I. INTRODUCTION
This Article claims that the relationship between the European Union and its Member States is crucial for an appropriate understanding of the challenges associated with EU constitutionalism in an epoch of crisis. The best way to examine this relationship is through the meta-constitutional rationale of security as a form of interplay between change and permanence.Footnote 1 The idea of security is always tightly connected to insecurity, for a polity always pursues, in one way or another, its own survival. The EU polity is especially fragile; exposed to ‘threats’ of different natures. Yet pursuing security may itself undermine the European project. From this perspective, the phenomena of populism and Euroscepticism and the obstacles in the implementation of EU law should be viewed as a warning sign, pointing to a deep existential malaise of the European liberal project.
Conceptualising the EU as a legal system and a polity through the prism of security allows us to evaluate several so-called ‘crises’ of European integration jointly, and to argue that the European project should be pursued not by means of the hierarchical paradigm, but through a renewed vision of the heterarchical paradigm. Two ‘crises’ are analysed here specifically: the constitutional identity crisis and the rule of law crisis.
For too long the possibility of conflict in the EU has been either denied or concealed behind a veil of neutrality. Instead, as European integration reaches an advanced stage, legal-political conflict should be exposed as openly as possible and addressed accordingly. This Article advocates a move from self-referential security to heterarchical security, which requires that the principles of primacy, autonomy, uniformity, and effectiveness be viewed in relative, not absolute, terms. The EU judiciary thus plays an important role in this context.Footnote 2 The reconfiguration of European integration suggested in this Article navigates the murky waters between the authority of the EU, which may sometimes emerge as coercive and undemocratic, and the pressing demands of its Members States.
The Article begins by illustrating the notion of security and focusing on two particular dimensions, popular and epistemic (Part II). Next, it emphasises the need for the EU to move from self-referential to heterarchical security (Part III). Then, it provides an overview of the constitutional identity (Part IV.A) and rule of law (Part IV.B) crisis, as emblematic of the waves of Euroscepticism and populism that are deeply affecting the process of European integration, and then (Part IV.C) reflects on the role of the national judiciary in the European project.
II. THE SECURITY OF THE EUROPEAN PROJECT
In this Article, security is conceived in its broadest existential meaning, entailing the need that every polity is called upon to satisfy: preserving (and promoting) its core values within a demarcated geolegal and geopolitical area and throughout an extended period of time against internal and external threats.Footnote 3 Whenever the foundational values of any polity are questioned by an excessively high number of opponents, the very existence of the polity is at stake.Footnote 4 Founding a polity means also attempting to secure its long-term survival. Such an all-encompassing, compelling need operates at an overarching, meta-constitutional level and is thus not identifiable as such with—but necessarily presupposes—classic constitutional values, such as liberty, the protection of the individual, the rule of law, or justice as expressed by Article 2 of the Treaty on European Union (‘TEU’) and identified by some scholars as the foundational values of the EU legal order.Footnote 5 The influence of such an overarching rationale on the production of constitutional and legislative material may be more evident in times of emergency. Security is thus a concept that goes beyond the mere notion of stability. It is associated with the identity of a polity and consequently acquires an existential connotation.Footnote 6 In other words, this ‘superior reason’ is pursued by EU institutions and actors beyond and sometimes even against the constitutional aims and principles that are set out in the Treaties and becomes particularly evident when the EU needs to adapt to, or is challenged by, events that undermine or endanger its existence.Footnote 7 One of the fundamental features of the EU is self-preservation in the face of threats and the emergence of such threats—whether real or purely imaginary—is a powerful self-justifying tool. The development of the EU is thus a process, in which European integration, security, and crisis are closely interrelated. In this process, two ambiguous and contradictory discourses of power can be detected: security and ‘fundamental’ or ‘individual’ rights.Footnote 8
Security and rights discourses operate both at the national and EU level: they express the tension between the expansive trend of the EU machinery—typically, through the doctrines of primacy, direct effect, loyalty, the principles of autonomy, uniformity, effectiveness,Footnote 9 as well as common constitutional traditionsFootnote 10—and the resistance by Member States—most commonly, through ‘counterlimits’ and identitarian reasoning. Through the mutually reinforcing discourses of security and rights the EU pursues a strategy of self-justification and self-empowerment accomplished in the name of the peoples of Europe.Footnote 11 While there was no physical ‘people’ at the origins, an idea of ‘people’—or ‘peoples’—has been relentlessly constructed from the very beginning of the process of European integration.Footnote 12
The growing body of EU law plays an important role in this context, precisely because through its classic doctrines and legal principles, on the one hand, the EU puts forward its triple claim of autonomy, authority, and legitimacy—the security discourse—while, on the other, the EU vows to protect, emancipate, and empower individuals—the rights discourse. The notion of ‘discourses of power’ is crucial for an appropriate understanding of this argument. Discourses of power can in fact be constitutive of a polity, while at the same time being constantly in tension with or overlapping each other. They shape meanings, condition actors’ behaviour and choices, and correspond to activities, speech acts, and rhetorical strategies that dominate in a given historical context. This does not happen by chance. Processes of production and interpretation of texts, as well as the social conditions within which they are generated, and other social practices, such as courts’ rulings or other jurisdictional acts, are indicative of specific patterns or relations of power.Footnote 13 These discourses are constitutive of the EU as a polity because it is through them that the interaction between the EU institutions, as well as between the institutional apparatus and the citizens, takes place. They contribute to shaping a reality that is an integral part of the EU legal order. ‘Discourses’ are interpreted here as different from ‘narratives’, as the latter are (sometimes competing) forms of interpretation of reality employed to explain or justify events, and/or to support specific policies.Footnote 14
