2018/II

maggio - agosto

 

Parte Prima

STUDI

 

FULVIA PASSANANTI

Riflessioni sugli obblighi vaccinali, tra esigenze di unitarietà e ridotti spazi per le Regioni

(08.08.18)

Abstract

Reflections on vaccination obligations, between the need for unity and reduced space for the Regions

Starting from the events in the Veneto Region and from Constitutional Court's decision n. 5 of 2018, this article carefully analyzes issues related to vaccination obligation imposed on children and teenager by decree law n. 72/2017. This contribution focuses, in particular, on the complex allocation of legislative competences between the State and the Regions. The competence on vaccination may de facto fall within state competence. The state should set fundamental principles, balancing the right to be effectively treated with the right to physical and psychical integrity. The state's action should also avoid gaps between the Regions, due to the unitary interest behind vaccination issues, and ensure protection also to those who, because of specific diseases, cannot be vaccinated.

 

 

SIMONE FREGA

L'Ilva di Taranto di nuovo di fronte alla Corte costituzionale (osservazioni alla sentenza n. 58 del 2018)

(23.07.18)

Abstract

The Ilva of Taranto again before the Constitutional Court (remarks to sentence No. 58 of 2018)

Is it possible to identify a reasonable balance between market needs and workers' life in the context of an activity of national strategic interest? Or should workers' right to health be overcome by the right to work and the freedom to conduct a business? The Ilva case leads the Constitutional Court to strive to find a balance between opposite constitutional interests, on which the present work focuses through the examination of the reasoning underlying.

 

 

OMAR CARAMASCHI

Dal nesso funzionale esterno alla continenza interna? Recenti tendenze in tema di insindacabilità parlamentare (nota a Corte cost., sent. n. 59/2018)

(23.07.18)

Abstract

From the external functional link to internal continence? Recent trends in parliamentary prerogative (note to the Constitutional Court, judgment n. 59/2018)

In the current political context, which is very different from the past, it is necessary to rethink the boundaries of parliamentarians' freedom of expression, in order to guarantee a high level of protection of fundamental rights. Constitutional Court's judgment no. 59 of 2018 seeks to find a new balance between opposite interests. The Constitutional Court apparently rules also on the existence of the prerogative within the Chamber itself, expressing an innovative tendency analyszed by the present contribution.

 

 

ALESSIA TRANFO

Un profilo del diritto all'abitazione: l'edilizia residenziale pubblica per gli stranieri (a margine della sent. n. 106/2018 della Corte costituzionale)

(23.07.18)

Abstract

A profile of the right to housing: public housing for foreigners (in the margins of the Constitutional Court ruling No. 106/2018)

With its decision no. 106 of 2018, the Constitutional Court declared the unconstitutionality of Article 4, paragraph 1, of Law no. 13 of 2017 of the Region of Liguria, which introduces a longer time residence requirement than planned at the national level, to access to public housing by foreign residents. This paper analyzing - without claiming to be exhaustive - the legislative and jurisprudential framework, through a careful examination of the right to housing.

 

 

LINDA ARDIZZONE

La Consulta dichiara illegittimo il criterio della «residenza prolungata sul territorio regionale» per l'ammissione all'asilo nido: breve nota a Corte cost., sent. 107/2018 (con un sintetico rinvio a sent. 106/2018)

(23.07.18)

Abstract

The Constitutional Court declares the criterion of "prolonged residence in the regional territory" illegitimate for admission to the nursery school: a brief note to the sent. 107/2018 (with a brief reference to sent. 106/2018)

Moving from the recent ruling no. 107 of 2018 of the Constitutional Court, dealing with the social and educational function of nursery schools, this contribution highlights the recent tendency of the regional legislator to follow guidelines that are not consistent with principles outlined by the Constitutional Court. This trend determines different levels of protections, which the Constitutional Court strongly reproached.

 

 

PAOLO ADDIS

Disabilità e giuramento per l'acquisizione della cittadinanza (osservazioni a Corte cost., sent. 258/2017)

(23.07.18)

Abstract

Disability and oath for the acquisition of citizenship (remarks to the Constitutional Court, sent. 258/2017)

This article deals with judgment no. 158 of 2017 of the Constitutional Court, focusing on the role of constitutional case law in building an effective system to protect rights of people with disabilities, which might be seriously impaired by the obligation to take the oath required by law no. 91 of 1992.

 

 

ANTONIO RUGGERI

Per un nuovo statuto del Trentino-Alto Adige (chiose a margine di due documenti preparatori della riscrittura dell'atto)

(18.06.18)

Abstract

For a new statute of Trentino-Alto Adige (ask in the margins of two documents preparing the rewriting of the deed)

This work examines some proposed reforms of the Statute of Italian regions with differentiated autonomy. Among them, Trentino-Alto Adige is specifically analyzed. In particular, two documents that try to draw up some guidelines for a new Statute are taken into consideration. Such documents are examined under the perspective of each aspect that they address: the relationship between the Province and the Region as well as between the latter and the State; relations with the EU and at the international level; forms of participation and cooperation between different levels of government.

