1. (Elements of) crisis in the process of European integration and re- turn to oldforms of “celebration” of national sovereignties

As it is well known, the combined effect of a serious economic and financial crisis that has been affecting for a long time the member States of the European Union (and some of them in particular), together with the difficult management of the migration flows² and the emergence of inequalities increased by the huge accumulations of richness produced by technological progress, have caused faults in an economic European system which was considered to be mostly well-established, while on the contrary it has also assumed the character of a political crisis in the Union itself. This resulted also in a crisis of political legitimacy of the Union as a consequence, in particular, of that economic crisis which, already in the Agenda 2010 had been defined by the European Commission as “an unprecedented phenomenon for our generation³”. But above all, a widespread “crisis of trust” in the ability of the EU to face the most important challenges, in light of a “solidaristic” approach, has occurred. The EU tends to be often identified with the policies of austerity: policies which have been showed to be a withdrawal of individual rights, having an impact not only on economic rights, but also on social ones and inducing many negative effects, above all as regards the weakest components of society⁴. Such crisis has become even more serious, because of the health emergency linked to COVID-19, which has showed how the health crises of the globalized world can be serious as well as the economic-financial ones.

Within this complex context, we have been observing, for a long time and increasingly, the return of old forms of “celebration” of national sovereignties (almost conflicting with the supposed and feared so-called European sovereignty)⁵ as well as the recall to alleged “souverainisms”, wrongly considered to be equivalent to a way of exercising sovereignty. The gradual transformation, in the sense of the evolution of the classical institutional, social and territorial forms of organization of the political power – physiological in a certain way – within a process like that of the European integration, essentially based on graduality, seems to find special elements of crisis, also from the theoretical reconstruction point of view, of its (present) supporting principles.

Obviously, difficulties in the development of the EU formation process, were also found in the past. It is worth remembering, in this regard, one example, the crisis of the European Economic Community (EEC) at the time of De Gaulle, as an event conflicting with the start of the political union in the ‘60s, but also the period when the Treaty adopting a Constitution for Europe failed to enter into force is an example of the resistances to the consolidation of that political factor of integration that the so-called European Constitution could have fostered⁶. However, today’s events seem to show some elements of difference from such previous periods, above all as regards the questioning of some basic elements of the concept of European integration itself, in the light of the multifaceted principle of state sovereignty and of its different later interpretations.

Following this briefly illustrated framework, we will try to make some observations on the effects of the enlargement of the European competences, compared with the more general development process which has concerned the classical concept of sovereignty and its structural elements⁷. Such enlargement cannot be seen from the point of view of the peculiarity of the “phenomenon” of European integration which, as it is well known, makes it very difficult to associate the EU with the so-called “classical” international organizations, or with models of State Unions of an integrationist kind, developed in other areas of the continent.

It is obvious that the participation of a country in an international organization such as the EU, characterized by a tight membership bond, causes a necessary limitation of the sovereignty of the member States, leading to the consequent erosion of that sovereignty from a legislative, judicial and administrative point of view.

It is well known that, by the creation first of the European Economic Community and then of the EU, the member States have experienced the transition from a state sovereignty which in the classical constitutionalist doctrine of European States, “was considered one and indivisible within a European society characterized by an institutional pluralism of sovereign and independent States”, to a sovereignty limited in the technical-legal meaning of the expression “as being submitted to a double exercise of such sovereignty, one at a national level (uti singuli), and the other one at a community level (uti socii . uti universi)”⁸.

This phenomenon which has found a strong support, at a constitutional level, almost in all the Constitutional Charters of the European countries, in our Constitution, has had as a first consequence the “extended” use of art. 11 of the Constitution, in which the text concerning the “limitations of sovereignty” has been “adapted” to the needs of European integration, and then interpreted, in conjunction with the novated art. 117 first paragraph, as referring to the exercise of legislative power (also) according to the “obligations deriving from the EC legal order⁹.

The granting, devolution, delegation or conferral of the legislative, executive or judicial powers (according to the expressions used in the different Constitutions of the European countries) to the EU for the fulfillment of the integration purposes, however, was bound to show, over the last years, elements questioning the whole of the already mentioned factors both inside and outside the EU¹⁰. In particular, we will make some observations about the slight limit separating the EU competence from the competence of the States in reference to the gradual enlargement of those of the EU, by adopting as observation point the issue of the field of application of the Charter of fundamental rights of the EU by the member States.

