Consulta OnLine (periodico online) ISSN 1971-9892
2022/I
gennaio-aprile
PARTE
I
STUDI
VALENTINA PUPO
(28.04.22)
Abstract
The paper examines
Constitutional Court’s dec. n. 54/2022, which declared the unconstitutionality
of certain provisions on social assistance to foreigners, that the Court of
Justice of European Union, in the preliminary ruling action brought by the
Constitutional Court itself, had already considered contrary to the Charter of
Fundamental Rights of the European Union and to secondary european
law with regard to the prohibition of discrimination against legally resident
third-country nationals. The story is part of the debate on dual prejudicality (constitutional and european)
and of the c.d. dialogue between the Courts, with a view to strengthening the
protection of rights, and highlights the importance of wider dissemination of
loyal cooperation at institutional level.
COSIMO LOTTA
(27.04.22)
Abstract
The paper aims to analyse
the relationship between the opinions of the technical-scientific committee and
the legislative measures adopted during the health emergency. In particular, it will be a question of understanding
whether the opinions issued by the Technical-Scientific Committee on the
epidemiological situation in Italy are to be considered recommendations which
the Government and Parliament can comply with or whether, by reason of the body
from which they emanate and its importance in the emergency management system,
must be considered binding opinions to which the emergency legislator must
adapt.
Against the background of
these questions, the question of the relationship between science and law arises: it is necessary to ask who, in general, is the
ultimate decision-maker in political choices that have scientific parameters as
their object.
If it is true that the
final acts of the decision-making processes concerning measures to combat
Covid-19 are taken by Parliament, by the Government (by decree-laws or
legislative decrees) or by the President of the Council of Ministers with his
decrees, the fact that their content is (to a certain extent) strongly
constrained, if not bound tout court, by scientific evidence can nevertheless
be overlooked.
Therefore, the role of the
Technical-Scientific Committee must be understood in order to
understand its role and its impact on emergency legislation.
Osservazioni minime a margine della sent. n. 56 del 2022
della Corte costituzionale
(27.04.22)
Abstract
The paper examines the
referendum declared admissible by the Constitutional Court concerning the ban
on running as candidate in the elections and the suspension and the revocation
of the electoral mandate, provided by the decree n. 235/2012, in the light of
the previous constitutional disputes.
CECILIA SICCARDI
Anticorruzione
e PNRR: profili costituzionali
(07.04.22)
Abstract
After a review of
anti-corruption measures provided by the European Recovery and Resilience Facility
(Reg. UE 2021/241) and the National Recovery and Resilience Plan, the paper
focuses on the constitutional issues of recent provisions impacting on the
prevention of corruption and the limitation of public administrators’
liability. The background is characterized by the complex balance between
deregulation and legality.
SILVIO TROILO
(07.04.22)
Abstract
The article analyzes the effects on the Houses of Parliament and on the
representative relationship resulting from the reduction in the number of
members of Parliament ordered by Constitutional Act no. 1/2020 in light of the simultaneous, continued application of the
electoral system set forth in Act no. 165/2017 (the so-called Rosatellum),
adapted by Act no. 51/2019. The thesis is that this incisive reduction does not
mortify the representative relationship as it has been interpreted in Italy up
to now, nor does it prevent the Houses from carrying out the decisive role
assigned to them by the Constitution. Instead, it is today's electoral system –
together with the "intrusiveness" of the Government and of European
and international bodies – which significantly empties the representative
relationship of content and which, applied to a smaller number of members of
Parliament, produces distorting effects, especially in the Senate.
ANTONIO RUGGERI
(31.03.22)
Abstract
The paper aims to note the
law proposal concerning the medically assisted death, outlining that the
legislator has distorted in several points the indications provided by the
Constitutional Court in the "Cappato"
decision.
FRANCESCO VALERIO DELLA CROCE -
GIUSEPPE LIBUTTI - GIAMPIERO BUONOMO
(29.03.22)
Abstract
The social and cultural
value of the heritage of Roma Capitale cannot be overshadowed
by the need to regulate the management of public assets in accordance with the
general rules of administration and accounting. A proper measure can only be
achieved by balancing the proprietary interest with the social value exercised,
also considering the principle of horizontal subsidiarity. The new regulation
of the matter must inspire itself to respect the constitutional principle of
equality and place itself outside the logic of the competitive market.
