Safe' countries and European legislation
4' min read
4' min read
In Italy, justice and politics really do seem to be two prerogatives that are now irreconcilable with each other. As if, for our Constitution, the judiciary were a counter-power to politics and the legislature and not the expression of a balance between these institutional powers, based on the observance of their respective competences. And now, in the middle, there is also the European judiciary - whose magistrates, ironically, wear vermilion togas - which, according to Palazzo Chigi, is not responsible for making decisions on which countries are safe, as these are the exclusive competence of the legislative or governmental authorities of each member state. On the other hand, to sing victory by a part of the judiciary (of the type: 'we were right') also seems out of place.
Be that as it may, a preliminary ruling by the EU Court of Justice has neither winners nor losers, precisely because it interprets EU law and not that of a Member State. On the other hand, the fact that the Italian courts' preliminary questions were very delicate and relevant, not only for Italy but for many other Member States, is proven by the fact that no less than 17 governments intervened in the case.
The interpretative ruling in question was therefore eagerly awaited in judicial, legislative and governmental circles halfway across Europe (for a summary of the facts of the case see, Il Sole24ore of 1 August)
In the limited editorial space of a commentary on a complex interpretative ruling such as this one, it is therefore necessary to set aside partisan polemics and instead deal with a few fundamental aspects, which are helpful in dispelling important misunderstandings.
First, let us clarify the legal framework. It is composed of three distinct layers of law; the provisions of the Lisbon Treaty (primary Union law); those of the European legislator (secondary European law) and, finally, the national legislative or administrative provisions, i.e. national implementing law. When exercising their respective competences, the European and national legislators must therefore respect primary Union law. For example, Article 47 of the Charter of Fundamental Rights of the Union, cited several times in requests for referral to the Court, provides that 'everyone whose rights and freedoms guaranteed by the law of the Union have been infringed shall have an effective remedy before a court or tribunal'. Now, Article 19 of this same Charter provides that 'no one shall be removed to a State where there is a serious risk ... of being subjected ... to inhuman or degrading treatment'.
