G.Martinico, How "European" Is the Italian Regional State Now? A Study on the Europeanization of the Italian Regional System

Revista d'Estudis Autonòmics i Federals (REAF).13 (2011): 36-66

To what extent do Italian courts adapt the national legal instruments (principles, rules, techniques, legal concepts) regarding state structure to the requirements of EU law?
This paper aims to give an answer to this question by providing an overview of the most emblematic cases of “re-adaptations” operated by the Italian courts in order to ensure the respect of the structural principles of EU law. This contribution is structured as follows: first, I will explain the reasons why research like this is “difficult”, while secondly I will move to the analysis of the of some legal instruments (principle of competence, substitutive power, “cedevolezza”).
Some final remarks will be presented at the end of the paper. Generally speaking, my main idea is that EU law has had a certain impact on the relationship between State and Regions in Italy, especially looking at the seasons of the principle of competence, that has been conceived more and more as referring to the idea of “legislative preference” rather than as to the existence of a “legislative reserved domain”

G.Martinico, Constitutional Failure or Constitutional Odyssey? What Can We Learn from Comparative Law?

published in "Perspectives on Federalism, Vol. 3, No. 1, pp. 51-77, 2011"

According to many scholars, the rejection of the Constitutional Treaty and the disappointment caused by the contents of the Lisbon Treaty - defined by Somek (2007) as a mere post-Constitutional Treaty – mark the failure of any possible constitutional ambition for the European Union (EU). This point can be challenged both from a theoretical point of view - by describing the EU as an example of “evolutionary constitutionalism” - and a pragmatic one (i.e., looking at the functioning of concrete constitutional experiences), I will focus my paper on this second point, insisting on comparative argument. The research question of this work is: Can we compare the “constitutional crisis” of the EU to the constitutional difficulties encountered by other multinational experiences? My idea is that the latest attempts at amending the EU treaties – the period of the “Conventions” - can be traced back to the genus of mega-constitutional politics and starting from this parallelism I argue that the so-called constitutional “failure” of the EU is actually a confirmation of the current constitutional nature of the EU rather than the proof of the impossibility of transplanting the constitutional discourse to the EU level.

G.Delledonne-G:Martinico, Legal Conflicts and Subnational Constitutionalism

published as "EUI Working Paper LAW No. 2011/03

This paper analyses the increasing use of the concept of subnational identity, understood as a peculiar (to some extent) category that is opposed to the State or federal identity. References to it are included in the second-generation Italian (subnational) fundamental charters (Statuti) and Spanish Estatutos de autonomia. After an overview of the identity clauses contained in the sub-national constitutions, we will move to analyse the first cases of judicial relevance of these clauses when they are invoked before national courts, and test whether and how these subnational identity provisions could be interpreted in a manner consistent with the national constitution

G.Martinico, Reading the Others: American Legal Scholars and the Unfolding European Integration, European Journal of Law Reform, Vol. XI, no. 1, pp 35-49

The aim of this paper is to analyze the perspective of American comparative lawyers with regard to the first steps of European integration. Between the 1950s and 1970s, a substantial debate on the ‘strategies’ of legal/political integration used by European political actors arose in several comparative legal reviews and journals. During those years, many authors from both sides of the Atlantic compared their perspectives on the comparability of American and European integration.

The general infl uence of the United States on the rise of the European Communities was deeply studied by scholars. For example, the well-known essay by Lundestad, Empire by Integration, demonstrates the great length and breadth of the studies in this fi eld. Nevertheless, these analyses do not exhaustively cover the infl uence of ‘American ideas’ on the destiny of European integration. This paper analyzes the earliest articles written by American scholars, such as Peter Hay and Eric Stein, in order to identify their possible infl uence on the activity of the following ‘actors’: the European Court of Justice (ECJ), the European Federalist Movement and, finally, scholars in the field of European legal studies.

G.Martinico, From the Constitution for Europe to the Reform Treaty: a literature survey on European Constitutional Law, Perspectives on Federalism, Summer 2009 1.1 (2009): R- 13-R- 41

The aim of this paper is to offer a brief overview of the international literature regarding the European Constitutional Law.

It is possible to identify five groups of studies which will serve as guidelines of this review article:

1. The Constitution for Europe and the constitutional moment;

2. The Constitutional Treaty and the innovations “proposed”;

3. The European Court of Justice’s activism;

4. The Constitutional stop and the rise of the Reform Treaty;

5. The notion and the nature of a Constitution for Europe after the constitutional failure.

G.Martinico, The Berlusconi Judgment: A Brief Case Note on the Decision of the Italian Constitutional Court (Note 262/2009), European Public Law 16.2 (2010): 231-238