ANTONIO GUSMAI
(17.03.22)
Abstract
The essay trying to shed
some light on a very complex and still unresolved issue. In particular, the
focus is on the legitimacy of the subjects of political representation to raise
conflicts of attribution between state powers. The starting point of the
analysis is the existence of a pathological “quadrilateral” that seems to
characterize today's political representation. Indeed, also parliamentary
groups have been added over the time to the triad of electors-parties-elected
representatives, as autonomous subjects of the representative circuit.
Starting from this
scenario, some arguments developed by constitutional jurisprudence will be put
under the magnifying glass, in order to highlight the
many contradictions in subiecta materia.
ANTONIO RUGGERI
(14.03.22)
Abstract
The paper examines a
decision of the Constitutional Court condemning discrimination against
foreigners in the enjoyment of a right recognized to citizens. The author
highlights the potential contained in the judgment regarding a constructive
"dialogue" between the Courts, affirming the obligation for the
judges of immediate application of the violated supranational rules.
ANDREA CARDONE
(24.02.22)
Abstract
The mandatory application
of the punishment of imprisonment for the crime of aggravated defamation is
un-lawful because the provision of the imprisonment determines an intimidating
effect on the function of democratic control which is proper to the
journalistic profession. On the other hand, the question of the
constitutionality of the rule which provides for the penalty of imprisonment as
an alternative to the pecuniary sanction is unfounded because the rule is
susceptible of a consistent interpretation. In relation to both
of these provisions, the reasoning revolves around the need to protect
the democratic role of the journalistic profession and the pluralism of
information sources. Particularly in the context of the Internet, however,
defamation is often carried out by persons who do not exercise the journalistic
profession and against persons with-out any power. These cases should be
considered by the legislator for a more effective protection of reputation and
a more reasonable balance with freedom of expression.
MARIO BERTOLISSI
L’udienza
pubblica dinanzi alla Corte costituzionale
(24.02.22)
Abstract
The judge must be third and
impartial. The judgment must take place in compliance with the
cross-examination between the parties. The outcome must be a fair decision.
That requires the public hearing to be enhanced through the positive action of
the judge and the reasoning of the lawyer. Coram populo, to avoid
any compromise. It applies to every judge. Even more so for the Constitutional
Court.
MASSIMILIANO MEZZANOTTE
La
proporzionalità “contesa”: Corte di giustizia e giudici nazionali a confronto
(23.02.22)
Abstract
Proportionality is a principle
which, in addition to being present in national legal systems, is provided in
art. 5 TEU as a limit to the exercise of the competences of the European Union.
The study analyzes specifically the jurisprudence that, applying this
criterion, has been formed on the subject of limits to the powers of the
European Central Bank, from which it emerges that while the German
Constitutional Court uses a strict scrutiny, the Court of Justice balances in a
flexible way costs and benefits, according to the objectives of economic policy
pursued by the Union.The result is a different way of
understanding this principle, which is also influenced by the specific
interests pursued, and which leads to questions about the need to increase the
dialogue between the Courts and between the ECB and national representative
bodies.
FIAMMETTA SALMONI
(23.02.22)
Abstract
With its two judgments, cases
C-156 and C-157, the Court of Justice has rejected the requests of Hungary and
Poland for the annulment of the Rule of Law Regulation 2020/2092. This paper
analyzes the reasoning of the Court of Luxembourg which, among many important
statements, underlines that the protection of the rule of law is functional to
the sound financial management and protection of the EU budget, through which
the European Union would apply the principle of solidarity, to be implemented in order to promote the free market. It is clear from these
statements that the EU considers the rule of law a "budgetary
objective" and that the principle of solidarity is applied for the proper
functioning of the market. In short, the fundamental principle on which the
supranational construction continues to be based is, as always, that of the
market and free competition, which is an economic dogma that is difficult to
reconcile with the very different fundamental principles at the basis of our
Constitution.
BRUNO NASCIMBENE
Un “Dizionario dei diritti degli stranieri” (recensione e
commento)
(11.02.22)
Abstract
The paper comments and reviews
the volume "Dictionary of foreigners" edited by Claudio Panzera and
Alessio Rauti published in Naples in 2020. It examines the dictionnary
entries and carries out remarks and suggestions.
ALESSIO RAUTI
“A che
punto è la notte?” L’approccio interculturale
all’immigrazione fra capacità e accomodamenti
(09.02.22)
Abstract
The paper analyzes the two
main approaches to the cultural diversity (interculturalism e
multiculturalism), highlightning the criticalities
about the first and the consonance of the second with the Italian Constitution.
