelling reasons. See G.B. Ratti, Sistema giuridico e sistemazione del diritto, Torino, Giappichelli, 2008; J.M. Pérez Bermejo, Coherencia y sistema jurídico, Madrid-Barcellona, Marcial Pons, 2006; J.C. Hage, A. Peczenik, Law, Morals, and Defeasibility, in “Ratio Juris”, 13/3, 2000, pp. 305-325; P. Navarro, J. Rodríguez, Derrotabilidad y sistematización de normas jurídicas, in “Isonomía”, 13, 2000; C. Alchourrón, Detachment and Defeasibility in Deontic Logic, in “Studia Logica”, 57, 1996, pp. 5-18; N. MacCormick, Defeasibility in Law and Logic, in Z. Bankowski et al. (eds.), Informatics and the Foundation of Legal Reasoning, Dordrecht, 1995; F. Schauer, Playing by the Rules. A Philosophical Examination of Rule-Based Decision–Making in Law and in Life, Clarendon Press, Oxford, 1991. Vedi poi R. Dworkin, The Model of Rules I (1967), in Id., Taking Rights Seriously,Cambrdge, Harvard UP, 1977, cap. II: principles differ from rules in that they can be outweighed by other considerations or norms. 7 It is generally held that at the basis of ECJ’s jurisprudence on human rights there has been the will to promote the effectiveness of EU law by defending it against the resistances of German and Italian courts: see T.C. Hartley, The Foundations of European Community Law, V ed., Oxford, Oxford UP, 2003, pp. 132 ss.; M. Cappelletti, The Judicial Process in Comparative Perspective, Oxford, Claredon, 1989, p. 394; J.H.H. Weiler, Eurocracy and Distrust. Some Questions Concerning the Role of the European Court of Justice in the Protection of Fundamental Human Rights within the Legal Order of the European Communities, in “Washington Law Review”, 1986, pp. 1103-1142, p. 1108 (on the “integrational” value of human rights); J.A. Frowein, S. Schulhofer, M. Shapiro, The Protection of Fundamental Rights as a Vehicle of Integration, in M. Cappelletti, M. Seccombe, J.H.H. Weiler (eds.), Integration Through Law. Europe and the American Federal Experience, Vol. I, t. 3, Berlin-New York, de Gruyter, 1986, pp. 231-344, and pp. 300 ss.; L. Azzena, L’integrazione attraverso i diritti. Dal cittadino italiano al cittadino europeo, Torino, Giappichelli, 1998.8 G. Itzcovich, L’integrazione europea tra principi e interessi. Giudici nazionali e Corte di giustizia nella “guerra delle banane”, in “Materiali per una storia della cultura giuridica”, 34/2, 2004, pp. 385-424; M. Kumm, The Jurisprudence of Constitutional Conflict: Constitutional

4

translated in terms of conflicts between fundamental legal principles. If the decision of the conflict cannot be grounded, because it rests on the exclusive responsibility of the decision-maker9, some sort of coordination can still be achieved spontaneously through “dialogue” on the protection of fundamental rights10: judicial dialogue therefore becomes a tool of continuous negotiation on the distribution of normative and jurisdictional competences between relatively autonomous institutions.

We will argue that the discourse on fundamental rights and on the principle of equality can, on the other hand, worsen the legitimacy deficit. Instead of acting to converge on common values, the legal orders may engage in a conflict on values, or at least to their judicial concretisation. Hence, depending on how they are understood and applied, fundamental principles can produce an effect of mutual delegitimisation between the orders in conflict, of uncertainty of law and political overexposure of judicial power. The discourse on fundamental principles allows the conflict between relatively autonomous actors of multilevel governance to be conceived and resolved judicially, but it obviously cannot ensure that the conflict will be resolved in the “right” way, or even in a way that is acceptable to all the actors involved.

However, one thing is pretty clear. Whether fundamental principles are applied “successfully” or “unsuccessfully”, whether they reduce or increase legitimacy, the discourse on fundamental principles underpins a more marked

Supremacy in Europe before and after the Constitutional Treaty, in “European Law Journal”, Vol. 11, No. 3, May 2005, pp. 262–307.9 With regard to balancing judgment, this problem is widely discussed in legal theory: in case of conflict between principles, how to justify the decision of applying one principle and discarding the other? See R. Alexy, Theorie der Grundrechte, Frankfurt a.M., Suhrkamp, 1986, pp. 77 ss., pp. 143 ss., and, recently, G. Pino, Conflitto e bilanciamento tra diritti fondamentali. Una mappa dei problemi, in “Ragion pratica”, 28/1, 2007, pp. 219-276; G. Itzcovich, L’integrazione europea tra principi e interessi, cit.10 On judicial dialogue, see A.M. Slaughter, A. Stone Sweet, J.H.H. Weiler (eds.), The European Court and National Courts – Doctrine and Jurisprudence. Legal Change in Its Social Context, Oxford, Hart 1998; J.H.H. Weiler, The Constitution of Europe, Cambridge, UP, 1999, spec. pp. 287 ss.; S.J. Kenney, W.M. Reisinger, J.C. Reitz, eds., Constitutional Dialogues in Comparative Perspective, London, Macmillan, 1999; A. Stone Sweet, Governing with Judges. Constitutional Politics in Europe, Oxford, Oxford UP, 2000; C. McCrudden, A Common Law of Human Rights? Transnational Judicial Conversations on Constitutional Rights, in “Oxford Journal of Legal Studies”, 20/4, 2000, pp. 499-532; A.-M. Slaughter, A Global Community of Courts, in “Harvard Journal of International Law”, 44, 2003, pp. 191-219; F. Mayer, The European Constitution and the Courts, cit.; G. Itzcovich, L’integrazione europea tra principi e interessi, cit.; E. Navarretta, A. Pertici, a cura di, Il dialogo tra le corti. Principi e modelli di argomentazione, Pisa, Ed. Plus, 2004; M. Cartabia, “Taking Dialogue Seriously”. The Renewed Need for a Judicial Dialogue at the Time of Constitutional Activism in the European Union, Jean Monnet Working Paper No.12/07, http://www.jeanmonnetprogram.org/papers/07/071201.html.

5

flexibility and indeterminacy in the relations between the structures of multilevel governance.

These hypotheses will be explored through the discussion of some recent judicial cases: the analysis of case law will serve as a means of highlighting some changes in the legal discourse, and in particular will serve to explore how the discourse on fundamental rights and on the principle of equality may operate in judicial practice, producing the aforementioned consequences.

The first case discussed is the recent Federfarma case (2005) where, for the first time, an Italian court – the Consiglio di Stato (Council of State)– refused to apply Community law and also refused to refer the matter to the European Court of Justice (ECJ) for a preliminary ruling, stating that the fulfilment of Community obligations would imply, in this specific case, the violation of a fundamental constitutional right i.e. the right to health. Fundamental rights operate, as we will see, as an instrument for governance actors to attribute authority upon themselves – in this case the Italian State. The dialogue on the protection of fundamental rights allows a flexible and renegotiable distribution of the normative and jurisdictional competences among relatively autonomous institutions. In the Federfarma case, the dialogue did not take place, but an examination of the decision will allow us to explore how the concept and judicial practice of fundamental rights have changed in relation to the experience of European legal integration.

Likewise, in some recent decisions by the ECJ on equality and discrimination (such as Cordero Alonso, Del Cerro Alonso, K.B.) the “exchange of messages”11 between the European and national courts took place eluding confrontation with the guardians of the national constitutions. In other words it took place in a manner that was unilateral, vague and essentially uncertain. Our analysis of the case law will show that the principle of equality, in connection with fundamental rights and with their nature as self-imposing principles, operate as a metaprinciple that can modify the boundaries of competences, transforming them into shifting boundaries. In the European integration process, too, as in all multilevel government systems, the equality

11 On this exchange see S. Sciarra , Integration Through Courts: Art. 177 as a Prefederal Device, in S.Sciarra (ed.). Labour Law in the Courts, national Judges and the European Court of Justice, Hart Publishing, Oxford, 2001.

6

principle acts as an “Archimedes lever”, pushing the limits of competences (and therefore of power) between centre and periphery, and extending the jurisdiction of the Courts called to apply them, thereby reinforcing judicial power over political power.

2. The counter-limits doctrine in the Federfarma decision .

Relationships between Italian law and Community law, in the words of the Council of State:

...have reached a sort of “harmony among different [legal orders]”(...) according to the apt definition by an illustrious jurist12, which has had the merit of guaranteeing the maintenance of our order and, with it, national sovereignty. Far from being absorbed by a superior sovereignty, national sovereignty is only limited pursuant to art. 11 of the Constitution. As a result it has been, and it is, conceivable to preserve a national legal space entirely protected from the influence of Community law, a space in which the State continues to retain full sovereignty, i.e. independence, and is therefore free to have its own sources of law. This is the area of fundamental rights, whose protection acts as an unchallengeable “counter-limit” to the limitations spontaneously accepted through the Treaty13.

This last affirmation deserves closer examination and theoretical scrutiny.

The assertion that fundamental rights constitute a space of freedom of the State is paradoxical, or at least surprising, if considered within the context of modern legal and political thought. It offers an opportunity to reflect on how the concept and judicial practice of fundamental rights have changed in relation to European legal integration. Before doing this, however, it should be

12 The Council of State is here referring to V. Onida, “Armonia tra diversi” e problemi aperti: la giurisprudenza costituzionale sui rapporti tra ordinamento interno e ordinamento comunitario, in “Quaderni costituzionali”, 2002, pp. 391-394.13 Consiglio di Stato, judgment of 8 August 2005, n. 4207, at 3.4. (italics added). The judgment can be read on “Giurisprudenza costituzionale”, 2005, pp. 3391-3403; “Diritto processuale amministrativo”, 3/2006, pp. 802-816.

7

noted that this assertion is not new, and it is perfectly clear – albeit not unanimously accepted – to legal scholars studying the relationships between national law and Community law. For this reason, it deserves particular attention.

