Consulta OnLine (periodico online) ISSN 1971-9892
2024/III
settembre-dicembre
Parte Prima
STUDI
ANTONIO RUGGERI
Teoria della Costituzione e riorganizzazione del potere, tra
regole istituzionali e regolarità della politica
(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 152/2024
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