Principi contesi e contese su principi. Gli effetti del principio di eguaglianza e non discriminazione nella giurisprudenza della Corte di Giustizia = Principles contested and contested on principles. The effects of the principle of equality and non-discrimination in the jurisprudence of the Court of Justice. WP C.S.D.L.E. “Massimo D’Antona”.IT – 372/2018

Barbera, Marzia (2018) Principi contesi e contese su principi. Gli effetti del principio di eguaglianza e non discriminazione nella giurisprudenza della Corte di Giustizia = Principles contested and contested on principles. The effects of the principle of equality and non-discrimination in the jurisprudence of the Court of Justice. WP C.S.D.L.E. “Massimo D’Antona”.IT – 372/2018. [Policy Paper]

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Abstract

The article analyses the effects of the "constitutionalisation" of the principle of equality and non-discrimination through the lens of the European Court of Justice case law. In the interpretation given by the Court, the principle ends up by having a role and a scope similar to those held in the national constitutional orders and leading to the construction of an European judicial circuit, able to bypass the jurisdiction of national high courts. This has given rise to an equal and opposite reaction by such courts, which have seen the Court's activism as a threat to their role of custodians of the national constitutions. At the heart of this dispute over principles, there are not only institutional-political issues, related to claims of authority (i.e. to the question of who owns the ultimate say in the interpretation of fundamental principles) but also cultural-identitarian issues (related to the disputed meanings of fundamental principles). The article argues that the pluralism of powers and values produced by the European integration requires a search for shared solutions and runs counter any unilateral application of fundamental principles, both by the Court of Justice and by national courts. This requires an attitude of "constitutional tolerance", a willingness to listen that is intrinsic to the practice of dialogue. It would be an illusion to think that each legal culture can return to prosper by closing itself in its own national boundaries. The defense of "constitutional identities" will not protect national communities from the loss of sovereignty driven by the hegemonic claims of the great political and economic world powers, which are able to impose their "law" at a global level.

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