Particularly, the attention is placed on the links between interculturalism,
the approach of skills developed by Marta Nussbaum and the construction of the
so-called reasonable accommodation test. Finally, it is verified if and in what
way the intercultural approach is developed in judicial decisions taking a cue
from two rulings of the Supreme Court relating to the cases of the kirpan and
the display of the crucifix in schools.
FEDERICO GIRELLI - FRANCESCO CIRILLO
Immuni e green
pass. Prospettive di bilanciamento
nella pandemia
(08.02.22)
Abstract
In the health emergency, the values
of freedom and health protection came into conflict in various circumstances.
This conflict generated a radicalization of the debate far from common sense.
Balancing operations in the emergency often relied on digital devices, such as
contact tracing apps and green passes, whose development and implementation
were entrusted with the search for a balance among rights and interests
involved. The paper analyzes the perspectives for balancing in the digital
environment and the application of the proportionality test in sectors with a
high technological or scientific thickness, inferring that, in this context,
the reference to science is a limit to legislative power also in such
assessments of proportionality.
ANTONIO RUGGERI
Diritti fondamentali e scienza: un
rapporto complesso
(04.02.22)
Abstract
The paper analyzes the mutual implications
that exist between fundamental rights, science and context, the latter
referring here, on the one hand, to the relationships between internal norms
and norms having an external origin (in particular, those contained in the
Charters in which rights are recognized linked to scientific and technological
development) and, on the other hand, to a situation marked by multiple
emergencies. The impact exercised by science in constitutional interpretation
is then examined, with specific attention to cases in which the former is
seriously divided internally.
GIUSEPPE LANEVE
(02.02.22)
Abstract
Since the beginning of
Nineties years of last Century, both the anti-corruption operation started by
judiciary – well known as Mani Pulite – and the
result of Referendum on Electoral Law produced a dramatic effect on Italian
politics. The traditional parties’ system - that had supported the national
institutions for more than forty years - failed. At constitutional level, one
of the main effects was the increasingly tense in relationship between
political branch and judiciary. Since there, the conflict on allocation of
powers between branches of the State has experienced an unknown vitality before
the Constitutional Court (until then, mostly involved in judicial review of
legislation and conflicts between State and Regions judgments). Indeed, a new
era of the Constitutional Court case-law started at the turn of 2000s, the so called Conflicts Season (stagione
dei conflitti). This essay
aims to analyze the enormous amount of decisions ruled
by the Constitutional Court in such conflicts case-law arised
between a judicial organ and a House of Parliament, regarding the immunity
guaranteed to Members of Parliament by Constitution (art. 68 Const.). In
particular, the first part is focused on conflicts that more than others have
characterized the Conflict Season: conflicts based on art. 68, par. 1, which
establishes the non-liability of Members for opinions and votes cast in the
performance of their function. The scope of the protection afforded as regards
“opinions” stated is one of the most controversial aspect of non-liability. To
avoid a broad interpretation of this immunity that can turn it in a personal
privilege, the Constitutional Court has created a functional link (nesso funzionale) between opinion
that can be covered by immunity and parliamentary activity. Yet, this concept
is very debated, especially in current social media era of communication. The
second part is focused on conflicts based on art. 68, par. 2 and 3 that lay
down rules governing inviolability. After Reform in 1993, authorization of the
House is no longer required in order to institute
criminal proceedings. Instead, it is necessary only if the Judge proposed to
take certain steps against a Member of Parliament such as arrest or other
specific measures (autorizzazioni ad acta). Finally,
the essay focused on few conflitcs arised between a judge and House of Parliament regarding
the “legitimate impediment” claimed by a Member of Parliament on appearing
before the Court due his duties. After an overview of the criteria adopted by
the Court in dealing with such conflicts that clear up some judicial
tendencies, the essay identifies two aspects that can affect these conflicts
before the Court: the new rules on Constitutional Court proceeding and the
Constitutional Reform (adopted by Const. Law 1/2020) that had reduced Members
of Italian Parliament from next Legislature.
FRANCESCA MAURI
(02.02.22)
Abstract
The paper explores Poland’s
troubled relationship with the European Union and the Council of Europe on the
justice’s reform package. Starting from the two recent judgements of the Polish
Constitutional Tribunal, with which it has declared the unconstitutionality of
articles 1, 2 and 19 TEU and article 6 paragraph 1 ECHR, the paper analyses the
possible evolution of Poland’s membership in the two Organizations.
