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 152/2014 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