Introduction: the context (il contesto).
On Sunday 25th September the Fratelli d’Italia (FdI) [Brothers of Italy] Party won enough seats in the Italian general election to form a new government.
The mooted coalition partners are Silvio Berlusconi’s Forza Italia (FI) [‘Go/Come on, Italy!’] and Matteo Salvini’s Lega per Salvini Premier (LpSP) [‘The League for Salvini as Prime Minister’].
Giorgia Meloni – leader of FdI – is set to become Italy’s first female Prime Minister – officially the ‘President of the Council of the ministers of the Italian Republic’ (Presidente del Consiglio dei ministri della Repubblica Italiana).
Fear abides in Europe that her prospective administration will be the first Far-Right Italian government since the fall of Mussolini.
Meanwhile, the EU’s “Values Crisis” has developed: the EU institutions are now pursuing formal proceedingsagainst Hungary to protect the Union budget in response to alleged breaches of Rule of Law principles.
These two events – one squarely “political” and one more “legal/administrative” – raise a question: Will we see the EU’s Values Crisis migrate southwards on a “Roman Holiday”?
Furthermore: could that “vacation” become (semi-)permanent in the same way that illiberal resistance has cemented itself within Budapest and Warsaw?
‘Illiberalism’ and its Respondees (‘illiberalismo’ e la risposta)?
Meloni’s ideological stance and policy programme may be compared to Viktor Orbán’s concept of the “Illiberal State/Nation”.
8 days before the Italian election, the European Commission formally proposed budget protection measures against Orban’s Fidesz – Magyar Polgári Szövetség [Hungarian Civic Alliance’] government under the Rule of Law Budget Conditionality Regulation.
Subsequently, the Commission has expanded the scope of investigation from pure corruption issues to include ‘judicial independence’.
This integral concept for the Rule of Law has provided the “leitmotif” (il leitmotiv) for the running battles between the EU Court in Luxembourg and the European Court of Human Rights in Strasbourg and Hungary’s “illiberal” partner, the Prawo i Sprawiedliwość (PiS) [‘Law and Justice’] government in Warsaw.
A question arises: Will FdI, LpSP, and FI in Rome now prove to be new allies for PiS and Fidesz in Warsaw and Budapest in their crusade against ‘Brussels’ and ‘supranational liberal democracy’?
History (la storia)
Historically, the Italian Far-Right has been present within European integration from its inception in the 1950s.
Unlike later candidate states who were subjected to the EU’s conditions for membership (the ‘Copenhagen Criteria’), Italy never had to legally prove that it fulfilled the checklist of requirements for being an entrenched ‘liberal democracy’.
The politically-motivated civic violence of the 1970s (Gli anni di piombo (The Years of Lead)) tested the stability of the state. Later political, moral, and sporting controversies (polemiche) during the 1990s, 2000s, and 2010s tested the fidelity of Italy’s leaders and its leading political, legal, and social institutions to the core principles of constitutionalism.
Both Berlusconi and Salvini have clashed with the EU institutions, most spectacularly in 2011 and 2019 respectively.
Time will tell whether any desire for revenge (vendetta) against Brussels on the part of those who have previously come into conflict therewith will inform the coalition government’s stance towards the European Union.
Politics (I politici)
In 2019, Meloni made a proclamation to a political rally in Rome: “I am Giorgia: I am a woman, I am a mother, I am a Christian” (Io sono Giorgia: Sono Una Donna, Sono Una Madre, Sono Cristiana).
If “the personal is political”, then Meloni and FdI are an unexpected example: their policy platform is centred upon social conservatism, tradition, and ‘family values’.
Consequently, LGBTQI+ has been positioned as the antithesis thereto – and thus as a threat to Italian society.
Socially conservative policies are nothing new to Italian politics in the last decade, and such campaigns have been promoted by both Right-Wing and Left-Wing governments (sulla destra e sulla sinistra).
It is therefore debatable whether the ‘anti-/illiberalism/neo-authoritarianism’ of Fidesz and PiS has had a causative effect upon the political stance of FdI.
What is worth considering is whether the strategic use of ‘illiberal’ politics as a means to contest the legitimacy of supranational co-operation may be adopted by the new Italian government.
Pre-emptive defensive statements by the representatives of Europe’s ‘liberal’ agenda that they will “monitor” respect for EU values may suggest preparation for such an eventuality.
The ongoing fallout from Brexit provides a – perhaps comparable – example of a ‘constitutional precautionary principle’ in action. Time will tell whether such a policy proves to be correct empirically, and prudent strategically.
