Consulta OnLine (periodico online) ISSN 1971-9892
2024/III
settembre-dicembre
Parte Prima
STUDI
(09.12.2024)
Abstract
After noting that constitutional reforms are typically discussed only in relation to the organizational aspects of the Charter, and not also with regard to its substantive parts or, even before that, to the fundamental principles of the system, the paper argues that the question of reforms needs to be reconsidered—not, as is usually the case, from the narrow perspective of the form of government alone, but from the broader perspective of the form of state. This should take into account the conditioning factor of the cultural degradation of the political class, which can only be addressed through a careful effort to reshape the structure of the social body. In this light, the paper evaluates reforms related to the direct election of the Prime Minister, the judiciary, and the structure of the regional state (with specific regard to the so-called 'differentiation' of autonomy), highlighting the negative consequences that may arise, particularly for fundamental rights.
MASSIMILIANO MEZZANOTTE
(09.12.2024)
Abstract
Sound can be understood not only in a negative sense, i.e. noise, but also in a positive sense, as an asset to be protected as part of the intangible cultural heritage. From this perspective, the issue must be approached from two angles. Firstly, it must be ascertained under which conditions sound can fall into the category of cultural heritage. Then the legal basis must be sought, both in international charters and in national experiences. Existing and pending regulations, despite their limitations, demonstrate the interest that the issue is arousing in national legislators.
ANTONIO RUGGERI
(21.11.2024)
Abstract
The paper returns to deal with the so-called "double prejudice", considering the indications given by the ruling under comment, noting how, on the one hand, some theoretical knots remain unresolved that negatively characterize the solution supported by the Constitutional Court and, on the other hand, the framework still opens up to uncertain and oscillating jurisprudential developments.
MARCO RUOTOLO
La modulazione degli effetti temporali delle decisioni d’incostituzionalità. Idee e prospettive
(18.11.2024)
Abstract
The paper examines the issue of modulating the temporal effects of decisions declaring the unconstitutionality of laws in the perspective of balancing the reasons of the "superior rationality of the iurisdictio" of the Constitutional Courts and the "permanent, very strong, democratic reasons of the legislatio". The contribution also sets out the reasons that should lead to overcoming the resistance to the recognition of the power of modulation in question.
LOREDANA MURA
(18.11.2024)
Abstract
This investigation intends to contradict the prevailing idea according to which a "supranational order" – which today finds the most representative example in the current EU system – can give rise to an authentic model of cooperation and, even, integration among its member States claiming their full sovereignty and their own international personality. In fact, the necessary conditions are missing to allow the establishment of a practice of real cooperation among EU member States. In particular, the quality of sovereign powers (which supranationality implies have been transferred to the EU) and the way in which they are organized recall forms of statehood (centralistic, hierarchical and patriarchal) of the past that are completely irreconcilable with a reliable and effective model of cooperation and therefore also with the interests that the latter intends to satisfy. In this sense, the definition of "supranational cooperation" – with which the process underway in the EU is described – appears to be a true contradiction in terms.
MARCO RUOTOLO
(06.11.2024)
Abstract
The paper critically analyses the practice, which is increasingly being applied not only to deal with situations considered to be emergencies, but also for the mere implementation of the government programme, of the “merging” of the content of a decree-law into the conversion law of a subsequent decree-law.
PATRIZIA MAGARO’
(04.11.2024)
Abstract
The essay analysis the Italian constitutional bill proposing the direct election of the President of the Council of Ministers, aiming to stabilize the government and reduce parliamentary instability. The author highlights the critical aspects of the reform, particularly focusing on its hybrid structure, which introduces elements of instability and potential government crises, diverging from well-established models such as the German and French systems, often seen as more conducive to stability.
Finally, the text considers the democratic implications and the need for electoral reform to mitigate the risk of an excessively majoritarian system. It also emphasizes the importance of rethinking the Italian political system, which is currently highly fragmented and facing a crisis of representation, suggesting that adopting rules to strengthen internal party discipline could be a prerequisite for any effective and lasting institutional reform.
ANDREA CONZUTTI
(24.10.2024)
Abstract
The paper analyses the distinctive features of the European economic constitution in the aftermath of the Covid-19 health crisis. After recalling the constitutional framework of the pre-pandemic economic order, outlined by the Maastricht Treaty and consolidated by subsequent Treaties, with specific regard to its concrete declination and implementation, the focus turns to the two main recent developments in the European economic governance: the introduction of the Next Generation EU (NGEU) programme and the reform of the Stability and Growth Pact (SGP). From this analysis, an attempt is made to answer the following fundamental question: has an epochal event such as the pandemic triggered a true overcoming of the pre-existing economic paradigm, or has it only led to a temporary deviation from the latter, motivated by emergency contingencies?
