Issue N.4 of 2017 October / December


  • Simposio «The Cosmopolitan Constitution», by Alexander Somek Abstract


    Marco Dani, Marco Goldoni, Andrea Guazzarotti, Giulio Itzcovich and Alexander Somek discuss the book entitled «The Cosmopolitan Constitution», by Alexander Somek. The scholars address the most significant issues raised in this important work, under various different points of view.


  • Sabino Cassese The «Constitutional Traditions Common to the Member States» of the European Union Abstract


    The clause on common constitutional traditions belongs both to the world of the «law in books» and to the space of the «law in action». This terminology — «constitutional traditions common to the Member States» — has been frequently used by the Court of Justice of the European Union, to refer not only to constitutional provisions, but also to their history and implementation. However, its scope is limited by the TEU, although from certain points of view, the clause may be open to manipulation, as recently emerged in the CJEU s case law. Moreover, the common constitutional traditions are not an autono- mous source of law, also because they are always used in combination with other sources to lend more authority to the latter. This partially explains why, although the clause has proven extremely popular, it has remained “empty”, in several decisions receiving only a passing reference.

  • Michele Graziadei - Riccardo de Caria The «Constitutional Traditions Common to the Member States» in the Case Law of the Court of Justice of the European Union: Judicial Dialogue at its Finest Abstract


    The references to the «constitutional traditions common to the Member States» (CCTs) in Article 6(3) TEU and in the Preamble and Article 52 of the Charter of Fundamental Rights of the European Union originate in the case law of the Court of Justice of the European Union. Examining almost five decades of case law on the issue, this article explores three main research questions by providing a quantitative analysis of 100 judgements handed down by the CJEU. Primarily, the article examines whether the Court tends to refer to CCTs as a rather supple «source of inspiration» to corroborate the protec- tion of fundamental rights, or as an autonomous source of fundamental rights. Second, the paper seeks to analyse whether it draws upon those traditions by engaging in an extended search into their individual national manifestations (and, if so, which of these influence the development of EU law most often). Last, the article investigates the fundamental rights in connection to which reference has been made most often to the CCT clause. The article concludes that CCTs are a potential counterpart to the notion of «constitutional identity», showing that Europe s constitution is not disconnected from the constitutions of its Member States.

  • Mario E. Comba Common Constitutional Traditions and National Identity Abstract


    Several fundamental questions should be addressed when studying the relationship between the common constitutional traditions of Member States (CCTs) and national identities (NIS). First, the legal basis justifying the protec- tion of NIs against CCTs: this is not necessarily Article 4(2) TEU, which refers more to the constitutional structure of the State rather than to fundamental rights, but more likely the Preamble of the Charter of Fundamental Rights and, from another perspective, national constitutions. A second question investigates the similarities between NIs and sovereignty: albeit developed in different historical and political backgrounds, the two concepts may not be particularly distant from one another, particularly when they interact with the federal state. From another perspective, NIs can be defined not only as a barrier against CCTs, but also as a synonym of how the core of the national constitutional system is shaped and, in this latter option, the relationship with CCTs can imply a greater integration than in the first. Indeed, in the latter option, NIs can be seen as the bricks with which CCTs are built, so far as they are common, while they become a counterweight to CCTs when the NI of one Member State differs from the majority of the others. The final question examined concerns who is entitled to define a Member State s NI: the CJEU or the constitutional/supreme court of the Member State in question? Perhaps the CJEU s Taricco II decision will provide an answer to this query.

  • Ornella Porchia Common Constitutional Values and the Rule of Law: an Overview from the EU Perspective Abstract


    The rule of law is one of the values that is common to all Member States. Indeed, it could be intended as a source of principles that the Court of Justice of the European Union has identified as general principles stemming from the constitutional traditions common to the Member States. Despite its origin, in recent years, widespread concern on the need to reinforce respect for the rule of law internally has prompted the EU s political institutions (Commission, Council and Parliament) to adopt a number of initiatives. After an introduc- tion of these initiatives, the paper identifies three key legal issues, which are essential in the broader debate on common constitutional traditions in the EU: the division of competences between the EU and the Member States, the need to respect the constitutional identity of Member States (and their constitutio- nal traditions) and the principle of equality among Member States.