2. Classical conceptual paradigm of sovereignty, peculiarity of the Community “phenomenon” and lasting lack of a European demos

It is well known that the classical conceptual paradigm of sovereignty, even before the creation of the Community legal order, had already had to adapt itself to the more general transformations occurred in the international community: from being a community of post-westfalian kind, based on the tendential anarchy of its entities, it had become a community based on the centralization of some functions and the devolution of powers and tasks to multistate bodies, up to the new conceptualization of the powers of the sovereign authority, according to a so-called human rights oriented¹¹ approach. It is an evolution process going from the concept of sovereignty as an instrument for the protection of private interests of sovereigns (in the 16th and 17th centuries) through a kind of sovereignty coincident with the interests of the States in the relationships between each other (in the 18th and 19th century) up to a sovereignty aimed, among others, at meeting the common needs shared by a number of entities of international Law, as international organizations are. But it is evident that such more general adaptation would have required the forced submission “of a century old concept like that of sovereignty to representations of new sovereign powers…which are to be found outside the state territory”¹² thus implying a new necessity of adaptation to some peculiar characteristics of the EEC, today EU, legal order.

The more general issue of the relationships between the internal legal order and that of the EU, and the different directions taken by the lively interlocution between the Italian Constitutional Court and the Court of Justice of the EU¹³ always show a general “resistance” of state sovereignty to recognize other sovereignties as being “able” to penetrate the “domain” pertaining to it and to produce within it constraints of different nature and degree¹⁴.

Then, in the wider framework of the already partly mentioned outstanding peculiarities of the European integration process, it must be recalled that the States, on signing and ratifying the treaty establishing the EEC in 1957 and the following ones have created a legal order of a new kind, integrated in the legal order of the member States, the subjects of which comprise not only those States but also their nationals. This, as it is well known, has been recognized by the Court of Justice, starting from the judgments van Gend & Loos, 26/62, and Costa, 6/64 but also by different Constitutional Courts¹⁵ and, more recently, it has been strongly repeated in Opinion 2/13 about the accession of the EU to the European Convention on Human Rights (ECHR)¹⁶: derives from it a different interpretation of the concept of the so-called “European sovereignty”¹⁷.

The outstanding originality of the “phenomenon” of European integration, within the landscape of the other forms of organization of the institutionalized relationships between States, finds, among others, its significant element precisely in the above mentioned mixed - interstate and interindividual - dimension of the phenomenon itself, expressed in all its outcomes. If the EU represents a new entity, different from all the other international organizations, the most significant point of those pronouncements is to be found in the necessity of guaranteeing to the individuals an essential role in the construction of the European Community while, starting from that, the central role of the protection of the individual is continuously affirmed by the Court. On the other hand, as observed by the Advocate General Yves Bot in paragraph 78 of his Conclusions in the joint cases Bauer e Willmeroth¹⁸ (Grand Chamber, 6 November 2018) the reference of some provisions of primary law, first of all, to the member States, cannot exclude the possibility that they can be applied to the relationships between private individuals¹⁹.

Such character of originality of the community “phenomenon” could not but clash on the classical conceptual paradigm of sovereignty which, as it is well known, is strongly linked to the dimension of statehood. Obviously the EU, just like – and even more so – than the other international organizations, cannot but be based on a different model of sovereignty, absolutely not comparable with the ternary model generally valid for States, considered as supremacy over a territory or a people. This concept of sovereignty must refer, in line with what affirmed above, to a different conceptual pattern, allowing the integration of many national, all sovereign and independent, legal orders. It seems, then, meaningless to refer the legal order pattern, valid for the EU, to the model of state sovereignty, recognizing in the latter the unpassable limit for the former, in a perspective of continuous, potential conflict between the two different legal orders (that of the EU law and the national ones).

There is also another element on which it is worth briefly focusing our attention. If the development of the concept of sovereignty, from a classical point of view, consists of the gradual replacement of the sovereignty of the monarch with the people’s sovereignty, as a concept of democracy – in its legal- formal aspects – can it be used with regard to the above mentioned outstanding peculiarities of the EU legal order, also in light of its ability to consider, as its subjects, both the individuals and the States²⁰?

Since a state’s sovereignty is not per se conflicting with a people’s sovereignty²¹, it is evident that the concept of European democracy cannot but be “adapted” and shaped according to the structure of the EU legal order and to its three dimensions: the international, the supranational and the infra-national dimension.

It is well known that one of the characters of the national State is represented by its ability to combine the limitation of sovereignty and the implementation of the democratic principles, inside it, with the exercise of sovereignty, released from the subjection to democratic criteria, in the international context. With reference to its participation in the EU, it could be affirmed that within such context, the limitation of the external sovereignty of the State has inverted such relationship, in the sense that the limitation of sovereignty within the EU has not helped to increase the level of internal democracy of the member States, but rather to reduce its quality²². The member States, in other words, have been able – thanks to the process of integration and by means of the transfer of competences to an international organization – to exercise inside themselves the same portion of sovereignty which could not be exercised previously, because of its necessary subjection to the conditions of legitimacy typical of the democratic constitutional state.

