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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
    1. Van Gend en Loos v Nederlandse Tariefcommissie (case 26/62) [1963] ECR 1.
    2. Costa v ENEL (case 6/64) [1964] ECR 585 - ECJ
    3. Costa v ENEL (case 6/64) [1964] ECR 585 - Italian Constitutional Court
    4. Franz Grad v Finanzamt Traunstein (case 9/70) [1970] ECR 825
    5. Politi SAS. v Ministry for Finance of the Italian Republic (Case 43-71) [1971] ECR 1039.
    6. Internationale Handelsgesellchaft mbH v Einfuhr- & Vorratsstelle fur Getreide & Futtermittel (Case 11/70) [1970] ECR 1125; before the ECJ
    7. Syndicat Generale des Fabricants de Semoules [1970] CMLR 395 - (French Conseil d'Etat)
    8. Internationale Handelsgesellchaft mbH v Einfuhr- & Vorratsstelle fur Getreide & Futtermittel (Solange I) [1974] 2 CMLR; (German Federal Constitutional Court)
    9. Minister for Economic Affairs v SA Fromagerie Franco-Suisse 'Le Ski' [1972] CMLR 330; before the Belgian Cour de Cassation
    10. Administration des Dounaes v Societe Cafes Jacques Vebre Jacques Vabres [1975] 2 CMLR 336 - before the French Cour de Cassation
    11. Frontini v Minister delle Finanze [1974] 2 CMLR 372 (Italian Constitutional Court)
    12. Blackburn v Attorney-General [1971] 2 All ER 1380
    13. European Communities Act 1972
    14. Van Duyn v The Home Office (case 41/74) [1974] ECR 1337.
    15. Walrave v Koch (case 36/74) [1974] ECR 1405
    16. DeFrenne v Sabeena (case 43/75) [1976] ECR 455
    17. Administrazione Dealla Finanze dello Stato v Simmenthal (case 106/77) [1978] ECR 629
    18. Minister of the Interior v Daniel Cohn-Bendit [1980] 1 CMLR 543; (before the French Conseil D'Etat)
    19. Macarthys Ltd v Smith [1979] 3 All ER 325
    20. Garland v British Rail Engineering Ltd [1982] 2 All ER 402
    21. Marshall v Southampton Area Health Authority (case 152/84) [1986] ECR 723; [1986] 1 CMLR 688.
    22. Von Colson and Kamann v Land Nordrhein-Westfalen (case 14/83) [1984] ECR 1891
    23. On the Application of Wunsche Handelsgesellschaft (Solange II) [1987] 3 CMLR 225; before the German Federal Constitutional Court
    24. Marleasing SA v La Commercial Internacional de Alimentacion SA (case C-106/89) [1990] ECR I-4135
    25. Francovich and Bonifaci v Italy (cases 6/90 and 9/90) [1991] ECR I-5357; [1993] 2 CMLR 66
    26. Duke v GEC Reliance Ltd [1988] 1 All ER 626
    27. Litster and others v Forth Dry Dock and Engineering Co Ltd and another [1989] 1 All ER 1134
    28. Factortame Ltd and others v Secretary of State for Transport [1989] 2 All ER 692
    29. Factortame Ltd and others v Secretary of State for Transport (No 2) (Case C-213/89) [1991] 1 All ER 70
    30. R v Secretary of State for Transport, ex parte Factortame (no.2) [1991] 1 All ER 70 (House of Lords)
    31. Thoburn v Sunderland City Council and other appeals [2002] EWHC 195 Admin; [2003] QB 151; [2002] 4 All ER 156
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

Frontini v Minister delle Finanze [1974] 2 CMLR 372 (Italian Constitutional Court)

[1] By reference order of the Tribunale of Turin the question is raised of the constitutional validity of section 2 of the EEC Treaty Ratification Act 1957 which made effective in Italy Article 189 of the Treaty instituting the European Economic Community....

[4] 2. The admissibility of questioning the constitutional validity of the ordinary statute ratifying and implementing an international treaty with regard to specific provisions of the treaty itself, has already been recognised by this Court in Soc. Acciaierie San Michele v High Authority (1965).

[5] 3. The Treaty instituting the EEC provides in Article 189 (1) that 'in order to carry out their task the Council and the Commission shall, in accordance with the provisions of this Treaty, make regulations, issue directives, take decisions, make recommendations or deliver opinions'. The effect of these various acts is then defined, and in paragraph (2) of Article 189 it is stated: 'A regulation shall have general application. It shall be binding in its entirety and directly applicable in all member-States '.

