Consulta OnLine (periodico online) ISSN 1971-9892
2018/I
gennaio - aprile
Parte Prima
STUDI
CARLA DI MARTINO
(27.04.18)
Retroactive laws to contain
public spending and due process (on the sidelines of the sentence of the
Constitutional Court n. 12 of 2018)
The essay deals with the
limits imposed to the legislature to enact retroactive laws in "civil
matters". The existing dichotomy between the European Court of Human
Rights' and the Italian Constitutional Court's jurisprudence on the topic is
considered as well.
The European Court of Human
Rights has repeatedly ruled that the legislator is not prevented from
regulating, through new retrospective provisions, rights derived from the laws
in force. Nevertheless, the principle of the rule of law and the notion of a fair
trial enshrined in Article 6 of the European Convention of Human Rights
preclude, except for compelling public-interest reasons, interference by the
legislator with the administration of justice designed to influence the
judicial determination of a dispute. Statutory pension regulations are liable
to change and a judicial decision cannot be relied on
as a guarantee against such changes in the future, even if such changes are to
the disadvantage of certain welfare recipients. However, the State cannot
arbitrarily interfere with the process of adjudication.
Differently, the Italian
Constitutional Court tends to recognize the possibility for the legislator to
enact retroactive laws, if it is sufficiently justified under the
reasonableness standard.
UGO ADAMO
Materia "non democratica" e
ragionevolezza della legge
(04.04.18)
"Undemocratic" matter and reasonableness
of the law
The author analyzes the standard of reasonableness of law in relation
to scientific subjects, characterized by methods and rules known only to
scholars of the discipline. The author wonders what is the
role of reasonableness in the choices of the legislator (which is
assumed reasonable when scientific knowledge is lacking) and in the engagement
of technical experts (becoming a parameter of substantive legitimacy of the
legislative activity). Finally, the author analyzes
some decisions of the Constitutional Court in which scientific reasonableness
emerges as a criterion. In conclusion, judgment n. 5 of 2018
(related to the obligation of vaccinations) is commented.
CRISTINA NAPOLI
(04.04.18)
A look at the future moving
from the mistakes of the past: the challenge of direct appeal to parliamentary
minorities
Starting from the
investigation about the adequacy of the tools available to the Constitutional
Court and given the need to apply procedural rules also in the disputes before
the Constitutional Court, the author examines the possibility for parliamentary
minorities to directly lodge an application with the Constitutional Court. The
author takes into account the wide scholarly debate,
divided between those who are against this possibility and those who, although
not totally favorable, do not exclude it a priori.
The author argues that in the Italian legal system it would be possible to
grant parliamentary minority the chance to bring proceedings before the
Constitutional Court as an ex post review (thus, the judgment would not
influence the iter legis and parliamentary minorities
could not resort to this possibility for obstructionist purposes), triggered by
at least one fifth of the deputies or senators; the object of the judgment
could be extended, including violation of parliamentary rules.
DONATELLA LOPRIENO
Regionalismo e immigrazione. Le
risposte degli ordinamenti regionali italiani al fenomeno migratorio
(04.04.18)
Regionalism and immigration. The responses of the
Italian regional systems to the migration phenomenon
The article analyzes the answers provided by the Italian legal system,
composed of the State and the Regions, to the migration phenomenon, examining in particular measures adopted by the most exposed Regions,
namely the Southern ones. There is a difference in the approach of regional
governments, in particular between the North and South of Italy, on issues of
work and immigration policy, due to a different impact on the unalike
geographical areas and regional interventions in the field of immigration; the Southern
regions appear more inspired by the constitutional principle of solidarity,
perhaps also because of the desire to counter the «ongoing loss of citizens.
ROBERTO CONTI
(04.04.18)
The law of 22 December
2017, n. 219 in a civil law perspective: what remains of the art. 5 of the
civil code?
The article concerns the
analysis of law no. 219/2017 (rules on informed consent and advanced treatment
instructions), expected for several years, in which the role of courts case
law was decisive; the author focuses on some key parts of this piece of legislation,
also referring to the ECHR's case law on the right to life and self-determination
and remarking the existence of a legislative legal vacuum (some possible
solutions are proposed in this regard) in law no. 269/2017.
VITTORIA BERLINGÒ
The New Italian Code of the Third Sector: towards a New Model of Welfare
(29.03.18)
The paper explores the
links between the new rules of the Italian Legislative Decree no. 117 of July
3, 2017, know as Code of the Third Sector, and a
specific theory on the Italian Welfare system regarding the safeguarding of
social rights and other related guarantees. In particular, the paper shows how
cooperation between Third Sector entities and public bodies is
able to introduce a particular type of goods, called relational goods,
into a specific legal area.
