2020/II

maggio-agosto

 

Parte Prima

STUDI

 

 

SIMONE SCAGLIARINI - ROBERTO PINARDI

La durata del processo della Corte nei conflitti tra poteri dello Stato: spunti e riflessioni a partire da una ricerca empirica

(27.07.2020)

Abstract

The aim of this paper is to analyze the lenght's trend of the processes handled by the Consitutional Court, in the period among 1956 and 2019, adressing the focus on the conflicts between the different powers of the State. In this sense, the framework highlights that the Consulta has a wide discretion in time management, situation that, in abstract, could be considered as a defensive tool used to protect its legitimation in the overall system while, actually, represents a matter which overexposes the Consitutional Court to political issues (referring, in particular, to the cases in which the judges exploit the rules with self-assurance). This condition, that currently is largely in-use, is quite far from the model designed by the Constitution and generates risks that require a cautious evaluation. Court.

 

 

GIUSEPPE CAMPANELLI

Carta sociale europea e CEDU: rapporto tra parametri e puntualizzazione delle differenze

(27.07.2020)

Abstract

This paper aims to analyze the relationship between the European Social Charter and the ECHR, starting from the recent jurisprudence of the Constitutional Court. Specifically, the study focuses on the difference in the application of these sources, mainly due to a not identical qualification of the parameters, and provides several perspectives on the role of the Constitutional Court.

 

 

VINCENZO BALDINI

L'emergenza costituzionale alla luce degli interrogativi kantiani. Una prospettiva di metodo per l'analisi dell'esperienza

(27.07.2020)

Abstract

This work tends to analyze the experience of the health emergency in the light of the three Kantian questions trying, for each of them, to provide an answer, in a problematic form, up to determining some lines of possible developments of the political debate connected to rational expectations that emerge from the above experience.

 

 

PAOLO ZUDDAS

Pregiudizi digitali e principio di precauzione

(09.07.2020)

Abstract

The investigation examines the possibility of transposing the precautionary principle - in its various forms - from the original fields in which it developed, to the Artificial Intelligence sector. In particular, the principle will be applied to the complex problems posed by using machine learning systems to make decisions, faced with the risk that such tools produce selective decisions.

The application of the precautionary principle to machine learning technologies can help answer questions such as: when it is advisable not to adopt artificial intelligence; when it is deemed possible to use it, within what limits and with how much caution; what are the responsibilities to be stressed in this area and on which subjects they fall.

 

 

ANTONIO RUGGERI

Replicato, seppur in modo più cauto e accorto, alla Consulta lo schema della doppia pronuncia inaugurato in Cappato (nota minima a margine di Corte cost. n. 132 del 2020)

(09.07.2020)

Abstract

The paper notes a recent decision of the Constitutional Court, n. 132 of 2020, which reproduces, albeit with more measured and cautious tones, the pattern already experimented in the well-known Cappato case.

 

 

MATTEO BURSI

La sentenza del BVerfG sul Public Sector Purchase Programme: un'Europa sempre più difficile

(08.07.2020)

Abstract

The aim of this paper is to analyze the sentence of the Bundesverfassungsgericht on the Public Sector Purchase Programme (PSPP), adopting a perspective which combines law, economics and history. In this sense, initially, the focus will be adressed toward the "european path" of the German Constitutional Court since the case Solange to the most recent pronunciations about the initiatives implemented by the European Central Bank. Subsequently the article will depeen the possible consequences of the 5 May judgement while, further, there will be a consideration about the tasks, and the ideological base, of the Frankfurt's institute. Finally, we will suggest a reflection on the overall german approach to the European Union, trying to understand what role this country is ready to play in the forthcoming continental scenario.

 

 

LUIGI VENTURA

Diritto e fatti

(06.07.2020)

Abstract

The paper examines several questions posed by the relationship between politics and law, highlighting the numerous aporias in a  constitutional perspective.

 

 

EUGENIO DE MARCO

Situazioni di emergenza sanitaria e sospensioni di diritti costituzionali. Considerazioni in tema di legittimità al tempo della pandemia da coronavirus

(06.07.2020)

Abstract

The essay examines the impact of situations of extraordinary health emergency on different constitutional rights. In particular, the measures taken by the Italian system in the face of the situation caused by the pandemic by "covid-19" are analysed. First of all, surveys are moved on the different ways in which the state and the regions intervened in the phase of greater virulence of the pandemic. In addition, questions are raised about the conciliation of interventional measures adopted with constitutionally guaranteed rights until they are sometimes temporarily suspended. It concludes by noting reasonableness the fundamental criterion capable of justifying limited interventions in the exercise of fundamental rights.

 

 

CHIARA GRAZIANI

Libertà di culto e pandemia (Covid-19): la Corte Suprema degli Stati Uniti divisa

(06.07.2020)

Abstract

This work examines the decision of the U.S. Supreme Court South Bay United Pentecostal Church et al. v. Gavin Newsome, Governor of California et al., 590 U.S. (2020), dealing with the balance between freedom of worship and the protection of public health during the Covid-19 pandemic. The analysis also takes into consideration the case law of other U.S. courts on the same topic as well as a brief comparative overview on how courts of other jurisdictions decided similar cases during the ongoing public health emergency.

