Consulta OnLine (periodico online) ISSN 1971-9892
2024/II
maggio-agosto
Parte Prima
PAOLO PILUSO
L'art.
116, comma 3: una dubbia "rottura facoltizzata" della Costituzione?
(03.08.2024)
Abstract
The contribution intends to
investigate the legal nature of the art. 116, third paragraph, of the
Constitution – starting from the widespread interpretation of the norm – as a
"facultative rupture" of the Constitution, authorizing the derogation
from the division of State/Regions legislative competences through a mechanism
of formal deconstitutionalization. The reflection
moves from the doctrinal debate on the aforementioned constitutional norm and
from a theoretical and dogmatic framework of the ruptures, auto-ruptures and
facultative ruptures of the Constitution and identifies some general limits for
the admissibility of formal deconstitutionalization
and, on these bases, questions the legitimacy of the constitutional provision
introduced by the constitutional law. 3/2001, arguing on the need for a
restrictive interpretation of art. 116, third paragraph, of the Constitution
(which tends to enhance administrative decentralization and not to affect the
distribution of legislative competences).
MARINA PIETRANGELO
(31.07.2024)
Abstract
The article examines the
novelties of the fourth edition of the guide for the legal drafting of the
Regions. Particular emphasis is placed on the enhancement of the linguistic
quality of texts and its link with other legal drafting techniques.
ANTONIO RUGGERI
La
Consulta equilibrista sul filo del fine-vita (a prima lettura di Corte cost. n.
135 del 2024)
(25.07.2024)
Abstract
The writing highlights the
effort produced by the commented decision to give prominence, in the terminal
events of human existence, both to the self-determination of the person and to
the good of life, however worthy of protection. In particular, in this regard,
we note the significant expansion made to the notion of "life-sustaining
treatments", susceptible to distorted and currently unpredictable
applications.
GIUSEPPINA BARCELLONA
Just
Children. Giudizi e pregiudizi nella tutela dei nati da PMA
(24.07.2024)
Abstract
This short article deals
with the issue of the protection of those born by recourse to medically
assisted procreation. After describing the provisions to which Law 40/2004
entrusted the protection of those born by artificial insemination and the
rationale behind it, the impact on them of the removal of the absolute ban on
heterologous fertilisation decided by the Constitutional Court in its sentence
162 of 2014 is analysed. It is from the breach thus opened that the problem of
those born abroad by procreative techniques still prohibited in Italy acquires
the breadth and urgency that now characterise it. The protection accorded to
these children presents a graduation that appears independent of the
appreciation of their "best interest" and that derives from the
consideration of the rules that sanction the behaviour of the adult world and
decree their guilt. The correct use of the instrument of analogia legis highlights the discrimination of which these
'children' are victims and also reveals the 'punitive spirit' that animates the
decisions that sacrifice their status in the name of the interest of the
community in prosecuting those who have transgressed its rules.
GIUSEPPE BERGONZINI
(18.07.2024)
Abstract
With the decision no.
69/2024, the Italian Constitutional Court declared unconstitutional a regional
law regulating the installation of video-surveillance systems inbhealthcare facilities, due to a conflict with national
and European data protection regulation, and an incomplete reference to the
relevant sources of law. The decision provides an opportunity to further
examine the relationship between regional legislation, State legislation and EU
self-executing law, to anticipate how potential regulatory
contrasts between regional,
State and EU legislation on artificial intelligence could beresolved,
and to understand what regulatory space might be left, in this field, for
regional legislation.
GIUSEPPE STARRANTINO
Prime
considerazioni a margine della legge Calderoli: un'occasione di riforma perduta
(09.07.2024)
Abstract
The object of this article
is the law containing provisions for the implementation of the autonomy
differentiated Regions with ordinary statute under art. 116, par. 3, It. Const.
The paper examines the text as it was approved at the Chamber of Deputies after
the amendments made by the Senate, introduced with the aim of resolving the
critical issues identified during the examination in the Constitutional Affairs
Committee. The article reveals, however, that procedurally the problems with
the marginal role of Parliament still persist and, financially, the stability
of the system is in dangerous, as no tools have been provided to ensure the
economic sustainability of the new state structure.
