Consulta OnLine (periodico online) ISSN 1971-9892













La genitorialità intenzionale e l’interesse del minore: un vuoto di tutele intollerabile



The essay deals with the reconstruction of the main pronouncements of the Constitutional Court relating to the regulation of medically assisted procreation (law n. 40/2004). In particular, the analysis focuses on the two latest rulings (Constitutional Court, sentences nos. 32 and 33 of 2021) that specifically touch on the issue of recognition of the legal status of children conceived through heterologous fertilization procedures (by homosexual couples) and through surrogacy.




The most dangerous branch? La Corte Suprema e il Texas Heartbeat Act



The paper regards the protection of the right to abortion in the United States. Particularly, the contribution focuses on the latest Texas legislation (Texas Heartbeat Act, S.B. 8), in relation to the precedents of Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), and on the role played by the Supreme Court to consider the Texas law and, more broadly, to guarantee the constitutional right to abortion in USA.




Un vecchio problema per (una) Forza Nuova: lo scioglimento delle organizzazioni neofasciste tra giudici e governo



The essay examines the problem of the dissolution of neo-fascist organizations in its legislative and jurisprudential evolution. The analysis starts from the XII final provision of the Constitution, which imposes a specific ban that is limited only to the fascist party; then it develops on the legislation of ordinary rank approved in 1945, 1947 and 1952, the so-called “Scelba law” still in force. Then, the debate on the bill proposed by Senator Parri – which aimed to dissolve the MSI by law – and the decisions of ordinary judges that led to the dissolution of some neo-fascist groups are deepened. In the conclusions, some proposals are made for changes to the existing structure, including the attribution to the Constitutional Court of the delicate task of the dissolution of parties.




La Corte costituzionale torna sulle “rime possibili”: un’insolita pronuncia di mero accoglimento per caducare una sanzione amministrativa fissa (osservazioni a margine della sent. n. 185 del 2021)



The paper examines the decision no. 185/2021 of the Italian Constitutional Court which declares the unconstitutionality of a fixed administrative penalty imposed on licensed gambling operators and owners of gambling rooms for breaching the duty to provide information on the risks of compulsive gambling, leaving the Legislator to establish a new penalty that complies with the Constitution, with relevant minimum and maximum thresholds. The paper focuses on the choice made by the Court to adopt, in this case, a declaration of unconstitutionality, despite the resulting gap in regulation. The Court explains when it has to use manipulative decisions and when, instead, it can also use a “simple” declaration of unconstitutionality, like in this case, by differentiating “unsustainable” and “sustainable” gaps in protection. Finally, the paper observes how the decision fits perfectly into the increasingly loose and proactive attitude of the Constitutional Judge in the current institutional season




Una giustificabile “invasione” di campo



Retracing the work of the Constituent Assembly and the legislator of 1953, it is possible to reconstruct the original Italian idea of Constitutional Court: a «negative legislator» who should have pronounced mere acceptance or mere rejection sentences; a «negative legislator» whose competence should have been limited to the control of pure legitimacy, without ever trespassing on political questions or in opportunity assessments. The difficult definition of what politics is and how wide the legislative discretion is has left to the judge of laws the task of self-limiting its action. Even more, the context in which it lives has led the Court to reshape its character. In this sense, the relationship between the Court and the Parliament plays a fundamental role, especially regarding the criminal field. In fact, as for this matter characterized by a high rate of politicity, the constitutional judge has explored different ways of judgment and decision. There is no doubt that the Constitutional Court has now gone beyond the original limits of its own review, by invading the role of the legislator. But, when cooperation failed and constitutional justice is strongly required, judicial activism is, perhaps, justifiable: it appears appropriate and necessary that the «natural task» of the guarantor of the Constitution adapts to situations of political emergency, through a new model of balance between the “value” of legislative discretion and the “value” of implementation of constitutional principles.