[6] The constitutional validity of this provision of the Treaty is being questioned under various aspects by means of an impugning of the implementation statute which adapted our internal law to it. It is noted in the reference orders that by Article 189 the binding effect and immediate applicability as against the state and Italian citizens of acts which have the force and power of ordinary statutes, issued from organs other than those to which the Constitution attributes the exercise of the legislative function; that thereby is introduced into our system a new source of primary legislative process, with the resultant removal of legislative power from the normal constitutionally authorised organs of the state, in matters of wide and generically characterised content; that as against Community regulations there are lacking the guarantees laid down by the Constitution for the ordinary statutes of the state (forms of promulgation and publication, possibility to promote repeal referendum, admissibility of control by this Court to protect the fundamental rights of the citizens); that, finally, via these regulations financial obligations can be imposed on Italian citizens in violation of the statute monopoly laid down by Article 23 of the Constitution. Article 189 of the Rome Treaty would involve not only limitations on sovereignty but also ' an inadmissible surrender of sovereignty, or an alteration of the fundamental constitutional structure itself of our state', and Article 11 of the Constitution would not remove the envisaged constitutional doubt ' either because, apart from its value as a statement of guiding policy, it does not exclude the need of a constitutional statute for limitations of national sovereignty or because it would seem directed to ends other than the typically economic ends pursued by the setting up of the EEC .

[7] The question must be dismissed. The EEC Treaty Ratification Act 1957, whereby the Italian Parliament gave full and complete execution to the Treaty instituting the EEC, has a sure basis of validity in Article 11 of the Constitution, whereby Italy 'consents, on condition of reciprocity with other States, to limitations of sovereignty necessary for an arrangement which may ensure peace and justice between the nations' and then 'promotes and favours the international organisations directed to such an aim'. That provision, which not by chance is included in the 'fundamental principles' of the Constitution, indicates a clear and precise political aim: the makers of the Constitution referred, in the preamble, to the adherence of Italy to the United Nations Organisation, but were inspired by policy principles of general validity, of which the Economic Community and the other European regional organisations constitute a concrete actualisation. It is sufficient to consider the solemn recitals contained in the preamble to the Treaty and the rules concerning the principles (Articles 1 et seq.), the foundations (Articles 9 et seq.) and the policy of the Community (Articles 85 et seq.) to see how the setting up of the EEC was made by the common will of the member-States to 'lay the foundations of an ever closer union among the peoples of Europe', in order to 'ensure the economic and social progress of their countries by common action to eliminate the barriers which divide Europe', all this with the precise aim to ' preserve and strengthen peace and liberty, and calling upon the other peoples of Europe who share their ideal to join in their efforts' and to ' confirm the solidarity which binds Europe and the overseas countries and desiring to ensure the development of their prosperity, in accordance with the principles of the Charter of the United Nations'. There is therefore no possible doubt of the full concordance of the Rome Treaty with the aims indicated in Article 11 of the Constitution.

[8] 5. The makers of the Constitution, after having stated in Article Finanze 10 that the Italian legal system was in conformity with the rules of general international law, intended in Article 11 to define the opening of Italy to the most binding forms of international collaboration and and organisation, and to that end formally authorised the acceptance through treaty, on conditions of equality with the other States and for the ends there set out, of the necessary 'limitations of sovereignty', That formula legitimises those limitations of the powers of the state in the exercise of the legislative, executive and judicial functions as are made necessary by the setting up of a Community among the European States, or rather of a new inter-State organisation, of a supranational type, permanent, with legal personality and capacity of international representation. On the Economic Community, open to all the other European States (Article 237 of the Treaty) and conceived as an instrument of integration of the participating States, for common ends of economic and social development and consequently also for the ends of defence of the peace and of liberty, Italy and the other promoting States have conferred and recognised certain sovereign powers, constituting, it as an institution characterised by its own autonomous and independent legal order. In particular, by Article 189 of the instituting Treaty, the power is given to. the Council and the Commission of issuing regulations of general application, or rather, according to the interpretation given by the Community case law and by that of the various member-States, as well as by prevalent doctrine, acts having a general normative content on the same level as national statutes, being of obligatory effect in all their elements and directly applicable in each of the member-States, i.e. immediately binding on the States and their citizens, without the necessity of internal norms of adaptation or reception.

[9].This normative power is given to the organs of the Community ' in order to carry out their task ... and in accordance with the provisions of this Treaty'; there is thus made by each of the member-States a partial transfer to the Community organs of the legislative function, on the basis of a precise criterion of division of jurisdiction by subject matter indicated analytically in the second and third parts of the Treaty, in necessary correlation with the aims of general interest laid down by the Treaty itself for the economic and social policy of the Community.

[10] This grant of normative power to the organs of the EEC, with the corresponding limitation of that held by the constitutional organs of the individual member-States, was not granted unilaterally nor without Italy having acquired powers within the compass of the new institution.. In signing the Rome Treaty Italy freely made a choice of historical importance and has acquired within the European Economic Community, the right to nominate its own representatives in the institutions of the Community - the Assembly and the Council - and to take part in the appointments to the Commission and the Court of Justice. The limitations on its sovereignty to which it has agreed have therefore their equivalent in the powers acquired in the much bigger Community of which Italy is part and with which has been actively initiated the process of integration of the States of Europe.......