To a European demos that has never existed and continues not to exist, and to a community construction to which a deficit of democracy has always been attributed²³ – with special reference to the ways of transferring powers to the national parliaments in favor of the Community, without suitable compensation measures at a European level – the Treaty of Lisbon has answered first of all with its art. 2 of the Treaty on the EU. This rule, in founding the EU on a list of values, mentions among others the value of democracy, which is, of course, not easy to define either from a regulatory or from a conceptual point of view. In addition to this, the Treaty itself has dedicated its Title II to the democratic principles, both in the form of representative democracy and of participatory democracy, thus involving not only the European parliament but also the national ones and, in some ways, civil society itself. It is in fact a minimum concept of democracy which can be referred to the people’s will as legitimization of the expression and representation of regulatory power, which requires an effort of deepening of the concept itself, within a new – desirable – construction stage. Being aimed at carrying out a complete project of deepening the concept of integration and overcoming the outstanding impulses to the “breaking up”, it could better define the transformation of national sovereignty beyond the dimension of statehood²⁴.

3. The new limits of the so-called “euro-national” sovereignty, within the framework of the gradual enlargement of the competences of the European Union

We have already referred, on one side, to the utmost celebration in an absolute sense in Bodin²⁵ and on the other side to the penetrating kelsenian critique, as well as to the most recent reformulations of the theory of the “limited sovereignty”, the concept of which has transformed itself over the years. Deprived of its specific territory and nation, from being the exclusive holder of competences, it has become “co-holder” – actual or potential – of its right to exist, because of the existence of other entities of International Law such as (at least some) international organizations and especially the EU. A sovereignty based on the shared performance of national sovereign functions, in line with the paradigms of a “shared sovereignty” and of a “shared Constitution”²⁶. A concept well expressed by art. 88.1 of the French Constitution which provides “La République participe à l’Union européenne constituée d’Etats qui ont choisi librement d’exercer en commun certaines de leurs compétences en vertu du traité sur l’Union européenne et du traité sur le fonctionnement de l’Union européenne…”²⁷. Then, if it is not possible to share the statement of the doctrine concerning the transformations occurred within the international community- according to which, as it has been illustrated, they tend to penetrate “the core of the sanctuary of sovereignty itself”²⁸, it has been long been pointed out how sovereignty follows a dynamic, continuously developing and delicate process, which means that it can be every day called into question.

Such a soft sovereignty, in a certain way sense in continuous transition²⁹, at least with reference to the fluidity of its borders, more than ever at the present stage of the process of European integration, finds itself faced, in a rather tormented way, with the dialectic relationship between the single sovereign powers, traditionally exercised by the States, and their limitations, in some cases significant (let us recall the monetary sovereignty) up to the point of generating real “conflicts” of sovereignty. It is obvious that if the reference to the limitations of sovereignty “allowed” by our legal order, contained in our Republican Constitution (art. 11) does not appear suitable either to prove the failure of state sovereignty, or to prove the rise of a so-called European sovereignty (in the absolute sense of the expression), today’s concept of sovereignty still seems to be forced to register – and perhaps to tolerate – a breaking up between its political element, strongly pertaining to the States, and its legal-regulating dimension, which is much more fragmented³⁰.

What is then the maximum level of depth of the integration between States within an institutionalized union, which allows not to affect the tendential monolithic and unitary character of sovereignty as state sovereignty? In other terms, until which point can we envisage the exercise of sovereign competences by a union of States, in some way sui generis, as it is the EU “outside” the state body?

In the classical conceptions of sovereignty no external exercise of competences is provided, because the sovereign state represents the unique point of reference of legal relations, deriving from the performance of both the internal competences and the international ones³¹.

Now, after having observed that sovereignty (as summa potestas, to quote Bodin again) implies a character of totality and absoluteness of the legal order, it is difficult to assume that it can be divided, as this concept conflicts with its logic structure³². The delicate relationship sovereignty-competences has been often represented as a “zero sum game”, insofar as the growth of the powers of the Community/European Union causes a decrease in the power of the member States and a reduction of their sovereignty³³.

The 60+ years of deepening of the European integration process have caused, as it is well known, a consequential expansion of the competences of the European institutions, with the consequent limitation of the national ones. This, of course, without transforming the EU from body with listed competences to body with general competences since the non-original character of the powers given by the member States to the EU is proved by the voluntary character of such transfer which is reflected in its reliance on the contents and the limits of it, as set out in the institutional agreement and changed in the subsequent Treaties³⁴.Then, if the primary law does not fail to underline that any competence not given to the EU, because of provisions contained in the primary law, belongs to the member States (see in particular art. 4 par. 1 of the TEU but also art. 5 par. 2 of the TEU), the protection of the sovereignty of the member States finds a safe bulwark in the provision of par. 2 of art. 4 of the TEU referring to the respect by the EU of the “essential functions of the State”.