GIOVANNI POGGESCHI
Ridere e deridere.La satira negli USA ed in Francia fra
libertà individuale ed esigenze collettive
(26.03.18)
Laugh and mock. Satire in
the US and in France between individual freedom and collective needs
The author examines freedom
of satire with reference to France and the USA.
The two examined countries
offer common and at the same time different elements. The article analyzes satire, as part of freedom of expression, from a
historical and legal perspective, pointing out some issues that arose in
relation to the problem of racism (USA), to the laical
state and to the relationship with religion (France). The contribution
recognizes the current importance of freedom of satire also considering the
evolution of technologies and diversity present in global law.
ANTONIO RUGGERI
Dopo la sent. n. 269 del 2017 della
Consulta sarà il legislatore a far da paciere tra le Corti?
(23.03.18)
After the sent. n. 269 of 2017 of the Constitutional Court will be
the legislator to act as peacemaker between the Courts?
The author believes that
only an assertive intervention of the legislator can limit the serious risks of
conflicts between Courts, potentially caused by the constitutional preliminarity and of the European preliminarity.
The author does not support the hypothesis of the choice between the widespread
and centralized system of constitutional review, but he argues in favour of a
combination of the two systems, even if only in cases of joint violation of the
Charters and through the intervention of the constitutional legislator. The
author considers the proposed solution admissible, since it is about a joint
violation of two «typically constitutional» documents, and he admits its
extensibility to the ECHR, maintaining some perplexity with reference to the
other Charters.
DAVIDE GALLIANI
Sul mestiere del giudice, tra
Costituzione e Convenzione
(22.03.18)
On the job of the judge,
between the Constitution and the Convention
The judge's job is
characterized by some problems, among which the fact that in the contemporary
age he has to carry out his functions in a a complex context, having to perform his own interpretative
activity taking into consideration not only the Constitution but also the ECHR.
For these reasons, the author proposes some ideas aimed at reconsidering the
foundations of the issue concerning motivation, without relinquishing basic
principles.
ANDREA BONOMI
(22.03.18)
Recruitment and
facilitation of prostitution on the test bench of constitutional principles. A
few remarks in the light of a recent referral order to the Constitutional Court
The author examines the
ordinance of 6 February 2018, through which the Court of Appeal of Bari raised
a question of constitutional legitimacy of the criminal provision punishing
those who knowingly and voluntarily recruit and aid prostitution, with reference
to articles 2, 3, 13, 25, c. 2, 27 and 41 of the Constitution. He examines
potential grounds of unconstitutionality and, at the same time, asks himself
whether the possibility to engage in prostitution can be considered an inviolable right
(in the sense of a right to express ones own sexuality) deriving from article
2 of the Constitution.
VITTORIA BERLINGÒ
(14.03.18)
The effectiveness of
working integration of the disabled in the light of the most recent public
administration reforms
This article deals with the
evolution systems aimed at integrating disabled people into the labour market
in an increasingly full and effective way. He analyzes
the European obligations to protect disabled workers, their integration as
regulated by the new Code of public contracts and recent domestic case law, in
which a substantive approach favoring companies seems
to prevail (even if not univocally).
VANESSA MANZETTI
(14.03.2018)
Emergency decree and
financial autonomy of financial income of local authorities: local finance
profiles
The practice for the use of
decree-laws in the context of local finance, despite having had periods of
weakening, especially after the historic decision of the Constitutional
Court no. 360 of October 17, 1996, has remained essentially constant
since the years 1970s, creating a complex and multilayered field discipline,
but most often characterized by impermanence and uncertainty.
The resulting ripple effect
is therefore a continuing need to take measures to ensure that buffer in
extremis the financial equilibrium of the entities, which have come to affect
all sectors of the field.
And, alas, that effect has
been gradually increasing in the wake of the current economic crisis and the
urgent need to respect the financially compensated constraints imposed by EU,
not so much with a view to strengthening the legislative branch of Government,
but, more than anything, to overcome the endemic slowness of the current
legislative procedure.
ALESSANDRO MORELLI
La riscoperta della sovranità nella
crisi della globalizzazione
(12.03.18)
The rediscovery of
sovereignty in the crisis of globalization
The paper aims to
reconstruct interactions between the paradigm of sovereignty and the process of
globalization, in order to grasp some recent
tendencies oriented to the recovery of a strong role of States in the dynamics
of the supranational integration process. Several recent episodes suggest
reflecting on the theme for trying to define a more realistic picture of the
state systems status, in consideration of a possible slowdown in the process of
expansion of human relations on a global scale. Such events could be the
symptoms of a passing crisis or the forerunners of an epochal change, in which
sovereignty could demand a central role also in supranational dynamics.
