Consulta OnLine (periodico online)
ISSN 1971-9892
2021/I
gennaio-aprile
PARTE I
STUDI
MASSIMILIANO MEZZANOTTE
Pandemia e riparto delle competenze Stato-Regioni in periodi
emergenziali
(26.04.21)
Abstract
With
the onset of the pandemic, the confrontation between the State and the regions
has intensified, precisely because of the excessive restrictions adopted at
state level. The judgment n. 37 of 2021 is perhaps the tip of the iceberg of
this contrast, in which attempts to adopt legislation different from that
approved at national level leads the Court to reconsider the limit of
international prophylaxis provided for by art. 117, paragraph 2, lett. q), Cost., and to consider it applicable to the case
in question, but without resolving other issues that perhaps deserve more
attention.
RICCARDO GUASTINI – ALESSIO SARDO
Bostock: un caso di discriminazione sul lavoro
(26.04.21)
Abstract
Strictly
speaking, Bostock is not a constitutional case. It is an employment law case:
more precisely, one of discriminatory dismissal. Neil Gorsuch, who writes for
the majority of the Roberts Courts, confines the issue to the interpretation of
the Civil Rights Act (1964), without developing a real “constitutional
argument.” From the perspective of legal reasoning, Bostock is an originalist
decision. Both the majority opinion and the dissenting opinions of Samuel Alito
and Brett Kavanaugh are attempts to reconstruct and
apply the original meaning of the phrase “because of sex.” In this decision,
several forms of originalism intertwin: there is
clash between the textualist doctrine, on the one hand,
and the doctrine of public meaning combined with intention-based arguments, on
the other. But, in truth, the majority opinion's textualism seems to “hide” a
dynamic and evolutionary interpretation that updates the original meaning of
the Civil Rights Act to include sexual orientation in the protection against
sex-based discriminations. When combined with other recent decisions, Bostock
seems part of a broader strategy of the Roberts Court oriented towards the
systematization of the federal law in the area of employment discrimination.
ANTONIO IGNAZIO ARENA
Questioni procedurali sull’approvazione delle leggi di cui
all’art. 116, comma 3, Cost.
(20.04.21)
Abstract
The paper
is dedicated to the interpretation of procedure under article 116, par. 3, It.
Const. It is argued that this procedure concerns only the ordinary regions and
not only the legislative functions. Negotiations are initiated and concluded by
executives, but a decisive role could be played by the legislatives through
their directives. It is up to the regional legislature to present the proposal,
while the national legislator decides whether to approve the act. It is finally
argued that the opinion of local authorities should be expressed to Parliament
(in the perspective of a synergy between the “municipalist”
and the “regionalist” model of relationship between different levels of
government).
ROBERTO PINARDI
(07.04.21)
Abstract
The
Author analyzes the innovative decision-making
technique applied by the Italian Constitutional Court in the decision n. 41 of
2021, highlighting analogies and differences in comparison with similar
argumentative schemes, the effects it produces over the legislator and the judicial
organs, as well as some criticisms it arouses due to the lack of compliance
with the incidental nature of judicial review of legislation.
LARA TRUCCO
(01.04.21)
Abstract
The
essay examines the decision of the Constitutional Court no. 48/2021 in which no
violation of the right to passive electorate was found, while the lack of a
judge in disputes arising in the preparatory phase of the elections was blamed.
It is
highlighted the restrictive approach of the Court to the institution of
"verification of powers", aimed to limiting its effects to disputes
relating to the validation of the admission titles of the elected, with a
correlative expansion of the protection of political rights by the ordinary
judges in the pre-election disputes (in particular, with regard the issues
concerning the admission of lists or candidates). Hence the need for specific
procedural rules, capable of ensuring an effective and timely electoral
justice.
GIACOMO MENEGATTO
(01.04.21)
Abstract
This
paper, taking inspiration from a recent statement by President Sergio
Mattarella, focuses on the memorable message President Antonio Segni sent to the Chambers in 1963, hoping for a
constitutional review based on the introduction of an expressed
non-re-eligibility clause for the President of the Republic and on the
abolition of the so-called “white semester”. The essay, analyzing,
firstly, the Constituent Assembly debate, the content of the various reform
bills and the main doctrinal opinions on the theme, then aims to investigate
the opportunity, nowadays, of a relaunch of these proposals, through the
modification of the articles 85 and 88 of the Italian Constitution.
ANTONIO RUGGERI
Le trasformazioni istituzionali nel tempo dell’emergenza
(29.03.21)
Abstract
The
paper highlights some of the most salient deviations that have occurred for some
time and therefore increasingly worsened due to the emergency, of which there
is evidence both at the level of institutional relations and also within
society. It should be noted that the twists of the former are caused precisely
by the latter, which are usually overlooked by even the most discerning
doctrine. Finally, the paper focuses on the vital need to remedy some failures
in both plans that have occurred in order for the order to be fully transmitted
over time.
