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.
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