Abstract

The article examines the role played by the Court of Justice and national Constitutional Courts in the construction of the European constitutional space. The European Community and the European Union went through a constitutionalisation process that took place in three steps. The first occurred in the founding phase with the jurisprudential creation of the principles of primacy and direct effect. The second occurred with the transition from the «Europe of the market» to the «Europe of rights», especially after the Lisbon Treaty recognised the Charter as having the same legal value as the Treaties. The third, more recent, occurred through the case law of the Court of Justice which recognised the legal force of the values set out in Article 2 TEU, particularly that of the «rule of law». The Court of Justice was central throughout these stages. Moreover, the Court adopted interpretative techniques that broadened the scope of Union law. The consequence has been a strong overlap of Union constitutional law with the Constitutions of the Member States, which brings with it the risk of a loss of legitimacy of Union law. The article examines the reactions of Constitutional courts to the expansion of European constitutional law. In particular, it examines both the defensive techniques, such as reviewing the constitutional identity of the Member State, and the collaborative techniques that have been developed. With reference to the latter, the article examines the institution of «double jeopardy» as constructed by the Italian Constitutional Court, and dwells on the developments of its jurisprudence from which one can infer the tendency to take an increasingly active role in the «dialogue» with the Court of Justice.