The Council of State is quoting almost word for word an article by Fiammetta Salmoni14. However, the origins of the jurisprudential construction behind the Council of State’s affirmation can be traced back to the inventors of the “counter-limits doctrine” in Italy i.e. Paolo Barile, Manlio Mazziotti and above all Costantino Mortati15. For more than forty years Italian legal science has become accustomed to this simple and persuasive line of reasoning. Let us outline the stages. Membership of the European Communities is constitutionally lawful under art. 11 of the Constitution, which places “limitations on sovereignty”. But these limitations on sovereignty cannot cancel that sovereignty. There must therefore be limits to the limitations of sovereignty to which Italy acquiesced. Such “counter-limits” are to be found, at least, in the inalienable individual rights and in the fundamental legal principles of the legal order. Their infringement precludes the application of Community law by national public authorities. In particular, the protection of fundamental rights, as an inderogable constitutional duty, justifies the reaffirmation of sovereignty of the State, which is none other than its constitutional legality. The Constitutional State does not abdicate and cannot abdicate the protection of fundamental rights, and so fundamental rights continue to be, as the Council of State in the Federfarma case holds, a space of State freedom, the last or residual stronghold of its sovereignty.

Since the affirmation is to a large extent obvious and uncontroversial, it escaped the notice of the numerous commentators of the Federfarma decision16, who, nevertheless, subjected the reasoning to close and often 14 F. Salmoni, La Corte costituzionale e la Corte di giustizia delle Comunità europee, in “Diritto pubblico”, 2/2002, pp. 491-563.15 On the development of the counter-limits doctrine in Italian legal scholaship, see G. Itzcovich, Teorie e ideologie del diritto comunitario, Torino, Giappichelli, 2006, pp. 187 ss., 218 ss., 376 ss., 397 ss. The landmarks texts are C. Mortati, Istituzioni di diritto pubblico, II ed., Padova, Dott. Milani, 1952, p. 684; P. Barile, Ancora sul diritto comunitario e sul diritto interno, in Studi per il ventesimo anniversario dell’Assemblea Costituente, Vol. VI, Firenze, Vallecchi, 1969, pp. 35-54; M. Mazziotti, Osservazioni alla sentenza del 27 dicembre 1965 n. 98, in “Giurisprudenza costituzionale”, 1965, pp. 1329-1342.16 In Italy the judgment has been discussed on several paper and online reviews: at least fifteen articles (of A. Adinolfi, A. Barone, V. Capuano, A. Celotto, F. Dal Canto, C. Di Seri, G. P. Dolso-S. Amadeo, F. Donati, G. M. Lignani, G. Morbidelli, A. Pizzorusso, O. Pollicino, A. Ruggeri, A.

8

severe examination. Much has been written on the eccentricities and shortcomings of the decision. The majority of commentators found the decision “highly worrying”17, “open to much criticism . . . unnecessary . . . disproportionate” 18, “the expression of a somewhat eccentric attitude of closure, when not of ‘severance’ ”19, and an “expression perhaps of that nationalistic “resurgence” against European integration following the two referendums rejecting the ratification of the Treaty”20; the decision appeared to be “an anomaly of some importance”21, which “is characterized by its marked rigidity”22.

However, what seemed new and debatable to the commentators is not so much the dogmatic reasoning framework of the decision – i.e. the counter-limits doctrine – as the decision actually adopted by the Council of State: this was the first time since the introduction of the counter-limits doctrine (Constitutional Court, decision no. 183/1973) that an Italian court had expressly made use of the counter-limits to justify the disapplication of Community law.

It is known that the political and legal culture of almost every Member State of the European Union has developed one or often more counter-limits doctrines23, i.e. normative theories related to the cases in which limits to the

Schillaci, S. Valaguzza), but, curiously, the judgment has been neglected by international law journals, with the sole exception of the “Cahiers de droit européen” (L. Daniele, La protection des droits fondamentaux peut-elle limiter la primauté du droit communautaire et l’obligation de renvoi préjudiciel?, in “Cahiers de droit européen”, 1-2/2006, pp. 67-81).17 L. Daniele, op. cit., p. 69.18 S. Valaguzza, La teoria dei controlimiti nella giurisprudenza del Consiglio di Stato: la primauté del diritto nazionale, in “Il Diritto processuale amministrativo”, 3/2006, pp. 816-847, pp. 816 s.19 G. P. Dolso, S. Amadeo, Il Consiglio di Stato tra Corte costituzionale e Corte di giustizia, in “Giurisprudenza costituzionale”, 2006, pp. 785-816, p. 816.20 S. Gambino, La Carta e le Corti costituzionali. “Controlimiti” e “protezione equivalente”, in “Politica del diritto”, 3/2006, pp. 411-460, p. 437.21 V. Capuano, op. cit., p. 241.22 A. Schillaci, Un (discutibile) caso di applicazione dei “controlimiti”, in “Giurisprudenza italiana”, 11/2006, pp. 2026-2033, p. 2026. Among the commentators, other critical remarks on the decision of O. Pollicino, G. Morbidelli, F. Donati, A. Pizzorusso; positive remarks of A. Ruggeri, A. Celotto, F. Dal Canto, C. Di Seri.23 On the counter-limits doctrine, the bibliography has become extensive. See, fist of all, the broad comparative study of A. Celotto, T. Groppi, Diritti UE e diritto nazionale: primauté vs controlimiti, in “Rivista italiana di diritto pubblico comunitario”, 6/2004, pp. 1309-1384; see also T. Groppi, La primauté del diritto europeo sul diritto costituzionale nazionale: un punto di vista comparato, in Le fonti del diritto, oggi, cit., pp. 427-437; A.-M. Slaughter, A. Stone Sweet, J. H. H. Weiler (eds.), The European Court and National Courts, cit., e di D. O’Keeffe, A. Bavasso, eds., Liber Amicorum in Honour of Lord Slynn of Hadley, Vol. I, Judicial Review in European Union Law, The Hague-London-Boston, Kluwer Law International, 2000. For a theoretical approach, see E. Cannizzaro, Il pluralismo dell’ordinamento giuridico europeo e la questione della sovranità, in “Quaderni fiorentini per la storia del pensiero giuridico moderno”, 31, t. 1, 2002, pp. 245-271; F. Mayer, The European Constitution and the Courts, cit.; M. Kumm, The Jurisprudence of Constitutional Conflict, cit.; N. Walker, ed., Sovereignity in Transition, Oxford,

9

limitations of sovereignty shall operate and the State can therefore fully regain its sovereignty. In some Member States, including Italy, the counter-limits doctrine consists in the possibility of a judicial review of the application of Community law in relation to a generic standard – the observance of the “fundamental legal principles of our constitutional order” and of “inalienable individual rights”(Constitutional Court, decision no. 183/1973).

We can distinguish two different ways in which the counter-limits doctrine can be applied and has actually been applied in the Italian experience of relations with Community law24. The doctrine can be used with a negative function, as a “check”, as a defence of domestic constitutional principles against legal values that are considered not to be in conformity with it. Safeguarding the constitutional structures of the national legal order is the most evident and explicit ratio of the counter-limits doctrine, and, as we shall see, this is how the counter-limits were applied in the Federfarma decision. But the counter-limits doctrine can also be interpreted and practised in a different, though not necessarily alternative way, namely as an instrument of inter-judicial dialogue, which has a positive function of adjustment, guidance and legitimacy. In this case, counter-limits can act as a “bridge” between national courts and the ECJ: an instrument which allows national courts to justify and exercise a claim to authority over how Community law should develop. As we shall see in more detail in our commentary of the Federfarma decision, different conceptions of fundamental rights underlie the two forms of the counter-limits doctrine. In the first case, fundamental rights are, in a quite traditional sense, norms that provide an external justification to the legal order’s claim to authority. In the second case, however, fundamental rights are conceived as being common legal values of several legal orders “undergoing integration”: fundamental rights appear to be an internal limit towards which distinct legal orders ought to converge in order to integrate themselves.

Hart, 2003; A. Ruggeri, “Tradizioni costituzionali comuni” e “controlimiti”, tra teoria delle fonti e teoria dell’interpretazione, in “Diritto pubblico comparato ed europeo”, 1/2003, pp. 102-120; G. Itzcovich, L’integrazione europea tra principi e interessi, cit.24 A similar distinction as been made by A. Celotto e T. Groppi, op. cit., pp. 1381 s.: they distinguish between a “static” construction of the counter-limits (“as extreme safeguard of the national legal order”) and a “dynamic” construztion (“as connectors which aim at guaranteeing the maximum level of rights’ protection”)

10

In Italy, until the Federfarma case, it was thought – and many continue to think – that this review needed to be exercised centrally by the Constitutional Court, rather than directly by the Council of State and by the other ordinary courts. Until the Federfarma case, counter-limits as a safeguard mechanism had lain dormant; rather than acting negatively, as a check, they had worked positively, as a means of adjustment, guidance and legitimacy. As a constitutional instrument of judge-made law, the counter-limits doctrine had been applied to above all for legitimising the “limitations of sovereignty” accepted by Italy, limiting them and thereby making them “constitutionally tolerable”25. The doctrine had also served as an instrument of inter-judicial dialogue, used to exercise “persuasive pressure” on the ECJ to encourage it to adopt specific decisions on controversial matters – as, for instance, on the retroactive effectiveness of annulment decisions26 – but above all to encourage the ECJ to also adopt the language of rights and constitutional principles, starting with the Stauder case in 1969.27.

The counter-limits doctrine had, as a result, been an instrument of dialogue between national judges and the ECJ, an instrument of constitutional soft law possessing primarily rhetorical, persuasive and legitimising force. Until the Federfarma decision it had never been used by an Italian court to justify the disapplication of Community law. Indeed, in decision no. 183/1973, the Constitutional Court had described the possibility that a Community rule could violate the “fundamental legal principles of our constitutional order or inalienable individual rights” as simply “aberrant”28.

