Consulta OnLine (periodico online) ISSN 1971-9892
Maggio-Agosto
PARTE I
STUDI
(25.07.2023)
Abstract
This essay examines the "particular forms and
conditions of autonomy", mainly concerning the foreign trade sector,
provided for by Article 116 of the Italian Constitution. In this sense, it
compares the forms and conditions of "special autonomy", already
recognised (even if never implemented) in the matter, with those of
"differentiated autonomy" that aspire to be recognised in our legal
system, noting their relevant differences also in relation to their respective
degree of compatibility with the prescriptions of the regulation in force. The
essay therefore concludes by observing that a constitutionally and
internationally oriented interpretation of Article 116 of the Italian
Constitution can only legitimize "particular forms and conditions of
autonomy" aimed at overcoming situations of regional disadvantage that
cannot be achieved through the exercise of the "ordinary" statutory
functions of the Regions. In this sense, the provisions of this article can be
well reconciled with the "special" forms and conditions of autonomy
already recognised in our State today, which (if implemented) will make it
possible to address the structural and permanent regional problems for which
they were instituted; on the other hand, it may also be considered compatible
with the recognition of "additional" and "extraordinary"
forms and conditions of autonomy provided that they are aimed at enabling, the
territorial entity invested with them, to overcome supervening and contingent
situations of disadvantage.
ALESSANDRO ROSARIO RIZZA
Il
ricorso per conflitto tra poteri dello Stato e l'eccesso giurisdizionale. Limiti e presupposti
(20.07.2023)
Abstract
The paper addresses the problem of excessive
jurisdictional power. In particular, the possibility of appealing to the
Constitutional Court to have the violation ascertained is analyzed.
MATTEO MILANESI
(17.07.2023)
Abstract
This paper analyzes the judgment of the Italian
Constitutional Court no. 110/2023, which has affirmed that irremediably-obscure
legal rules are invalid for the violation of art. 3 of the Constitution. The
article examines critical elements of the decision and purposes an alternative
exegetical solution, which can be identified in the principle of certainty of
law.
LUCA DI MAJO
(13.07.2023)
Abstract
The Constitutional Court, with its judgment n.
110/2023, returns to the issue of the quality of legislation. The case law on
the subject has often been vague, because of the difficulty of seeking a
constitutional parameter that would allow the Court to sanction the obscure
law. With the pronunciation in comment seems to have found a wider perspective
for the union of constitutionality through art. 3 Cost.
SILVIO TROILO
(13.07.2023)
Abstract
The essay, also written to honour the memory of
Professor Gladio Gemma, dwells on the collective interest to health and on the
paradigmatic case of the compulsory vaccination against Covid-19 imposed on
certain categories of subjects. The introduction of such an obligation through
an act with the force of law, then converted into an Act of Parliament, the
purpose of protecting public health and the most fragile persons, and the
absence of forced subjection to treatment are elements that highlight the certain
constitutional legitimacy of the legislation in question, as held by much of
the doctrine, including Gladio Gemma. In fact, in the end, the Constitutional
Court also sanctioned the legitimacy of the Covid vaccination obligation, in
its rulings No. 14 and No. 15 of 2023.
FRANCESCO CIRILLO
Neurodiritti:
ambiguitĂ della "libertĂ cognitiva" e prospettive di tutela
(12.07.2023)
Abstract
The progress of neurosciences and neurotechnologies
led to the proposal of new neurorights to react to the unusual need for
protection aroused by the risks of technological interference. The contribution
deals with the critical perspectives and dogmatic questions of neurorights,
starting first from the relationships between cognitive sciences and the
conceptual categories of legal culture, therefore, investigating the practices
of neurotechnologies and the possible risks for the rights of the person and
the normative dimension currently referable to this area (in biolaw, in
criminal procedure, and on the data protection front). Based on these analyses,
we examine the main proposals in the field of neurorights. Then, we analyze the
conditions and limits of the affirmation of new dimensions of protection in the
broader framework of the theoretical-general reflection.
DORINDA CACCIOPPO
(12.07.2023)
Abstract
The aim of this paper is to analyse the information
imbalance between institutions and practical reality through the study of a
concrete case. The law intended to equate the method of biodynamic farming with
that of organic farming allows for a cross-cutting investigation. The issue
involves themes that are now essential to the constitutional debate: the
relationship between politics and science, legislative discretion and the
problem of constraints arising from notions borrowed from technology and
science. Furthermore, the analysis of the instrument of the informal hearing in
the parliamentary enquiry leads the research to question the appropriateness of
introducing scientific advice in Parliament. An operation perhaps required to
balance the forementioned information asymmetry.