  • Giulio Napolitano The Transformations of Comparative Administrative Law Abstract


    Notwithstanding the recent success of cognate disciplines, such as European Administrative Law and Global Administrative Law, the room for Comparative Administrative Law remains ample. A deep-reaching methodo- logical renewal, however, is currently taking place and should be further advanced. A mere description of the differences between domestic jurisdic- tions is no longer sufficient, and the perspective based on legal families is often misleading. A transnational or «beyond the borders» approach is also requi- red, to attain a deeper understanding of the reasons why administrative law systems increasingly converge (to the point of even legitimizing the idea of a cosmopolitan administrative law). At the same time, however, administrative law systems still partially differ, both in design and in their implementation. The walls erected by legal nationalism have fallen. However, the context matters, especially in public law. As a consequence, specific interdisciplinary investments are needed. Finally, the toolbox of the comparative administra- tive lawyer must be honed, in order to take into account the growing role played by statutes and codes, the different ways in which bureaucracies work and perform, following their internal protocol and complying with legal constraints, and the «hard cases» (in political, economic, and social terms), that courts increasingly address using transnational and comparative law arguments.

  • Silvia De Nitto About Proportionality as a Legal Criterion Abstract


    The complexity of the positions of the subjects of administrative measures adopted and, more generally, of the plurality of individuals who may feel impaired by such measures in various ways, makes it necessary to define criteria for the combination of the many rights, interests and values involved in an administrative procedure. The principle of proportionality, based on quantitative but also qualitative assessment parameters, represents a criterion for establishing the difficult relationship between primary and secondary public interests, not as contained solely within the attributive rule of a certain administrative power but as may be inferred from the totality of principles and values of the legal system. From a procedural point of view, given the heterogeneous nature of the proportionality control assigned to Italian judges and to the Court of Justice of the European Union, it is necessary to find common traits: the fact that the judge is guided from a logical and argumentative point of view by all three criteria of control (suitability, necessity and proportionality stricto sensu) facilitates the performance of an effective assessment of the balancing of interests. Without overrunning into the context of the administrative merit, and by observing how the administrative authorities reached the proportionality of the measure, the judge essentially uses those physiologically open links between proportionality, fairness and justice, all of which relate to the exercise of administrative power.

  • Valerio Bontempi Constitutional tort and State Liability: Towards an Objective System? Abstract


    In the absence of specific provisions in this regard, Italian civil and administrative law courts continue to deny the legislator s liability for the enactment of unconstitutional laws. This approach, however, besides being widely criticized by many legal scholars, is no longer justifiable in the light of the CJEU s case law on the liability of Member States for breaches of EU law. In fact, equitable treatment imposes an extension of the requirements for the legislator s liability to breaches of constitutional rules too. It is hoped that in the near future, the liability of the legislator will be recognized and build upon objective elements. More generally, the recogni- tion of such liability would be consistent with the process of objectification of liability that today regards all public powers. This process is indeed confirmed by the Italian case law and rules that, under the pressure of the European Union, have shaped the liability of public administrations and judges upon the basis of objective and non-culpable elements.

Historical Studies

  • Giuseppe Vacca The Conception of the State in «Quaderni del carcere» by Antonio Gramsci Abstract


    Eighty years after his death, this article analyses the conception of the State in Antonio Gramsci s renowned work — «Quaderni del Carcere» (1929-1935) — by considering the crisis of the modern state, which is inter- preted as the main problem created by World War II, and then examining the conception of the state and its legal order. The decision to analyse this specific work relates to the particular level of evolution achieved by Gramsci s thinking at the time of his writing, which, while undergoing continuous evolutions, had by then assumed a systematic and definitive character.