Let us now look at the facts of this “aberrant” hypothesis which took place in the Federfarma case.25 On the idea of “constitutional tolerance” as substantial Grundnorm of European constitutional law, see J.H.H. Weiler, Federalism and Constitutionalism: Europe’s Sonderweg, Jean Monnet Working Paper No.10/00, http://www.jeanmonnetprogram.org; Id., Why Should Europe Be a Democracy: The Corruption of Political Culture and the Principle of Toleration, in F. Snyder, ed., The Europeanisation of Law: The Legal Effects of European Integration, Oxford, Hart, 2000, pp. 213-218. Among Italian legal doctrine, see, for instance, O. Pollicino Principio di tolleranza costituzionale tra self restraint e judicial activism della Corte di giustizia, in R. Orrù, L. G. Sciannella, cura di, Limitazioni di sovranità e processi di democratizzazione, Torino, Giappichelli, 2004, pp. 273 ss.26 Corte costituzionale, judgment 21 April 1989 n. 232.27 Through this case fundamental rights were to become «general principles of Community law» whose observance is protected by the European Court of Justice Corte di giustizia(Case C-29/69, Stauder). 28 Corte costituzionale, judgment 27 December 1973, n. 183. In the decision of 21 April 1989, n. 232, the Corte costituzionale acknowledges that “what is highly improbable may nonetheless be possible”.

11

3. The Federfarma case

The case is related to the current privatisation of municipal pharmacies, but it more generally concerns the conflict between the traditional Italian system of retail distribution of medicines – focused on the pharmacist, a graduate professional who manages the pharmacy on his own or in association with others – and the objective of creating a European market of medicines that is as open as possible to joint-stock companies, and eliminating the political, national and corporative barriers to the free movement of enterprises.

The case dates back to January 2000, when the municipal authority of Milan decided to transform the municipal company that managed the municipal pharmacies into a public company, and to sell the controlling shareholding by means of a public procurement procedure. In April 2001, the Italian subsidiary of a German company operating in the wholesale distribution of medicines – Gehe Italia, subsequently Admenta Italia – was awarded the tender. Federfarma, the trade association of pharmacists, appealed to the Regional Administrative Court of Lombardy seeking the annulment of the procedure that led to the privatization of the municipal pharmacies. Federfarma’s lawyers complained that the law reorganising the pharmaceutical sector was unconstitutional because it did not extend to companies managing the municipal pharmacies the prohibition, applicable to companies owned by pharmacists (art. 8 of law no. 362/1991), to operate in the wholesale production and distribution of medicines. The Regional Administrative Court ruled the matter material and well-founded in relation to the principle of equality and the right to health29.

In decision no. 275 of July 2003, the Constitutional Court declared the law regarding the re-organisation of the pharmaceutical sector constitutionally unlawful “in that section which did not envisage that a shareholding in companies managing municipal pharmacies is incompatible with all other operations in the sector including the production, distribution, intermediation

29 Regional Administrative Court Lombardia, sez. I, order 26 July 2002, n. 112.

12

and scientific information of medicines»30. Technically this is an “additive” decision, in which the Constitutional Court, annulling a law “in that section which does not provide for” something, replaces it with a new norm. In this case, the Court introduces a new hypothesis of non-conformity, which threatened to overturn the procedures followed by many municipal authorities in Italy – including Bologna, Florence, Cremona and Rimini – in the privatization of pharmacies.

Following the decision by the Constitutional Court, the Regional Administrative Court of Lombardy ruled in favour of Federfarma’s appeal and annulled the sale of the majority shareholding of the Milanese municipal pharmacies31. Admenta Italia, the company which had been awarded the tender, and the municipal authority of Milan, which ran the risk of having to pay back 130 million euros, appealed to the Council of State, claiming that the new regulation on the incompatibility between retail and wholesale operations was in conflict with the EC Treaty. And in fact, on March 16th 2005 the European Commission opened infringement proceedings against Italy. According to the Commission, the ban on the acquisition of holdings in companies managing municipal pharmacies by enterprises operating in the distribution of pharmaceuticals was unreasonable and amounted to a disproportionate restriction on the freedom of establishment and freedom of movement of capital. “The Constitutional Court’s interpretation”, the Commission observes, “not only discourages but makes it impossible for enterprises operating or linked to enterprises operating in the pharmaceutical distribution to purchase majority or minority holdings in companies managing pharmacies”32. The municipal authority of Milan and Admenta petitioned the Council of State to disapply the Italian law, as “rewritten” by the Constitutional Court, and to overturn the Regional Administrative Court’s decision, or at least to refer the matter for preliminary ruling in relation to the interpretation of arts. 12, 43 and 56 of the EU Treaty, so that the ECJ could indirectly rule on the

30 Corte costituzionale, judgment 24 July 2003, n. 275, in “Giurisprudenza costituzionale”, 2003, pp. 2274-2283.31 Regional Administrative Court Lombardia, sez. I, judgment 29 September 2004, n. 4195, in www.giustamm.it, n. 5/2004.32 European Commission, letter of 16 March 2005, C (2005) 762/1, infringement proceeding 2004/4928 against Italy.

13

“Community legitimacy” of the “new” regulations on the Italian pharmaceutical sector.

The Council of State rejected the appeal in decision no. 4207/2005 and refused to refer the matter for a preliminary ruling to the ECJ. The Council of State held that the norm on the incompatibility, as amended by the Constitutional Court, must prevail in the event of a possible conflict with Community law, because its disapplication would be tantamount “to a real abrogation by the court, through the disapplication of the Constitutional Court’s decision”. The law on the incompatibility, according to the Council of State, had a “constitutional nature”, because it had been issued by the Constitutional Court to safeguard the right to health, which amounts to a “counter-limit” to Community law insofar as it is situated in an area, that of fundamental rights, “that has not been affected by the transfer to the European Court of Justice of the interpretative competences on the Treaty”. It, therefore, makes no sense to refer to the ECJ for a preliminary ruling “which cannot be taken into account”, i.e. which is immaterial to the case.

4. The roots of the counter-limits doctrine. Old and new fundamental rights

Fundamental rights, the Council of State argues, mark the boundaries of a legal space “in which the State continues to be entirely sovereign, i.e. independent, and therefore free to make use of its own normative sources”. So fundamental rights can be described as a freedom of the State. This formulation is not unfaithful to thought of the Council of State, nor to the general sense of the counter-limits doctrine. When fundamental rights are violated, limits to the limitations of sovereignty operate and sovereignty resurfaces intact. Furthermore, even disregarding the Council of State’s decision, this formulation also highlights the intrinsic features of the counter-limits doctrine that also mark the evolution of some fundamental legal concepts in relation to European integration. The first and foremost of these is the concept of fundamental rights33. 33 In the vast literature on individual rights and fundamental rights, see G. Oestreich, Storia dei diritti umani e delle libertà fondamentali (1978), Roma-Bari, Laterza, 2001; J. Waldron, ed., Theories of Rights, Oxford, Oxford UP, 1984; A. Baldassarre, Diritti inviolabili, in Enciclopedia

14

In the tradition of modern political and legal thought, individual rights, above all “fundamental” or “natural” rights, are not a space of freedom of the State, but if anything, freedom from the State or through the State. Particularly, for Lockean liberal constitutionalism, individual rights pre-exist the State and they limit its authority. They are “fundamental” because the authority of the State is grounded on the necessity to protect them and, by limiting this authority they legitimise it. Even before being legal norms, before being justiciable interests protected by the law, fundamental rights are a limit which ground, from the outside, the State’s claim to decide in a binding manner which interests are to be granted protection. They are secondary reasons, reasons to obey the State. Since they lie outside the State, they can ground its authority and justify its claim to legitimacy.

Since fundamental rights lie outside the State in this tradition of legal and political thought, they can identify a “space of freedom” of the State only in a negative sense: the authority of the State is legitimate if and only if it respects fundamental rights. Fundamental rights do not positively identify, from the inside, a “space of freedom” of the State, conceived as the power to legitimately decide what a fundamental right is and how it must be protected. Further, in no way do they designate a “space of freedom” of the State in the sense of a legitimate claim of the State to its own independence, as asserted in the counter-limits doctrine. When the existence of “fundamental”, “natural”, “human” rights is admitted in the European public law tradition, they are conceived as binding on the State. They ground the State as a legitimate authority insofar as it respects fundamental rights and to the extent it respects them; they are a condition of legitimacy of political and legal power, a substantive limit, and not a space of freedom of the State, in the sense of a decision-making competence.

giuridica, Vol. XI, Roma, Treccani, 1989; M.J. Lacey, K. Haakonssen, eds., A Culture of Rights. The Bill of Rights in Philosophy, Politics, and Law – 1791 and 1991, Cambridge, Cambridge UP, 1991; G. Peces-Barba Martinez, Teoria dei diritti fondamentali (1991), Giuffrè, Milano 1993; M. La Torre, Disavventure del diritto soggettivo. Una vicenda teorica, Milano, Giuffrè, 1996; L. Baccelli, Il particolarismo dei diritti. Poteri dell’individuo e paradossi dell’universalismo, Roma, Carocci, 1999; L. Ferrajoli, Diritti fondamentali. Un dibattito teorico, a cura di E. Vitale, Roma-Bari, Laterza, 2001; B. Celano, I diritti nella jurisprudence anglosassone contemporanea. Da Hart a Raz, in P. Comanducci, R. Guastini, a cura di, Analisi e diritto 2001, Torino, Giappichelli, 2002, pp. 1-58; P. Costa, Diritti individuali e governo dei soggetti: un quadro tipologico, in “Giornale di storia contemporanea”, VII/1, 2004, pp. 9-32.

15

In addition, it can be argued that in the Old-European legal tradition fundamental rights, although at times central to the political grounding of the legitimacy of the State, are relatively peripheral and marginal as legal concepts, that is as tools not grounding national law from the outside, but managing it from the inside: they are marginal as legal norms, decision-making principles, and legal arguments. It would be possible to gather a whole set of citations to confirm this assertion34 even just in anecdotal form. Moreover this is fairly obvious if we consider that in Europe, up to the second half of the 20th century, normative documents cloaked in the language of fundamental rights and judicially enforceable are rare.

