Consulta
OnLine (periodico
online) ISSN 1971-9892
2018/I
gennaio
– aprile
PARTE
I
STUDI
CARLA DI MARTINO
(27.04.18)
Abstract
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 (S.F.)
UGO ADAMO
Materia
“non democratica” e ragionevolezza della legge
(04.04.18)
Abstract
"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 (S.F.).
CRISTINA NAPOLI
(04.04.18)
Abstract
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 (S.F.).
DONATELLA LOPRIENO
Regionalismo
e immigrazione. Le risposte degli ordinamenti regionali italiani al fenomeno
migratorio
(04.04.18)
Abstract
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 (S.F.).
ROBERTO CONTI
(04.04.18)
Abstract
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 « (S.F.).
VITTORIA BERLINGÒ
The New Italian Code of the Third
Sector: towards a New Model of Welfare
(29.03.18)
Abstract
The New Italian Code of the Third
Sector: towards a New Model of Welfare
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 (S.F.).
GIOVANNI POGGESCHI
Ridere
e deridere.La satira negli USA ed in Francia fra
libertà individuale ed esigenze collettive
(26.03.18)
Abstract
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 (S.F.).
ANTONIO RUGGERI
Dopo
la sent. n. 269 del 2017 della Consulta sarà il legislatore a far da paciere
tra le Corti?
(23.03.18)
Abstract
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 (S.F.).
DAVIDE GALLIANI
Sul
mestiere del giudice, tra Costituzione e Convenzione
(22.03.18)
Abstract
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 (S.F.).
ANDREA BONOMI
(22.03.18)
Abstract
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 one’s own sexuality) deriving from article 2 of the
Constitution (S.F.).
VITTORIA BERLINGÒ
(14.03.18)
Abstract
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) (S.F.).
VANESSA MANZETTI
(14.03.2018)
Abstract
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. (V.M.)
ALESSANDRO MORELLI
La
riscoperta della sovranità nella crisi della globalizzazione
(12.03.18)
Abstract
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 (O.C.).
ANTONIO IANNUZZI
(05.03.18)
Abstract
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 (O.C.).
ANTONIO RUGGERI
(23.02.18)
Abstract
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 (O.C.).
UGO ADAMO
(23.02.18)
Abstract
"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 (O.C.).
LUCA GRIMALDI – COSIMO PIETRO GUARINI
(07.02.18)
Abstract
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 (O.C.).
ANTONELLO LO CALZO
(30.01.18)
Abstract
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 (O.C.).
PIERLUIGI TOMAIUOLI
(24.01.18)
Abstract
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 (O.C.).
Consulta
OnLine (periodico
online) ISSN 1971-9892