The controversial theme of the limits of the competences assigned to the EU seemed to be overcome (starting from the Treaty of Maastricht) with the codification of the principles of conferral and subsidiarity, but also that of proportionality (today codified in art. 5 TEU), as limits to the exercise of the concurrent (or shared) competences given, according to art.4 par. 2 TFEU, to the Union, while the exercise of the exclusive ones, provided by art. 3 TFEU, remains free from further influences, since in those contexts a unitary action is considered to be necessary. If, then, on the subjects of concurrent competence, a legislative intervention is allowed both by the Union and the member States, with a residual nature of the latter, according to art. 2 TFEU³⁵, the former keeps, instead, in the matters entrusted to the shared competence, a general legitimization to the introduction of homogeneous rules or harmonized regimes, following the principles of subsidiarity and proportionality.

That being said, even if the distinction of the fields of action, with reference to the different segments of the exclusive competences and of the concurrent ones seems, at first, to be certain, however the identification of the titularity of the former results in some way uncertain; the mere reading of the “sectors” listed by art. 3 TFEU shows the difficulty of identifying the exact limits of the exclusive conferrals, as they are defined with reference to undetermined scopes, often characterized by the setting of political and transversal objectives. But above all, if the enlargement of the scopes of competence of the EU can cause, as a consequence, a natural enlargement of the limits of the national regulations implementing the discipline of European origin, it is necessary to find equilibrium points between such phenomenon and the safety of the intangible core of state sovereignty, insofar as the delicate sphere of the protection of fundamental rights (between state and ultra-state guarantees) is a very good observation field of a “moving watershed”.

4. The Charter of Fundamental Rights of the European Union and the question of its field of application to the member States

This watershed has brought to light a delicate question, with reference to the field of application of the Charter of Fundamental Rights of the European Union to the member States³⁶. Since its proclamation, as it is well known, the Charter has clearly set out the boundaries of such field of application³⁷. It is also known that the regulatory provisions contained in art. 51 of the Charter itself (and particularly in para. 1) have legitimized – and still legitimize – the applicability of its provisions, other than to “institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity”, also to the “Member States only when they are implementing the Union law”³⁸.

It is a charter-catalogue of the fundamental rights which, just because of its content of a “merely constitutional kind”³⁹, even before the acquisition of binding legal effectiveness with the entry into force of the Treaty of Lisbon, has showed to be, at least theoretically, suitable to represent a potential vulnus also with reference to the systems of guarantees of the rights granted by national laws⁴⁰. In addition to this, unlike most of the charters of rights which often find some difficulties in being applied in the case law⁴¹, the Charter has showed a kind of “anticipated application”, thus confirming its potential. More in general, the normative practice of the Community institutions has registered an increasing recourse to chapters or single provisions of the Charter, as a whole of derived community law acts show.

With specific reference to the subject of this paper we will focus our attention on some problematic aspects concerning the application of the Charter by the member States of the EU which are more likely to influence the cut-off line between the competences of the EU and those of the member States. From the moment of its proclamation, doctrinal positions in favor of a restrictive interpretation of Art. 51, par. 1⁴² have not been lacking in this respect, or at least possibilistic ones, and since then, they have intersected with hypotheses of “extensive” or “broad” interpretation⁴³, while the latter was also configured as a sort of “non-reversible process” and considered, therefore, with worried reservations.⁴⁴.

What is more, by the assumption by the Charter of the rank of primary law in the EU legal order, its provisions (unless they are not provided with the self-executing character) are also capable of direct effect. It is then particularly useful to set the limits to the obligations of “respecting the rights, observing the principles and promoting the application” (art. 51, par. 1) by the member States of the EU; this clearly enjoys the support of the case law of the Court of Justice, which has long been reconstructing the concept of “field of application of the community law” beyond the mere internal measures of execution of the law of the EU, with the consequential appearance of a series of “linking factors”.

