SAMUELE BARBIERI, All Roads Lead to Luxembourg. The Italian “Rinvio pregiudiziale” to the Cassazione and Art. 267 TFEU

ABSTRACT – The Italian Legislature has recently introduced Article 363-bis in the Code of Civil Procedure. The new disposition establishes a “Rinvio pregiudiziale” through which a court or tribunal could ask the Cassazione the resolution of an interpretative question “exclusively of law”, not yet resolved by the Court itself, which is of serious difficulty and likely to arise in numerous cases. Although it appears from the drafting of the Article 363-bis that its model is to be found in the saisine pour avis to the French Cour de cassation, it is not possible not to read it in the light of Article 267 TFEU. Therefore, this post aims to offer a first prognostic analysis of the role of the referring court or tribunal and of the Cassazione in relation to the obligations deriving from EU Law. The reflections on the possible interaction between the two different judicial dialogues are the starting point for a question of even deeper significance: how will the dialogue of Italian judges with the European Court of Justice change by virtue of this new mechanism introduced into the domestic legal system?


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