In other words, discourses are considered essentially ‘practices that systematically form the objects of which they speak’,Footnote 15 and more specifically, daily practices embedded in the very process of formation of a polity. They include all forms of formal and informal social relationships and interactions between economic and social actors (eg courts, parliaments, media, academic work, as well as social movements, trade unions, etc), which often clash with each other. The concept of ‘discourse’ employed here is thus potentially very wide and does not include merely ‘groupings of utterances or statements’, but ‘whatever signifies or has meaning’ and produces effects within a social and institutional context.Footnote 16 By observing such practices, it is almost inevitable to point out how, regardless of our personal judgement, dominance may be enacted and reproduced by subtle, routine, everyday forms of text and talk that appear ‘natural’ and quite ‘acceptable’.Footnote 17 Importantly, attention is paid to that type of social power that is exercised by entrenched elites or specific sectors of society. A fundamental feature inherent in the notion of ‘discourses of power’ employed in this Article is ideological and political struggle.Footnote 18
From this angle, the importance of the first, foundational cases of EU law lies not only in their ‘constitutional’ significance, but also in the contribution they gave to the development of the intertwined security and rights discourses from the perspective of autonomy and effectiveness/uniformity. In particular, Van Gend en Loos and Costa v ENEL flow from the ‘speciality’ of the EU legal order, which, on the one hand (Van Gend), empowers individuals—the rights discourse—and, on the other hand (Costa), empowers the EU legal order itself—the security discourse. These rulings are part of a set of ‘pre-dictions’ and ‘retro-dictions’, through which not only the strategic moves of the main actors, but also their semantic patterns have formed a judicial framework of principles that have crystallised at the foundations of the EU polity.Footnote 19
As is well known, the idea that the EU legal order has a constitutional character has been repeatedly emphasised by the Court in its case law.Footnote 20 However, precisely because of the concerns deriving from the tension between the transnational and the national level, from the seventies onwards the fundamental rights discourse has been a necessary legitimacy- and autonomy-enhancing tool, as part of the Court's weaponry. Drawing on the security meta-constitutional rationale, a constant effort to boost the EU's credentials as a distinct creature of transnational law has led to an assertion of autonomy, on the one hand, vis-á-vis its Member States,Footnote 21 and on the other, vis-á-vis international law.Footnote 22 Such autonomy implies that the interpretation of fundamental rights that lie at the core of the EU legal system is in line with the EU's structure and objectives.Footnote 23 Of course, according to Article 51(1) of the Charter of Fundamental Rights (‘CFR’), EU fundamental rights bind Member States only when they implement EU law. Moreover, (1) domestic standards of protection of fundamental rights cannot prejudice either the standards provided by the CFR or the principles of primacy, unity and effectiveness of EU law and (2) Article 53 CFR cannot be interpreted as meaning that a Member State may disapply EU law that is in compliance with the CFR when fundamental rights protected by that State's constitution are at stake: the so-called Melloni doctrine conveys the idea that whenever the application of national constitutional standards of protection of fundamental rights might compromise the primacy, effectiveness, and unity of EU law, national courts ought to refrain from using them.Footnote 24 The CFR is thus the cornerstone of the EU legal system of protection of fundamental rights: case law, too, indicates that its provisions must be respected not only by the institutions, bodies, offices, and agencies of the EU, but also by the Member States when they implement EU law.Footnote 25 An additional example of the interplay between the security and rights discourses is the Court of Justice of the European Union's (‘CJEU’) ruling that the draft agreement for the accession to the European Convention on Human Rights (‘ECHR’) would affect ‘the specific characteristics of EU law and its autonomy’ and would therefore not be compatible with Article 6(2) TEU.Footnote 26
Security and rights discourses resurface time and again not only in the case law of the CJEU, but also in official speeches in times of crisis. As pointed out earlier, the self-justificatory nature of such discourses is particularly evident. The EU liberal project cannot be interrupted, because people demand it. In other words, the finalité of European integration—sometimes overtly federalist, often leaving little space for reflexivity—requires simultaneously further enlargement and reinforced cooperation, because any alternative solution would lead to self-destruction and ‘would demand a fatal price above all of our people’.Footnote 27 Correspondingly, even in the face of seemingly overwhelming financial distress, ‘the ECB is ready to do whatever it takes to preserve the euro’, which is, as a result, ‘irreversible’.Footnote 28 The reason for this zealous defense of the European Sonderweg is that, ultimately, a government must offer its citizens ‘physical and economic security’, as well as protect liberty and individual rights.Footnote 29 This means that ‘Europe’ must not only protect its citizens, but also ‘empower’ them and ‘preserve the European way of life’.Footnote 30
Inevitably, security is also an ambiguous notion which is characterised by tensions and contradictions. In particular, when the security meta-constitutional rationale becomes self-referential—namely when European integration is pursued for its own sake—the risk is that the European project may be unable to deliver what it promises. Two examples may be mentioned here. First, in order to secure the uniform interpretation and application of EU law, fundamental rights may be restricted for the purposes of achieving the objectives set out by the Treaties,Footnote 31 above all the establishment of a common market,Footnote 32 or the stability of the financial system.Footnote 33
Secondly, the self-referential character of security can be detected in the weak social embeddedness of EU law-making. Social rights have sometimes been merely protected as a consequence of the application of the principle of formal equality (Griesmar; Mouflin)Footnote 34 or with a view to protecting the free movement of workers (Decker, Elsen),Footnote 35 or of services (Kohll).Footnote 36 Moreover, although there have been positive developments in the case law of the CJEU, a variety of not necessarily clear-cut lines (‘inside’ and ‘outside’ regimes of protection by law) have been drawn between different categories, such as workers and non-workers, or workers who benefit from secure, full-time jobs and workers who do not.Footnote 37
Elsewhere six dimensions of security have been distinguished: the spatial, temporal, popular, ontological, epistemic, and semantic (or reflexive) dimension.Footnote 38 Recent events have showed that, for the first time in the history of the European liberal project, all dimensions of security are being challenged simultaneously by different types of crisis. It is thus necessary to illustrate the implications of this complex and unprecedented state of affairs. This Article focuses on two dimensions in particular: popular and epistemic.