Old-European public law can consider individual rights in two ways: negatively, as a residual natural freedom which the legal order has not restricted in pursuit of its general ends, i.e. as freedom from the State, freedom towards the State. Or positively, as a will, claim, interest protected by the legal order: as a freedom within the State, a freedom through the State. In both cases, individual rights are a legal concept, which fall within the legal system. But if we speak in terms of “fundamental” rights, according to Old-European legal science we are moving towards a more external, political sphere, consisting of value judgments adjoining the sphere of public opinion and party politics If fundamental rights are an external limit grounding the authority of the State, then it is clear that any decision that disapplies a legal norm because it is in conflict with a fundamental right is – as the Constitutional Court affirms in decision no. 183/1973 – simply “aberrant”. If the legislature violated fundamental rights, this would mean the dissolution of the social contract and also, in the case of the European Communities, the withdrawal from the Treaties35.

When the Council of State speaks of fundamental rights as a space of freedom not from the State, nor within the State, but of the State, the concept 34 For instance, the theories of rights of Gerber, Jellinek, Romano, Kelsen, Heller, or the dismissal of the concept in authors such as Bentham and Duguit. See, generally, M. La Torre, Disavventure del diritto soggettivo, cit.35 This is the count-limits doctrine of Corte costituzionale, judgment 27 December 1973, n. 183, which has subsequently been abandoned by Corte costituzionale, judgment 21 April 1989, n. 232 (the infringement of fundamental constitutional principles by EC law does not compel Italy to withdraw from EC). See F. Donati, La motivazione nella sentenza n. 232 del 1989 ed il “bilanciamento” tra interessi nazionali ed interessi comunitari nel sindacato sui “controlimiti” , in A. Ruggeri (ed.) La motivazione delle decisioni della Corte costituzionale, Atti del seminario di Messina, 7-8 maggio 1993, Torino, Giappichelli, 1994, pp. 494-515.

16

of fundamental rights has already been changed in some way. This change is not the result of the Council of State’s decision in the Federfarma case, but of fifty years of constitutional case law. It is no longer a political concept grounding the legal system, but a legal concept which is administered within the legal system. Along with the concept, the judicial application of fundamental rights and their infringement has also changed: far from being an “aberrant hypothesis”, the infringement of fundamental rights has become a common currency in the practice of constitutional justice.

Moreover, although the Council of State speaks of fundamental rights as a space of freedom of the State and of their protection as a competence reserved to the State, it must not be forgotten that fundamental rights and principles are also a Community competence, and that the Community institutions also speak the language of fundamental rights and principles. Everyone talks of fundamental rights, fundamental rights are a sort of lingua franca in interjudicial dialogue 36, and this means that the situations that can be described as violations of fundamental rights are not at all “aberrant”, but frequent. We can always find two or more fundamental rights or principles in conflict, one of which must be sacrificed, two or more spheres of sovereignty, one of which must be overridden.

Thus, the protection of fundamental rights is claimed by the national courts as a domestic competence, as a freedom of the State, and it is claimed by the Community court as a community competence, as a freedom of the Community. Fundamental rights act as trumps 37 in the dialogue between the courts. Although traditionally conceived as fundamental values that ground the claim to authority of the legal orders from the outside, and for this very reason limit it, in the relationships between domestic law and external law fundamental rights are above all a technique to manage conflict.

5. Equality and fundamental rights in ECJ case law before the European Charter of Fundamental Rights

36 On human rights as a lingua franca, see F. Viola, Diritti umani e scienza giuridica, in “Diritti umani e diritto internazionale”, 1, 2007, 49-67.37 R. Dworkin, Rights as Trumps, in J. Waldron, ed., Theories of Rights, cit., pp. 153-167.

17

Following the formulation of a clause introduced by the Amsterdam Treaty that conferred a new competence on the Community, namely “to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation” (art 13 TEC), and the introduction by the European Charter of Fundamental Rights of a general principle of equality (art. 20) and of a series (probably not exhaustive)38 of express prohibitions of discrimination (art. 21), a debate began on the effects that the principle of equality would have on the system of competences established by the Treaties. One interpretation suggested that, while the Charter overcame the main limit of art. 13 – that is the absence of a directly enforceable individual right not to be discriminated against –, the principle of equality could only be invoked if the unequal treatment had occurred in one of the areas of Community competence and under the conditions and within the limits defined by the Treaties39, in view of the restrictions established by the horizontal clauses of the Charter.

The fact is equality is not a competence but a general principle, whose scope cuts across the whole Community order, just as it does in domestic legal orders. With the inclusion of a Charter of Fundamental Rights in the Community system, the principle of equality would become an integral part of this system. It was thus not difficult to foresee that the principle of equality and the express prohibitions of discrimination would be the “picklock” to unpick the rules on competence devised by the framers of the Charter 40.

Recent ECJ case-law clearly indicates that this prediction is starting to come true. But before analysing these developments, it is perhaps necessary to take a step back and to try to show how the road that led to them had already been paved by the legal process that preceded both the Charter, and the expansion, through the Amsterdam Treaty, of the scope of the prohibition of discrimination.38 See M. Bell, The Right to Equality and Non-Discrimination, in T. Hervey, J. Kenner (eds.), Economic and Social Rights under the EU Charter of Fundamental Rights. A Legal Perspective, Hart Publishing, Oxford-Portland, 2003, p. 98, who argues that the experience of article 14 ECHR demonstrates that new grounds are likely to emerge over time, produced by changes in society or even science.39 See J. Kenner, Economic and Social Rights in the EU Legal Order: The Mirage of Indivisibility, in T. Hervey, J. Kenner (eds.), Economic and Social Rights under the EU Charter of Fundamental Rights. A Legal Perspective, cit., p. 19.; F. Ghera, Il principio di eguaglianza nella costitutzione italiana e nel diritto comunitario, Cedam, Padova, 2003, p. 95 ; K. Lenaerts, E. De Smijter, A “Bill of rights” for the European Union, , in CMLR, 2001, p. 285. 40 See M. Barbera, The Unsolved Conflict: Reshaping Family Work and Market Work in the EU Legal Order, in T. Hervey, J. Kenner (eds.), Economic and Social Rights, cit., p. 152.

18

Although the above position is based on a textual interpretation of the provisions of the Charter, the position itself can be considered a reflex response to the traditional way that legal doctrine has considered the role played by the prohibitions of discrimination and the principle of equality in European integration 41.

Community legal scholarship commonly stresses the functionalist genesis of the prohibitions of discrimination on the ground of nationality 42 and gender initially enshrined by Treaty, which were intended to ensure the smooth functioning of the Common Market43. Much less frequent is the observation that this fact also explains why the prohibitions of discrimination were not initially to be found in the Community legal order in the form of individual fundamental rights, but in that of objective rules, which imposed a burden of justification, in terms of rationality and reasonableness, of the unequal treatment of situations that the market considers similar, or of equal treatment of situations it considers dissimilar. This is why the ECJ was able to consider the specific prohibitions of discrimination “as merely a specific enunciation of the general principle of equality», and to grant equality the status of a “fundamental legal

41 See among others M. V. Benedettelli, Il giudizio di eguaglianza nell’ordinamento giuridico delle comunità europee, Cedam, Padova, 1989.42 In addition to the prohibitions of discrimination in the fields of freedom of movement for workers, establishment and services, also the prohibition of discrimination between producers and consumers in the common agricultural market and the prohibition of the granting of special or exclusive rights in the area of State aid can be broadly considered as expressions of a general principle of non discrimination on grounds of nationality. It has be noted that in the Treaty system the principle itself takes on the character of Grundnorm ( Cfr. M.V. Benedettelli, cit., p. 206; F.G. Jacobs, An Introduction to the General Principle of Equality in EC Law, in A.Dashwood, S. O’Leary (eds.), The Principle of Equal Treatment in EC Law, Sweet and Maxwell, London, 1997, p. 1; F. Ghera, cit., p. 87). Catherine Barnard has recently argued that substantial hindrance of market access is gradually emerging as the key to the internal market freedoms, replacing the non discrimination principles as the operative EC internal market principle (cf. Fitting the Remaining Pieces into the Goods and Persons Jigsaw, in ELR, 2001, p. 35 ). On the role that the principle of non discrimination plays in the current internal market, abd on the greater complexity of the concept, which makes it more “expansive and fluid” see also G. de Burca Unpacking the Concept of Discrimination in EC and International Trade Law, in C. Barnard, J. Scoatt (eds), The Law of the Single European Market. Unpacking the Premises, Hart Publishing, Oxford-Portland, 2002, p. 195. It should, however, be noted that the concept of discrimination adopted by the Community legal order makes the boundary between the two integration techniques uncertain. In particular, the concept of indirect discrimination, and the attention it pays to the effects deriving from a rule or from a general conduct, often means that the distinction between non discrimination and substantial hindrance to market access principles is very subtle.43 See G. De Burca, The Role of Equality in European Community Law, in The Principle of Equal Treatment in EC Law, cit., p. 25; F. Ghera, cit., p. 89.

19

principle of the Community order”, which “requires that similar situations shall not be treated differently, unless differentiation is objectively justified”44 .

The ECJ was thus able to introduce more easily into the Community order a scrutiny of political decisions that was substantially similar to that carried out by the national constitutional courts, that is to say a scrutiny in which the application of the principle of equality amounted to a review of the legitimacy of all differential treatments made by policy makers, regardless of whether these treatments fell within the field of competences formally conferred on the Community 45. The necessary condition was that the violation of the equality principle would prevent the pursuit of the goals of the Community order. And since the scrutiny of equality understood as a scrutiny of rationality and reasonableness is crucially influenced by the values, principles and fundamental purposes of the order within which it takes place (which establish the tests used by judges to verify decisions and rules), equality ended up primarily serving the function of promoting economic integration and access to the Community market, rather than its other typical functions i.e. the commutative and participative functions, and, even less so, the distributive function (although such examples do exist e.g. in the case-law on the subject of freedom of movement for workers 46).

