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EU court opts to stay out of Italy’s constitutional court fray

Italy's three top courts are tussling over jurisdiction and powers as they balance Italian and European Union laws. With its latest ruling, the EU's top court says it doesn't want to be the referee in this match.

(CN) — The European Union's high court on Tuesday chose to not get in the middle of a constitutional quarrel between Italy's top courts.

In a ruling linked to an obscure dispute over a large public contract for temp workers, the European Court of Justice found no reason to second-guess Italy's judicial system for checks and balances among its three top courts.

The case pivots on a move by Randstad Italia, the Italian branch of a Dutch multinational firm that hires out temporary workers, to challenge its rejection from bidding on a 12 million euro (about $13.5 million) contract put out by a public health agency in the region of Valle d'Aosta.

A bigger legal dispute was sparked when Randstad asked the Italian Supreme Court of Cassation, Italy's high court, to decide whether the country's top administrative court, the Council of State, wrongly rejected its appeal.

But the Court of Cassation's own powers to overturn rulings by the Council of State were, in turn, limited by a 2018 Constitutional Court decision that reined in the Court of Cassation. The Constitutional Court is Italy's legal authority for interpreting the Italian constitution and, in this capacity, also serves as the arbiter over the courts' jurisdictions.

The Court of Cassation, then, asked the European Court of Justice to weigh in on whether its powers were wrongly limited.

“The Court is therefore implicitly called upon to arbitrate a conflict between the three Italian supreme courts,” noted Advocate General Gerard Hogan, a legal adviser to the Luxembourg-based EU high court, in a September nonbinding opinion.

On Tuesday, the Court of Justice found nothing wrong with the Constitutional Court's ruling that neutered the Court of Cassation's ability to overturn Council of State decisions.

“It is for the national legal order of each member state to establish procedural rules for remedies to ensure effective legal protection,” the court said in a news release.

Orlando Scarcello, a law scholar at the KU Leuven University in Belgium, said the Court of Justice “has avoided to enter into an internal quarrel” and dodged a “potential clash” between the European and Italian constitutional orders.

“The message [from the EU court] might be: 'Don't solve your internal problems by asking us,'” Scarcello said in a telephone interview.

“It is another example of the difficulty in balancing effective judicial protection and national procedural autonomy,” said John Cotter, a law lecturer at Keele University in the United Kingdom.

“I think, in this case, the Court of Justice has got it right.”

He noted Randstad was allowed to challenge the tendering procedure and given a chance to appeal that decision to the Council of State.

Complicating this case, though, was the Council of State's finding that Randstad had no standing to challenge the contract's tendering because it was kicked out early in the bid process. The Court of Justice found the Council of State erred on this point by breaching EU rules for public contracts.

But the legal experts said the Court of Justice agreed with Hogan, who found that the solution to this particular legal dilemma is not to add another layer of appeal by giving the Court of Cassation more power over the Council of State's decisions.

The Luxembourg court said Randstad can still sue for damages against Italy for breaching EU law. It also said the European Commission, the EU's executive arm, could bring sanctions proceedings against Italy for the judicial error.

“There is unfortunately no way of ensuring fully that a national court system does not misapply or breach EU law,” Cotter said in an email. “Sometimes sanctions after the event will be the only suitable remedy.”

Courthouse News reporter Cain Burdeau is based in the European Union.

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