Popular security evokes the notions of demos and identity and is therefore associated with the democratic side of European integration. Epistemic security refers to the possibility for different legal systems to reconcile their constitutional claims and is closely related with the rule of law side of European integration. The crucial question of epistemic security is to what extent multiple rationalities or claims of authority can co-exist in the same legal and political space. How can we ensure the survival of a polity, in which conflictuality among several levels is not only visible, but also growing? This implies that autonomy, authority, and legitimacy are contested in both directions: from the national to the EU and, conversely, from the EU to the national.
The following Part III will advocate a move from self-referential to heterarchical security, from the perspective of these two dimensions. As will be seen in Part IV, two crises are relevant for our purposes: the constitutional identity crisis and the rule of law crisis.
III. FROM SELF-REFERENTIAL TO HETERARCHICAL SECURITY
The argument in this Article is that a shift from self-referential to heterarchical security is necessary. One of the fundamental requirements of heterarchical security is that the principles of autonomy, primacy, uniformity, and effectiveness of EU law be understood in relative, not absolute terms.Footnote 39 As a result, national—both ordinary and constitutional—courts ought to be given a more prominent role in the architecture of European integration, especially as regards the interpretation of EU law according to their own legal-cultural parameters. What is more (as will be observed later), signs that such transformation is taking place can already be detected, to the extent that we are witnessing something akin to a constitutional moment, which corresponds to a crucial stage of European integration. It is worth keeping in mind that—although security and rights discourses take place in the form not only of case law, but also of legislation, media activity, EU institutions’ official documents, academic debate, and so on—the role of the EU judiciary in the self-preservation and self-perpetuation of the EU legal order is much more relevant that may seem at first sight.
In the past, the political, inherently conflictual nature of EU constitutional claims has been disguised through security and rights discourses, pointing towards a seemingly neutral market (economic-technocratic) integration,Footnote 40 mostly negative integration,Footnote 41 which pursued the aim of ‘the decoupling of politics and economics’,Footnote 42 which as has already been seen, followed in reality an eminently political agenda. For example, the Economic and Monetary Union of the EU (‘EMU’) was initially supposed to promote deeper integration and lead to a political union, even though the details of any form of political integration—starting from a sound coordination of fiscal policies—were far from being agreed upon by the very Member States that launched the EMU.Footnote 43 This state of affairs seems increasingly difficult to maintain in the current historical-political climate, as the process of constitutionalisation reaches a more advanced stage, in which the probability of high-intensity conflict as regards key issues of EU integration between different levels of governance and geo-political areas is growing.Footnote 44 From the heterarchical perspective, it can be argued, in a first approximation, that a transnational polity such as the EU is secure as long as its principles and objectives are not imposed unilaterally upon its members.
As a remedy against self-referentiality, the EU ought not to be seen as a ‘mechanical necessity imposed by the logic of integration’: in other words, not only a public debate of what type of Europe responds to the democratic demands of the Member States is better than a sterile debate about more or less Europe,Footnote 45 but also, and more forcefully: the question of ‘why Europe?’ is much more significant than the question of ‘what is Europe?’ In fact, the ‘heterarchical paradigm’ is better suited than other paradigms to address the current state of affairs,Footnote 46 and to answer the question above, as long as this paradigm allows some degree of openness to agonistic conflict and contestation.Footnote 47 Europe exists in order to enable the peaceful co-existence of legal-cultural clusters and sources of authority exercising distinct constitutional claims.