FIAMMETTA SALMONI
Debito
pubblico e Patto di stabilità e crescita. Le nuove
regole sulla governance
economica europea
(01.07.2024)
Abstract
This article examines the
new rules for European economic governance adopted on April 29. The picture
that emerges is far from reassuring, consolidating the primacy of monetary
policy over fiscal policy. Moreover, the decoupling from the net expenditure
indicator of, inter alia, spending on co-financing EU-funded programs,
achieving an equitable, green and digital transition, social and economic
resilience, energy security and defense capacity
building exacerbates an already difficult situation by leaving the door open to
well-known austerity policies.
ANTONIO RUGGERI
(01.07.2024)
Abstract
After having noted that
sometimes the confusion of powers is, in reality, due to a ... confused and
questionable theoretical reconstruction precisely in light of the principle of
the separation of powers themselves, the paper highlights the mix of regulation
and control that takes place in some important constitutional cases, quickly
focusing on some pairs of functionally connected legislative acts. The paper
then moves on to deal specifically with the "regulatory" rulings of
the Constitutional Court, in which the mix in question takes on peculiar forms,
recently particularly accentuated and problematically compatible, in some of
their expressions, with the constitutional model. The investigation concludes
with a disheartening note regarding the actual normative force that the
Constitution has, in the face of the widespread and significant tacit
modifications to which it has been (and has continually continued to be)
subjected.
ROBERTO TONIATTI
(24.06.2024)
Abstract
The purpose of this paper
is to examine the pragmatic compromise aimed at introducing reforms favourable
to extending the special autonomy of the Trentino-Alto Adige Region and the
corresponding paradigmatic case of the political resilience of territorial
autonomy against the ideological framework and worldview of a right-wing
national government.
CAMILLA PETRILLO
Il
diritto all'inclusione scolastica delle persone con disabilitÃ
(24.06.2024)
Abstract
The Constitutional Court
has broadly supported the right to education for persons with disabilities.
However, the 2006 UN Convention can still guide our legislation in the
"right" direction. Efforts will then be needed for the proper
implementation of the regulations.
GAIA ATZORI
(14.06.2024)
Abstract
In its Judgement No. 161 of
2023, the Italian Constitutional Court refused to declare the illegitimacy of
Article 6, paragraph 3, of Law No. 40 of 2004, providing for the irrevocability
of men's consent to medically assisted reproduction after an embryo formation.
The paper critically analyses the arguments used by the Court and points out a
potential new inconsistency in the relationship between the Court and the
legislator. During the years, the Constitutional Court has modified various
aspects of the law concerning medically assisted reproduction, ultimately
altering the meaning of the provision in question. Starting from this point,
the author focuses her attention on the problem of a Court having to judge a
rule shaped by its own jurisprudence, effectively placing the Constitutional
Court in a position of "judging itself".
ANNA PIROZZOLI
La
dignità umana e il diritto all'affettività del detenuto
(13.06.2024)
Abstract
The right to affectivity
within prison walls is inextricably linked to the protection of human dignity,
which is also guaranteed to those who are in a condition of limitation of
personal freedom. In the absence of legislative intervention regarding the recognition
of prisoners' right to affectivity, the italian
Constitutional Court, in its judgment no. 10 of 2024, established a principle
to which the administration of justice, in all its articulations, central and
peripheral, not excluding the directors of individual institutions, will be
able to refer while awaiting legislative intervention. The essay considers the
implications of the pronouncement and the challenges that arise in the
implementation of the principle by prison administrations in the absence of a
specific legislative frameworkother.
SARA SCAZZOLA
Il
rapporto tra la transizione energetica e il patrimonio culturale: un
bilanciamento di interessi
(10.06.2024)
Abstract
The essay delves into the
intricate relationship between the energy transition, with particular emphasis
on the increase in renewable energy production, and the preservation of
cultural heritage and landscapes. Despite the close interconnection between the
two interests, it is observed that they can generate conflicts. Therefore,
since the reform of Article 9 of the Constitution has enshrined both as
fundamental principles of the legal system, it is necessary to identify a fair
balance between them, to prevent the absolute prevalence of one over the other.
