Constitutional Tone and Legal Certainty in the Age of EU Law: Beyond the Conforming Interpretation
Tono costituzionale e certezza del diritto: in memoria dell’interpretazione conforme al diritto UE
Tonalité constitutionnelle et sécurité juridique : au-delà de l’interprétation conforme au droit de l’Union
This contribution analyses the evolving relationship between the Italian Constitutional Court, ordinary judges, and the Court of Justice of the European Union (CJEU), in light of the increasing centrality of the so-called constitutional tone in addressing conflicts between domestic law and European Union law. An expansive trend in constitutional review is emerging, which tends to include cases of potential conflict with EU law even in the absence of explicit references to the Charter of Fundamental Rights of the European Union, provided that the issues raised can be interpreted as touching upon constitutional parameters identified through the lens of the constitutional tone. In this context, the limited attention given by the Constitutional Court to the principle of EU-conforming interpretation may signal a progressive narrowing of the role traditionally entrusted to ordinary judges. The paper outlines the CJEU’s position on the primacy of EU law and summarises the scholarly debate surrounding the constitutional tone, highlighting its potential for systemic friction with the principle of primacy and the role of the Court of Justice as the ultimate interpreter of EU law. While calling for a renewed spirit of cooperation between the relevant courts, the author reaffirms the centrality of ordinary judges as guardians of European legality, entrusted with the tools of EU-conforming interpretation, disapplication, and preliminary reference—mechanisms essential to upholding the rule of law and the effective protection of rights within a multi-level legal order.
