160
Marta Cartabia
Troisième séance de travail — Les perspectives
Some disagreement was expressed by certain countries at the time of the
negotiation of the Lisbon Treaty. For different reasons, the UK, Ireland, the
Czech Republic and Poland did not unreservedly adhere to the Charter of
Fundamental Rights of the European Union (
13
).
Moreover, many national supreme and constitutional courts still believe
in the doctrine elaborated by the BVG in the
Solange
saga and by the Italian
Constitutional Court with the ‘counter-limits’ clause, according to which
those national courts retain the final say on the observance of the fundamen-
tal principles and rights of their respective constitutions, even in relation to
the law of the European Union. In recent years, these doctrines, with some
variations, have been adopted by several supreme courts. In most cases, these
doctrines were confined to the theoretical level; occasionally, however, con-
flicts between courts have actually occurred (
14
).
In a way, fundamental rights in Europe are at a crossroads between the
jus
commune europaeum
and the
‘
constitutional identity’ of each European coun-
try, and if the hallmark of European integration is ‘unity in diversity’, obser-
vance of national constitutional identities (
15
) is a basic tenet of the European
construction, as recognised by Article 4(2) TEU. In matters related to social
rights, economic rights and ethical issues – like family, life and religion – the
constitutional identity of the Member States is very diverse and this diversity
could not be neglected.
5. In this pluralistic context, different judges, dealing with the same case,
may reach different conclusions, and the same dispute is exposed to inconsist-
ent judicial solutions.
(
13
) Treaty of Lisbon Protocol No 30 on the application of the Charter of Fundamental Rights of
the European Union to Poland and to the United Kingdom, the Protocol on the concerns of
the Irish people on the Treaty of Lisbon and Declarations No 53, 61 and 62.
(
14
) In particular, some concerns about national constitutional identity and sovereignty are
expressed by the new accession states of the central and eastern Europe. On this point see W.
Sadurski,
Constitutionalization of the EU and the Sovereignty Concerns of the New Accession
States: the Role of the Charter of Rights
, EUI working paper 11/03. See in particular O.
Pollicino,
Qualcosa è cambiato? La recente giurisprudenza delle Corti costituzionali dell’est
vis-à-vis il processo di integrazione europea,
in
Diritto dell’Unione europea,
2012, 765-788,
accounting for some recent conflicts between the constitutional tribunals of the Czech
Republic and of Poland on the one side and the European Court of Justice on the other side.
(
15
) For an updated survey of the applications of the identity clause see B. Guastaferro,
Beyond
The Exceptionalism Of Constitutional Conflicts: The Ordinary Functions Of The Identity
Clause,
in
Yearbook of European Law
, 2012.