Le incognite del referendum c.d. «sull’eutanasia», fra denominazione del quesito, contenuto costituzionalmente vincolato e contesto storico



The paper focuses on the referendum request aimed at repealing - except for some limited cases - the crime of consensual homicide. The A. analyses some controversial aspects of the request, taking into account the role of the Central Office at the Court of Cassation and the Constitutional Court case law on referendum admissibility, according to which is forbidden, inter alia, to call referendum for laws with a binding constitutional content.




Sul compenso da riconoscere ai magistrati onorari di lungo corso: aspettando Godot



The article analyzes the sentence no. 172 of 2021 of the Constitutional Court, which ruled out the existence of an unjustified difference in economic treatment between two different figures of honorary magistrates. By meticulously reconstructing the regulatory evolution of the reference discipline, the work highlights the indisputable profiles of intrinsic unreasonableness of the legislation scrutinized by the Constitutional Court, not assessed as extraneous to the perimeter of the complaints, supposing the possible outcomes of any future questions that might be raised by evoking the relevant profiles of constitutional illegitimacy. Finally, the paper examines the parliamentary works concerning bills for the overall reform of the matter, highlighting the persisting critical issues.




La semplificazione normativa nel PNRR: il coinvolgimento dei legislatori regionali tra «progetti bandiera» e «poteri sostitutivi»



The essay concerns the involvement of Regional Legislators in the implementation of National Recovery and Resilience Plan («Piano nazionale di ripresa e resilienza»), considering regulatory simplification measures programmed by the Plan. In this perspective, it proposes a comparison between the Plan and the Italian Simplification Agenda 2020-2023 and it examines the framework of regional regulatory simplification measures.




Il principio di sussidiarietà verticale alla prova dell’emergenza interna



This essay, moving from the analysis of methods used by the State to counter the spread of the SARS-Cov-2 virus, deals with the difficulties arose during pandemic in preserving the regional framework, highlighting how these difficulties are imputable, at least in part, to the mechanisms for the protection of unitary needs set by the reform of Title V., p. II of the Constitution. Such mechanisms show certain limitations, in particular when the protection of supra-regional interests is imposed as an 'administrative problem', both in ordinary situations and in emergencies. Therefore, it follows the need to redress not only the compatibility of the solutions identified with the crisis management, but also the political-institutional significance of these solutions which involve, in addition to the pandemic, the future of our form of state.




Judex ex machina? Note su giustizia, giudici e intelligenza artificiale



The essay, reflecting on the potential of artificial intelligence as a tool for the judicial function, highlights some controversial aspects relating to the systems of "predictive justice".




Il divieto di analogia a sfavore del reo: il ruolo di un principio costituzionale che costituisce un unicum



The paper concerns the role that can assume the prohibition of analogy against the offender in the judgment on the laws. This role is examined both in the "face" of the same prohibition turned to the legislator, and above all in the "face" of the same prohibition addressed to the judge: regarding this second "face" will be analyzed the supposed non-sanctionability in the judgment of the violation of the prohibition of analogy to the detriment of the offender and the vexata quaestio about the distinction, in many cases difficult to delineate, between extensive interpretation and analogy.




Valutazione ambientale strategica e pianificazione urbanistica: tra principio di precauzione e anti-formalismo



This contribution aims to highlight the reconstruction of the regulations regarding environmental impact assessments, with particular attention to the strategic environmental assessment, recently carried out by the Council of State. Specifically, the analysis focuses on the relationship between these assessments and the more general principles of prevention and precaution, highlighting the specific enhancement that is made of the latter by the Administrative Judge. Indeed, we can note the adoption of an interpretative scheme devoted to substantive and not merely formal compliance with the regulations set up to protect the environment. Of particular interest is the statement that, in the urban context, the EIA is part of a sort of evaluative continuum in which each previous evaluation must be taken into consideration for subsequent, so getting this evaluation within the binaries of the mere scan of the urban planning procedure is likely to bring the value of the protection in question under the aegis of mere formalism. Finally, the contribution highlights the interpretation reaffirmed by the Council of State in relation to the long-standing question of the relationship between the proceeding Authority and the competent Authority in matters of EIA.