As recalled above, art. 51, par. 1 delimits, for the member States, the field of application of the Charter “exclusively in the implementation of EU law”⁴⁵. The almost peremptory immediacy of the linguistic expression used seems, at first, to save it from more or less complex interpretation issues: the Charter is not applied, apparently, to the violations of fundamental rights which do not show any link with the law of the Union. Such link with Union law, already emphasized in the Communication from the Commission dated October 19th 2010, must be considered to exist, instead, in the case where the national legislation transposes a European directive in violation of fundamental rights or when a public authority applies a rule of the Union in violation of such rights, or when a final judicial decision of a member State applies or changes the law of the Union in violation of fundamental rights⁴⁶. In all these cases, the non-application by the States of the provisions of the Charter may lead to an infringement procedure before the Court of Justice or, in the most serious cases, to the subjection to “multilateral surveillance”, referred to by art. 7 of the TEU. Not less interesting is then the analysis of art. 51, par. 1, if we consider it from a logic-systematic point of view, which is that adopted by the Court of Justice in its case law “interpretation” and, even before this interpretation, in the wider practice adopted by it (as regards the protection of fundamental rights) aiming at defining the “application field of community law” also to the national legislator: a practice that the Charter, in its receptive nature, was bound to absorb. A first observation concerns precisely the above mentioned phenomenon of the enlargement of the competences of the EU which, in covering the most part of “the range of the national collective life”⁴⁷, causes, as a consequence, a natural widening of the borders of the national rules implementing European legislation. In addition to this, there is a further possibility of extension of the field of application of the Charter within sectors that are of exclusive competence of the European institutions, which, nevertheless, appear to be influenced or influenceable by several “transversal” matters; these are specific sectors of intervention in which “many different interests result to be gathered and interlaced inter se, leading to different competences⁴⁸”. We cannot avoid recalling that, also as regards the matters of exclusive competence of the States, the “dogma” of the “merely internal situation”, has been long reconsidered⁴⁹. The non-full possibility of defining the cut-off line of the “communitarized” control on the respect of fundamental rights is testified, at last, by the possibility of finding the required “connection with the community law”, even when the State appeals to derogations from community constraints⁵⁰.

It is also necessary to consider that in the Charter, the limitation ratione materiae of its applicability for the state entities to the more or less wide “field of implementation of EU law” cannot but be interpreted in the sense of a strict connection with par. 2 of the same art. 51 (but also with par. 1 of art. 6 of the TEU) on the non-possibility of extension of the competences of the Union as an effect of the Charter’s provisions. In addition to this, albeit within the limits connected with this kind of document, Declaration no.1 concerning the Charter confirms the provision of par. 2 of art. 51⁵¹, by reaffirming a sort of “neutrality” of the same Charter, in relation to the competences of the EU⁵², as logical consideration of the very nature of the rights legitimized by it.

Is it possible, then, to foresee a possible vis expansiva of the limit set by par. 1 of art. 51 with reference to the States, that par. 2 of the same provision would tend to soften with regard to the institutions of the EU? This would seem to result, in any case, and regardless of the complete definition of the relationship between the two paragraphs of the rule, in a situation where the institutions of the Union are “natural addressees” of the obligations deriving from the Charter⁵³, while the Member States are instead “mediated” or “reflected” addressees, subject to the operation of specific and strict material limits.

A hermeneutic element per relationem in the interpretation of the selected segment of art. 51, could be found in the “Explanation” concerning it⁵⁴. In this explanation, the effort of defining in a wider sense the scope of the expression “within the field of application of the Union law⁵⁵” avails itself of the reference to the case law of the Court of Justice which, without interruption factors and according to a substantial continuity, concerns cases covering a range well beyond the mere execution of the Union law.

In light of the last observation, we cannot but point out that the (following) case law investigation on the limits of applicability of the Charter to the member States has to be aimed at checking whether the highest possible standard of protection has been reached⁵⁶. But which elements concerning the exact “limits” of applicability of the Charter by the member States can be found in the case law of the Court of Justice, which shows a significant continuity both before and after it entered into force and became legally binding⁵⁷?

The limit given to the scrutiny of the Court as regards national rules and the application of its provisions, appears strongly linked to the practical application of the often-cited incidental expression (solely) “in the implementation of the Union law⁵⁸”. The judges of the Court continuously repeat that the “fundamental rights guaranteed in the legal order of the EU are applicable in all situations governed by EU law, but not outside such situations”⁵⁹.

In the judgement dated 22 January 2020, Almudena Baldonedo Martín contro Ayuntamiento de Madrid, the Court once again reminds that the provisions of the Charter are applied to the member States exclusively while they are “implementing the EU law” which “presupposes a degree of connection between the measure of EU law and the national measure at issue which goes beyond the matters covered being closely related or one of those matters having an indirect impact on the other”⁶⁰. In the same judgement, the Court repeats that in order to establish whether according to art. 51, par. 1 a national provision falls within the scope of implementation of EU law, “it is necessary to determine, inter alia, whether that national legislation is intended to implement a provision of EU law; the nature of the legislation at issue and whether it pursues objectives other than those covered by EU law, even if it is capable of indirectly affecting EU law; and also whether there are specific rules of EU law on the matter or rules which are capable of affecting it”.

In this regard, the Grande Chambre points out in the judgement TSN dated 19 November 2019⁶¹ that the mere fact that domestic measures are adopted within an area in which the EU has powers “cannot bring those measures within the scope of EU law, and, therefore, cannot render the Charter applicable” and “where the provisions of EU law in the area concerned do not govern an aspect of a given situation and do not impose any specific obligation on the Member States with regard thereto, the national rule enacted by a Member State as regards that aspect falls outside the scope of the Charter and the situation concerned cannot be assessed in the light of the provisions of the Charter”⁶².