CARMELO DOMENICO LEOTTA
(10.06.2024)
Abstract
The essay concerns the
Tribunal of Florence's decision that raised the question of constitutional
legitimacy of Article 580 of the Italian Criminal Code that, after the sentence
n. 242 of 2019 of the Constitutional Court, requires, for not punishing those
who facilitate the suicide of others, that the victim, among other conditions,
is kept alive by treatments of vital support. The Tribunal of Florence
considers not manifestly unfounded that Article 580 c.p.
violates Articles 2, 3, 13, 32 and 117 of Italian Constitution (the last one
with reference to Articles 8 and 14 Cedu). The author
offers critical comments about the perspective advanced by the Tribunal, also
considering the prohibition to propose revisions of Constitutional Court's
decisions.
ANTONIO IGNAZIO ARENA
(06.06.2024)
Abstract
The paper examines the
proposal for constitutional reform A.S. no. 935. It is argued that this
proposal aims to change the form of government in a way that is suspected of
constitutional illegitimacy by contrasting with the principle of the separation
of powers and with the democratic-representative characterization of the legal
system. In particular, it seems problematic to combine the popular election of
the head of the executive with the powers traditionally vested in the executive
in a parliamentary form of government. No less problematic are the measures
aimed at guaranteeing a majority in the Chambers without setting a minimum
threshold of votes to be reached and those aimed at limiting the independence
of parliamentarians during the formation of new governments during the
legislature.
ANTONIO RUGGERI
(05.06.2024)
Abstract
The case note deliberates
on certain considerations contained in decision No. 100 of 2024 of the
Constitutional Court regarding the regime of dual preliminary rulings (both
constitutional and European). It specifically addresses the excess of
statements within the judgment, which poses challenges to the readability of
the decision itself, despite the consolidation carried out by the
constitutional judge in matter.
MASSIMILIANO MEZZANOTTE
L'autonomia
differenziata in materia ambientale: confini e limiti dell'art. 116, comma 3, Cost.
(03.06.2024)
Abstract
Differentiated autonomy was
perhaps the most problematic innovation introduced by the Tit-le V reform.
Among the matters that can be the subject of agreement between the State and
the Region, there is the environment, a particularly delicate matter, in which,
alongside the recognition of greater areas for the Regions, the State must
still be guaranteed the possibility of ensuring homogeneity of discipline. From
this point of view, compliance with this limit causes serious difficulties for
the interpreter, who is forced to identify the type and breadth of competences
that can be attributed to the region and that make one reflect on the
difficulties in interpreting Article 116 of the Constitution.
CARLA DI MARTINO
(29.05.2024)
Abstract
The Constitutional Court
has recently returned to the issue of 'doppia pregiudizialità '.
This article attempts to highlight the two directions in which the
constitutional jurisprudence has moved. On the one hand, it addresses the
question of the possibility of extending the 'concurrence of judicial remedies'
to cases of violations of fundamental rights not (exclusively) included in the
Nice Charter. On the other hand, the Court provides judges with a vademecum on which remedies to activate and in which order
of priority. This article tries to show the reasons why these developments in
constitutional jurisprudence are still not straightforward.
MARIO PERINI
Evoluzioni
normative e giurisprudenziali in materia di giuoco con vincita di denaro
(22.05.2024)
Abstract
The article examines the
evolution of legislation and constitutional decisions regarding gambling in
Italy. It highlights how the "liberalization" of the sector, which
began in the 1990s, and the consequent spread of gambling, have brought to light
a plurality of constitutional values, thus necessitating a balancing act by
both the legislature and the Constitutional Court.