Per un aggiornamento grafico della bandiera che rispecchi fedelmente l’identità costituzionale della Repubblica e l’appartenenza di quest’ultima all’Unione europea



The contribution outlines the thesis aimed at innovating the symbol of the flag described in article 12 of the Constitution, indicating at its center the membership of Italy in the European Union. This innovation would not affect, but would make the composite identity of the Republic more faithful.




La prima volta non si scorda mai: le sentenze “additive di prestazione” approdano a Lussemburgo (a margine della decisione della Corte di Giustizia nel caso Cresco Investigation)



The paper analyses the Court of Justice judgment of 22 January 2019 about non-discrimination principle. Looking back at the Luxembourg case law on direct effect in horizontal disputes, the progressive emergence of the Nice Charter, now the main parameter of legitimacy in the Court’s decisions, is highlighted.




Brexit, Devolution and the constitutional implications for the UK: Prospects for change



The following six points provide a useful framework to explore the current (and potentially future) constitutional tensions within the UK as a result of both Brexit and the Devolution Deals introduced by the Labour Government elected in 1997.




Il codice della protezione civile e l’emergenza pandemica anche alla luce di C. cost. n. 198 del 2021



The contribution discusses the adoption of governmental emergency legislation during the COVID-19 pandemic. In the light of the recent Constitutional Court’s jurisprudence, the Author investigates the reasons beyond the failure to use the existing Code of Civil Protection in favor of the Law decrees and the Decrees of the President of the Council of Ministers.




Riforma della giustizia penale: contesto, obiettivi e linee di fondo della ‘legge Cartabia’



The contribution focuses on the recent law no. 134/2021, of delegation to the Government for the reform of the penal system, proposed on the initiative of Minister Marta Cartabia, as part of the achievement of the objectives set in the National Recovery and Resilience Plan (P.N.R.R.). The reform constitutes a fundamental piece of an overall plan for the reorganization of justice aimed at increasing its efficiency and reducing its time. The Author carries out a first reading of the main lines and tools used by the legislator.




L’elettorato passivo può essere trasformato in interesse legittimo? Brevi osservazioni a margine di Corte costituzionale 11 marzo 2021, n. 35



The essay comments favourably on the decision by which the Constitutional Court judged not unlawful the provision of the fixed duration of the limiting measures of the right to vote and the right to electorate, imposed together with the criminal sanctions against elected administrators, denying the necessary competence of the judge to evaluate case by case.




Amici … a metà. Primo bilancio dell’“ingresso” degli Amici curiae nel giudizio di costituzionalità



The article deals with the first cases of application of the new Amicus curiae’s institute in judgments before the Constitutional Court. In particular, statistical data of the admissibility measures and the inadmissibility decisions of the opinions are examined and commented. In addition, some observations are made about the role of the Amici curiae in constitutional process. Finally, there is an attempt to express an opinion on the functioning of the new institute, in order to highlight any critical issues and to propose the improvement of some steps of the admission procedure.




L’emergere dell’autonomia normativa del CSM (notazioni a margine del dibattito sulla riforma dell’ordinamento giudiziario)



The article deals with the phenomenon of the foundations and the evolution of powers close to normative ones in the exercise of the constitutional functions of the Superior Council of the Judiciary. The analysis takes into account the debate on the reform of the judicial order.




Les droits des femmes dans les constitutions françaises



The essay focuses on the rights of women in the French Constitutions. After having retraced the constitutional evolution of political rights in the female perspective, the author draws the attention and examines with a critical approach the development of civil and social rights of women, in the light of the jurisprudence of the Conseil constitutionnel.




Constitutional Degradation and the Italian Parliament. How can the centrality of the representative body in the Italian legal system be preserved?