The heterarchical features of the EU as transnational polity have been explored by different versions of constitutional pluralism from a variety of theoretical angles. Yet, most of these versions, while predicated upon normative frameworks of discursivity, constitutional tolerance, and/or ‘best fit’, in one way or another, locate the ultimate source of authority at the EU level, thus translating to the new environment the traditional constitutional framework which is so familiar in State-centric approaches. In other words, although their initial assumption is the existence of multiple sites of legal authority and/or perspectives, they do not cut loose neatly and unambiguously from their moorings in the domestic configuration of a constitutional order: their mind frame is still self-referential.Footnote 48
By way of contrast, some forms of so-called epistemic and/or radical pluralism seem to be going in a more promising direction.Footnote 49 Analogously, some recent works, which interestingly dismiss the vocabulary of coherence, universality, and sovereignty, opt for an efficiency-based configuration of multi-level governance, in which emphasis is placed on direct deliberation at the local level, which is, however, placed beyond the reach of courts.Footnote 50 The most significant contribution of this last group of theories is that, while departing from different premises, they look more deeply at the novel character of European integration, with a level of perspicacity that is missing in other approaches. Yet, just like these other approaches, the main focus seems to be the dilemmas and paradoxes of sovereignty. Instead, one important consideration has been left aside or addressed only marginally: the question of security as a meta-constitutional rationale of the European project—in particular, how the shift from self-referential to heterarchical security ought to take place. One of the features of this necessary transformation is represented by the activity of the EU judiciary as a whole.
A few scholars have in the past rightly emphasised in different ways the need to consider the point of view of domestic courts more carefully.Footnote 51 According to Davies' ‘interpretative pluralism’ (inspired by the principle of non-domination), the CJEU ought not to possess definitive interpretative authority over EU law: national ordinary and constitutional courts should be left free to provide alternative approaches, thus participating more actively in the interpretation of the Treaties.Footnote 52 This is an important observation. However, two remarks ought to be made. First, security and right discourses both at the national and EU level are inevitably associated with ambiguity and contested concepts. Second—and as a result of recognising the degree of ambiguity that is inherent in such discourses—the notion of common constitutional traditions may be particularly useful as a tool of judicial inter-systemic communication, because it allows respect for legal-cultural idiosyncrasies and by-passes identitarian reasoning.Footnote 53
Suggesting that one way of addressing high-intensity conflict is to rely upon national courts may at times be considered reminiscent of the model of dispersed judicial review, which prevails in US constitutionalism. While a comparative analysis of the US and European models lies outside the scope of this work, it is worth observing that, despite traditional continental scepticism towards US-style judicial review,Footnote 54 the distinction between the two models is blurring,Footnote 55 and some features of the US model—such as, for example, the capacity to manage high-intensity legal-political conflict and the increased possibility to count on the experience of lower-level courts for the interpretation of federal lawFootnote 56—may be relevant for the current stages of European integration.
The significance of national courts, and, relatedly, of security and rights discourses in the domestic sphere, is confirmed by the constitutional identity and rule of law crisis:Footnote 57 recent case law indicates that heterarchy may be emerging more forcefully.
IV. THE CONSTITUTIONAL IDENTITY AND RULE OF LAW CRISIS
The EU polity is currently going through an unusually intense period of contestation and challenge. There are several causes that lie at the origin of such contestation, but the variety and complexity of crises that have recently affected the European countries are certainly a major factor: the Eurozone crisis, the rule of law crisis, and the refugee crisis are some clear examples.Footnote 58 It has been observed that the EU is experiencing a sort of ‘existential crisis’, which stems from the economic, financial, fiscal, macroeconomic, and political structural weaknesses of the EU.Footnote 59
Up until the turn of the century, the underpinnings of the EU were still to be found in its liberal-democratic promise to reconcile capitalism and welfare by standing above the contenders and providing an institutional superstructureFootnote 60 which would oversee and shape Member States’ intercourse. As noted earlier, this narrative of reconciliation could be contrasted with the inner core of European integration, which has always been a political project, from the very beginning.Footnote 61 ‘Integration through law’ was only on the surface an aloof, aseptic operation conceived in some legal laboratory of continental Europe.Footnote 62 The European liberal project possessed a fictitious aura of neutrality, as if removing tariffs, allowing goods, people, and services to circulate freely, and creating a common currency were mere technical matters, which was necessary to delegate to a new, ‘enlightened’ transnational entity. The transnational legal system emerging from the post-Cold War consensus was, after all, an epitome of the positivist understanding of the rule of law as a regulatory mechanism conceived to constrain constituent power.Footnote 63 Despite the inherent tension between the democracy component and the rule of law or constitutionalism component of modern nation States, various attempts have been made to integrate them.Footnote 64 Most famously, the legitimation of liberal democracy was supposed to be achieved through communicative arrangements promoting opinion- and will-formation.Footnote 65 Of course, such effort presupposes the existence of an inclusive from of rationality. However, the current crisis shows how the European project has been marked by the prevalence of one form of rationality over the others: market rationality. As a result, it is much more meaningful to refer to a crisis of the EU's liberal project, rather than, merely, a crisis of the EU's neoliberal project.
The unprecedented attacks to the European liberal project by so-called populist parties are not so much directed at Europe, as to a certain form of governing contemporary societies. As a matter of fact, populist governments do not object to European integration as such, and sometimes blame the EU for betraying the values of the Treaty of Maastricht.Footnote 66 These arguments ought not to be downplayed or belittled.
In order to explain better the interplay between security and crisis, the following sections attempt to focus in particular on the constitutional identity and rule of law crisis. This type of crisis may be analysed through the lens of both epistemic security and popular security.