ENRICO ALBANESI
(29.03.21)
Abstract
The
article analyses Judgment No. 33/21, issued by the Italian Constitutional
Court. It is argued here that an advisory opinion of the ECtHR, under Protocol
No. 16 to the ECHR, should be considered under certain conditions as
‘interposed norm’ in constitutional review, also with regard to those States
(like Italy) that have not ratified Protocol No. 16 yet. However, in Judgment
No. 33/21 the Italian Constitutional Court did not answer entirely the question
whether this could be possible. In light of this role that can be played by advisory
opinions of the ECtHR, it is also argued here that Italy should ratify Protocol
No. 16.
NOEMI MINISCALCO
(29.03.21)
Abstract
The Ordinance n. 4 of 2021, where for the first time
the Constitutional Court suspended the effectiveness of a regional law in a
judgment of legitimacy promoted by the State, is an opportunity to investigate
how the “Judge of the Laws” exerted his precautionary power, overcoming that
attitude of self-restraint, which had characterized his method of exercise for
a long time.
ANTONIO RUGGERI
(11.03.21)
Abstract
The paper quickly comments on sentences no. 32 and 33
of 2021 of the Constitutional Court, where some recent decision-making schemes
are re-proposed, where the Court intervenes in case of inaction by the
legislator, but where precedence must always be given to the "priority
evaluation of the legislator".
ROBERTO TONIATTI
La rilevanza della Corte costituzionale
italiana in prospettiva comparata
Abstract
The paper (written for being presented to a public of
Mexican constitutionalists) deals with the Constitutional Court’s role in
controlling the transition to constitutional democracy in Italy after WW2. Very
few precedents could support the innovative framing of the institution and
Italy, in 1947 (together with Germany, in 1949) was a pioneer in starting an
analogous process that was eventually adopted by all countries in Southern,
Central, Eastern and South Eastern Europe acceding to European mainstream
constitutionalism (rule of law, human rights, and democracy). Some structural
differences of the Italian Court regarding features that are generally present
in other countries in Europe are examined and some final remarks on the
substantive contribution given by the Court’s case-law and constitutional
adjudication are provided.
ANTONIO RUGGERI
(22.02.21)
Abstract
Taking its cue from a recent monographic study, the
paper reconsiders some troubled issues in the field of medically assisted
procreation, also with reference to the experiences gained in other legal
systems, especially as regards the subjective requirements for access to
reproduction techniques, heterologous fertilization, the prohibition of
maternity subrogation.
ENRICO ALBANESI
(17.02.21)
Abstract
The
article analyses Protocol No. 15 amending the Convention for the Protection of
Human Rights and Fundamental Freedoms. At last, an Act passed by the Italian
Parliament has just authorised Italy’s ratification of the Protocol. It is
argued here that the Italian Parliament should now authorise also the
ratification of Protocol No. 16 to the Convention.
GIUSEPPE NAGLIERI
(15.02.21)
Abstract
In ruling 132/2020, the Constitutional Court deployed the same two-parts
introduced in 2018 in the Cappato case. The decision
can be compared, with regards to the effects on the contested provision of the
criminal code, with the Unvereinbarerklärung case-law of the Federal Constitutional Tribunal of
Germany. The paper intends to outline the peculiarities of the judgment, aiming
to setting them in the European Constitutional Justice panorama
FRANCESCO GABRIELE
(08.02.21)
Abstract
The
paper critically examines decision no. 195 of 2020 of the Constitutional Court which declared inadmissible the conflict of powers caused
by the concentration in a single electoral round of the constitutional
referendum on the reduction of the number of parliamentarians and some
elections.
LIBORIA LINDA ARDIZZONE
(05.02.21)
Abstract
The
contribution analyses the interim order n. 19598 of 18/09/2020, with which the United Sections of the Court of
Cassation made a preliminary referral pursuant to the art. 267 TFUE to the C.G.U.E. At first,
are reconstructed the origins of the case, is carried out a survey of the
institution of the preliminary referral and highlighted the major points of the
of the Constitutional Court decision n. 6 of 2018, regarding the concept of reasons of jurisdiction.
Subsequently, are traced some precedents of the Court of Cassation on the
refusal of jurisdiction and described the three questions referred for a
preliminary ruling. Finally, after referring to the concept of dialogue between
the Courts, some final considerations are resigned also in the light of what
could happen to the outcome of the preliminary referral.
ANTONIO RUGGERI
(25.01.21)
Abstract
The study examines the origins of the crisis of
representative democracy; it describes the principal manifestations and finally
it questions the innovations in terms of both rules and regularity of politics
suitable to remedy it. On this basis, it demonstrates the importance of the
maximum distribution of sovereignty together with the maximum cooperation
between multiple institutional centers (in
particular, between legislators and judges).