VALENTINA MILANESE
Lavoro
pubblico "contrattualizzato": responsabilitĂ per ritardata assunzione
(08.07.2023)
Abstract
The purpose of this essay is to address the issue of
damage from delay in hiring of a public employee. The delay may be due to the
adoption of unlawful administrative measures in the course of the procedure or
to the lack of founds to be able to proceed with recruitment.
The majority jurisprudence qualifies the liability of
the public administration for delayed hiring of public employee as
non-contractual liability, to which, however, it applies the schemes of
pre-contractual liability, since, generally, in the terms that will be
illustrated, it grants compensation for negative interest only. It should be
kept in mind that delayed recruitment of a public employee does not only result
in harm to the candidate placed in service with delay. In fact, this particular
case involves the onset of additional problems, such as the possible violation
of the articles 3 and 51 of the Constitution and increased workload for other
public employees working at the same public entity that has delayed hiring a
new employee, with the possibility that, due to the failure to achieve the
objectives ascertained by the performance evaluation procedure, managerial
liability also arises.
ARMANDO GIUFFRIDA
(08.07.2023)
Abstract
The contribution, based a broad jurisprudence,
highlights the essential profile of the duties and responsibilities which, in
the ambit of the foreigner's integration process, goes hand in hand with the
profile of the protection of fundamental rights. Especially with regard to
those who are in Italy for purely economic reasons or in situations of
irregularity or illegality, it does not appear unreasonable to request, from
the first entry into the national territory, a greater degree of responsibility
and the assumption of certain obligations towards the host community, and
therefore a greater effort to integrate into the community itself, albeit with
all the necessary precautions and graduating the degrees of responsibility
according to the particular subjective situations.
ANTONIO MALASCHINI
ChatGPT
e simili: questioni giuridiche ed implicazioni sociali
(06.07.2023)
Abstract
After clarifying what ChatGPT is, the essay examines
its potential and the risks associated with its use. The focus moves to
intellectual property, copyrights and patents in data acquisition. Particular
attention is given to the importance of the data available to "the
machine". In the final part, the author examines the ongoing debate on
generative artificial intelligence, highlighting the ethical, social and
historical issues that the rapid development of this tool entails.
GIACOMO MENEGATTO
(06.07.2023)
Abstract
This paper starts from a new case of promulgation of a
law complemented by a letter sent to the Presidents of the two branches of the
Parliament and to the President of the Council of Ministers. It focuses on the
current admissibility, in the Italian legal system, of a partial promulgation
of the laws and, therefore, of a partial suspensive veto that the President of
the Republic could exercise towards the laws. To give an answer to this
question, the essay will analyze the Acts of the Constituent Assembly on the
topic, the normative context and the custom the Presidents followed during the
Republican history. Then, it will explore the (in)opportunity of the insertion
of such an institute in the Italian Constitution and it will examine some
aspects of the veto policy in relation to the laws that convert the
governmental decrees.
FRANCESCO SEVERA
(01.07.2023)
Abstract
The paper draws up a reflection regarding the
proportionality of administrative sanctions starting from the most recent
constitutional jurisprudence, in particular from sentence n. 40 of 2023. The reflection examines
the topic from the aspect of both its substantive and procedural implications.
Under the first point of view, reference is made to the qualification of
proportionality as a right or as a principle and to the consequences of preferring
one or the other definition. Under the second point of view, it is investigated
the sustainability of the so-called “schema Modugno”, noting its critical
points and proposing new rules of procedural method that impose recourse to
“rime obbligate” only as an extrema ratio.
ALESSIA
CONTI
L'ergastolo ostativo che move la Corte costituzionale e l'altre
stelle
(26.06.2023)
Abstract
This article takes
inspiration from the constitutional trial on the obstructive life sentence,
which, after two postponements to a fixed date waiting for the action of the
lawmaker (ord. nn. 97/2021 and 122/2022), ended with the return to the referring Court due to
ius superveniens (ord. n. 227/2022). The new legislation is of governmental origin: it
is the Decree-Law No. 162/2022, adopted by the executive a few days before the
hearing set for the discussion. In this way, the Court considered the warning
to the “legislator” fulfilled even though the required intervention was acted
by a (temporary) governmental decree-law and not by parliamentary law.