A. The constitutional identity crisis
In Italy,Footnote 67 Denmark,Footnote 68 Hungary,Footnote 69 Portugal,Footnote 70 Greece,Footnote 71 Spain,Footnote 72 Czech Republic,Footnote 73 and the United Kingdom,Footnote 74 the relationship between the EU and the domestic level, and in particular between the CJEU and domestic constitutional courts, has been as conflictual as ever in recent years. In the past, as well known, a few episodes of tension had already indicated how the issues of primacy and autonomy (as well as the related issue of Kompetenz-Kompetenz)—in particular the extent to which transferring ever larger portions of national sovereignty to the EU is constitutionally legitimate—have become pivotal for the construction of the EU polity.Footnote 75 Nevertheless, more recently the stakes have been raised to the extent that we are witnessing a crucial turning point for the EU polity.
The Taricco case is emblematic of the capacity of constitutional courts to set boundaries against the EU's interference with national constitutional identity—and at the same time of the CJEU's intention to ensure the primacy, autonomy, and effectiveness of EU law—although differently from the Melloni/Fransson approach. The question before the CJEU in Taricco I was whether, by making it easier for those accused of valued added tax (‘VAT’) fraud to achieve impunity, Italian legislation on prescription periods violates EU law.Footnote 76 The reasoning of the Court was straightforward: as Article 325 of the Treaty on the Functioning of the European Union (‘TFEU’) prescribes the need to fight against fraud and other illegal activities against the EU financial interests, national rules preventing the enactment of effective and dissuasive measures against VAT evasion ought to be disapplied whenever this is necessary to ensure EU law's full effect.Footnote 77 What is more, the disapplication of national law would not have the effect of infringing the rights of the accused, as guaranteed by Article 49 CFR.Footnote 78
The novelty of this case resides in the reaction of the Italian Constitutional Court (ICC). The ICC not surprisingly adopted—along a wavelength similar to other courts in the past few years—an identitarian language, by relying on Article 4(2) TEU and the need to reconcile unity and diversity.Footnote 79 This recalls in part the attitude that the same Court had in the past, especially in the earlier stages of its well-known ‘counter-limits doctrine’,Footnote 80 although, at the same time, the ICC seemed to have a more conciliatory attitude than its German counterpart in Gauweiler.Footnote 81 In any case, in Taricco, the ICC emphatically argued that a minimum degree of diversity is necessary to preserve not only national identity, but also the constitutional foundations which the Treaties rely upon as a direct derivation of the Member State's will.Footnote 82 As prescription periods in the Italian legal system qualify as substantive, rather than procedural criminal rules, they form part of the principle of legality in criminal matters (Article 25 Italian Constitution), which is one of the fundamental principles of the Italian legal system. As a result, the CJEU's interpretation of Article 325 TFEU should pay heed to Italian constitutional identity.
In the eyes of the ICC, in this particular case, contrary to Melloni, the principles of primacy and uniform application of EU law were not prejudiced. The reason is that the ICC's opinion does not amount to an alternative interpretation of EU law, but reflects a feature of the Italian legal system, which ensures a higher level of protection for the accused person than the one guaranteed by Articles 49 CFR and 7 ECHR.Footnote 83 The strategy of the ICC consists therefore in making use of the security and fundamental rights discourses with the explicit intent to safeguard the Italian legal system and the Court's own role against the intrusion of foreign elements, which may alter the functioning and scope of individual rights as interpreted and enforced domestically.
Importantly, however, the corresponding ruling of the CJEU in Taricco II can, in this regard, also be inscribed within the security meta-rationale as a fine example that goes beyond a purely self-referential scheme.Footnote 84 In other words, the CJEU has realised that the conflict originates from a crucial legal-cultural difference. The Italian legal system does not accept an interpretation of the principle of separation of powers in such a way that a judge is free to establish legal criteria and categories, which would normally be entrusted to the legislator. True, the Italian legislator has been inactive, and could have filled the gap earlier. Yet, this does not justify an intrusion of EU law to the extent of altering the constitutional balance of a Member State. The effort of the CJEU—which employs in its reasoning the notion of ‘common constitutional traditions’—is certainly laudable. While confirming the importance of the national identity clause (Article 4(2) TEU), the CJEU attempted to build up common principles with the aim of showing how all provisions on fundamental rights and fundamental principles can be read together systemically. Clearly, the CJEU was very cautious here. National judges are, in principle, obliged to fully respect the obligation enshrined in Article 325 TFEU—with the consequence, as mentioned above, that national provisions preventing compliance with such obligation ought to be disapplied. However, protection of the financial interests of the EU through criminal law belongs to the shared competences of the EU and Member States. In this context, it cannot be ignored, said the Court, that, at the time of the commission of the crime, there was no fully harmonised legislation on fraud against the financial interests of the EU.Footnote 85 As a result, Italy had a large room for maneuver and was free to regulate the field as it wished—including the application of the principle of legality to prescription periods.Footnote 86 It is undeniable that the alleged offenders were not able to foresee the circumstances in which Article 325 TFEU applies. As noted, the main problem deriving from the Melloni/Fransson doctrine here is that the Italian system does not allow the judge to replace the legislator by providing the missing criteria.Footnote 87 Hence, not only the principles of foreseeability, clarity, and non-retroactivity, but also the principle of separation of powers would be compromised.
Importantly, the CJEU, while discussing the principle of legality, considered its relevance both for the EU legal order and national legal orders. Moreover, the Court included it in the Member States’ ‘common constitutional traditions’, by mentioning several provisions, including Article 7(1) of the ECHR.