Particularly relevant is then the statement contained in the judgement concerning the UNESA case, according to which the Court is not competent, when a legal situation does not fall within the scope of EU law and the “provisions of the Charter relied upon cannot, of themselves, form the basis for such jurisdiction”⁶³, so that, in such circumstances, it is necessary to check if the subject of the dispute referred to in the main proceedings concerns the interpretation or the application of a rule of EU law different from those contained in the Charter⁶⁴.

Then he possibility of referring to the Charter and to the fundamental rights contained therein, “for the acts of the member States issued on the execution of the obligations deriving from EU law, or, more in general, falling within the scope of EU law”, clearly shows the already mentioned potential “superimposition between levels of protection, because of the different orders (EU law, national constitutional EU and ECHR” acting within the jurisdictional and judicial European space⁶⁵, which cannot but be taken into account also in the field of fundamental rights, at least not without questioning the delicate balance between national sovereignty and derived supranational powers⁶⁶.

6. Conclusions

The process of European integration has undoubtedly not created a new sovereignty, in some way alternative, of the EU, which remains a functional body with well-defined listed competences, meant for reaching certain goals set out in the founding Treaty and redefined by its subsequent amendments. It is also undeniable that the increasing burden of legal obligations which, over the development of a now-mature process of European integration, have limited, on a voluntary basis, the exercise of state sovereignty in various fields (the legislative, the jurisdictional and the administrative one) does not deprive the States of their qualification of sovereign entities, insofar as it results to be a form or a way of exercising the states’ sovereignty itself. The limits to the latter for the benefit of the EU evidently do not distort the essential content of sovereignty itself seen – as has been pointed out – the voluntariness of the renunciation, on the state side, to the exercise of certain powers where the treaties themselves enshrine the balance in the dynamic tension between state sovereignty and the exercise of activities by the EU as functional to the common interest.

We can then affirm that the reference of art.4 of TEU to the respect of the national identity of the States (with reference to the loyal cooperation between the EU and the member States)⁶⁷ and the contents of the subsequent art. 5, safeguarding the principle of conferral of competences, consolidate and guarantee a general system of state sovereignty which continues to be susceptible to partial conferrals to a union of States such as the EU, partly absolutely not, thus delineating a so-called euro-national sovereignty⁶⁸.

Now, precisely with reference to the gradual conferral of competences to the institutions of the EU and to a certain autonomy which they enjoy, attempts have been made to frame them as elements of an intermediate stage of the transformation of the EU into a federal State. It is absolutely evident that such situation, in this historical period, cannot continue to exist for long, since that, even if vibrant appeals in such direction exist⁶⁹, the perspective of the evolution of the EU into a federal State, to date, is not concrete⁷⁰.

As it is well known, the generic character of the expression used by art.11 of our Constitution has caused a difficult community path of our Constitutional Court⁷¹ and generated some moments, also quite recent, of discontinuity/ reaffirmation of the primacy of the constitutional interpretation of the Charter of fundamental rights (ruling of the Constitutional Court 269/2017) by which the Constitutional Court has affirmed its competence to exercise a judicial review also as regards the self-executing rules of the Charter of the fundamental rights⁷².The subsequent judgements dated 21 February 2019, n. 20, 21 March 21 2019, n. 63, 10 May 10 2019 n. 112, the orders dated 10 May 2019 n. 117 and 30 July 2020 n. 182 seem to have brought the matter in the right context, opening to a better dialogue between the Constitutional Court and, at the same time, between the ordinary judges and the Court of Justice. This, however, without prejudice to the coexistence of a whole of remedies protecting the first place occupied by EU law and enhancing, at different levels, the means for protecting the fundamental rights.

In a system of multilevel guarantees, in which we find a competition between the action of the national Constitutional Courts and that of the Court of Justice, as well as of the courts of legitimacy and common courts, the application of the fundamental rights granted by EU law requires a necessary balance both between the different levels of jurisdiction within the State and between the same principles and rights established at European level and those enshrined in the constitutional charters of the member states. The result is a contextual critical review of the relationship between the States and the Union, in order to achieve a more accurate and consistent definition of the areas of competence of the former, whose rules compete with the European ones, in respect of the principles of loyal collaboration and solidarity, and to build an integrated legal order⁷³. Such osmotic relationship between the different levels of protection is the distinguishing feature of the European legal order and as such it must be defended and protected; it consists of a circulation from top to bottom and viceversa, according to which the fundamental principles guaranteed by the single constitutional legal orders are adapted and are made their own by the Court of Justice, which transforms them into primary sources of EU law, so that those constitutional principles themselves, once they have been enhanced by the autonomous value given by the interpretation of the Court and have become shared, can newly be acknowledged in the single legal orders from which they come.

