Dei molteplici raccordi tra forme di organizzazione politica e tutela dei diritti nello spazio pubblico europeo: oltre la vicenda OMT

Abstract

The State-based model for law-making, securing the tie between separation of powers and protection of rights, has turned into a post-national constellation of multiple bodies. Within the European public sphere, States have recognised institutional capacity to a number of such bodies, whose political autonomy curtails their own law-making monopoly. Separation of powers and protection of rights are pursued according to the variable formula of institutional balance enshrined in each legal basis and unfold within a multi-level framework. While denying unity as the political postulate, the Union follows a cooperative paradigm to avoid being confronted with the sovereignty dilemma, ‘who decides in the last instance’. In the aftermath of the OMT case, the incongruencies of such a system seem to emerge in a clearer fashion. As for the separation of powers, the supranational level is prompted to endow a technical organ with the power to decide on highly politically sensitive matters, while national States are given little chance to reply. As for the protection of rights, national Courts make use of the constitutional identity as a tool to counter the broad reading of the conferral carried by the Court of Justice, i.e. the competent judge under Union law. Such situation endangers the integration process, and poses a consistent threat to a rational-based legitimation of the authority – yet the core cultural heritage of Europe, as a consequence of the self-determination principle rooted in the human dignity. However, a recent ruling by the Court of Justice appears to open new paths for the safeguard of the tie between the separation of powers and the protection of rights, perhaps enhancing rational discourse in the European public sphere.