Law (la legge)
In the last 20 years, successive Presidents of the Republic of Italy (holders of La Presidenza della Repubblica) have made rhetorical claims emphasising the interconnection of Italian and European ‘constitutional identity’ (without explicitly using that – contested and controversial – term).
The ‘Law-in-speeches’ and the ‘Law-in-action’ are, however, two different matters. Six years before the German Constitutional Court (Bundesverfassungsgericht) developed its (in)famous Solange (‘so long as’) principle, the Italian Constitutional Court (Corte costituzionale) proposed the doctrine of controlimiti (‘counter-limits’) in the domestic limb of the ‘classic’ EU law case of Costa v ENEL.
As with most aspects of ‘Western Culture’, as with European Constitutionalism: those who dwell on the Italian peninsula invariably have done it first (although, it may be debated whether, in this particular instance “Italians Do it Better”).
One conclusion that may be drawn is that, in the case of conflicts between the Court of Justice of the EU and national ‘apex’ courts – the Italians have done it more subtly (sottilmente).
Recent supremacy skirmishes illustrate this claim: In 2020, the German Constitutional Court asserted ‘constitutional identity’ and ‘bit’ after years of ‘barking’ in the Weiss/PSPP case.
By contrast, the comparable yet distinct saga of the Taricco case(s) was resolved through the – apparently outmoded – concept of ‘Constitutional Dialogue’. (One could claim that the Italian court chose to ‘chat’ (chattare) rather than ‘strike’ (colpire).
Both approaches stand in contrast to the more robust bordering on belligerent approach adopted by the Polish Constitutional Tribunal (Trybunał Konstytucyjny) in the K 3/21 case last year.
The risk that EU lawyers may perceive following FdI’s victory in Rome is the potential ‘perfect storm’ of two factors: first, a historical legacy of national constitutional wariness to the perceived encroachment of supranational legal norms from which to draw legitimacy, and, secondly, a ‘playbook’ or ‘model’ to follow in judicial relations with the EU legal order derived from the ‘illiberal’ states north-east of Italy.
Conclusion: The Future (la coda)?
Giorgia Meloni’s passionate and emotive rebuke of Emmanuel Macron’s own visceral reaction to the electoral victory of Fratelli d’Italia has gone viral on conservative social media channels.
When viewed through the lens of possible “vacations” for the values crisis, this speech may be regarded as the first “counter-punch” at the European project’s de facto figurehead.
We may soon be witnessing a “struggle” (lotta) in the Justus Lipsius building when the two come face-to-face during European Council meetings. It remains to be seen whether any such conflict will be ‘stage-managed’ (un spettacolo) or authentic.
Institutionally and legally, however, the crucial question that remains open is whether the new Italian government will pursue any policies of resistance against European Union orthodoxy.
If they do engage in resistance, the crucial next issue is whether they will do so in accordance with the “rules of the game” to which the government’s predecessors agreed at the Lisbon revision of the Treaties.
The risk for many is the potential for Rome to follow the ‘illiberal walk-through guide’, and go ‘outside the game-map’ alla Warsaw and Budapest. Time will tell.
The potential impending Treaty revision process, following the conclusion of the Conference on the Future of Europe, may provide an opportunity for the grievances that have fuelled ‘illiberal anti-supranationalism’ to be aired.
The added value for constitutional values is that the Article 48 TEU process would provide a forum for such a debate to occur between those representing the consistent nationals of their Member States, rather than through the sphere of ‘politics by other means’.
The EU’s withdrawal clause was conceptualised as a ‘safety valve‘ before its first unforeseen use by the UK. In the possible existential clash over the ‘soul of Europe (‘l’anima d’Europa‘) in the coming years, its sister provision of Article 48 may become more akin to a ‘blood-letting’ mechanism.
The hope for those who support and promote constitutionalism is that the cure does not prove to be worse than the disease (aegrescit medendo).
Dr Oliver Garner is a Research Fellow in the CEU Democracy Institute and Editor of the RevDem Rule of Law section . He is also Maurice Wohl Research Fellow in European Rule of Law at the Bingham Centre for the Rule of Law, BIICL. In the 2022-23 academic year he holds a Fellowship from the re:constitution Programme.
His research focuses upon constitutional disruption, disintegration, and resistance within the European Union and its Member States (current and former).
He can be contacted via Twitter, LinkedIn, or via his Bingham Centre for the Rule of Law and CEU Democracy Institute email addresses.