Within this complex framework, the definition of the limits of application of the Charter of the fundamental rights, as the analyzed case law shows, results to be complex and necessary for the wise exercise of a so-called euro-national sovereignty, as well as for a well-established relationship between sovereignty and statehood…beyond the ambiguity of the concept of crisis of sovereignty⁷⁴. In the context of the permanent debate about the transfer of sovereign powers to the European “building”, the idea that sovereignty is shared between the member States and the supranational institutions according to mobile patterns seems to be convincing; therefore, if it is true that integration processes are characterized by a strong dynamism, the consequence is that such character can be found also in the balances concerning the performance of functions which depend on the reference regulatory framework and the specific historical period.

In conclusion, the emergence of new factors mining the solidity of such “building”, ab intra and ab extra, poses the need to start a new “community path” to re-found the process of European integration. A community path, which, within the guarantee of the highest standard of protection of fundamental rights, succeeds in looking at the EU, among costs and benefits of European integration, as the most advanced form of protection of state sovereignty.

Bibliography:

Rainer Arnold (coord.), Limitations of National Sovereignty through European Integration, New York, Springer, 2016

Francisco Balaguer Callejón, “Le Corti costituzionali e il processo di integrazione europea” [en VV.AA., Le Corti Costituzionali e il processo di integrazione europea, Annuario 2006 - La circolazione dei modelli e delle tecniche del giudizio di costituzionalità in Europa, Napoli, Jovene, 2010], pp. 257-308.

Chistophe Beaudouin, La démocratie à l’épreuve de l’intégration européenne, Paris, L.G.D.J, 2014.

Richard Bellamy, “A European Republic of Sovereign States: Sovereignty, republicanism and the European Union”. European Journal Political Theory, 2 (2017), pp. 188-209.

Richard Bellamy, “Sovereignty, post-sovereignty and pre-sovereignty: Reconceptualising the state, rights and democracy in the EU” [en Neil Walker, coord.: Sovereignty in Transition, Oxford, 2003], pp. 167-190.

Richard Bellamy, “A European Republic of Sovereign States: Sovereignty, republicanism and the European Union”. European Journal of Political Theory, 2 (2017), pp. 188-209.

Jean Bodin, On Sovereignty: Four Chapters from the Six Books of the Commonwealth, Translation by J.H. Franklin, Cambridge, 1993.

Giandonato Caggiano (coord.), Integrazione europea e sovranazionalità, Bari, Cacucci, 2018.

Joseph Camilleri, Jim Falk, The End of Sovereignty. The Politics of a Shrinking and Fragmenting World, Brookfield, VT, 1992.

Enzo Cannizzaro, La sovranità oltre lo Stato, Bologna, il Mulino, 2020.

Enzo Cannizzaro, “Democrazia e sovranità nei rapporti fra Stati membri e Unione europea”. Il diritto dell’Unione europea, 2 (2000), pp. 241-265.

Enzo Cannizzaro, “Il pluralismo nell’ordinamento giuridico europeo e la questione della sovranità”. Quaderni Fiorentini, 1 (2002), p. 245.

Bing Cheng, “La jurimetrie: sense et mesure de la souveraineté et de la competence national”. Journal de droit international, 3 (1991), pp. 579- 599.

Marta Cartabia, “Art. 51-Field of Application” [en William Thomas Mock, Gianmario Demuro, coords.: Human Rights in Europe. Commentary on the Charter of fundamental rights of the European Union, Durham NC, 2010], p. 320.

Richard Clapham, “On Complementarity: Human Rights in the European Legal Orders”. Human Rights Law Journal, 21 (2000), p. 313 and the following.

Bruno de Witte, “Sovereignty and European Integration. The Weight of Legal Tradition”. Maastricht Journal of European and Comparative Law, 1 (1995), pp. 145-173.

Angela Di Stasi, Diritti fondamentali e processo di (dis)integrazione europea: una relazione complessa, [en Maria Caterina Baruffi e Matteo Ortino, coords.: Dai Trattati di Roma a Brexit e oltre, Napoli, Edizioni scientifiche italiane, 2018], pp. 25-50.

Angela Di Stasi, “L’ambito di applicazione della Carta dei diritti fondamentali per gli Stati membri dell’Unione europea: verso nuovi limiti o “confini” tra ordinamenti?” [en VV.AA., coords.: Scritti in onore di Giuseppe Tesauro, Napoli, Editoriale scientifica, 2014], pp. 165-202.

Angela Di Stasi, Lucia Serena Rossi (coords.), Lo spazio di libertà, sicurezza e giustizia. A vent’anni dal Consiglio europeo di Tampere, Napoli, Editoriale scientifica, 2020.

Ugo Draetta, “La Costituzione europea e il nodo della sovranità nazionale”. Il diritto dell’Unione europea, 3 (2004), pp. 519-535.

Massimo Fragola, “Sovranità dello Stato membro e ordinamento dell’Unione europea” [en Massimo Fragola, coord.: Temi di diritto dell’Unione europea, Milano, Giuffrè, 2015], p. 1.