MARCO CECILI
(23.10.2024)
Abstract
The Constitutional Court in its judgment n. 146/2024 declared the illegitimacy of a provision of a decree-law due to the absence of the requirement of ‘extraordinary necessity and urgency’ required by Article 77 of the Constitution. This essay aims at reconstructing the procedural events that led the Court to make its ruling and seeks to contextualize this intervention with respect to the issue of urgent decrees.
FRANCESCO IANNELLI
(23.10.2024)
Abstract
The paper analyses the spoils system in the constitutional democracy following some decisions by the constitutional Court regarding the relationship between the State and the Regions. In the constitutional pluralism, the principle of checks and balances allows to examine the relevance of the merit system in such a way as to explain a critical point of view on the spoils system.
ANTONIO RUGGERI
(17.10.2024)
Abstract
The paper highlights how the reform bill under consideration is not conducive to achieving the objectives of government efficiency and political stability, as claimed by its drafters. On the contrary, it may lead to the grave consequence of a substantial deconstitutionalization of the Constitution. It then focuses on the contradiction arising from the failure to adapt the powers attributed to the Prime Minister under Article 95 of the Constitution to align with the legitimacy conferred by the mechanism of direct election. Finally, it underscores, on one hand, the excessive exposure of political processes to constitutional rules as a result of the reform and, on the other hand, the active role the reform plays in undermining the principle of separation of powers, thereby posing a serious threat to the Constitution and its stability.
AGATINO CARIOLA
(17.10.2024)
Abstract
The relationship between information and political power has always been among the most troubled, and this also concerns democratic systems. On the one hand ademocratic system presupposes educated and informed citizens who exercise their rightsintensely and participate in the life of the Nation; on the other hand political power isinfluenced by cultural trends and dynamics present in public opinion, on the other hand, too, the same power tends to influence the information tools in terms of content as well as, sometimes, even timing. And yet, democracy lives on the assumption of a widespread culture that moves from the generalized possession of information.
For this reason the thesis is put forward that there is a right to information for citizens who can assert their claim to complete information against the so-called generalist communication tools: certainly those concessionaires of the public radio and television service, but also television networks and newspapers that qualify as an expression of the entire territory and the voices present in it. This right to information would be justiciable by means of a request for compensation for damages.
From information to be provided to all, to that in the possession of state administrations and structures, the step is short. The discipline on access to administrative documentation is today very rich in tools to assert the citizen's right. However, the discipline on State secrecy that can be opposed by the Executive even to requests from jurisdictional authorities is still insufficient. In this regard, the current regulation of State secrecy should probably be revised and, with the aim of enhancing the objective dimension of secrecy and preventing it from
becoming an instrument in the hands of the government majority alone, it is proposed to include the President of the Republic in the decision-making circuit that leads to the imposition of State secrecy.
ANTONMICHELE de TURA
Frammenti di storia polacca (nel prisma della Biblioteca della Corte costituzionale)
(10.10.2024)
Abstract
The paper highlights to what extent the Library of the Constitutional Court, which preserves and guards incredible testimonies, supports the bond that for centuries has sought to unite the Italian and Polish peoples in a particularly profound way and in many respects.
CAMILLA BUZZACCHI
Sostenibilità ambientale e domini collettivi: una manifestazione virtuosa di sussidiarietà
(10.10.2024)
Abstract
“Civic use”, more recently referred to as “domains” or “collective property”, has ancient roots in the country's economic and social context: several times the Constitutional Court has had occasion to rule on this phenomenon, in relation to regional laws. Thanks to Act 168 of 2017 and the case law of the Constitutional Court, we have moved away from viewing collective properties as an experience to overcome, and have begun to look at it from a different angle: even the recent judgement 152/2014 confirms the close link between collective domains and the environmental objectives that the Republic will have to meet, particularly following the revision of Article 9 of the Constitution in 2022. The perspective is then enriched by the paradigm of subsidiarity, which finds its authentic manifestation in the collective domains.
ALDO ROCCO VITALE
(07.10.2024)
Abstract
The paper critically examines the recent sentence no. 135/2024 of the Constitutional Court on assisted dying and life support treatments. After summarizing the main points of the sentence, the philosophical and biolegal problem of life support treatments: hydration, nutrition and ventilation is examined. We therefore distinguish the different types of health treatments and the consequences of their suspension. Finally, we retrace the strengths and weaknesses of the logical and legal path that the Constitutional Court adopted to reach its decision.