The essay focuses on the Italian Parliament and the process that may undermine its centrality in the exercise of the legislative function. The paper investigates whether the representative body has lost its role and suggests some legal interventions to correct this phenomenon. So, it analyses the legal tools (and their effects) used by the Government to impose itself on the Parliament. Though the actual functioning of Italian legal system could still be considered as belonging to the area of what Constitution established, it does not seem possible to postpone a reform to ensure the centrality of Parliament. It appears that the best tool would be an amendment of parliamentary rules of procedure. In particular, the main solution proposed is a reform of the law-making process, to guarantee an evolution - not a transformation - of the Italian legal system.




Sulle più recenti evoluzioni dei rapporti tra Corti: riflessioni a partire da Corte cost., sent. 30 aprile 2021, n. 84



Judgment No. 84/2021 represents a further development of the obiter contained in Judgment No. 269/2017, through which the Constitutional Court partially modified the judicial protocol to be followed in “dual preliminarity” situations. The recent decision is the result of a virtuous dialogue built with the Court of Justice of the European Union, even if some problems are at stake. Meanwhile the Court of Cassation has raised three complex preliminary questions to the Court of Justice of the European Union, risking to trigger a conflict with the Constitutional Court.




Diritto al silenzio e insider trading: il confronto tra Roma e Lussemburgo prosegue sulla via del dialogo (Corte costituzionale, sentenza n. 84/2021)



With decision n. 84/2021, the Constitutional Court declared the unconstitutionality of art. 187 – quinquiesdecies (d.lgs. n. 58/1998), relating to the crime of insider trading as it violates the right to remain silent (art. 24 Cost.). The Author analyzes the decision, highlighting how it is an important moment of dialogue with Court of Justice, aimed at protecting rights and freedoms in compliance with the European Charter of Fundamental Rightsand the italian constitutional tradition.




Romanzo emergenziale. Notazioni sulla disciplina in materia di Covid



The essay examines the regulation in the field of the health emergency, especially regarding the extension of the state of emergency and the obligation of vaccination. The Authors show that the public debate is based on political factors rather than on medical-scientific and legal reasons. The reconstruction of the exact regulatory framework is a necessary condition to allow accurate democratic control over the management of the emergency by the Government.




I sistemi di identificazione biometrica a distanza: un esempio paradigmatico delle sfide lanciate dalla tecnologia al diritto costituzionale



The essay deals with the legal problems arising from the widespread diffusion of remote biometric identification systems. These unparalleled technologies, based on artificial intelligence, are capable to involve some of the principal challenges that digital algorithmic technologies are posing to contemporary constitutionalism. Starting from the attempt of the most recent proposal of European regulation to dedicate more stringent rules to this issue, the analysis focuses on the difficulties of legal rules to regulate these instruments of surveillance and the overall threats to fundamental rights




Il “dialogo” tra le Corti: una precisazione di metodo per una nozione apparentemente bonne à tout faire



The essay highlights the suggestiveness but also the ambiguity of the notion of "dialogue between the courts", as well as its compromission due to the use of partial methodological bases. A bug that is found in the jurisprudence of both the Court of the European Union and the Constitutional Court.

The author therefore underlines the need to distinguish cases of "dialogue" from cases of multiple and mutually non-communicating monologues.




La potenza del Fato: crisi o decomposizione della democrazia?



Democratic backsliding is a commonplace in the contemporary constitutional language. Duly elected governments which are able to reform formal constitutions in a counter democratic way. That is common said about Poland or Hungary and the cause, as common said, is populism. In Italy, or in other Eu countries which can be considered as advanced democracies, if this expression can be used or sounds good, this is not the problem. There is populism but populism is not a problem in Italy, USA or UK and so on. The real problem, in the opinion explained in this essay, is biopolitcs. The Foucault idea for which the power of surveillance is governance   e by pleasure is the actual power and this power is not in the hands of a government or a State or a democracy, it is in the hands of net corporations, big as a modern State and surely not democratic. So the aim of a constitutional scholar who wants to defend democracy is not a discourse about populism, or the crisis of representation. The real discourse is about the real essence of internet and how we can make available fundamental rights in the code.









Consulta OnLine (periodico online) ISSN 1971-9892