Carlo Galli, Sovranità, Bologna, il Mulino, 2019.

Graham Gee, Alison Luk Young, “Regaing Sovereignty? Brexit, the UK Parliament and the Common Law”. European Public Law, 1 (2016), pp. 131-148.

Andrea Guazzarotti, “Sovranità e integrazione europea”. Rivista dell’Associazione Italiana dei Costituzionalisti, 3 (2017), p. 1.

Harry Hinley, Sovereignty, New York, Cambridge University Press, 1986. Luis Jimena Quesada, Social Rights and Policies in the European Union: New Challenges in a Context of Economic Crisis, Valencia, Editorial Tirant Lo Blanch, 2016.

Yilmaz Kaplan, “(Re)considering sovereignty in the European integration process”. Asian Journal of German and European Studies, 3 (2018), pp. 1-11.

Hans Kelsen, Das Problem der Souveränität und die Theorie des Völkerrechts, Tübingen, University of Michigan Library, 1920.

Roberto Mastroianni, Oreste Pollicino, Silvia Allegrezza, Fabio Pappalardo, Orsola Razzolini (coords.), Carta dei diritti fondamentali dell’Unione europea, Milano, Giuffrè, 2017. Kurt Mills, “Reconstructing Sovereignty: A Human Rights Perspective”. Netherland Quarterly of Human Rights, 3 (1997), pp. 267-290.

Valeria Piccone, Oreste Pollicino (coords.), La Carta dei diritti fondamentali dell’Unione europea. Efficacia ed effettività, Napoli, Editoriale scientifica, 2018.

Fabrice Picod, Sébastien Van Drooghenbroeck, Charte des droits de l’Union européenne, Bruxelles, Larcier, 2018.

Jirί Přibáň, Sovereignty in Post-Sovereign Society, A Systems Theory of European Constitutionalism, London, Routledge, 2015.

Luis Jimena Quesada, Social Rights and Policies in the European Union: New Challenges in a Context of Economic Crisis, Valencia, Editorial Tirant Lo Blanch, 2016.

Michael Reisman, “Sovereignty and Human Rights in Contemporary International Law”. American Journal of International Law, october (1990), pp. 866-876.

Allan Rosas, Heidi Kaila, “L’application de la Charte des droits fondamentaux de l’Union européenne par la Cour de justice: un premier bilan”. Il diritto dell’Unione europea, 1 (2011), p. 1 and the following.

Antonio Ruggeri, “Sovranità dello Stato e sovranità sovranazionale, attraverso i diritti umani, e prospettive di un diritto europeo ‘intercostituzionale’”. Diritto pubblico comparato ed europeo, 2 (2001), p. 544 ss.

Antonio Ruggeri, “Una Costituzione ed un diritto costituzionale per l’Europa unita” [en Pasquale Costanzo, Luca Mezzetti, Antonio Ruggeri, Lineamenti di diritto costituzionale dell’Unione europea, Torino, Giappichelli, 2019], p. 2.

Sara Iglesias Sánchez, “The Court and the Charter: The impact of the entry into force of the Lisbon Treaty on the ECJ’s approach to fundamental rights”. Common Market Law Review, 5 (2012), pp. 1565-1612.

Carl Schmitt, Politische Theologie, VierKapitel zue Lehre der Souveränität, Berlin, Duncket & Humblot, 1934.

Giuseppe Tesauro, Sovranità degli Stati e integrazione comunitaria, Napoli, Editoriale scientifica, 2006.

Roberto Toniatti, “Forma di Stato comunitario, sovranità e principio di sovranazionalità: una difficile sintesi”. Diritto pubblico comparato europeo, 3 (2003), pp. 1552-1562.

Ennio Triggiani, “Il difficile cammino dell’Unione verso uno Stato federale” [en Giandonato Caggiano, coord.: Integrazione europea e sovranazionalità, Bari, Cacucci, 2018], pp. 9-16.

Ugo Villani, “Limitazioni di sovranità, ‘controlimiti’ e diritti fondamentali nella Costituzione italiana”. Studi sull’integrazione europea, 3 (2017), pp. 489-514.

Thomas von Danwitz, Clemens Ladenburger, Article 51 et suivant [en Peter J. Tettinger, Klaus Stern, coords.: Europäische Grundrecte-charta, Munchen, Beck Verlag, 2006], p. 759 and the following.

VV.AA., La Europa social: alcances, retrocesos y desafíos para la construcción de uno spacio jurídico de solidaridad, Madrid, Centro de Estudios Politicos y Constitucionales, 2018.

Neil Walker, “Late Sovereignty in the European Union” [en. Neil Walker, coord.: Sovereignty in transition, Portland, Oregon, 2003], p. 18.

Notes