ANTONIO RUGGERI
Verso una giustizia costituzionale di “equità”: quali i riflessi di ordine istituzionale?
(17.09.2024)
Abstract
The paper focuses on the tendency, particularly evident especially in the time closest to us, of constitutional jurisprudence to make use of particularly incisive and penetrating decision-making techniques in the sphere usually considered to be the exclusive prerogative of the legislator, with the aim of tempering the rigor of certain normative solutions, thus made more "mild" and expressive of a justice of equity, in view of the optimal satisfaction of the fundamental rights evoked in the field by the cases and, in general, of certain needs widely and intensely felt within the social body. The alteration of the institutional roles that follows, however, causes risks of no small importance here summarily represented.
ROBERTO BIN
Il “caso Priolo”: scelta politica vs. bilanciamento in concreto (in margine alla sent. 105/2024)
(12.09.2024)
Abstract
The essay highlights the logical and argumentative hortcomings of the decision of the Constitutional Court no. 105/2024, particularly where it fails to address the protection of the balance struck by the judge between health protection and production needs, favoring the Government's authority to determine which interests should prevail.
MICHELE FRANCAVIGLIA
(12.09.2024)
Abstract
The essay examines the ruling no. 65/2024 of the Constitutional Court, highlighting some critical issues surrounding the theoretical foundation of the so-called selfgovernment of parliamentary bodies. In particular, the work briefly highlights the problematic consequences of an obiter dictum that concludes the ruling and that, by separating regulatory autonomy from self-government, ends up comprimising an adequate functional characterization of the regulatory reserve provided by art. 64 of the Constitution.
GIOVANNI COLOCRESE
(11.09.2024)
Abstract
Sentence No. 2/2024 highlights, once again, the tightening of the scheme of allocation of administrative functions in environmental matters. The decision, therefore, completes the theoretical framework of the operativeness - and, above all, of the relative limits - of the institution of the so-called delegation of administrative functions in environmental matters, allowing the interpreter to deal with recent legislative innovations.
IDA ANGELA NICOTRA
(09.09.2024)
Abstract
The paper explores the primary causes of the current crisis in legislative production, emphasizing the constitutional importance of optimal law drafting and proposing potential tools to address this crisis.
ROBERTO PINARDI
(02.09.2024)
Abstract
The article examines Constitutional Court ruling no. 140 of 2024, focusing on "supervening constitutional legitimacy" and its application in this case. The Court upheld the payback mechanism for medical devices as reasonable and proportionate, despite concerns about legal certainty and company expectations. The article also notes how a prior ruling (no. 139 of 2024) altered the rule's proportionality, rendering the raised objections unfounded. Additionally, it discusses the diachronic interpretation of the law and timing issues related to the ruling's publication.
CARLO PADULA
(02.09.2024)
Abstract
Facing a State challenge to a regional legislative provision already repealed at the time of notification of the appeal, the Court excludes inadmissibility due to lack of interest, since the application of the repealed provision cannot be excluded. Through an examination of the constitutional jurisprudence about interest in the appeal and cessation of the matter of the dispute, the paper verifies how the importance given to the application of the contested law may be consistent with the abstract nature of the direct constitutional challenge, and the need to not overlap the interest in the appeal with the cessation of the matter of the dispute.
ALESSANDRO CANDIDO
Il fine vita tra Stato e Regioni
(02.09.2024)
Abstract
The paper analyses the Ligurian legislative proposal on the end of life, currently under discussion at the Ligurian Regional Council. Given that the Constitution never recognises a person s right to receive a death benefit, as recently reaffirmed by the Constitutional Court in its ruling no. 135 of 18 July 2024, the legislation under consideration appears to be unconstitutional because it infringes on the division of competences between the State and the Regions. In particular, the regional discipline contrasts with the State s reserve in the matter of civil and criminal law (art. 117, paragraph 2, letter l), of the Constitution), with the transversal State competence in the matter of essential levels of services (art. 117, paragraph 2, letter m), of the Constitution); moreover, the discipline of the end of life does not appear to be referable to the matter of protection of health , within which, in any case, the fundamental State principles are absent. Lastly, the principle of regulatory flexibility appears inapplicable.
FEDERICO GIRELLI
Inciampi estivi alla garanzia dell’assistenza scolastica per gli alunni con disabilità
(02.09.2024)
Abstract
The short note reacts critically to a recent ruling by the Council of State on the subject of school assistance for students with disabilities, hoping that the proposed interpretative direction will be overcome by the intervention of the Plenary Assembly of the Council of State itself.
Consulta OnLine (periodico online) ISSN 1971-9892