 

 

SABINA STURNIOLO

The best interest of the child nella legge n. 219/2017

(13.06.18)

Abstract

The "best interest of the child" in law n. 219/2017

This article examines Law 219/2017, which regulates measures to be taken when a person's life is considered no longer worthy to be lived by the person itself, with specific focus on the situation in which such individual is a child. In dealing with such topic, this work also considers cases on the comparative scenario in which the decision to interrupt life-saving treatments administered to children has been taken by doctors, believing that such a choice represented the child's best interest. The article argues that whether or not recent Italian legislation on anticipated arrangements in case of irreversible illness will be a "good law", as some commentators have already defined it, will depend on how it is applied, also with regard to children.

 

 

ANTONIO RUGGERI

La dignità dell'uomo e il diritto di avere diritti (profili problematici e ricostruttivi)

(03.06.18)

Abstract

Human dignity and the right to have rights (problematic and reconstructive profiles)

This article is focused on the concept of human dignity. On the one hand, human dignity is analyzed from a theoretic and axiological perspective, also with regard to its relationship with fundamental rights. On the other hand, it is contextualized by referring it to several domains related to material experience, such as the beginning and the end of human life. The claim of this work is that human dignity, which is an absolute concept that cannot be measured nor balanced, both justifies and limits individual autonomy, with which, however, it does not overlap.

 

 

CELESTE CHIARIELLO

Il valore costituzionale della Carta di Nizza: un problema ancora aperto anche alla luce della sentenza n. 269/2017 della Corte costituzionale

(07.05.18)

Abstract

The constitutional value of the Nice Charter: a problem still open also in the light of sentence n. 269/2017 of the Constitutional Court

First, this article analyses the European Community's (then Union's) process aimed at guaranteeing an increasingly high level of protection of fundamental rights as well as the Italian Constitutional Court's path towards European integration and the so-called counter-limits theory. Then, the study focuses on the Italian Constitutional Court's decision (judgment n. 269/2017) through which constitutional judges clarified some aspects with regard to how ordinary courts must behave when domestic law clashes with and EU law, especially when the Charter of Fundamental Rights of the European Union is concerned.

 

 

GIOVANNI COMAZZETTO

Luci e ombre del dialogo tra Corti: la "saga Taricco" tra revirements e questioni irrisolte

(07.05.18)

Abstract

Lights and shadows of the dialogue between Courts: the "Taricco saga" between revirements and unresolved issues

This work deals with the "Taricco case", which was adjudicated both by the Italian Constitutional Court and the Court of Justice of the European Union. The aim of the article is to discuss how this case influenced the current relationship between these two courts and which issues are still left unsolved. To this purpose, the author, while recalling the judiciary path of the Taricco case, carefully analyses the concept of "common constitutional traditions", with a view to understanding whether and how they can be functionalized to the process of integration between different legal systems – which is entailed by the European Union experience – without giving up national identities of single states.

 

 

SIMONE PAJNO

Fino a dove si estende la competenza regionale? Le controversie su fondo e sottofondo marino dinanzi alla Corte costituzionale

(07.05.18)

Abstract

How far does regional competence extend? Disputes over land and sea in front of the Constitutional Court

This work analyzes recent case law of the Italian Constitutional Court dealing with the distribution of competences with regard to the activity consisting of the exploitation of hydrocarbons deposits on the seabed within the territorial sea. The issues arising from this analysis are read in the light of international law (especially the Geneva Convention on the Continental Shelf and the Montego Bay Convention) and of the International Court of Justice's case law, specifically the so-called North Sea Continental Shelf cases.

 

 

Parte Seconda

LIBRI E RECENSIONI

 

 

ALESSANDRO ROSARIO RIZZA, La macroregione adriatico-ionica. La cooperazione territoriale tra ripensamenti e potenzialità

(Recensione al Volume di Massimiliano Mezzanotte «La macroregione adriatico-ionica. La cooperazione territoriale come strumento di integrazione»)

(23.07.18)

Abstract

The present work punctually reviews Massimiliano Mezzanotte's monograph, focused on the analysis of the critical aspects and potentiality of the Adriatic-Ionian macro-region.

The comment highlights the author's effort to propose an "all-round" reconstruction of the theme, through the examination of the different institutes, the comparison with the experiences already in progress and the analysis of the national repercussions of the institute.

The explanation of the essential lines-reviewed monograph ends with praise to the work, which shows the potentiality of territorial cooperation and implies a debate between the experts of the field.