Consulta OnLine (periodico online) ISSN 1971-9892
Sulle discriminazioni degli stranieri nel settore della sicurezza sociale: una nuova pronuncia della Corte costituzionale all’esito di un caso di doppia pregiudizialità
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.
La legislazione emergenziale per contrastare la pandemia da Covid-19 tra scienza e diritto: il ruolo del Comitato tecnico-scientifico
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
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.
Anticorruzione e PNRR: profili costituzionali
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.
(Ancora su) democrazia, rappresentanza e numero dei parlamentari. Considerazioni sulla riforma di cui alla legge costituzionale n. 1/2020
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.
Oscurità e carenze della progettazione legislativa in tema di morte medicalmente assistita (prime notazioni)
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
Sulla gestione del patrimonio pubblico di Roma Capitale. Per una regolamentazione fondata sul principio di uguaglianza e su un’interpretazione costituzionalmente orientata dei beni comuni
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.
Sulla legittimità costituzionale dei soggetti della rappresentanza politica a sollevare conflitti di attribuzione
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.
Alla Cassazione restìa a far luogo all’applicazione diretta del diritto eurounitario la Consulta replica alimentando il fecondo “dialogo” tra le Corti (a prima lettura della sent. n. 67/2022)
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.
Pena detentiva per la diffamazione e funzione democratica della libertà di espressione: quid iuris oltre il caso della professione giornalistica?
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.
L’udienza pubblica dinanzi alla Corte costituzionale
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.
La proporzionalità “contesa”: Corte di giustizia e giudici nazionali a confronto
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.
La funzionalizzazione della tutela dello Stato di diritto alla sana gestione finanziaria e alla tutela del bilancio dell’UE (a prima lettura delle sentt. C-156 e C157 Ungheria e Polonia v. Parlamento e Consiglio)
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.
Un “Dizionario dei diritti degli stranieri” (recensione e commento)
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.
“A che punto è la notte?” L’approccio interculturale all’immigrazione fra capacità e accomodamenti
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
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.
Diritti fondamentali e scienza: un rapporto complesso
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.
La funzione parlamentare al cospetto della funzione giurisdizionale nel prisma della giurisprudenza costituzionale sui conflitti tra poteri: uno studio sugli ultimi trent’anni
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.
Il Tribunale costituzionale polacco, le Corti sovranazionali e la salvaguardia dello Stato di diritto in Europa
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.
Controlimiti versus Stato di diritto? Gli esiti della giurisdizionalizzazione dello scontro fra Unione europea e Polonia sull’indipendenza della magistratura
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.
La diffamazione a mezzo stampa e il persistente dominio dell’inerzia legislativa nella tutela dei diritti. La Consulta perfeziona un nuovo caso di “incostituzionalità differita” con la sentenza n. 150 del 2021
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.
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»?
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.
Presidente di assemblea “giudice” (della costituzionalità) o “arbitro” (della vita parlamentare)? (nota a Corte cost. ord. n. 188 del 24 settembre 2021)
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..
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)
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.
Le convenzioni costituzionali tra principio di leale collaborazione e teoria dei giochi
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