There is no doubt that, as Federico Sorrentino has observed, this limited role played by the principle of equality in European integration was initially due to the sectoral nature of the Community, in contrast with the general character of the nation state as a political body, such that “while the principle of equality interests the totality of the legal experience in the national legal orders, in the

44 Joined cases 117/76 and 16/77, Ruckdeschel; Joined cases 124/76 and 20/77, Moulins Pont-à-Mousson, both on the issue of the prohibition of discrimination in the agricultural market. The Court also made a pronouncement with reference to the prohibition of discrimination on the basis of nationality in Case 1/72, Frilli, and with reference to sex discrimination in Case 149/77, Defrenne II. 45 For a similar position see S. Manolkidis, The Principle of Equality from a Comparative Constitutional Perspective: Lessons from EU, in , in A. Dashwood, S. O’Leary (eds.), The Principle of Equal Treatment in EC Law, cit., p. 101; G. Tesauro, Eguaglianza e legalità nel diritto comunitario, in “Diritto dell’Unione Europea”, 1999, p. 1 et seq.. F. Sorrentino, L’eguaglianza nella giurisprudenza della Corte Costituzionale e della Corte di Giustizia delle comunità europee, in “Politica del diritto”, 2001, p. 185, on the other hand, considers it only “comparable” the role played by the principle and makes a detailed analysis of the differences in the rulings of the two courts. 46 See S. O’Leary, The Principle of Equal Treatment on Grounds of Nationality in Article 6 EC. A lucrative source of rights for Member State Nationals?, in A. Dashwood, S. O’Leary (eds.), The Principle of Equal Treatment in EC Law, cit., p. 105 et seq..

20

Community order it influences and depends on the sectors falling within its competence” 47.

And yet the general scope that the principle of equality has taken on in the Community order, in spite of the circumscribed character of its specific manifestations, along with the conception of the prohibition of discrimination as an objective norm, despite the fact that discriminaction affects individuals – circumstances that may appear entirely normal to constitutional scholars, who are accustomed to consider equality and how it affects public authorities in these terms 48 – can only seem quite extraordinary in the European context. It also indicates how equality has been one of the main routes through which the Community order has developed into a general legal order, which has its own legitimation, and a legitimation of which the principle of equality is at the time same a constituent element and a guarantee.

However, this process led to the overdevelopment of equality and non discrimination as objective principles rather than as subjective rights, at the expense of the autonomous nature of the specific prohibitions of discrimination. This contrasts with the historical genesis of such prohibitions, since their special character – i.e. their being an expression of a command of equality having particular force – became recognized in the post-war international system of anti-discrimination protection through their inclusion among the norms that establish fundamental individual rights regarding the protection of the human being 49.

The result of this process has been poor theoretical analysis of the prohibitions of discrimination as commands endowed with a specific content in relation to the principle of equality. It may seem surprising that result emerges form a legal order that only comprises specific prohibitions of discrimination. In reality the opposite would perhaps have been strange. The attitude of the Luxembourg Court is not based solely on the functionalist genesis of prohibitions of discrimination, but is rooted in a legal culture and in a historical experience common to all European constitutional courts and, for a long time,

47 F. Sorrentino, cit., pp. 180 e 185. 48 See for references M. Barbera, Discriminazioni ed eguagliaglianza nel rapporto di lavoro, Milano, Giuffè, 1991, p. 11.49 See M. Barbera, cit., p. 93 seq..

21

even to the European Court of Human Rights 50. Both culture and experience were insensitive to the specific character of discrimination as a social fact and to the capacity of the antidiscrimination principle to diagnose social inequalities. Moreover, as has already been noted, the language of fundamental rights has long remained marginal in legal discourse.

So when the Court began to speak the language of fundamental rights also in the field of equality and non-discrimination, and thereby, to extend the powers formally conferred on the Community institutions, it became easy for legal commentators to recall once more the premises underpinning the decisions in which the ECJ acted as a guardian of fundamental rights, in other words its already mentioned intention to face the claims of constitutional judges to scrutinise Community institutions’ acts suspected of violating fundamental rights, thereby guaranteeing that the yardstick of scrutiny of Community laws remained within its legal order51. And the result was that discriminatory conduct that implied an infringement of fundamental rights was punished solely in cases in which such an infringement amounted to an obstacle to the pursuit of the economic goals of European integration52. The very granting to migrant workers of social rights which were more distant from the commutative logic of the employment relationship and further from the competences conferred on the Community (reduction passes for railway tickets, loans for birth of children, scholarships to study abroad, reimbursement of expenses for funerals, or even the possibility to cohabit with a partner)53 , achieved following a broader interpretation both of the notion of worker under art. 3954, and the notion of social benefit under art. 7.2 of Regulation 1612/68, has been interpreted as serving market needs. In the Court’s approach – it is argued – social rights are designed to give effectiveness to the economic freedom of movement, and it is as market citizens, that is in relation to the economic contribution that they are able to make, that workers are introduced 50 Cf. E. W. Vierdag, The Concept of Discrimination in International Law, The Hague, 1973. Starting from the mid-Eighties, the Strasbourg Court began to develop a theory of anti-discrimination protection which focused on its typical characteristics and to use a strict test of scrutiny (see cases such as Abdulaziz, Cabales and Balkandali). 51 See supra footnote 7 for references.52 See M .Benedetelli, cit., p. 176.53 See Case 32/75 Cristini; Case 65/81 Reina; Case 308/89 Carmine Di Leo; Case 237/94 O’Flynn; Case 9/85 Reed. For an interesting analysis of this line of decisions see S. Giubboni, G. Orlandini, La libera circolazione dei lavoratori nell’Unione Europea, il Mulino, Bologna, p. 2007.54 See Case 53/81 Levin; Case 139/85 Kempf; Case 292/89 Antonissen.

22

into the “host community” whose rights and duties they would otherwise not share55.

However, there is no escaping from the fact that norms conceived as instruments of economic integration have also ended up acting as vehicles of social integration56. And even more complex and nuanced are the circumstances related to the principle of gender equality, as even the most sceptical scholars had to admit in their analyses of the normative turn on European integration that ECJ case-law on fundamental rights produced57. The Court’s tendency to go beyond the boundaries of art. 119 in this field has also been supported by the Community legislature, as demonstrated, in the Seventies, by the use of the clause of implicit powers to issue the directives on equal treatment between women and men in relation to working conditions and social security. The legal discussion on the meaning of the equality principle soon took on a marked prescriptive connotation. While we are unable to discuss here the reasons for this peculiarity, it need only be observed that, at no time in the history of Community integration can the equality principle be interpreted solely in functionalist terms.

In truth, the case in which the Court began to extend the scope of the equality principle to national norms apparently not regulated by Community law contained in nuce a different perspective. The Cowan case 58, regarding discrimination based on nationality prohibited by art. 7 of the Treaty, once more concerns economic freedom. Mr. Cowan – a British tourist who had been assaulted in France – was protected as a recipient of services. But when the Court held that he had the right to receive compensation as provided for under the French criminal procedure code in such a case, it did so by making two assertions. National norms “may not discriminate against persons to whom Community law gives the right to equal treatment” or “restrict the fundamental freedoms guaranteed by Community law”. As a result both the principle of equality and fundamental rights themselves define which situations are

55 See S. Giubboni, G. Orlandini, cit., p.223-224.56 See S. Giubboni, G. Orlandini, cit.; P. Craig, G. De Burca, EU Law : Text, Cases and Materials, OUP, Oxford 2003, p. 736.57 B. Hepple, The Principle of Equal Treatment in Article 119 EC and the Possibilities of Reform, in A. Dashwood, S. O’Leary (eds.), The Principle of Equal Treatment in EC Law, cit., p. 137 et seq..58 Case 186/8, Cowan .

23

“situations regulated by Community law.” While the second hypothesis (restriction of one of the fundamental economic freedoms guaranteed by the Treaty) corresponds to one of the cases in which, according to the theory of incorporation, the Court has long considered itself able to scrutinise national laws which fall ouside the scope of Community law in the light of the fundamental rights “the observance of which the Court ensures”59, the first hypothesis(infringement of the right to equal treatment) emphasises a different way of understanding equality: it is no longer an objective rule but a subjective right through which the Court is potentially able to expand its scrutiny to any area of national legal orders, such as the area of criminal procedure law in Cowan.

The case where the right not to be discriminated against became itself, in the formulation of the Court, a fundamental individual right is the P case 60. When deciding whether the dismissal of a person on the ground that he or she intends to undergo, or has undergone, gender reassignment was to be considered as discrimination based on the sex of the person concerned, the Court held that:

“To tolerate such discrimination would be tantamount, as regards such a person, to a failure to respect the dignity and freedom to which he or she is entitled, and which the Court has a duty to safeguard”.

In the reasoning behind the ECJ’s conclusion, a case which was initially construed as one of suspected sex discrimination ended up being a case that “cries justice” per se, so that anti-discrimination technique and absolute rights’ technique overlap.

Anti-discrimination protection is a conditioned protection because it always requires a term of comparison. But when the language of fundamental rights is spoken – in this case the right to give full expression to the self – it becomes difficult to subordinate the protection of the law to this condition. If the prohibitions of discrimination are unable to be ancillary to the fundamental 59 Case C 260/1989, ERT. On the theory of incorporation see Weiler, The European Court at a Crossroads: Community hyman rights and member states action, in F. Capotorti (ed.), Du droit international au droit de l’integration. Liber amicorum Pierre Pescatore, Baden-Baden, Nomos, 1987, p. 821 ss.60 Case C -13/94, P.

24

rights established to safeguard human dignity, which they have traditionally been in the system of protection of human rights (as codified in exemplary fashion in art. 14 of the European Convention of Human Rights), then the judges may choose to protect the right not to be discriminated against in itself.

However, it became evident, at a certain point, that this judge-made construction of the meaning of the prohibitions of discrimination could operate more in terms of deepening the protection, rather than extending it.

In Grant61 the division of competences between Community and Member States and between judicial power and political power once more became insurmountable: one could almost describe the case as discrimination for lack of jurisdiction perpetrated by the Community against homosexuals62 .

“Although respect for fundamental rights which form an integral part of the general principles of Community law is a condition of the legality of Community acts, those rights cannot in themselves have the effect of extending the scope of the Treaty provisions beyond the competences of the Community.

That being so, the scope of that article, as of any provision of Community law, is to be determined only by having regard to its wording and purpose, its place in the scheme of the Treaty and its legal context. It follows from the considerations set out above that Community law as it stands at present does not cover discrimination based on sexual orientation, such as that in issue in the main proceedings”.

