Giuseppe Di Genio

Shed Notes on the european constitution

Repetita iuvant. This juridical latin maxim, tenuous in some aspects, summarises the mood and importance of a series of inevitable comments by those interested in law about the the European Constitution project adopted in Rome on the 29th October 2004, and on its actual and future emotional impact upon the more informed citizens of each single member state, especially those of the founder members.

The European Constitution project is open to criticism on many fronts. Signed by the 25 member States, it reflects, apart from a few structural innovations (eg. the concept of European Law, the Ministry of Foreign Affairs, the majority system, etc..), the provisions of treaties between members that have been signed since the 1950s, especially the still open catalogue, following the example of the German Grundegesetz, on the priciples of the fundamental rights, using the trick of formal additions to the Charter of Fundamental Rights ( Nice, 2000), which aroused long debates in seats of learning about politcal but not juridical values.

It is enough to reflect upon the articles dedicated to the rights of freedom, dignity, equality, solidarity, citizenship, justice - with a few specific references to new rights such as the protection of personal details, senior citizens' and children's rights.


The principles of subsidiarity, a cardinal point of the new Europe including its new members and already present and in act since the 1989 ratification of the 1985 European Charter of Local Autonomy.


In other words, the adoption of fundamental guarantees at a European level, on the one hand, strengthens the position of the citizen, while on the other rather confuses from the juridical viewpoint and leaves the door open to possible situations and institutional conflicts, even of legal nature.

Moreover, it is as if article 16, "any society in which rights are not guaranteed, or the separation of the powers determined, has no constitution", of the Universal Declaration of Human Rights, indispensable pillar of contemporary democratic systems were to be reproduced in the Italian Constitution.

Something similar may be said to have already happened, during what may be defined as "multilevel constituancy euphoria", even in Campania, in the recent draft of the regional statute in accordance with article 123 of the Italian Constitution where the regional governmental drafters have taken the first steps towards a Regional Constitution "repeating the unrepeatable", because it had been accepted by the democratic contemporary judicial systems.


With reference to the provision, though paradoxical, of the principle of the separation of powers (Locke et Montesquieu) as the fundamental principle of the Campanian model of regional government not forgetting, to be culturally scrupulous using a reference to a different context, the strong link Virtual European Constitution/Statute of the Region of Campania, where, hot on the heels of the European debate, the Christian roots of the Campanian community have been represented.


Without doubt the Pilgrim Fathers can teach us many things, not only about the non-religious State, as emblematically demonstrated by France's refusal. This proves, for instance, that the institutions of a democracy, both direct and indirect, can be born of common (living) law (rectius: common (living) Constitution).

The appearance of constitutional controls of laws, invented, so to say, by the American Supreme Court, without any explicit provision, in the famous Marbury vs Madison sentence, according to which: "either the Constitution is a prevailing superior law, not changeable by ordinary means, or it is on the same level as ordinary law and, as other laws, can be changed when the legislator wishes; if the former is true, then a law which is contrary to the constitution is not law; if the latter is true, then Constitutions are an absurd attempt, on the part of the people, to limit a power which is by definition unlimitable."

These indications, even simply as a comparison,are useful to underline the fact that if, from the political point of view the step taken is remarkable, from a legal point of view, however, little has changed with respect to the past.


However admirable respect for the national identitiy, regional autonomy and the basic governmental mechanisms of individual member States may be, the Committee of Regions does not rate highly among the organs of the Union.

Doubts about the constitutional relevance of the European Treaty are demonstrated by the difficulty in undersanding the juridical nature of the European Union which cannot be clearly defined, even after the provision of the legal standing of the Union recently in Rome.

With this in mind it has also been decided that the Union coordinate the political activities of the State members in accordance with common directives and carry out the roles which the member States confer upon it.


The nature of the Union cannot be considered federal if a federal state is a union of states with political autonomy but not sovereignty. This is confirmed by the literal tone of the 2nd subsection of article 75 of the Constitution which excludes the admissibility in the Constitutional Court of a referendum which would have assumed incontovertible constitutional value.


The current structure of the Union would be more suited to the adoption of a Confederate structure, if it is true that a Confedederation of States is a union of States which maintain their sovereignty, though limited as is the Italian case according to art. 11 Cost.

To sum up, if the solutions adopted by the creation of a common European space for action and collaboration in foreign policy, security, defence, and for the needs of freedom and justice are politically interesting, those legal and economic appear less so, and seem less attractive (a European arrest warrant for example), particularly in the light of the basic obstacle, above even European law, the keystones of the Italian Constitution of 1948, the first 11 articles of the Constitution, as decided by the Constitutional Court in sentence n°1146 of 1988.


Finally, using a simple methodic and interpretative option, following the model of art.16 above, it could be said that where there is no juridic nature to a State ( federal, regional, confederate, unitarian, etc..) there is no Constitution (formal or substantial, rigid or flexible, as is the case for the English and Commonwealth) and viceversa but only a supernational entity formed to guarantee and strengthen the international visibility of the old(and sometimes worn and battered) Europe.


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