Taricco II ultimately shows the importance of conflict in EU law. It is by raising its voice that the ICC has showed how delicate matters relating to national diversity may be addressed. It also indicates one possible way out of conflict: playing the ‘common constitutional traditions’ card instead of the ‘identity card’ reduces the likelihood of deadlocks and insurmountable hurdles. Notably, however, in the final twist in the Taricco saga, the ICC has reverted to an identitarian approach.Footnote 88 While acknowledging the power of the CJEU to interpret EU law uniformly, the ICC still argued that Article 325 TFEU does not comply with the requirements of specificity and clarity under domestic law. Thus, the degree of precision postulated by Article 25(2) of the Italian Constitution precludes the application of the Taricco rule to facts occurring before the publication of the Taricco I ruling.
It is argued here that alternative interpretations of EU law by national courts should not be precluded as such, and it would have been more helpful if the ICC had embraced more explicitly the language of common constitutional traditions. In other words, the Court could have at the same time clarified that, while the principle of legality belongs to such traditions, nevertheless it needs to be interpreted in the context of the Italian legal order, in conjunction with other relevant principles, such as separation of powers. This would be in line with the configuration of national courts (at all levels) as EU law courts, which (ought to) play a key role in the EU legal order.Footnote 89 Because the EU and national legal order overlap with each other, there is a common epistemic ground which ought to be preserved, even though their ultimate claims of authority remain separate and irreconcilable.
In other words, the heterarchical paradigm, while admitting agonistic contestation and diversity, at the same time ought to seek reconciliation by employing a language that preserves the EU's epistemic core. The Taricco saga represents in this sense a failed opportunity to embrace such language through the use of common constitutional traditions, especially because doing so would enhance the role of national constitutional and supreme courts in the interpretation of EU law.
B. The rule of law crisis and populism
The most important examples of the rule of law crisis are the events occurring in three post-communist countries: Hungary, Poland, and Romania.Footnote 90 The recent Proposal by the Commission to trigger the Article 7 TEU procedure draws on the security meta-constitutional rationale by recognising the situation of systemic threat to the rule of law.Footnote 91 Interestingly, a ‘core meaning’ of the rule of law is identified as part of the EU's ‘common values’. Its key components (‘whatever the model of the justice system chosen in a Member State’) would be the principles of the separation of powers, legal certainty, the independence of the judiciary, and equality before the law. Respect for the rule of law is viewed as a precondition for mutual trust and loyal cooperation—and, as a result, for the smooth functioning of the internal market.Footnote 92 The European Parliament's vote calling on the Council of the EU to act against Hungary to prevent a systemic threat to the EU's founding values can also be inscribed within the security meta-constitutional rationale.Footnote 93
Clearly, in all cases mentioned above constitutionalism's internal connection with the ideals of democracy, self-determination, constituent power, representation, rule of law, and separation of powers has been eroded. However, and crucially, the most difficult dilemma originates from the awkward relationship between the transnational and the national level. In this context, the contradictions in the security and fundamental rights discourses are even more evident:Footnote 94 common values can only be upheld to the extent that a line is drawn between those who share them and those who do not. The real challenge of the rule of law crisis is that the EU institutions are not immune from it either: this is part and parcel of the above-mentioned criticism levelled at the EU as such.
Yet, objections to the heterarchical paradigm, raised on occasion of the rule of law crisis, are partly misplaced.Footnote 95 The European project's fictitious aura of neutrality has concealed the tension between its universalistic and imperialistic ambition and the practical need to draw lines between who is inside and who is outside, which is always a constitutional act. The illiberal turn taking place in some European countries is precisely an indication of the extent to which an essential epistemic core needs to be preserved within the EU. The move from self-referential to heterarchical security allows addressing this issue, because the latter opens up a path towards alternative visions of the European project only as long as the very reasons lying behind this project are not compromised. Heterarchical security points to a deeper rationale of European integration, one under which free and peaceful coexistence of States and peoples and individual emancipation are simultaneously safeguarded. This is the meeting point of epistemic and popular security: the EU as a polity and legal system can only survive if it fosters a dual conception of ‘The People’: on the one hand, ‘mobile people’, ie a construction of people as freely moving from one place to another of the EU territory; and on the other hand ‘peoples’ in the plural, ie a construction of ‘demoi’ that is supposed to underpin the process of development of the EU as a polity.Footnote 96 Yet, any attempt to refer to a ‘traditional understanding of the primacy of EU law’ as emerging from Costa v ENEL should be reconceived.Footnote 97 The idea that a permanent limitation of the Member States’ sovereign rights has taken place once and for all runs against the configuration of heterarchical security. The provision of Article 50 TEU, which ‘leaves each Member State free to choose whether or not it wishes to take part in the European project’,Footnote 98 should be read in this light, as confirmed recently by the CJEU in Wightman.Footnote 99 After all, one of the populist and authoritarian movements’ mainstays is the contention that that the rule of law and the will of the people must be separated, or at least that, as a result of an inevitable conflict between them, the latter ought to prevail as the ultimate, unrestrained source of authority.Footnote 100 This is an opportunity to reflect on the possibility—but not inevitability—of any such conflict. It should always be borne in mind that the very security that is the presupposition to the European project can easily turn into a mortal threat, if pursued at all costs. Populism and growing Euroscepticism are in this sense an important litmus test of the future of the EU.