The Court concludes saying that the decision if and when “to take appropriate action to eliminate various forms of discrimination, including discrimination based on sexual orientation” must be left to the legislature (making use of the new powers attributed by art. 13 of the Treaty).

On this occasion the Court took a static view of the Community legal order, being both aware of the limits of its role as a jurisdictional organ and of the Community legal system as a functional legal order. In such an order also the widely formulated ultimate goals of integration (the improvement of 61 Case C 249/96, Grant.62 See, in another context, the definition proposed by Benedettelli,cit., p.185.

25

European citizens’ living and working conditions, the combating of discrimination) are to be traced back to the systematics of the Treaty, i.e. the concrete specifications of these goals.

The tendency of the Court to expand the scope of Community law has been curtailed also in cases of discrimination on grounds of nationality, so much so that the fundamental freedom of movement for workers has been described as a “fluid” freedom, modulating a protection of the migrants which ranges from a maximum (employed migrants) to a minimum (unemployed and economically dependent migrants), and to zero (third country nationals migrants) 63

No extension of Community competences, however useful to the process of integration and therefore permissible in the light of a purely functionalist interpretation, can be achieved without proceeding with the consensus and legitimation necessary to preserve the authority of the Court. The enactment of a new generation of directives based on article 13 of the Amsterdam Treaty and of the Charter of Fundamental Rights offers this legitimation.

6. The first effects of the Charter.

The Charter’s effects began to be felt even before it has acquired binding legal value. This happened in a much debated case, the Mangold case64, despite the fact that the ruling made no explicit reference to it.

The decision enabled the ECJ to re-affirm that the specific prohibitions of discrimination enshrined in the new anti-discrimination law are an expression of a general equality principle which is to be considered a general principle of Community law. The source of this principle is to be found in various international instruments and in the constitutional traditions common to Member States. These affirmations are not new65; what is new, however, is the consequence drawn by the Court, namely that

63 See S. Giubboni, G. Orlandini, cit., p. 34.64 Case C-144/04, Mangold.65 See decisions cit. supra footnote 44.

26

“Observance of the general principle of equal treatment, in particular in respect of age, cannot as such be conditional upon the expiry of the period allowed the Member States for the transposition of a directive intended to lay down a general framework for combating discrimination... In those circumstances it is the responsibility of the national court, hearing a dispute involving the principle of non-discrimination in respect of age, to provide, in a case within its jurisdiction, the legal protection which individuals derive from the rules of Community law and to ensure that those rules are fully effective, setting aside any provision of national law which may conflict with that law...even where the period prescribed for transposition of that directive has not yet expired”.

Thus the Court appears to assert that, inasmuch as they are a specification of an equality principle which exists independently of the directives, the prohibitions of discrimination have a life of their own, regardless of whether Member States do or do not implement them, and regardless also of the present or future balance of competences. The consequence of the precise and overriding nature of the equality principle is that even specifications of the principle itself may produce effects for all involved and therefore be invoked by private parties against the State and by private parties against other private parties. The upshot of this is to attribute to a directive that has not yet been transposed an effect which is similar to the horizontal direct effect of transposed directives in a judgment involving two private parties. The fact that it is in the end the prohibition of discrimination established by the Framework Directive 2000/78/EC, and not (just) the general equality principle, that provides interpretative guidance for the national courts can be seen in the specific reference that the ECJ makes to the provisions of the Directive itself, and in particular to those of art. 6, which identify cases of legitimate justification for differences of treatment on grounds of age.

The consequence of this approach is that a Member State’s employment policy choice which the Court had held not to be subject to judicial scrutiny in respect of Directive 99/70/EC on fixed-term work in the first part of the decision, and in particular in respect of the non-regression clause contained in

27

it66, becomes so, however, in the second part of the same decision, in relation to one expression of the equality principle, namely the prohibition of discrimination on the grounds of age and the related proportionality test.

In the learned opinion of Advocate General Geelhoed in the Chacòn Navas case 67 on the subject of discrimination based on disability, the danger of such an extensive interpretation of the principle of non discrimination is that of exceeding the limits established by art. 13 of the EC Treaty on the applicability of the principle itself. These limits regard both the subsidiary character of the non discrimination clause, and the observance of the respective competences of the Community and of the Member States. The consequence is:

“the creation of an Archimedean position, from which the prohibitions of discrimination defined in Article 13 EC can be used as a lever to correct, without the intervention of the authors of the Treaty or the Community legislature, the decisions made by the Member States in the exercise of the powers which they – still – retain”.

Hence, the broad discretion which States enjoy in choosing the measures capable of attaining their objectives, such as employment policy matters, on which the Community “has at most partial powers, but more often complementary powers”, would be reduced beyond what is allowed by the current separation of powers.

In a comment on the decision it has been noted that the impossibility of overcoming the theory of vertical direct effect of directives can be traced back to the different nature of the powers conferred on the Community by acts such as regulations and directives 68. What has not been noted is that the horizontal effects of Community law in Mangold are not the result of the directive per se, but of the equality and non-discrimination principles.

However, Advocate General Gellhoed’s almost plaintive cry did not go unheard. As in many cases, the arguments of the Court are much more concise than those of the Advocate General. But the Court did not fail to respond to his 66 The ECJ stated “Member States unarguably enjoy broad discretion in their choice of the measures capable of attaining their objectives in the field of social and employment policy”.67 Case C 13/05, Chacòn Navas.68 EDITORIAL COMMENTS, Horizontal direct effect - A law of diminishing coherence?, in “Common Maret Law Review”, 2006, p. 4.

28

call for caution before the decision was taken. In a concise but significant passage, the Court points out that:

“It is true that fundamental rights which form an integral part of the general principles of Community law include the general principle of non-discrimination. .... However, it does not follow from this that the scope of Directive 2000/78/EC should be extended by analogy beyond the discrimination based on the grounds listed exhaustively in Article 1 thereof”.

The Court may have just wished to point out the difference between the general principle of equality (of which the general prohibition of discrimination is the negative expression, the other side of the coin) and the specific prohibitions of discrimination, in terms of strictness of scrutiny and of admissibility of derogations and justifications, and that therefore, as it had already done in Grant, it did not want to take the place of the Community legislature in holding unlawful a further ground of discrimination. But it may have also wished to take a step back from Mangold, being aware of the fact that one of the greater implications of this decision is that it introduces a widespread judicial scrutiny, similar to the one exercised by national constitutional courts, and this well before the Charter of Fundamental Rights comes into force. According to this test of scrutiny, the different treatment of two situations which could be considered similar, such as sickness and disability, might, insofar as they are unreasonable, be considered unlawful, regardless of one or the other being excluded from, or included in the list of expressed prohibitions of discrimination and regardless of the source of the act or of the nature of the competences.

That the Court is uneasy about going down this road is understandable, but the result is a wavering, uncertain line of decisions not only with respect to the key principles, but also as regards the specific questions posed by the new anti-discrimination law.

In subsequent decisions the attitude changes once again, and the Court takes two further steps down this uncertain road, this time in widening the

29

scope of Community law and its own role. The first is the Cordero Alonso case 69. In it the Court, which was required to rule on the conformity of Spanish legislation with Community law on the protection of an employee in the event of an employer’s insolvency (Directive 80/87/EEC, as amended by Directive 2002/74/EC) first had to answer the preliminary questions posed by the national court, namely: a) whether “the obligation imposed on the Members States to ensure fulfilment of the obligations arising out of the Treaty...and the principle of the primacy of Community law over national law imply, of themselves and without the need for specific provisions of national law, that the national courts have the power to disapply all provisions of national law which are contrary to Community law, irrespective of the status of such provisions in the hierarchy of norms”, i.e. including a constitutional norm; b) whether “when applying Directive 80/87 and the provisions of national law transposing the content thereof, they are bound by the principle of equality before the law and the prohibition of discrimination deriving from Community law, as defined by the interpretation thereof given by the Court”; c) and this “notwithstanding such interpretation does not coincide with the interpretation in the case-law of the Spanish Constitutional Court of the equivalent fundamental right which is enshrined in the Spanish Constitution”?

Well, the Court answered in the affirmative to all three questions, and also ruled that there had been a violation of the principle of equality. This has conjured up a ghost which has been evoked on several occasions, namely the possible conflict between the national and the Community high courts, given that, with regard to the issue in question, the Spanish Constitutional Court had ruled that the disputed provision was in conformity with the principle of equality enshrined in art. 14 of the Spanish Constitution. In reality the conflict had already been “set off” in the Kreil case 70 on the prohibition for women of any military job involving the use of firearms but also in the less well-known case of Commission v. Italy71, on the prohibition of night work for women. In 69Case C-81/05, Cordero Alonso.70 Case C- 207/96, Kreil, commented by M. Cartabia in, L’ora dei diritti fondamentali nell’Unione Europea, in M. Cartabia (ed.), I diritti in azione. Universalità e pluralismo dei diritti fondamentali nelle Corti europee, Il Mulino, Bologna, 2007, p. 38 ss. The author points out that following the ECJ’s decision Germany amended art. 12 of its constitution.71 Case C- 285/1998, Commission v. Italy. On the decision and on the former Stockel case, as well as on the abrogation of the prohibition, which was previously held by the Italian Constitutional Court to comply with the principle of equality, see D. Izzi, Eguaglianza e differenxze nei rapporti di lavoro, Napoli, Jovene, 2005, p. 107 seq.

30

these two circumstances, too, the ECJ made a pronouncement that ran counter to what had been held by a consolidated interpretation of a constitutional norm, and even to what was expressly asserted by a national constitutional court. But the fact that this happened without the analysis of the Community judges being directly focused on constitutional norms, and in fields in which differences of opinion concerning values are not particularly acute, probably led to the considerable general implications of the two cases going relatively unnoticed 72.

In Cordero Alonso the national judge becomes the direct interlocutor of the Community judges. The traditional principle of primacy, whereby national law cedes to Community law, becomes a “principle of hermeneutic primacy” of the Community court over national constitutional courts73.

