What is the most suitable methodological perspective for considering the role played by the common constitutional traditions (CCT) within the case law of the Court of Justice of the European Union (CJEU) concerning the protection of fundamental rights and, more generally, in the European judicial based integration process? What is the role of CCT today, in the era of the codification of rights in Europe? More radically: following the entry into force of the Charter of Fundamental Rights of the European Union (the Charter) does it still make sense at all to consider such a notion to be relevant or even useful? These are the research questions that have arisen almost spontaneously when engaging with the object of enquiry. In order to try to answer them, the first part of the work will focus, solely for the purpose of the attempt to isolate the extent of the influence by the CCT in the process of European integration, on the “genesis” and development of such process until the entry into force of the Maastricht Treaty (the origins), after which it will refer very briefly to the post-Maastricht season, which ended with the proclamation of the Charter, followed by its vesting with binding force with the entry into force of the Lisbon Treaty (yesterday). The second part will, attempt to tease out (focusing on today and partially on tomorrow) the possible novelties of the post-Lisbon framework, thus after the entry into force of the Charter and the possible perspectives for the future of CCT, especially with regard their still very crucial important as main ingredient of a true cooperative judicial interaction between European Constitutional Courts and the CJEU. The conclusive remarks will show as the CCT and, more generally, the legal traditions in Europe are still at the heart of any European integration process further development
Even in cases that are similar or identical, different balances will be struck, and different solutions will be found - in some cases very different - based on the judicial framing. Judicial framing in relation to new technologies will in turn vary based on the role of the State in authoritarian or democratic systems, on the constitutional specificities of Europe and the United States, as well as on the willingness of judges to adapt familiar concepts to the digital world as opposed to entrenched insistence on parallels to the analogue world. Judicial framing in turn relies on metaphors. I argue that one such metaphor - that of the “marketplace of ideas” is wrongly transferred to the context of fake news. A metaphor implies knowledge transfer across domains (from the Greek meta-pherein, to “carry over”). When US Justice Holmes introduced the metaphor of a marketplace of ideas to the domain of free speech, the liberal state and competition in the market were at their best. Similarly, when the US Supreme Court borrowed the same metaphor to call the Internet the “new marketplace of ideas”, the Internet market, in its genesis period, was absolutely free and not in any way affected by dominant positions, or, even worse, by monopolies and oligopolies. Far from being a free market, today the digital market is characterized by economic concentrations and the strength of (a few) private powers. Against this background, if fake news is arguably the most significant and pervasive source failure in the marketplace of ideas, the intervention of public powers could not be excluded, because the target domain of the metaphor - namely, the digital market, is different from when the US Supreme Court defined the Internet as a “new free marketplace of ideas”.