La Costituzione sotto stress e la piramide rovesciata, ovverosia le più vistose torsioni a carico della separazione dei poteri e del sistema degli atti espressivi di pubbliche funzioni (note minime su una spinosa questione)
The paper underscores the significant distortions in the institutional model that have given rise to a potentially irreversible crisis in the principle of separation of powers. Specifically, we examine whether structural shortcomings in political representation can be addressed through expanded uses of jurisdiction. Contrary to popular belief, it's emphasized that the real normative strength of acts seems to increase as one descends the hierarchical ladder that defines the system. This is evidenced by the prominence of the role played by circulars in administrative practice. Lastly, we explore potential remedies for this situation, at least in part.
The Constitutional Court, in Judgment no. 25 of 2023, returns to the subject of compulsory vaccination. This short paper critically analyses the fundamental argumentative junctures of the decision, dwelling on the way in which the object and function of the reservation of the law provided for in Article 32, paragraph 2 of the Constitutional Constitution are thematised.
The paper analyses the issue of parliamentary immunity in the context of digital society and modern forms of political communication. In particular, it is argued that the thesis that anchors the immunity of opinions expressed in the presence of a prior parliamentary act, of which the Member of Parliament could limit himself exclusively to divulging its contents extra moenia, needs to be updated and rebalanced, which may find space through an amendment to parliamentary rules.
The paper analyses the Constitutional Court, rulings no. 54 and no. 67 of 2022, concerning the recognition of welfare benefits for non-EU citizens. The present work seeks to offer a broader view of the connections between these judgements all of which appear to be linked by a common thread. In both sentences, the Constitutional Court arrived at two different outcomes of acceptance in the first, and rejection in the second, affirming the due respect for the principle of non-discrimination in access to such benefits. The reason why the Constitutional Court arrived at two diametrically opposed approaches, even though the same reference parameter (Article 12 of Directive 2011/98/EU) was invoked, is to be traced back to whether or not the referring judges invoked the Charter.
The judgment n. 110/2013 represents a fundamental step in the jurisprudence on legal drafting, as for the first time the Court affirms that the unclearness of the law determines its unreasonableness (and, consequently, its illegitimacy). The paper identifies further parameters that lead to the same conclusion reached by the Court and emphasises the need, from now on, to define the cases in which the obscurity of the law is so severe as to determine its unconstitutionality. This activity is to be performed by the Court with extensive use of its self-restraint.
The essay collects the conclusions drawn at the Conference in memory of Alessandro Pizzorusso (Pisa, December 15, 2022) and primarily focuses on the topics of the relationship between the Constitutional Court and the legislature and on the decision-making techniques of the Court itself, examining the multiple implications of these aspects also from the standpoint of the separation of powers.
ANGELICA GEROSA - ALICE STEVANATO
In Serio Galeotti’s papers on the value of solidarity, he provides a definition of solidarity as a sense of brotherhood, mutual assistance, and support in times of difficulty, a concept worthy of reflection in our current context. The intervention aims to answer the question of who the recipients of the principle of solidarity are. The reflection focuses on two different perspectives.
First, in terms of “time” and taking our cue from the recent constitutional reform of Article 9, which expressly mandates protection of the environment “also in the interest of future generations” we would like to explore the breadth of the principle of solidarity, asking, in particular, if exists a general principle of intergenerational solidarity, which requires the Legislature to balance the interests of those who will come after us not only with regard to the environment, but also with regard to economic resources, social security and artistic goods.
Reflection then focuses on environmental issues and the potential of the principle of solidarity between living generations inhabiting different places on Earth, even beyond state sovereignty. To this end, we want to reflect on what relationship exists between solidarity and “space”, to see if it is possible to overcome the thesis that conceives of duties of solidarity only within a state, at least in reference to global events such as climate change. Starting from the assumption that man is nowadays the main culprit for climate degeneration, environmental protection has become a legally relevant question of justice, also because some countries, generally those least responsible for climate-changing emissions, are the most affected by the negative effects of climate change.
With sentence no. 126 of 2023, the Constitutional Court decided on a conflict of attribution raised by the Chamber of Deputies against the Tribunal of Lecce which had ordered the forced execution of the social security treatment in favor of a former parliamentarian, without applying a regulation adopted on the subject by the same Chamber. The constitutional Judge considered that the jurisdictional provision violated the autonomy recognized to Parliament.
The comment notes that the Court's decision took place without the participation of the third creditor who had acted to obtain payment of his credit, the Agenzia delle Entrate in the matter. And it is criticized that was requested the application of an internal act of the Chamber which is not published. The fact once again raises the problem regarding the basis of the parliamentary power to decide on one's own organization and activity when third party positions are involved. In criticism of the constitutional jurisprudence that has always identified this foundation in the sovereignty of the Parliament, the comment proposes to trace it in the free decision of those who agree to submit to the same parliamentary power.
The paper highlights the lack of a clearly and fully delineated form of government. In fact, the guidelines provided by the Constitutional Charter, which are based on two key principles - first, a clear distinction between political management bodies and guarantee bodies, and second, the centrality of Parliament - are evidently contradicted by deviant practices. These are characterized by dramatic shifts,
confusion, and continuous, not insignificant changes.
The question arises as to whether this form of government can achieve a stable identity, and what remedies might be suitable for achieving this stability. This is especially relevant in light of forthcoming significant reforms aimed at both institutional rules and system corrections to ensure policy regularity.