GIAMPIERO BUONOMO
L’ordinanza
di rimessione e la parte: il Golem e la marionetta
(22.01.21)
Abstract
The cursory practice of the judges - who “help”, with
their autonomous power, the fragility of party allegations - has produced the
principle of the necessary self-sufficiency of the referral to the
Constitutional Court : it could be explained with the
obligation to provide reasons, and the need to counterbalance the progressive
tendency of the Court towards an increasingly in-depth assessment, which
overlaps the jurisdiction of the referring court.
PATRIZIA MAGARÒ
(19.01.21)
Abstract
This
essay examines some constitutional issues and problematic aspects of the
presidential election in 2020, devoting specific attention to the transition
process, the effects of the electoral lawsuits, the Electoral College procedure
and the counting of the electoral votes in Congress.
The
analysis also takes into consideration the institutional consequences of the
Jan. 6 attack on U.S. Capitol and the escalation of tensions between the
Legislative and the Executive branches of government.
VINCENZO SCIARABBA
(19.01.21)
Abstract
The
essay takes its cue from an interesting order of the Court of Justice that
declared inadmissible a request for a preliminary ruling made by an Italian
Justice of the Peace. After analyzing the Luxembourg
Court’s decision and the useful indications that can be derived from it on a
procedural level, it dwells on the underlying substantive issues. In addition,
drawing inspiration from the extensive reasoning of the Italian judge’s
application and using it as an example, some more general reflections are
developed on some of the “evils” of our times and on some possible solutions.
FELICE CARLO BESOSTRI - FRANCESCO VALERIO DELLA CROCE - GIUSEPPE LIBUTTI
Roma Capitale: uno status giuridico di equilibrio tra
“capitalità” e “metropolitanità”
(19.01.21)
Abstract
The
Administrative, government and management reform of “Roma Capitale”
is certainly a unanimous need. It is necessary, therefore, to achieve a reform
shared by all the main parliamentary forces.
This
is more evident if we look at the experiences of some of the most important
European capitals.
ANDREA CONZUTTI
(19.01.21)
Abstract
The
aim of this paper is to analyze the recent decision
of the Constitutional Court, n. 123 of 2020, concerning the automatic lay off
of the public employee in case of false attestation of his presence in service.
In particular, the study focuses on the issue of the interpretation according
to the Constitution and its limits, especially the letter of the law. In
addition, the Author criticizes the current trend of the Court to sanction with
inadmissibility the referring judge who did not adhere to the prevailing
hermeneutic approach. Finally, some comments are proposed regarding the (in)admissibility of the Constitutional Court’s review on
choices involving the use of discretion, exclusively reserved to the Parliament
ANDREA BONOMI
(19.01.21)
Abstract
The contribution intends to investigate whether, or not, it is decisive
the relevance that, with regard to the identification of the parameter aimed at
verifying compliance with the principle of determination of the provisions that
provide for a substantially punitive sanction, in decision n. 145 of 2020 the
Court intends to attribute to the living law.
GIUSI SORRENTI
(19.01.21)
Abstract
The article offers a careful reconstruction of
the Italian constitutional case-law about the direct application of the EU law,
supporting the idea that Constitutional Court’s sent. No. 269/2017 does not
overturn the solution adopted in the famous sent. Granital,
because the latter derived from juridical premises which cannot be found in the
EU Charter of Fundamental Rights. The A. further claims that the “condicio sine qua non” for the derogation to the
“centralized model” of judicial review of legislation and the preference for
direct application of an EU rule (eventually after a preliminary referral to
the Court of Justice) is – at least in every litigation between private parties
– the horizontal effect of such a rule: on the contrary, if this lacks, the judge
does not have a rule that would substitute the national law in the decision of
the pending lawsuit. In this hypothesis, the alternative between reverting the
issue to the Constitutional Court or preliminary referring to the EU Court does
not even arise, the first solution being the only correct one.
PARTE II
LIBRI, RECENSIONI E PREFAZIONI
ALESSANDRO MORELLI
Il virus populista:
riflessioni su riduzionismo e antipluralismo nella
politica contemporanea
a partire dal volume “Populismi
e rappresentanza democratica”
di Alberto Lucarelli, Editoriale Scientifica, Napoli,
2020, pp. 180 - ISBN 8893918021
(19.01.21)
Abstract
The paper is a review of a book by Alberto Lucarelli on populism and democratic representation. The
Author focuses mainly on the issue of compatibility between populism and
democracy, getting to the conclusion that the complete implementation of the
populist plan is incompatible with the pluralist character of contemporary
democracy.
Consulta OnLine (periodico online) ISSN 1971-9892