As has been observed, the tensions provoked by this interpretation of the principle of primacy in the Cordero Alonso case have not yet been pushed to their limits. The Court’s interpretation of the general principles prevails over that provided by national constitutional courts only in the event that the national provisions to be scrutinised come under the field of application of Community law 74.

But even this last barrier seems to have given way in the next two decisions that we will examine: the decision handed down in the Del Cerro Alonso case and the ones delivered in the K.B. and Richards cases.

In the Del Cerro Alonso75 ruling, the Court, going against the opinion of Advocate General Poiares Maduro, held that the prohibition of discrimination between fixed-term and permanent employees enshrined in Directive 1999/70/EC can be applied to all employment conditions, including pay, despite the fact that this matter is specifically excluded by art. 135.5 of the Treaty from Community competences. Here the Court makes a subtle distinction based on a teleological argument: the exclusion of pay from the fields in which the Community is competent to issue minimum requirements designed to improve

72 But see Cartabia on the Kreil case, and M.V. Ballestrero et al. quoted in D. Izzi, cit. 73 A. Lazari, Aplicacion Judidicial del derecho comunitario en Espugna y en otros paises de la UE, in “Revista electronica de estudios internacionales”, 2007.74 See G.Bronzini, V.Piccone, La giurisprudenza in “movimento”: luci ed ombre nel porcesso di costruzione di uno ius commune, in G. Bronzini, V. Piccone (ed.), La Carta e le Corti, Taranto,Chimienti, 2007, p. 288.75 Case C- 307/07 Del Cerro Alonso.

31

the living and working conditions of workers is explained by the contractual freedom of the social partners in fixing the level of wages. But this rationale cannot, however, be extended to any question involving pay, and more particularly to any question connected to the prohibition of discrimination.

“The establishment of the level of the various constituent parts of the pay of a worker such as the applicant in the main proceedings is still unquestionably a matter for the competent bodies in the various Member States. In contrast…the question whether in applying the principle of non-discrimination laid down in clause 4(1) of the Framework agreement, one of the constituent parts of the pay should, as an employment condition, be granted to fixed-term workers in the same way as it is to permanent workers does come within the scope of Article 137(1)(b) EC and therefore of Directive 1999/70”.

Therefore it is the principle of non discrimination which brings into the field of Community competences a matter that is apparently excluded; and this because the principle of non discrimination cuts across the fields of competence since it is a “non-competence”. The competence rule, in short, gives way to the equality rule, because that rule concerns not whether, but how the obligations and rights of the parties to the employment relationship are distributed.

In K.B. 76and Richards77 the discrimination complained of by the plaintiffs did not directly concern the entitlement of a right protected by the Treaty, but one of its preconditions78. The unequal treatment did not refer in fact directly to the award of a survivor's pension or a pension of old age to transsexuals, but to a necessary precondition for the granting of such benefits: namely, the capacity to marry.

Asked to rule on whether there had been a violation of the principle of non discrimination on the grounds of sex by the UK legislature due to the fact that the latter did not allow the applicant, following surgical gender reassignment, to amend his birth certificate, thereby preventing a transsexual 76 Case C-117/01, K.B.77 Case C-423/04, Richards78 See the conclusions submitted by Advocate General Colomer in K.B.

32

from marrying and enjoying all the related benefits, the ECJ once again answered yes. And this, despite the fact that the principle of equality would thereby end up affecting the UK Births and Deaths Registration Act, a subject which falls outside the field of the Community’s competence. The United Kingdom was obliged to amend its national law in conformity with the Court’s decision (as well as previous decisions by the ECHR).

Marta Cartabia, commenting the judgments, has asked: does this not lead to a disputable “invasion of Community protection of rights in spheres belonging to national constitutions?” After all, “why should the European Court of Justice in Luxembourg compel the UK legal system to recognise the rights of transsexuals? Is it not enough that the UK Courts and the European Court of Human Rights in Strasbourg deal with it?”79

The answer may well be all too simple: it is not enough because the ECJ’s jurisdiction over rights is, in essence, not much different from that of the other European high court and of the national constitutional courts. The Court has started to act as a constitutional judge in balancing fundamental rights, sometimes bringing to light a category of “absolute” fundamental rights 80

which do not tolerate any restriction. But this would not be enough to explain whay the equality principle, and

in general all fundamental rights and principles, although conceived and implemented in the most unforeseeable, varied and controversial ways by the various jurisdictions, appear in some way to “perforate” across sovereignties in integration, or sovereignties in conflict, transforming their powers.

Above all this would not be enough to answer the real question asked by Cartabia, i.e. whether all this is legitimate.

Federal government is the classical example of a multilevel political institution in which the constitutional and institutional power, whatever the original intentions, often ends up being concentrated at the central level 81. Despite similarities, European integration has so far produced a process where the questions of whether the integration of different legal orders gives rise to a dualist or monist system of exercise of legitimate powers and sovereignty, and

79 Cf. M. Cartabia L’ora dei diritti fondamentali nell’Unione Europea, cit., p. 59.80 See TANCREDI, L’emersione di diritti fondamentali «assoluti» nella giurisprudenza comunitaria, p. 644 ss..81 See J.H.H. Weiler, Federalism and Constitutionalism,cit.

33

who should have the final say in the case of conflicting norms and competences, is still a subject of a dispute that continues to rumble within constitutional and Community legal theory.

There are those who claim that the game has already been won at the central level. According to Sorrentino, the capacity of the Community order to expand its jurisdiction, testified by the new Treaties and by the adoption of the Charter of Fundamental Rights, shows its progressive assimilation towards a federal system in which, as historical experience testifies, the competence of competences ends up being located in the centre 82. Marta Cartabia herself seems to note in recent Community case-law a sort of assertion by stealth of the doctrine of incorporation, without the limits identified in the past by the ECJ itself 83.

In fact, on re-reading the words written more than twenty years ago by Joseph Weiler about the conditions which led to the establishment of this doctrine in the United States beginning in the 1920s, it can be remembered that they implied two “anchors”: “one to define and elaborate the law of human rights at the central level; the second to project that law into state jurisdiction” 84. In the American experience these anchors were the Bill of Rights and the Fourteenth Amendment of the US Constitution containing the Privileges and Immunities Clause and the Due Process Clause. Following the adoption of the Charter and the presence of a general equality principle intended to legitimise the protection of fundamental rights at the central level, it may be felt that these conditions are about to be realised or that, in any case, the ECJ may consider itself authorised to act as if they had been realised.

We, however, believe that the decisions analysed suggest another, much more fluid situation. Competence is the capacity to apply a fundamental right or a fundamental principle such as the equality principle. Before arriving at our final conclusions let us briefly consider the risks of “judicial colonialism” evoked in the already mentioned article by Marta Cartabia; i.e. the possibility that the judiciary ends up taking up the tasks conferred on political authorities 85.

82 F. Sorrentino, op. cit., p. 189.83 M. Cartabia, op. cit. , p. 57.84 See Eurocracy and Distrust, cit.85 Op. ult. cit. p. 57.

34

If referred to the judicial enforcement of the anti-discrimination law it must be said that this perspective would reflect the typical counter-majoritarian role played by the Courts in this field.

Despite the variegated genesis of anti-discrimination protections, starting from the famous footnote four of the decision of the U.S. Supreme Court in the 1938 Carolene Products case, the principle of non discrimination has been employed for the purpose of resolving one of the structural problems of democratic societies, that is the exclusion from the community and from the political process, or from the outcomes of that process, of groups marked by difference: difference from the racial or ethnic or religious or linguistic majority or difference from the dominant gender or sexual orientation.

The Community legal order, which has long been silent on this question, now contains a large number of anti-discrimination provisions. Some of the basic categories that have allowed the principle of non discrimination to grant excluded groups access to the political process, and in particular the categories of majority and minority, do not sit well with a supranational polity that has not yet defined the limits within which a minority is subject to the will of the majority. But the principle of non discrimination remains one of the instruments that powerfully forges the very idea of community and defines its boundaries. Not only a community of individuals, but also a community of States 86. Cases such as P., Kreil and K.B., tell legislatures and the citizens of Member States of the European Union who is to be treated as an effective member of the community.

7. Conclusions. Competences, sovereignty and limits in European integration

In our comment on the Federfarma decision, we have seen how, when the Council of State speaks of the protection of fundamental rights as a competence of the State, as a “freedom of the State”, the concept and practice of fundamental rights as well as the concept of competence and matter change significantly. Likewise, the decisions of the ECJ in the “matter” of equality and non-discrimination have undergone a similar transformation. Closer analysis, 86 Our thanks to Paul Kahn for this remark.

35

we have argued, shows that the enforcement of the principle of equality, and the protection of fundamental rights, are not at all a matter, they are a “non-matter”. The competence to decide on the violation of the prohibitions of discrimination and on fundamental rights cuts across the sphere of competences of the European Union and of its Member States and can therefore act as a “picklock” that could unpick the system of competences conferred on the European Union or still belonging to Member States. It is now time, by way of a conclusion, to focus on this aspect and to draw all the resulting theoretical consequences as to the concepts of competence, sovereignty and limits as well as issues related to the deficit of legality and the management of legal pluralism described in the Introduction.

In legal discourse the term “competence” is used essentially to mean two things: that a certain institution is “competent” because it has authority over a certain set of circumstances and legal matters (competence-authority), or that a certain set of circumstances and legal matters falls or does not fall under the competence of a certain institution (competence-matter). Competence is authority in a given matter; and it is an authority which is conferred and limited by a legal norm (norm of competence).

Now, in the counter-limits doctrine and in the case-law on the principle of equality, the matter is not a generic set of circumstances subject to legal rules and reserved to the competence of a given authority, e.g. construction and urban planning (fiscal, electoral, administrative, constitutional matters) reserved to the competence (jurisdiction, cognisance, authority, etc.) of a given institution. The “matter” is now identified directly with the substantive norms – fundamental rights, the principle of equality – which tend to regulate all situations both in the field of Community law and national law. The “matter” is no longer a set of facts that must be regulated by the competent authority, but coincides directly with the reasons that must be applied to an unforeseeable and undefined set of circumstances, whoever the competent authority is. The matter, so to speak, “dematerialised”87: it is no longer a predefined field of legal relations to be regulated, but the very norm, the fundamental principles, that must be valid for an undefined field of relations. 87 F. Benelli reaches the same conclusions as regards the relationships between the regions and the State in Italy in La “smaterializzazione" delle materie. Problemi teorici e applicativi del nuovo Titolo V della Costituzione, Milano, Giuffrè, 2006, pp. 27, 81, 97 e passim.

