L’autonomia procedurale degli Stati membri alla prova della Carta dei diritti fondamentali

The application of the administrative procedural rules needs to be coordinated with the respect of the fundamental rights enshrined in the Charter in the light of the procedural autonomy of the Member States. In this regard, in its judgment of 9 July 2020, n. 4403, the Italian State Council held that, pursuant to the domestic procedural rules, it is not possible to argue, for the first time, before the judge of appeal the incompatibility of a regional legislation with EU law, and that it is not even possible to raise such conflict ex officio. The ruling of the administrative judges highlights the possible limits of the primacy of EU law and of the Charter vis-à-vis national legal systems in view of ensuring effective judicial protection, as guaranteed by Article 47 of the Charter, whenever subjective rights provided for by EU law are at stake. A further issue is the possibility of filing an appeal in cassation against the judgment of the State Council in so far as this judgment is in breach of EU law. The Court of Justice has been requested to state its position on such issue by the Joint Divisions of the Italian Court of Cassation with order of 18 September 2020, n. 19598.