Ultimately, the Polish, Hungarian, and Romanian rule of law crises have brought forward an all-too-familiar idea of ‘people’, whose historical, ethnic, and cultural roots are associated with their national territory.Footnote 101 After all, various milder or harsher versions of ‘nationalism’ can be found in both left-wing and right-wing populism in many European countries.Footnote 102 As a result, populist movements promising a new future for the EU find it difficult to evoke an idea of ‘people’ that embraces the EU as a whole. Populism attaches to the notion of people an inevitably moralistic imagery,Footnote 103 one that is not able to escape the borders of the nation State. This is not merely a distinctive feature of populism: it may also be its limit. Therefore, populists fail precisely on their own ground: while articulating a language for their own people, they are unable to speak on behalf of others’ people. Even when they put forward a political project for the EU, they cannot avoid rephrasing it in terms of ‘we each’ instead of ‘we together’. For better or worse, the ‘people’ are a fundamental construct of European integration,Footnote 104 and whoever advocates change for the EU cannot avoid speaking (or claiming to be speaking) on their behalf. Such fundamental construct is predicated upon two forces: a unifying power and an exclusionary power.
However, having said that, the problem inherent in the idea of ‘people’ is that whoever evokes it—regardless of whether or not it does so under the aegis of populism—constantly runs the risk of rehearsing a moralistic imagery. Both its unifying power (bringing unity, even if this means an artificial unity) and its exclusionary power (separating us from them) possess a claim of universality that conceals the reality of tensions, contradictions and conflicts that always emerge within the notion of ‘people’.Footnote 105 It is argued here that if, as suggested by scholars, EU constitutionalism should avoid relying on a homogeneous, uniform notion of ‘people’,Footnote 106 it follows that conflict should be addressed more openly. As the EU reaches an advanced stage of integration, fundamental issues should be brought out to the surface and debated, rather than ignored or postponed. Contrary to what is commonly believed, a weakness (rather than a strength) of the European project has consisted precisely in repressing legal-political conflict beneath a veil of neutrality and technocratic rule.Footnote 107 One way of addressing conflict more openly is to allow national courts to articulate the constitutional claims of their respective countries in legal-cultural terms, while at the same time participating in shaping the common epistemic core of the European project.
C. The role of national courts
It has already been noted how elements of heterarchy may already be potentially identified in many recent cases, including the Taricco saga. However, the emergence of additional elements of heterarchy can be detected in another string of important cases, which are related to both the constitutional identity and rule of law crisis. These cases show not only that national courts are gaining more relevance in the architecture of European integration, but also that, by encouraging decentralised enforcement and/or review of EU law, the EU judiciary may be developing features closer to (but not necessarily identical with) the US model of diffuse review. At the same time, protecting and promoting EU values seems to require establishing clear criteria identifying the components of the EU judiciary as an integrated network. Such heterarchically oriented development points towards a significant constitutional moment for the EU.
To begin with, the CJEU has re-elaborated the notion of ‘EU judiciary’ in functional, as opposed to substantive terms. In other words, as ruled in Associação Sindical dos Juízes Portugueses, Article 19 TEU gives concrete expression to the founding value of the rule of law by conferring the function of judicial review not only upon the CJEU, but also national courts and tribunals as part of the EU judiciary.Footnote 108 It follows that Member States are obliged, by virtue of the principle of loyal cooperation—Article 4(3) TEU—to ensure the application of EU law and effective judicial protection of individuals in the subject matters falling within the scope of EU law. Effective judicial protection has thus been tied up by the CJEU with the value of the rule of law (Article 2 TEU) and, as a principle directly originating from the Member States’ common constitutional traditions, with Articles 6 and 13 ECHR, as well as Article 47 CFR.Footnote 109 Member States must make sure that all courts or tribunals that are included in the definition of the EU judiciary respect criteria of effective judicial protection.Footnote 110 All those courts that may potentially be called to apply or interpret a provision of EU law are de jure part of the EU judiciary. A key requirement to be part of this selective club is judicial independence and ensuring the latter is essential to fostering mutual trust among courts.Footnote 111 In this broader, functional perspective, a national measure compromising the independence of a national court may thus fall within the jurisdiction of the CJEU even when the legal situation does not come within the material scope of EU law, namely whenever a domestic court acts as an EU court, ie has jurisdiction over potential questions of EU law.
