Costa v ENEL (case 6/64) [1964] ECR 585 - Italian Constitutional Court
The last question relates to the alleged conflict between the Law creating ENEL and Article 11 of the Constitution.
Article 11 is here prayed in aid in so far as it states that Italy agrees, under conditions of parity with other States, to such limitations of sovereignty as are necessary for the establishment of an order that will ensure peace and justice amongst nations; and it will promote and favour international organisations for this purpose.
This means that, given certain circumstances, it is possible to stipulate treaties as a result of which we accept certain limitations to our sovereignty and it is quite lawful to give effect to such treaties by means of an ordinary Law; but this does not result in any deviation from the existing rule relating to the efficacy, within national law, of the obligations undertaken by the State in connection with its relations with other States, since Article 11 did not confer a greater effect upon the ordinary Law that gives effect to a treaty. Nor can we agree with the view according to which any Law containing provisions differing from those of international treaties is unlawful, inasmuch as it is in conflict with Article 11 in so far as it is in conflict with the Law giving effect to the Treaty.
The phenomenon of a conflict of a constitutional provision resulting from the violation of an ordinary Law is not unusual. Quite often this Court has declared unlawful certain provisions of legislative decrees that did not correspond with the Law that granted delegated powers to issue them, relating the cause of illegality to a violation of Article 76 of the Constitution.
But the situation is quite different as regards that part of Article 11 containing the provision which is being considered in this case. Article 76 lays down certain rules regarding the exercise of a delegated legislative function and for this reason non-compliance with the principles of the delegating Law results in violation of Article 76. Article 11, on the other hand, inasmuch as it is considered as a permissive provision, ascribes no particular significance to a Law giving execution to an international treaty as opposed to any other Law.
Nor is there any validity in the other argument, according to which the State, once it has agreed to limitations to its own sovereignty, could not pass any Law withdrawing such limitations and restoring its freedom of action without contradicting the Constitution. Against this can be set our foregoing remarks, from which we are led to believe that the violation of a treaty, even if it results in responsibility by the State at international level, does not detract from the validity of any conflicting Law.
There is no doubt that the State is bound to honour its obligations, just as there is no doubt that an international treaty is fully effective in so far as a Law has given execution to it. But with regard to such Law, there must remain inviolate the prevalence of subsequent laws in accordance with the principles governing the succession of laws in time; it follows that any conflict between the one and the other cannot give rise to any constitutional matter.
From the foregoing we reach the conclusion that for present purposes there is no point in dealing with the character of the E.E.C. and with the consequences that derive from the Law giving effect to the Treaty creating the E.E.C.; nor is it necessary to question whether the Law that is being attacked before us has violated the obligations undertaken by virtue of the Treaty aforesaid. It follows from this that the question regarding the remission of the file to the Court of Justice of the European Community, and the relevant question of jurisdiction, do not even arise.
For all these reasons this Court declares that any question upon the constitutional legality of the Law of 6 December 1962 No. 1643 (creating ENEL), raised by the order before it in connection with Article 3, Article 4, Article 41, Article 43 and Article 67 of the Constitution, is unfounded.
