JUDGMENT NO. 269/2017 AND DUAL PRELIMINARITY IN THE EVOLUTION OF THE JURISPRUDENCE OF THE ITALIAN CONSTITUTIONAL COURT

This article considers the problems and perspectives related to the recent developments of the Italian Constitutional Court’s case law with regard to issues of “dual preliminarity”, i.e. those situations in which a national judge argues that an internal rule conflicts with the fundamental rights stemming from both the Charter of Fundamental Rights of the EU and the Italian Constitution. In these cases, Judgment No. 269/2017 has affirmed for the first time that the referring judge is entitled to priorly activate constitutional review, so as to reaffirm the integrated protection of national and European rights. In the first section, the article discusses the reasons and the implications of this turning point, which can be summarized in the judicial strategy of the ItCC aiming at regaining centrality without questioning the main principles of functioning of EU law. In the second section, some undecided issues are considered, with regard to the concurrence of judicial remedies (the preliminary reference procedure and the incidenter review), the potential for using both remedies at the same time and the expansion of the ItCC’s review beyond the field of fundamental rights. In the last section, doubts are expressed in relation to the possibility that the further expansion of the ItCC’s review may be reliant upon the need to safeguard the centralization of judicial review