With its judgment 262/2009, the Italian Constitutional Court declared Article 1 of law No. 124 of 23 July 2008 (‘Provisions ordering the suspension of criminal proceedings against the high offi ces of state’) unconstitutional because it violates Articles 138 and 3 of the Italian Constitution. This law is known in Italy with the name of ‘lodo Alfano’, from the name of the Minister of Justice Angelino Alfano, member of the current Italian government (chaired by President Silvio Berlusconi). The aim of this brief note is to offer a rapid overview of the Italian Constitutional Court’s judgment and to recount the fi rst reactions of the Italian political world soon after this decision

G.Martinico, Constructivism, Evolutionism and Pluralism: Europe's Constitutional Grammar, King's Law Journal 20.2 (2009): 309-326

The debate on EU constitutionalisation is at a crossroads: if constitutionalisation is conceived as a constructivist design characterised by a written document and led by a precise and linear political will, we are forced to concede that the EU constitutional process has failed. On the other hand, when constitutionalisation is conceived as a spontaneous process springing from the activity of 'cultural' forces, the latest judicial trends can be regarded as the strongest attempts to ensure the coherence of the EU's 'constitution composée'. This paper is divided into two parts. The first part, adopting a 'constructivist' approach to constitutionalisation, describes the feeling of fragmentation that characterised the EU after national referenda (in France, The Netherlands and Ireland). The second part—taking a different perspective—analyses the ECJ's reaction to the centrifugal judicial forces that were threatening its interpretative monopoly. The change of perspective (from the viewpoint of the political to that of the cultural sources of law) might lead to a less disenchanted evaluation of the current phase of EU integration than that seemingly characterising the current main literature

F.Fontanelli-G.Martinico, Between Procedural Impermeability and Constitutional Openness: The Italian Constitutional Court and Preliminary References to the European Court of Justice, European Law Journal 16.3 (2010): 346-364

On 15 April 2008, the Italian Constitutional Court (ICC) raised for the first time a preliminary question to the European Court of Justice (ECJ). This decision (see judgment No 102/2008 and order No 103/2008) represented a turning point in the ICC's case-law, and calls for a careful assessment of the motives backing such revirement as well as of the legal reasoning that the Italian judges used to wrap it up without repudiating their previous case-law. In addition to this preliminary analysis, the aim of this essay is to explore two themes: i) the developments of the ICC's case-law as regards the role of Community Law and the ECJ, and ii) the appraisal of the interplay between the ICC and the ECJ in the light of the notion of ‘interpretive competition’

G.Martinico, Judging in the Multilevel Legal Order: Exploring the Techniques of 'Hidden Dialogue', King's Law Journal, Vol. 21, pp. 257-281, 2010

The aim of this paper is to focus on that particular form of judicial conversation represented by what I have endeavoured to call the techniques of 'hidden dialogue' between the European Court of Justice (ECJ) and the national Constitutional Courts. By 'hidden dialogue' I refer to that unexplored side of the relationship between the Constitutional Courts and the ECJ which feeds on somewhat unorthodox avenues of judicial communication, that is, methods of judicial communication other than the preliminary ruling procedure set out in Article 234 of the EC Treaty (ECT) (Article 267 TFEU) which are not formalised according to the letter of the treaties

G.Martinico, Preliminary Reference and Constitutional Courts: Are You in the Mood for Dialogue?, Tilburg Institute of Comparative and Transnational Law Working Paper No. 2009/10

This article aims at describing the new trends in the relationship between the ECJ and Constitutional Courts. From a situation characterized by the reluctance by the latter to raise preliminary references to the former, we moved to a context where Constitutional Courts accept the mechanism of art. 234 ECT. After trying to identify the main reasons for this strategy-change, the article explains why one ought to consider this situation as a temporary truce rather than the beginning of a stable cooperation

G.Martinico, Complexity and Cultural Sources of Law in the EU Context: From the Multilevel Constitutionalism to the Constitutional Synallagma, German Law Journal, Vol. 8 No. 3, 2007, pp. 205-230

In this work I will try to analyse the latest trends of the European integration process in light of the notion of complexity, conceived as a bilaterally active relationship between diversities. This notion of complexity comes from a comparison among the different meanings of this word as used in several disciplines (law, physics, mathematics, psychology, philosophy) and recovers the etymological sense of this concept (complexity from Latin complexus=interlaced). The effort to find a common linguistic core could cause ambiguity but I would like to take the risk because only a multidisciplinary approach can catch the hidden dimension of the European process I argue that the European Union legal order is a complex entity that shares some features with complex systems in natural sciences: non-reducibility, unpredictability, non-reversibility and non-determinability.
The aim of this paper is to contribute to the theory of multilevel constitutionalism by completing some points that may have been neglected in Pernice's reasoning. In the interlaced nature of the EU a very important role is played by the constitutional synallagma, which is the whole of legal and permanent flows which connect the levels (national, international, supranational, subnational), determining the outcome of the coordination process described by Pernice.
I will develop my argumentation dividing this work in two parts. In the first part I will try to introduce the notion of complexity while in the second part I will focus on the role of the cultural sources of law in the communication and exchanges among the constitutional levels.