It is in this light that one should consider the Polish Forest case, in which the Court ruled that ensuring effective application of EU law—in particular by way of sanctions for non-compliance with interim measures ordered by a national court—represents a key component of the rule of law enshrined in Article 2 TEU.Footnote 112 The previous rulings opened the path allowing the CJEU to find for the first time a Member State (Poland) in breach of Article 19(1) TEU, in particular as regards the principles of the irremovability of judges and judicial independence.Footnote 113 Because Poland's Supreme Court ‘may be called upon to rule on questions concerning the application or interpretation of EU law and … as a “court or tribunal”, within the meaning of EU law, it comes within the Polish judicial system in the ‘fields covered by Union law … that that court must meet the requirements of effective judicial protection’.Footnote 114 Consequently, the adoption of national measures undermining the Supreme Court's independence triggers the application of EU law, irrespective of whether the Member States are implementing EU law within the meaning of Article 51(1) CFR. Interestingly, two Opinions of the Advocate-General Tanchev in analogous cases involving Poland seem to be on the same wavelength.Footnote 115
In addition, it is worth pointing out that national courts, as part of the EU judiciary, are increasingly encouraged to take part in the review of EU law, for example by requesting an EU Institution to provide the relevant evidence and information when ruling on the validity of EU acts.Footnote 116 Yet, once again, it should be borne in mind that legal-political conflict is an integral element of the EU judiciary, as confirmed by recent rulings by the Spanish Constitutional Tribunal,Footnote 117 as well as its German and Italian counterparts.Footnote 118 In these rulings, domestic constitutional courts claim a more significant role than ordinary courts in the preliminary rulings procedure. The tension between ordinary and constitutional legality is enhanced by the degree of interpenetration between the EU and national legal order, typical of a more mature stage of integration. Security and rights self-justifying and contradictory discourses continue to operate in the triangle constitutional courts-ordinary courts-Court of Justice. The Italian context is once again instructive. Recently the CJEU has clarified in Global Starnet that, whenever a provision of national law raises doubts of compatibility with both the national Constitution and EU law—so-called ‘dual preliminarity’—the existence of a mandatory reference to a domestic constitutional court does not eliminate a national court's right or obligation (depending on the circumstances) to refer questions for the interpretation or validity of EU law.Footnote 119 This should be true even if, in the course of the same national proceedings, the domestic constitutional court has assessed the constitutionality of national rules in the light of regulatory parameters analogous to those established under EU law. Such ruling is based on the meta-constitutional rationale of security: the effectiveness of EU law would be impaired if the national court were precluded from referring questions for a preliminary ruling.Footnote 120 Despite this assertive statement, the ICC has responded by further refining its approach on the issue of ‘dual preliminarity’. In fact, Global Starnet seemed an immediate follow-up to the ICC's argument that, since the CFR is not only a part of EU law but has a typically constitutional character, its enforcement cannot be left to ordinary judges. According to Corte Costituzionale, whenever the content and scope of application of a Charter's right overlap with a right protected by the Italian Constitution, priority must be given to the question of constitutionality—regardless of whether or not EU law would be directly applicable. In such cases, the ICC would reserve to itself the power to review the national legislative act on the basis of both internal and EU criteria.Footnote 121 Yet, despite Global Starnet, the ICC went even further in later rulings by stating that it would intervene when not only provisions of the Charter, but also principles contained in secondary law that are closely connected with the CFR are at issue.Footnote 122 The ICC grounded its reasoning in the constitutional nature of the question raised by the referring judge and the need to interpret fundamental rights protected by the Charter in line with Member States’ common constitutional traditions indicated by Article 52(4) CFR.Footnote 123 Interestingly, however, the ICC added that the power of ordinary courts to refer a question to the CJEU is left unprejudiced and its own ‘first word’ in this specific case was not a rule: it had only been pronounced upon request by the referring judge.Footnote 124 In other words, the ICC after all leaves the ordinary judge free to decide whether the particular question should be referred also to the CJEU, even on the same points that have been addressed by the ICC. In light of these recent rulings, it may be argued that the ordinary judge ought to maintain a margin of discretion when choosing to which Court he/she prefers to submit the relevant question(s) first. This seems to be more in line with the role of national courts as outlined by the Treaties and the case law. He/she would also be best placed to assess by which court a particular question ought to be answered, thus avoiding or reducing potential friction.
V. CONCLUSIONS
This Article has attempted to illustrate how important crisis is to flesh out the reasons behind the European liberal project. Security should thus be viewed as a meta-constitutional rationale, whose explanatory value consists in clarifying from a legal-political perspective the activities of EU actors and the relationship between the EU and its Member States. It is argued here that security is expressed through security and fundamental rights as discourses of power and we may fully understand the functioning of these discourses only from the perspective of justification. In particular, it is possible to point out the circularity of such discourses, and, consequently, the ever-present risk that the self-referentiality of the meta-rationale of security may lead to self-destruction. In fact, the chapter, while referring to six dimensions of security—spatial, temporal, ontological, popular, epistemic, and reflexive—has examined two of them, ie the popular and the epistemic. For the first time in the history of the European liberal project, all dimensions of security are being challenged simultaneously by different types of ‘crisis’. This mind frame allows us to expose the contradictions and ambiguity inherent in the security meta-constitutional rationale, which should be recognised openly and not be necessarily a cause for concern. Paradoxes and tensions certainly emerge from the common effort to construe an internal market within a diversified multi-layered transnational society, while at the same time preventing its fragmentation and dissolution. Yet, the moment has come to face legal-political conflict and address it directly, rather than conceal it behind a veil of neutrality. Being ready for actual confrontation means dismissing the straitjacket imposed by the European liberal project and moving beyond the current state of affairs. As a result, the constellation of nation States should not be sidelined too easily and, at the same time, the needs and claims of the local level should be considered more carefully. In other words, the principles of primacy, autonomy, uniformity, and effectiveness of EU law ought to be conceived in relative, rather than in absolute terms. The move suggested in this Article—from self-referential to heterarchical security—indicates that a different form of coexistence in the EU polity is possible—one which addresses conflict by simultaneously permitting the CJEU (as well as other EU institutions) to engage more proactively with national courts and identifying a common epistemic core, which ought to be upheld in the context of the rule of law crisis when the liberal-democratic tenets upon which the EU polity rests are threatened.