 

 

MARINA ROMA

Tendenze della giurisprudenza costituzionale sulla regola di copertura finanziaria delle leggi. Tra equilibrio di bilancio e "ragionevole" quantificazione degli oneri

(29.06.2020)

Abstract

The paper analyses the principle of the Italian Constitution whereby any new law providing for new or increased spending shall indicate the related financial means. In this respect, the author focuses on the most relevant judgements of the Italian Constitutional Court regarding Art. 81, paragraph 3 of the Italian Constitution, also in the light of the reform introduced by Constitutional Law of 20 April 2012, no. 1.

 

 

ALESSANDRO ROSARIO RIZZA

L'ordinanza n. 84 del 2020 della Corte costituzionale: note processuali su una pronuncia di altri tempi

(17.06.2020)

Abstract

The conflict of powers features some critical aspects. One of these is the legal standing. The Author analyzes this current issue in a recent decision, identifying two problematic profiles.

 

 

FRANCESCO DAL CANTO

Il giudizio in via principale nella novella delle Norme integrative del gennaio 2020

(04.06.2020)

Abstract

The essay examines the reform of the Supplementary rules for judgments before the Constitutional Court from the peculiar perspective of the judgment on the law promoted directly. The latter, in particular, has not been affected by this reform so that it is not possible today to envisage a change in the case law so far characterized by an intransigent closure of the adversarial in this process.

 

 

ANGELO LICASTRO

La Messe est servie. Un segnale forte dal Consiglio di Stato francese in materia di tutela della libertà religiosa

(03.06.2020)

Abstract

This paper examines the effects on religious freedom of the containment measures introduced in France to combat the pandemic, in a comparative perspective with the Italian legal framework. To do so, it takes as a starting point the decision of the French Council of State of May 18, 2020, that imposed to the Government to remove the general and absolute ban on gatherings in places of worship and to establish measures which are strictly proportionate to the health risks.

 

 

GIANMARIA ALESSANDRO RUSCITTI

Libertà religiosa e governo del territorio: le linee guida della Consulta nella sentenza 254/2019

(26.05.2020)

Abstract

The article analyzes sentence no. 254/2019 of the Constitutional Court, underlining how in solving an urban planning problem, the Court takes the opportunity to reaffirm some fundamental points in the matter of constitutionally guaranteed freedom of religion.

 

 

ALESSANDRO ROSARIO RIZZA

Il decreto legge anomalo nel sistema delle fonti

(11.05.2020)

Abstract

Reconstructing some ideas proposed in doctrine, the Author analyzes the emergency decree in the sources of law, applying the criteria for the resolution of antinomies. In the discussion, the Author compares the emergency decree with the ordinary law decree, governed by the art. 77 of Constitution.

 

 

FIAMMETTA SALMONI

Nota a prima lettura della sentenza del Tribunale costituzionale federale tedesco sul Quantitative easing: un decisione politica che chiude la strada alle misure di mutualizzazione del debito e la apre al MES

(06.05.2020)

Abstract

The paper comments on the sentence of the German Federal Constitutional Court which declared Germany's participation in the public sector purchase program, PSPP, implemented by the European Central Bank - ECB, partially unconstitutional. The paper discusses the current and future implications of the important decision.

 

 

ANTONIO RUGGERI

Società tecnologicamente avanzata e Stato di diritto: un ossimoro costituzionale?

(06.05.2020)

Abstract

The paper argues the thesis according to which technology if, on the one hand, offers itself as a guarantee of rights and for the fulfillment of constitutional duties, on the other hand it acts as a factor of "constitutional distancing" and, therefore, of discrimination incompatible with the very essence of the rule of law.

 

 

RAFFAELE GARGIULO

Il processo costituzionale telematico: prospettive

(06.05.2020)

Abstract

The Constitutional Court has already addressed the electronic process relating to the regulation of the timing of PEC notifications in the civil trial. For some time now, the Court has been committed to studying the use of technologies for its own trial. The implementation of this type of process presupposes the preliminary modification of the regulatory rules. The study investigates the legal and technical profiles of the problem.

 

 

ALESSANDRO LAURO

BIS IN "NIET" (a margine dell'ord. n. 60/2020 della Corte costituzionale)

(02.05.2020)

Abstract

A year after the ordonnance n. 17/2019, the Constitutional Court scrutinises for the second time the parliamentary procedure by which the 2020 State Budget was approved. In this decision, the Court excludes that Opposition parliamentary groups may file a petition acting as "powers of the State" to challenge the parliamentary procedure before the judge. The Court confirms, by contrast, that the abuse of parliamentary procedure can be contested by each member of Parliament. The Constitutional judges point out that only a very serious violation of the lawmakers' rights can lead to a declaration of the unlawfulness of the Parliament Act. In order to verify that, the Court proceeds to check the balance between the MPs' rights enshrined by the Constitution and the needs and principles inherent to the State budget approval. In this case, the Court rules out that the procedure followed in the Chambers shows such an absence of balance justifying the judge's intervention .

 

 

ANTONIO RUGGERI

La forma di governo nel tempo dell'emergenza

(02.05.2020)

Abstract

The paper supports the need for a constitutional discipline relating to the management of emergencies which reinforces the role of guarantee of the President of the Republic, providing for the control of the governmental acts adopted to deal with them and at the same time admitting the possible verification of the Constitutional Court.

 

 

Parte Seconda

MEMORIE COSTITUZIONALI

 

MEMORIE COSTITUZIONALI

Una Costituzione da "fine impero"

(21.05.2020)

Abstract

The document, which commemorates the 150th anniversary of the French imperial constitution of 1870, illustrates its characteristics and the temporal situation in which it came to light, preceded by other acts of Napoleon III oriented in a liberal sense.