36

It seems that this transformation is a consequence of the process of integration among legal orders and of the related process of the legal “dis-ordering” taking place among the authorities undergoing integration. Integration among legal orders is, in fact, a continual shifting and redefining of the boundaries between the legal orders undergoing integration, and their reciprocal competences. This process involves two tendencies – the communitarisation of national constitutional law and the constitutionalisation of Community law – towards the “limit” of the enforcement of fundamental principles. The enforcement of fundamental principles thus becomes a “competence of competences” and, therefore, a new form of sovereignty 88.

It must also be stressed that the provisions on Community competences are often formulated in a teleological manner, on the basis of the objectives of Community action, rather than on the basis of the means to achieve them. Despite the fact that a considerable amount of political negotiation among Member State governments deals not only with the content of Community policy, but also with a detailed definition of the competences of the European Union, and despite the subsequent efforts on the part of the framers of the Community Treaties to specify them, such efforts have met with insurmountable limits and the competences are often vaguely defined and always disputable. In this situation, it has been said that the “field” conferred to the competence of the European institutions is essentially “determined and circumscribed by positive, actual Community action”89 – i.e. it is not pre-determined, but determined a posteriori, and therefore remains undefined, “open-ended”.

The transformation of the concept of competence is also reflected in the notion of sovereignty, if it is understood as “competence of competences”. Sovereignty, as the competence of competences, is a competence for no

88 On the topic “sovereignty of values” (or sovereignty of fundamental rights) in relation to the crisis of State’s sovereignty, see G. Silvestri, La parabola della sovranità. Ascesa, declino e trasfigurazione di un concetto, in “Rivista di diritto costituzionale”, 1/1996, pp. 3-74, pp. 55 ss.; G. Zagrebelsky, Il diritto mite. Legge, diritti, giustizia, Torino, Einaudi, 1992; A. Baldassarre, Costituzione e teoria dei valori, in “Politica del diritto”, XXII/4, 1991, pp. 639-658; A. Ruggeri, Sovranità dello Stato e sovranità sovranazionale, attraverso i diritti umani, e prospettive di un diritto europeo “intercostituzionale”, in “Rivista di diritto pubblico comparato europeo”, 2001, p. 546.89 F. Modugno, È illegittimo l’art. 189 del Trattato di Roma nella interpretazione della Corte di giustizia delle Comunità europee?, in “Giurisprudenza costituzionale”, 1979, I, pp. 916-938, p. 929.

37

predefined matter: it is a competence-authority which determines the final scope of its matter 90. The Council of State claims that the protection of fundamental rights is “a space”, a matter that is dematerialised or enhanced in the manner that we have described above “in which the State retains full sovereignty”. For its part, the ECJ extends the reach of “Community sovereignty” through the protection of fundamental rights and the enforcement of the principle of equality. This means that the constitutional State and the European Union have “full sovereignty” only when they enforce what was previously supposed to be the insurmountable limit to sovereignty : fundamental rights. Sovereignty is formally full only when its content is empty, as the sovereign power is obliged to enforce principles which are binding because of their content, and not because of their formal source of validity.

But then the holder of such sovereignty cannot be the State, or the European Union, which are obliged to apply rights and fundamental principles, but fundamental principles themselves. It is no coincidence that “sovereignty of rights” and “sovereignty of values” have become recurrent watchwords in neo-constitutionalist legal literature. The protection of fundamental rights is a competence without a field, the competence of competences that determines the scope of its own competence and cuts across all legal matters. Sovereignty is now the capacity to decide to apply a fundamental principle, while disapplying or suspending another fundamental principle that clashes with it; sovereignty is the capacity to make an exception to the usual division of competences between national law and Community law, to enforce a right that does not tolerate any violations by any authority: a right on which, therefore, no authority has jurisdiction save the one which enforces it.

Finally, this situation is reflected in a transformation of the very concept of “limit.” In the relationship between national law and European law, fundamental rights are no longer a heteronymous limit which grounds and binds the legitimate authority; they are no longer a barrier, a “border”, a line that cannot be crossed. In their traditional form, as we have seen, fundamental rights are an external limit, because they are imposed on the State by the 90 The concept of Komeptenz-Kompetenz is familiar to late XIX century German Staatslehre: A. Haenel, Studien zum Deutschen Staatsrechte, Vol. I, Leipzig, Haessel, 1873, p. 149; Id., Deutsches Staatsrecht, Vol. I, Leipzig, Duncker & Humblot, 1892; P. Laband, Das Staatsrecht des Deutschen Reiches, V ed., Vol. 1, Tübingen, Mohr, 1911, pp. 57 ss., pp. 73 ss.; G. Jellinek, Die Lehre von den Staatenverbindungen, Wien, Hölder, 1882, p. 34.

38

unchallengeable autonomy of civil society, or because they are theorized and constructed by political and moral philosophy rather than by legal science. Now, in contrast, fundamental rights are built entirely as an internal concept, they therefore appear to be a “frontier” towards which to move: a limit that depends on a continuously expanding constellation of relationships and internal strengths. Fundamental rights do not demarcate, from the outside, a space within which the exercise of power is legitimate, but rather they mark a horizon towards which every authority, national or Community, must tend in search of legitimation91.

We can therefore conclude that fundamental rights do not identify, as Ferrajoli claims 92, the “sphere of the undecidable” in the European multilevel legal space. This expression is better suited to the traditional conception of fundamental rights: fundamental rights as boundary which, from the outside, delineates the space of the “decidable”, i.e. of legitimate authority. On the contrary, the protection of fundamental rights as a “freedom of the State” and “freedom of the European Union”, “competence of competences”, the last stronghold of sovereignty, designates what is most decidable, and decisive, in constitutional justice and European Union justice.

The protection of fundamental rights and equality identify the limit towards which a decision in search of legitimation should move in so far as it affects the relationships between legal orders in integration. The content of the decisions may coincide or differ “from time to time and from legal order to legal order”. However, for them to continue to be conceived as episodes in a dialogue among judges – a dialogue which is at times one of cooperation, and at times one of conflict –, they must adopt a common language, common terms of reference in the protection of rights and in the enforcement of the principles of a common legal culture.

This may possibly explain or at least partially help to explain the success of the language of rights in contemporary European legal culture. However, we should also consider the risks that such a situation of “legal dis-ordering” entails for legal pluralism and its management through dialogue. Our analysis

91 For a similar distinction between two concepts of limit see G. Deleuze, Cosa può un corpo? Lezioni su Spinoza, Verona, ombre corte, 2007, pp. 129 ss.92 L. Ferrajoli, Principia iuris. Teoria del diritto e della democrazia, Vol. I, Roma-Bari, Laterza, 2007, pp. 819 ss.

39

of the Federfarma case and recent Community case-law on equality has shown some of these risks. The first and foremost of these is the risk of the language of rights and principles becoming obsolescent; a risk that is intrinsic to this discourse, and which emerges when rights become overvalued trumps in the dialogue between the Courts. The Federfarma case is, in this respect, emblematic. But there is also the risk of political overexposure of judicial power: the language of rights not only blurs the division of competences between the European Union and Member States, but seemingly also the distinction between the political and legal spheres.

At times, as in the Federfarma case, the weight of this responsibility can be almost unbearable – i.e. hard to justify. At other times, as in the case of the application of the specific prohibitions of discrimination, the problems of legitimation are less noticeable due to the counter-majoritarian role played by the Courts. But we have seen a problem of legitimation emerging also in the decisions of the ECJ on the principle of equality, compounded by the difficulty of consolidating a line of decisions that is consistent.

If the authority of self-grounded legal orders and formally valid norms no longer exists, the only source of legitimation remains consensus, and as consensus seems highly unlikely, it can only be built through dialogue. The search for shared solutions runs counter to the unilateral application of fundamental principles. This unilateral application runs the risk of producing an equally “fundamental” dissent on the principles at issue, precisely because they concern how the objectives of Community policy and the ultimate goals of social cooperation are understood. On the other hand, the search for shared solutions requires an attitude of modesty on the part of the judge, though it need not necessarily amount to self-restraint. A willingness to listen is indispensable to dialogue. Moreover, the dialogue not only requires a common language – which today is, to a large extent, provided by the fundamental principles discourse – but also the creation of procedural channels that allow judges to have exchanges, within an institutionalized and therefore public interaction that is subject to debate and criticism on the part of legal scholars and of public opinion.

In this perspective, the Italian Constitutional Court’s decision no. 102/2008 and order no. 103/2008 are to be welcomed. For the first time the

40

Court, modifying a consolidated line of decisions, has declared itself willing to be bound by the preliminary reference procedure to the ECJ in relation to the interpretation and validity of Community law, at least in principaliter proceedings. This is a complete reversal or half reversal, if the turnaround remains limited to principaliter proceedings, with respect to its previous negative attitude that impeded direct dialogue between the Italian Constitutional Court and the European Court of Justice. Also to be welcomed are decision nos. 348 and 349 of 2007 through which the Constitutional Court admitted the possibility of granting the ECHR constitutional protection. The Italian legislature is now constitutionally obliged to comply with the ECHR, as interpreted by the European Court of Strasbourg. With these decisions, the Italian Constitutional Court retains a competence to decide the constitutional lawfulness of ECHR norms and will thereby seek to “cooperate and compete” with the Strasbourg Court, but without being hierarchically subordinated to it. In short, it recognises the authoritativeness of the European Court without formally subordinating itself to its authority.

The management of legal and institutional pluralism and the solution of the deficit of legality appear to demand the creation of procedural channels that work as tools of dialogue. In the absence of such channels, the language of fundamental principles could instead produce a radical and ruinous mutual de-legitimation among the legal orders within the European legal space. Rights alone are not enough in a multi-level, pluralist system.

41