ADRIANA CIANCIO
(10.05.2024)
Abstract
The study deals with the
possible remedies against administrative adjudications of ultimate instance not
complying with EU law. More specifically, it aims at providing solutions when
the administrative judge either does not respect the decisions issued by the
European Court of Justice or does not even preliminary refer for interpretation
before it, as set out in Art. 267 TFEU in case of doubts. Assessing recent both
European and Italian case law, and accordingly refused the possibility to
recourse to the Supreme Court of Cassation for "reasons relating to
jurisdiction", the paper focuses on the different means of "reversal
of judgement" as regulated in the Italian procedural law. In this regard,
the recent reform of the civil procedure is considered a missed opportunity in
order to further widen the reversal instrument enshrined in Articles 395 and
396 of the civil procedure code, so to reach a fair balance between the needed
respect for European commitments, on the one hand, and the right of judicial defense of all the stakeholders involved in a case, on the
other hand.
GIUDITTA MATUCCI
Lo
statuto delle opposizioni nella forma di governo che cambia
(10.05.2024)
Abstract
This essay aims to
reconstruct the meaning and scope that the statute of opposition minorities assumes
in the comparison between systems, dwelling on the need to ensure its
protection in the perspective of the possible approval of the reform of the
current government structure as well as outlined by the bill A.S. 935,
currently being examined by Parliament.
CARLO CIARDO
L'oblio
oncologico: una prima analisi della l. n. 193/2023
(06.05.2024)
Abstract
The contribution
constitutes a first examination of the characterizing elements and of the
challenges associated with the recent legislative measures aimed at combating
discrimination against cancer survivors. It also considers the European context
and relevant EU legislation.
ANTONIO RUGGERI
(06.06.2024)
Abstract
The contribution, after
having clarified that the conceptual opacity of the rules is different from
their structural scope, which is sometimes broad or very broad and sometimes
dense and even stringent, notes that, in order to establish whether some normative
provisions of the Constitution present a formulation elusive, it is necessary
to refer to the indications that come from experience, especially to the
cultural habits of recognizing its nature and meaning. At the opposite pole
there are the evident provisions and those which are sufficiently clear, but
which are subject to serious changes in the reconstruction of their meaning.
The speech then focuses on the crucial importance played, to a non-negligible
extent, by judges, especially where their orientations are consolidated in
living law. Finally, the author wonders whether the case in which the existence
of constitutional gaps or disciplines formulated in conceptually elusive terms
is demonstrated to be more serious, noting in particular the major drawbacks
deriving from the opaque or reticent character of the constitutional language.
La
Corte replica a Consulta OnLine
(02.05.2024)
ANDREA PROTO PISANI
Ricordo
di un amico: Alessandro Pizzorusso
(02.05.2024)
Abstract
The writing recalls the
figure of the illustrious jurist Alessandro Pizzorusso in the historical
climate that saw him operate in various institutional roles.
Parte Seconda
RICERCHE E MATERIALI
FRANCESCA MUNEROL e MARGHERITA
ANDREAGGI
I "semi di
conflitto" nella gestione dell'acqua ed i possibili strumenti di
risoluzione
(10.06.2024)
Abstract
This contribution
summarizes the activities carried out by the authors, researchers of the CIMA
Foundation, starting from the beginning of 2022. It develops some systemic
reflections on the analysis of the measures adopted by institutions to address
the prolonged drought that affected Italy in the summer of 2022, with
particular attention to the contingent and urgent ordinances issued by
municipalities within the Po River Basin. These municipal ordinances serve as
key indicators for understanding the legal-social impacts of drought in
different territories and as indicators of potential conflicts over the
management of water resources. Mapping this legal phenomenon and understanding
its scope allows us to anticipate the emergence of conflicts over water and to
effectively experiment with solutions for the participatory management of water
resources.
Alongside the mapping of
the ordinances, some court rulings related to the management of water resources
in Italy have been analyzed. This analysis helps to
understand the presence of conflicts between interested parties and highlights
the limitations of the ordinary judicial approach in resolving and effectively
overcoming these conflicts. The examination of current participatory management
practices provides insights into a new and different approach to addressing the
issue of looming droughts.
Consulta OnLine (periodico online) ISSN 1971-9892