The constitutional story of
the obstructive life sentence provides an opportunity to reflect both on the
governmental legislation and on the dialogic-relational dimension of the
Italian Constitutional Court, extended to the government.
ANTONIO
RUGGERI
(22.06.2023)
Abstract
The paper highlights the
features of convergence and sometimes real identity that are found between some
truths of faith and some incontrovertible constitutional truths, starting from
the one that sees in the human person a "metavalue", thus examining
the corollaries that from it linearly descend. Particular attention is paid to
the value of peace, understood in a broad sense, that is to say for the
importance it assumes on the level of the relationship of the person with
himself and with his fellow men, even before that of international relations.
The study concludes with an examination of the deadly theoretical question
relating to how to reconcile the conceptual and juridical specificity of each
fundamental value with the vocation of all to structurally integrate each other.
MARIO
BERTOLISSI
(22.06.2023)
Abstract
Article 116, 3 sec., of the
Italian Constitution has been designed to enable regions, disadvantaged by
their geographical location, to eliminate or at least mitigate existing
disadvantages in relation to neighboring regions. In this situation, there is only
one Region: Veneto, which requested more autonomy, using the constitutional
novel of 2001. It happened, however, that almost all the regions were
activated, causing chaos, which generated, among the publicist's researchers,
an impressive number of abstract elaborations. However, this contrasts with an
indisputable premise: autonomy cannot be for everyone, but only for those who
are culturally and psychologically autonomous. The Calderoli bill
goes along those lines.
MASSIMILIANO
MEZZANOTTE
(21.06.2023)
Abstract
The right to be forgotten
regarding oncological diseases protects so-called cancer survivors from those
data that do not consider that the passage of a certain period of time since
the last health treatment carried out can lead to their previous pathological
state being forgotten, especially in the presence of treatments carried out for
reasons inherent to loans or mortgages. A special discipline is envisaged in
some states; for its part, the European Union foresees the approval of a law by
member states by 2025. In Italy, after an initial attempt, a legislative
initiative by CNEL is being discussed to introduce this right in favor of a
particularly fragile category of individuals.
ROBERTO
DI MARIA
(19.06.2023)
Abstract
The paper analyses the
matter of the “parliamentary unquestionability”, as provided by the art. 68,
par. 1, of the Constitution. After the reform of the 1993 – which actually
regarded only the “immunity” – the Constitutional Court severely and progressively
restricted its jurisprudence regarding the application of the first of the
aforementioned prerogatives, as a result – it is inferred – of the social and
political crisis that led both to the constitutional reform and to a new
balance between Parliament and Judiciary. Although such jurisprudence has
shored up through the years, nowadays it is legitimate to ask if it still is
currently related to the new forms of expression that characterize – also – the
political communication: social media, etc. And then, if time has come to
revise the positioning of the Constitutional Court on the “parliamentary
unquestionability”.
CLAUDIO
PANZERA
TitolaritĂ dei diritti fondamentali e societĂ democratica
(19.06.2023)
Abstract
The essay, also written to
honor the memory of Professor Gladio Gemma, dwells on the recognition of
fundamental rights beyond citizenship. Dialoguing with Gemma's thought on the
aims and limits of a constructive interpretation of constitutional rights of
aliens, the paper focuses on the concepts of 'democratic societies' (within the
ECHR) and 'constitutional pact' (within national legal orders) as normative
backgrounds for interpreting and balancing operations of both the political
bodies and the judiciary. It finally tests this theoretical framework in the
paradigmatic case of the right to asylum and the access to territory.
PASQUALE COSTANZO
(12.06.2023)
Abstract
The short paper highlights
the innovations contained in decision no. 110/2023 of the Constitutional Court
which finally establishes an autonomous parameter of validity for violations of
legislative drafting.
UGO
ADAMO
La legge dimenticata. Le DÂ Â Â Â Â Â Â AT a cinque anni dalla loro introduzione
(08.06.2023)
Abstract
More than five years ago,
Law N. 219/2017 came into force. This law transformed the principle of
self-determination and the choice to refuse medical treatment into positive
law. This law also regulated the directives capable of deciding 'today for
then', which are now referred to as 'Advance treatment provisions'. Not much
time has elapsed since the approval of Law No. 219/2017, but this time allows
us to make some considerations about it and the difficulties of its
implementation. This difficulty is mainly due to the understanding of the legal
institution, as can be deduced from the 'Alfredo Cospito case', which is
already dramatic and susceptible to generates conflicts and disharmonies in the
legal system.
