The Italian “constitutional identity” in the European composite constitution

Abstract

The concept of "constitutional identity" is not an original elaboration of Italian constitutionalism. Indeed, its recent use during the so-called the Taricco saga confirms that the interaction between the Italian and the European constitutional systems involves not only a progressive legal integration, but also an osmosis between the fundamental conceptual categories. Before the entry into force of the Lisbon Treaty (i.e. the moment in which the concept of constitutional identity of the EU MS is affirmed) the case law of the Italian Constitutional Court had made reference to “constitutional identity”, but in completely different contexts and with a completely domestic meaning (see decisions nos. 203/1989 and 262/2009). Differently, order n. 24/2017 puts art. 4(2) TEU in continuity with the counter-limits doctrine, according to a vision that appears to be far more cooperative than constitutional courts of other MS. Finally, Italian approach to the topic has been recently labelled as “seductive”, emphasizing its relational nature. This interpretation further confirms the contribution of the Italian Constitutional Court to the elaboration principle of “openness” as a core part of the national constitutional identity.