Tracking Judicial Dialogue — The Scope for Preliminary Rulings from the Italian Constitutional Court

Abstract

In cases 102–103/2008 for the first time the Italian Constitutional Court has referred a question to the Court of Justice under the Article 234 EC procedure. This article analyses this decision in light of previous contrary case law and argues that, insofar as supremacy will be construed according to the Simmenthal doctrine, the scope for preliminary ruling from that Constitutional Court will be rather narrow, as mainly limited to principaliter proceedings. Such a conclusion brings about an important theoretical implication. Constitutional Courts such as the Italian one will face difficulties in interacting directly with the Court of Justice and, notably, in conveying at supranational level the authentic versions of national constitutional traditions. Conversely, ordinary courts seem in a better position to play a similar role. As a consequence, if we want the Court of Justice to modify its octroyée methodology of construing common constitutional traditions, we have to place all our stakes on a judicial dialogue based on ordinary courts as the privileged interface between the EU and national constitutional environments.