Consulta OnLine (periodico online) ISSN 1971-9892
2024/II
maggio-agosto
Parte
Prima
STUDI
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
disabilità
(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.
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.
La Corte replica a Consulta OnLine
(02.05.2024)
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