The ECJ’s Approach to Dual Preliminarity 5 Years after the ItCC’s Judgment No. 269/2017

This article examines the European Court of Justice (ECJ)’s perspective on dual preliminarity (doppia pregiudizialità) five years after the notorious obiter dictum of the Italian Constitutional Court (ItCC) in its judgment No. 269/2017. More precisely, the article aims at unravelling the essential requirements that any such “triangular” relation (between ordinary national courts, national Constitutional Courts, and the Kirchberg Court) shall satisfy to comply with European Union (EU) law. This analysis builds both on the “classics” and on the recent cases involving (blatant or disguised) restrictions on Hungarian and Romanian judges to refer to the ECJ or apply EU law. Against this backdrop, the compatibility of the current configuration of dual preliminarity in Italy with EU law will be assessed. Although a specific assessment in this regard has not been carried out by the ECJ (yet?), we contend that the refinements and adjustments in the more recent ItCC’s case law have remedied the main issues envisaged in the obiter dictum. Therefore, the current configuration seems to pose no serious threats to the EU systemic principles involved nor to EU law’s uniformity, coherence, and effectiveness. Indeed, provided that national judges continue to enjoy the actual power to refer freely to the ECJ and immediately set aside national law provisions incompatible with EU law rules, the ECJ has adopted a “secularist” approach and respects the Member States’ constitutional models. This article also argues that the early-stage involvement of ItCC’s (“first word”) in the dialogue with the ECJ may well serve the interests of a composite and pluralist system of fundamental rights protection in the EU. We will offer as an example the recent case on the Italian rules on childbirth and maternity allowances, which marks a step down the path of a “cooperative” dialogue between the two courts and shows the potentialities (and the little drawbacks) of such an early involvement.