SILVIO TROILO
(02.02.22)
Abstract
On October 7, 2021, the Polish
Constitutional Tribunal ruled that some of the corollaries of the primacy of EU
law are inconsistent with the national Constitution, opening a very serious
legal and institutional crisis with the European Union.
The conflict between Poland
and the EU stemmed from the substantive value accorded in recent years by the
European institutions to the concept of the rule of law, on which, along with
other values, the EU is based. It also has an effect when the Member States
intervene in the field of application of European law: in this case, they are
subject both to the “centralized” control of the Commission and the Court of
Justice, through the infringement procedures, and to the “diffuse” control
entrusted to national judges, who cannot apply incompatible domestic
legislation.
In addition, there are the two
procedures – one of mere censure, the other of sanctions – governed by art. 7
TEU, the “European mechanism for the rule of law”, which provides for an annual
dialogue between all interested parties, and the recent Regulation no.
2020/2092 which provides for the withdrawal of European funding assigned to a
member country if it violates the rule of law, jeopardizing sound financial
management or the financial interests of the EU.
While the use of the new
regulation on budgetary conditionality would have the merit of bringing the
conflict back to the administrative and financial level (albeit in the light of
precise legal bases), the jurisdictionalisation of
the conflict through infringement procedures could also send it into a downward
spiral.
DANIELE MANELLI
(31.01.22)
Abstract
After Cappato’s
case, the Italian Constitutional Court had to opt again to use the new decision
practice of “delayed unconstitutionality”, to decide on the legitimacy question
about press-related defamation, because of the evident divergence between the
Italian law in matters and the Strasburg Court consolidated path. Starting from
this case, the intention is describing the “two steps” technique structure, in order to analyze briefly its features and to bring to
light its problematic aspects. The Constitutional Court, indeed, was obliged to
develop new legal instruments, due to the lawmaker chronic inactivity, as done
by foreign systems, at which looking with the purpose, to perfect what we could
call a new persistent type of decision.
GIOVANNA RAZZANO
Quali
implicazioni per il giudizio di ammissibilità dopo l’ordinanza dell’Ufficio centrale per il referendum,
che ha dichiarato legittima la denominazione «abrogazione parziale dell’art.
579 c.p. (omicidio del consenziente)» e ha respinto «Disponibilità della
propria vita mediante consenso libero, consapevole e informato»?
Abstract
The paper focuses on the order
of the Central Office at the Court of Cassation, that has established the name
of the referendum aimed at partially repealing art. 579 of the penal code
(consensual homicide) and analyzes its effects on the upcoming judgment of the
Constitutional Court, which must verify the referendum admissibility.
GIANLUCA FAMIGLIETTI
Presidente
di assemblea “giudice” (della costituzionalità) o “arbitro” (della vita
parlamentare)? (nota a Corte cost. ord. n. 188
del 24 settembre 2021)
(17.01.22)
Abstract
The author analyzes the ordinance n. 188 of 2021 with which the Constitutional Court declared
inadmissible the conflict of attribution raised by the Deputy against the
decision of the President of the Chamber to declare his bill inadmissible
because he considered it unconstitutional. The author questions the legitimacy
and extent of such a power..
GIUSEPPE BERGONZINI
Delega
di funzioni amministrative regionali e principio di sussidiarietà, a vent’anni
dalla riforma del Titolo V (nota a Corte cost., 7 ottobre 2021, n. 189)
(12.01.22)
Abstract
With the decision no. 189/2021, the Italian
Constitutional Court ruled on administrative devolution powers and their
relationship with the current article 118 of the Constitution. Twenty years
after the approval of the emended Title V, Part II of the Constitution, that
decision allows us to focus on some peculiar effects of the substantial
tightening of the scheme of allocation of the administrative powers, as a result of the new formulation of art. 118 Const.;
hence, an additional administrative centralization in the hands of the Regions,
to the detriment of local authorities.
QUIRINO CAMERLENGO
Le
convenzioni costituzionali tra principio di leale collaborazione e teoria dei
giochi
(10.01.22)
Abstract
This essay aims to
study constitutional conventions drawing on game theory. In fact, constitutional
conventions produce rules to regulate strategic interactions between the
various protagonists of institutional life. Game theory studies these strategic
interactions in order to identify predicting patterns
of future behaviours.
Elements taken from
game theory will demonstrate the close connection between these conventions and
the principle of loyal cooperation between constitutional bodies. Thus, the
deviation from a constitutional convention can be considered as a “symptom” of
a violation of that principle.
Consulta OnLine (periodico online) ISSN 1971-9892