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.
PASQUALE COSTANZO
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
proporzionalitĂ "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 capacitĂ 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 ammissibilitĂ 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 costituzionalitĂ ) 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 sussidiarietĂ , 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