MARCO
LADU – NADIA MACCABIANII
L'autodeterminazione popolare nell'era
digitale: tra opportunitĂ normative e tecnologiche
(03.06.2023)
Abstract
The paper, after a brief
introduction of the risks and opportunities entailed by the digital transformation
process in respect of the right to vote, focuses on some legal (§ 4) and
technological (§ 3) developments in order to understand in which terms they
intersect with the constitutional purposes that referendum underlie (i.e. the
strengthening of popular self-determination). In this last respect, any new
right is requested but rather the enhancement of traditional principles and
rights by means of further specific “qualifications” that aims at reinforcing
both, the awareness and empowerment of the voter. Consequently, the pivotal
issue falls on the implementation of those prerequisites that support the
voter's ability to take “direct decisions” for the collective life by means of
technological tools functional to his empowerment (what we deem could be found
in the double arrangement between referendum and technological systems like
blockchain and gamification), as well as by means of regulatory tools
functional to his awareness (what we deem could be found in the address
followed by some European initiatives that support equity and transparency).
ANTONIO
RUGGERI
Costituzione e veritĂ (prime notazioni)
(03.06.2023)
Abstract
In the opinion of the
author, the Constitution, alongside certain indisputable truths, refers to
truths still in the making, the object of uncertain semantic reconstructions,
dwelling on the relationship of mutual nourishment that exists between them and
develops in experience. In this perspective, are examined some tenacious,
albeit inexplicable, resistances opposed by political decision-makers and
legislators to accepting some scientific truths and to offering them the
opportunity to become constitutional truths. That is a matter of the
fundamental right to the truth and of how it is placed before other fundamental
rights. The study concludes with a brief reflection on the relationship between
text and constitutional truths and on its developments as a consequence of the
cultural habits of their recognition.
SILVIA
FILIPPI
(31.05.2023)
Abstract
The essay analyzes the
recent Italian Constitutional Court case law concerning law-decrees, with
specific reference to the concept of homogeneity. The paper aims to identify
whether it is possible detecting some recurring elements in the constitutional
jurisprudence concerning law-decrees conditions, in order to identify the
violations of the principle of homogeneity in the forthcoming judicial cases.
ANGELO LICASTRO
(18.05.2023)
Abstract
The Court of Justice of the European Union has ruled
that the grant of public subsidies to denominational private schools may be
reserved for churches and religious societies recognized by a Member State. The
Court has held that the recognition requirement under national law complies
with EU law and, in particular, with article 49 TFEU (on the right of
establishment), read in conjunction with Article 17(1) TFEU. According to the
Author, this is the first time that the principle enshrined in Article 17(1) TFEU
impacts on the scope of application of the basic principles of EU free market
law.
MARCO PODETTA
(17.05.2023)
Abstract
This paper analyzes some issues related to the
implementation of the so-called differentiated regionalism in the light of the
relevant provisions of the 2023 budget law for 2023 and the Calderoli draft law
presented at the beginning of the XIX Legislature. In particular, the research
tries to highlight the need to strengthen the role of the Parliament, the
inadequacy of the funding mechanism, and the incorrect method of determining
the essential levels of services and the financial resources.
LOREDANA MURA
(04.05.2023)
Abstract
The article relates the outcomes of Constitutional
Judgment No. 131 of 2022 to those that have matured within the framework of
well-known and established European systems, such as that of the EU and the
ECHR. In this sense, it deals not only with the issue of the transmission of
surnames to children, but also with closely related issues, such as equality
and non-discrimination, personal identity and domestic violence in the light of
the repercussions they have on minors and, more generally, on present and future
young generations. The overall results of this survey show, therefore, that the
elaboration effort made by our Constitutional Court if, on the one hand, it
proves to be new and interesting, on the other hand, however, it has several
limitations that make it necessary to complete it. An objective, the latter,
that cannot be achieved without abandoning outdated and counterproductive
operational models and, on the other hand, seeking solutions that can credibly
and effectively resolve the current problems in full respect of the principles
and values that revolve around the human person.
Consulta OnLine (periodico online) ISSN 1971-9892