  • Barbara L. Boschetti Social Goals via Public Contracts in the EU: a New Deal? Abstract


    The use of the public procurement market as a means for obtaining wider community benefits is quite common in the European and national frameworks. The European directives on public procurement not only confirm, but even strengthen, such a integrated approach. The main novelty introduced by the directives lies undoubtedly in the the key role assigned to so-called buying sustainable approaches (BSAs) and the reliance placed on public procurement procedures and contracts to achieve horizontal objectives. A broader Euro- pean public contracts market (that also embraces social services and PPPs); a wider range of horizontal objectives that can be incorporated into tender procedures (at any stage); the clear preference for BSAs linked to specific legal obligations and/or administrative provisions and the consequent key role assigned to Member States to regulate relevant goals, related obligations and BSAs; the provision of more flexible and adaptable procedures; a closer interconnection between the different stages of the tender procedure; the significant role of past nonperformance: all of these measures can be consi- dered as part of the «New Deal» that EU law aims to promote via public contracts. To the cost-effectiveness of the European integrated strategy and its contract-centred scenario, regulatory efforts aiming at both harmonizing the legislative framework governing BSAs (starting with the establishment of goals and connected obligations) and tender documentation and contract design are key to success. This brings into play a wide set of legal instruments (including soft regulation) and a broad list of actors (other than States and their legislative branches). Only upon such a synergic and multilevel horizon can the flexibility boosted by the 2014 directives on public procurement sail into calm waters and ensure that key high-impact social goals are achieved.

  • Matteo Gnes ed Edoardo Chiti 2016 European Chronicles Abstract


    The 2016 European Chronicles open with a short summary of the major political, economic and institutional events of the year, such as the British referendum on whether to exit the European Union (Brexit) and the Brati- slava meeting. They then analyse the main developments of the European integration process. Such developments are examined through the conclusions adopted by the meetings of the European Council, as well as through the main EU legislative acts and actions. The Chronicles then provide a synthesis of the most significant institutional and legal news, the relationships between citizens and EU institutions, and the main evolutions in the economic and monetary union. In the central part of the text, the Chronicles present noteworthy developments occurring in the regulatory functions (internal market, electronic communications, competition, State aid, social policy, health and consu- mer protection, environmental protection) in 2016, and those concerning the distributive functions (Common Agriculture Policy, research and technology, education and culture) as well as the EU financial programming and budget. The 2016 European Chronicles end with the analysis of the developments in the area of Freedom, Security and Justice, in the external relations of the Union and the and in the field of the Common Foreign and Security Policy.

Bibliographic review

Paolo VERONESI, Colpe di Stato. I crimini di guerra e contro l’umanità davanti alla Corte costituzionale, Milano, Franco Angeli, 2017, 275 p., ISBN: 9788891753069 (recensione di Gaetano Silvestri).

David GRAEBER, Burocrazia. Perché le regole ci perseguono e perché ci rendono felici, Roma, il Saggiatore, La Cultura n. 984, 2016, 217 p., ISBN: 9788842819578 (recensione di Aldo Sandulli).

Alfredo MOLITERNI, Amministrazione consensuale e diritto privato, Napoli, Jovene, 2016, 493 p., ISBN: 9788824324328 (recensione di Giulio Napolitano).

Annalisa GUALDANI, Verso una nuova unitarietà della revoca e dell’annullamento d’ufficio, Torino, Giappichelli, 2016, 226 p., ISBN: 9788892106024 (recensione di Aldo Sandulli).

Bruno CAROTTI, Il sistema di governo di Internet, Milano, Giuffrè, 2016, 336 p., ISBN: 9788814214202 (recensione di Edoardo Chiti).

Note bibliografiche
A cura di Bruno Carotti, Rita Perez, Giuseppe Sciascia, Giulio Vesperini.

Book Reviews

GAETANO SILVESTRI: Paolo Veronesi on State faults. War Crimes and Crimes Against Humanity Before of the Constitutional Court

ALDO SANDULLI: David Graeber on Bureaucracy. Why rules persecute us and why they make us happy

GIULIO NAPOLITANO: Alfredo Moliterni on Consensual Administration and Private Law

ALDO SANDULLI: Annalisa Gualdani on Towards a New Unitarity of Revocation and Annulment

EDOARDO CHITI: Bruno Carotti on The Governance of Internet

Brief reviews by Bruno Carotti, Rita Perez, Giuseppe Sciascia, Giulio Vesperini


The Fourth ICON-S Conference: «Courts, Power, Public Law» (Elisabetta Tatì)

The rule of law and the «new» regulator state: an Australian lecture (Giulia Passino)