ANTONIO IANNUZZI
(05.03.18)
The mandatory nature of
vaccinations in the judgment of the Constitutional Court between compliance
with the discretion of the state legislature and medical-statistical
evaluations
The sentence of the
Constitutional Court no. 5 of 2018 rejected all the questions of
constitutional legitimacy raised by the Veneto Region against the decree-law
no. 73 of 2017, containing urgent provisions about vaccination, converted with
amendments by the law no. 119 of 2017, which extended from four to ten the
number of mandatory and free vaccines for minors from zero to sixteen and all
unaccompanied foreign minors. The note focuses on some aspects of interest of
the sentence: the incidence of the medical-scientific fact on the choice of the
decree-law source, the judgment on the exercise of legislative discretion in
comparison with the medical-statistical evaluations, the legitimacy of a
decree-law with deferred effectiveness and the verification of the legitimacy
of state intervention in material areas in which Regions also have competences.
ANTONIO RUGGERI
(23.02.18)
A first, cautious and
interlocutory reply from the Court of Cassation to cost. n. 269/2017 (first
reading of the Court of Cassation, II civil section, 16 February 2018, No.
3831, Bolognesi v. Consob)
The decision confirm a
hypothesis that emerged following sentence no. 269 of 2017
of the Constitutional Court, according to which, in the event of dual preliminarity, the legitimacy judge considers that the
question of constitutionality should be privileged with respect to the
preliminary question that can be raised pursuant to article 267 TFEU.
Furthermore, the configurable scenarios also appear to be significant following
a possible rejection of the Constitutional Court, particularly the threat by
the Court of Cassation of the future disobedience to an indication by the
Constitutional Court that improperly delimits the area of action of the
preliminary ruling to the Court of Justice of the European Union.
UGO ADAMO
(23.02.18)
"Without distinction ... of
religion". Freedom of expression of thought and protection of religious
sentiment
The purpose of the paper is
to investigate the space recognized in the Italian constitutional order to the
right of expression (which also includes that of satire) when the subject of
discussion concerns religious faith. Furthermore, the author wants to probe the
persistent space of protection offered to the religious sentiment that is
configured as a criminal law limit to the exercise of freedom of expression.
The essay wishes to go into the current legal framework (increasingly open to
inter-state protection) and in the context of some important rulings issued by
the European Court of Human Rights in recent decades.
LUCA GRIMALDI COSIMO PIETRO
GUARINI
(07.02.18)
On some conflicts of
attribution between State powers raised following the "situation that arose"
with the latest electoral laws (in the margins of ordinances 277 and 280 of
2017)
With the ordinances under
review, the Constitutional Court declared the inadmissibility of four appeals
for attribution conflict between powers of the State, promoted against the
Government or the Houses. The conflicts have been raised following the situation
that arose with the law no. 52 of 2015 (better known as Italicum) and with the
approval of the law no. 165 of 2017 (better known as Rosatellum-bis). The paper
explores the issue of procedural legitimacy of parliamentary subjects and
citizens-voters in the conflict between powers, as well as the alleged abuse of
the use of the matter of confidence and the consequent impact of this misuse on
the protection of the electorate, on the freedom of vote of parliamentarians,
on the exercise of their free mandate and on the parliamentary form of
government.
ANTONELLO LO CALZO
(30.01.18)
The control of
constitutional legitimacy on the internal legislative acts of the Chamber and
the Senate (in the margins of the ruling n. 213 of 2017 of the Constitutional
Court)
The sentence of the
Constitutional Court no. 213 of 2017 addresses the topic of the
application of the solidarity contribution to the pensions of former employees of
the Chamber of Deputies. It also allows reflecting on the different approaches
that the domestic justice organs of the Houses of Parliament adopt in the
control of legitimacy on the "internal" normative acts, according to
the relationship existing between these ones and the "general" law.
PIERLUIGI TOMAIUOLI
(24.01.18)
The «stop» of the
Constitutional Court to dynamic jurisdiction (in the margin of sentence no. 6
of 2018)
The note examines the decision no. 6 of 2018
in which, called to rule on the constitutional legitimacy of the forfeiture
envisaged by article 69, par. 7 of legislative decree no. 165 of 2001, the
Constitutional Court declared inadmissible due to a lack of relevance the
matter proposed by the Court of Cassation in joint sections, seized with appeal
for reasons related to jurisdiction against a sentence of the Council of State.
This ruling is based on the conclusion that the discussed concept of dynamic
jurisdiction is contrary to the notion presupposed by the Constitution in the
eighth paragraph of the article 111 and it undermines the plurality of
jurisdictions as thought by the members of the Constituent Assembly.
Consulta OnLine (periodico online) ISSN 1971-9892