Consulta OnLine (periodico online) ISSN 1971-9892
Pandemia e riparto delle competenze Stato-Regioni in periodi emergenziali
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
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.
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).
Costituzionalità “a termine” di una disciplina resa temporanea dalla stessa Consulta (note a margine di Corte costituzionale sent. n. 41 del 2021)
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.
Diritti politici fondamentali: la Corte spinge per ampliare ulteriormente la tutela (a margine della sent. n. 48 del 2021)
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.
Ancora sul semestre bianco e sulla rieleggibilità del Presidente della Repubblica, a 130 anni dalla nascita di Antonio Segni
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.
Le trasformazioni istituzionali nel tempo dell’emergenza
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.
Un parere della Corte EDU ex Protocollo n. 16 alla CEDU costituisce norma interposta per l’Italia, la quale non ha ratificato il Protocollo stesso?
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.
Godot è arrivato! La Corte costituzionale, per la prima volta, sospende la legge (note a margine di Corte costituzionale, ord. n. 4 del 14 gennaio 2021)
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.
La PMA alla Consulta e l’uso discrezionale della discrezionalità del legislatore (Nota minima a Corte cost. nn. 32 e 33 del 2021)
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".
La rilevanza della Corte costituzionale italiana in prospettiva comparata
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.
Ancora in tema di procreazione medicalmente assistita (chiose minime a margine di un corposo studio recente)
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.
Abbiam fatto quindici, possiam fare anche sedici… Sull’approvazione della legge di autorizzazione alla ratifica del Protocollo n. 15 alla CEDU da parte dell’Italia (e sulle prospettive del Protocollo n. 16)
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.
Un nuovo modello decisorio per un nuovo equilibrio tra poteri? Unvereinbarerklärung e Anwendungssperre nel diritto processuale costituzionale italiano (brevi note, comparate, a margine di Corte cost. ord. 132/2020)
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
Al referendum costituzionale non spetta (anche) un “tono” costituzionale (brevi note a Corte costituzionale ord. 195/2020)
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
Quando la Costituzione italiana deve misurarsi con il diritto dell’Unione europea (a margine di Corte di cassazione, sezz. un. civ. ord. n. 19598 del 18/09/2020)
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.
Lo stato comatoso in cui versa la democrazia rappresentativa e le pallide speranze di risveglio legate a nuove regole e regolarità della politica
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).
L’ordinanza di rimessione e la parte: il Golem e la marionetta
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.
L’elezione del 46° Presidente degli Stati Uniti: luci e ombre di un “momentous event” nella storia della democrazia americana
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.
Riflessioni di inizio anno tra tutela della salute, organizzazione e funzionamento della giustizia e garanzia dei diritti e principi fondamentali (a partire da una questione pregiudiziale sollevata, in parallelo a una questione di costituzionalità, da un Giudice di pace italiano)
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”
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.
“Furbetti del cartellino” e automatismo espulsivo: l’insostenibile leggerezza dell’interpretazione adeguatrice (traendo spunto da Corte cost. n. 123 del 2020)
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
Può il diritto vivente rendere chiara e precisa una legge “sostanzialmente penale” dal contenuto vago ed incerto? Dalla recente giurisprudenza costituzionale una risposta nebulosa
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.
CDFUE e rapporti inter privatos ovvero «L’essenziale è invisibile agli occhi»? (ancora sulla doppia pregiudizialità … passando per Saint Exupery)
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.
LIBRI, RECENSIONI E PREFAZIONI
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
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