[13] 8. The system of relationship between Community order and internal order, as set out above, provides a sure solution for the doubts expressed in the reference order about the absence, in relation to the EEC regulations, of the guarantees which our Constitution has regarding state legislation, the enactment and publication of statutes, the admissibility of the repeal referendum and the judicial review of constitutionality. The constitutional provisions govern solely the legislative activity of the organs of the Italian State, and by their nature are not referable or applicable to the activity of the Community organs, which are governed by the Rome Treaty, which constitutes the constitution of the Community.

[14] In this respect there are certain further considerations. It should first be remembered that the Treaty contains in Part V- Institutions of the Community-(Articles 137-209) a legislative organi-gramme of the composition, the powers, and the exercise of the functions of the various organs, and through these the Community order is shown to have a complex of statutory guarantees and its own system of judicial supervision. In so far as concerns particularly the regulations referred to in Article 189, apart from the already stated limits of sectoral competence ratione materiae imposed on the legislative power of the Council and the Commission by the provisions of the Treaty, it should be mentioned that the actions of those organs are subject to the supervision of the Assembly, comprising representatives delegated by the member-States, and intended, in the hoped-for later development of the process of integration, to assume a more direct political representativeness and wider powers, and that, on the other hand, the actions of the Council and Commission take place with the constant and direct participation of our Government, and so also under the indirect, but not thereby the less vigilant and attentive, supervision of the Italian Parliament.

[15] According to the Treaty, regulations, like directives and decisions of the Council and the Commission, must state the reasons on which they are based..., and are to be properly published in the Official Journal of the Community, and only after this do they enter into force.....

[17] In this same perspective too the question should be judged of the constitutional legitimacy of Article 189 of the EEC Treaty, in so far as it permits the issue of regulations involving the levy of monetary obligations. That does not involve a derogation from the statute monopoly laid down in Article 23 of the Constitution, since that provision is not formally applicable to the Community legislation, which comes out of an autonomous production source, part of an order which is distinct from the internal order. On the other hand, from the substantive viewpoint also, it seems obvious to observe that that historical guarantee could not be said to be violated so long as the Community regulations have statutorily to conform to the guiding principles and criteria of the Treaty instituting the Community.

[18] 9. Equally unfounded appear the doubts as to the lack of control by this court in protection of the fundamental rights guaranteed by our Constitution to the citizens.

[19] It should be remembered particularly that the order of the European Economic Community contains a special system of court supervision, characterised by the fullness of jurisdiction attributed to the Court of Justice by Articles 164 el seq. of the Treaty. The Court of Justice of the Community, apart from ensuring ' that in the interpretation and application of this Treaty the law is observed' (Article 164), carries out review of the legality of the legislative acts of the Council and the Commission, with jurisdiction to receive actions 'on grounds of lack of competence, infringement of an essential procedural requirement, infringement of this Treaty or of any rule of law relating to its application, or misuse of powers' brought by a member-State or by any natural or legal person (Articles 173 (1) and (2)), and has power to declare void acts which have been attacked and found unlawful, and to state which of the effects of the regulation which it has declared void shall be considered as binding (Article 174). The Court of Justice is also competent to give preliminary rulings, upon the conditions set out in Article 177, on the interpretation of the Treaty, on the validity and interpretation of acts of the institutions of the Community, and on the interpretation of the statutes of bodies established by an act of the Council when such questions are raised 'before any court or tribunal of a member-State'.

[20] The amplitude of the judicial protection which the Community order assures against the acts of its organs which may harm the rights or interests of individual citizens has already been recognised by this Court in Soc. Acciaierie San Michele v High Authority (1965), which declared unfounded the question of constitutionality raised in connection with Articles 102 and 113 of the Constitution with regard to the alleged special nature of the Court of Justice as a judicial organ and to the content of the judicial protection guaranteed by it.

[21] It should, on the other hand, be mentioned that the legislative competence of the organs of the EEC is laid down by Article 189 of the Rome Treaty as limited to matter concerning economic relations, i.e. matter with regard to which our Constitution lays down the statute monopoly or the reference to statute, but the precise and exact provisions of the Treaty provide a safe guarantee, so that it appears difficult to form even abstractly the hypothesis that a Community regulation can have an effect in civil, ethico-social, or political relations through which provisions conflict with the Italian Constitution. It is hardly necessary to add that by Article 11 of the; Constitution limitations of sovereignty are allowed solely for the purpose of the ends indicated therein, and it should therefore be excluded that such limitations of sovereignty, concretely set out in the Rome Treaty, signed by countries whose systems are based on the principle of the rule of law and guarantee the essential liberties of citizens, can nevertheless give the organs of the EEC an unacceptable power to violate the fundamental principles of our constitutional order or the inalienable rights of man. And it is obvious that if ever Article 189 had to be given such an aberrant interpretation, in such a case the guarantee would always be assured that this Court would control the continuing compatibility of the Treaty with the above-mentioned fundamental principles....

[22] For these reasons, the Court declares not founded the question of constitutionality of section 2 of the EEC Treaty Ratification Act 1957 in the part in which it implemented Article 189 of the Treaty....