Consulta OnLine (periodico online) ISSN 1971-9892
2025/III
settembre-dicembre
PARTE PRIMA
ANTONIO RUGGERI
(15.12.2025)
Abstract
The essay focuses
specifically on the ways in which the Constitutional Court approaches the
canons governing the proceedings conducted before it, critically reconsidered
in the light of the teachings of A. Pizzorusso. It
begins by highlighting the unresolved contradiction generated by the prevailing
view in legal scholarship, which characterises the activity carried out by the
Court (especially in judicial review proceedings) as essentially judicial in
nature, while at the same time attributing a normative character to its
decisions of unconstitutionality, and it proposes an alternative theoretical
solution in this regard.
The analysis then turns to
the most significant departures from procedural canons and to the cases in
which the imbalance between the political and the judicial components of the
Court's activity has been most evident, particularly as a
result of the "recentralisation" of certain issues whose
resolution had initially been entrusted to the jurisdiction of ordinary courts.
Finally, the essay touches
upon certain deviations from procedural canons observed in the exercise of
functions other than judicial review, as well as some recent developments aimed
at the "democratisation" of constitutional proceedings.
MATTEO TRAPANI
(15.12.2025)
The essay examines the
evolution of Italian constitutional case law toward a stronger recognition of
mutualistic and solidarity-based organisations as integral components of the
constitutional public space. Focusing on Constitutional Court Judgment no.
116/2025 and its dialogue with Judgment no. 131/2020, the analysis shows how
the Court promotes mutualistic cooperation not merely as an economic model, but
as a constitutionally protected form of social participation grounded in
solidarity and horizontal subsidiarity. The Court requires proportional and non-automatic
supervisory and sanctioning measures, to avoid chilling effects on
organisations pursuing the general interest. Together, these judgments outline
a framework of public social governance in which cooperative and Third Sector
entities are recognised as co-producers of public value and as key actors in
the realization of constitutional principles.
FEDERICO
GIRELLI
(09.12.2025)
ANNA
PIROZZOLI
L'intelligenza artificiale e il diritto: AI ruled
ed AI ruler
(09.12.2025)
Abstract
The contribution examines
the dual relationship between artificial intelligence and law, by outlining the
distinction between the regulation of artificial intelligence (AI ruled) and
its impact on legal processes (AI ruler). Risks in administration of justice
are highlighted, especially in the presence of algorithmic bias, and the best
trade-off in constant human surveillance of AI, which is necessary to mitigate
ethical and legal risks, without hindering technological innovation, is
outlined.
LAURA
LORELLO
(09.12.2025)
Abstract
This paper addresses the
theme of the protection of migrants' rights, with particular
reference to the condition of migrant women, in an intersectional
perspective, which takes into account the particular condition in which women who are also migrants
find themselves. This dual condition has been reflected in three recent
decisions of the Court of Justice of the EU, which seem to be charting a new
path in the protection of individuals seeking international protection, in the
case of women and girls. The attention of the European judge was further
confirmed in the recent decision of the 1th August
2025, relating to the notion of safe country of origin, in reference to all
subjects requesting international protection.
GIAN
PAOLO DOLSO
Origine
ed evoluzione della giustizia costituzionale in Italia
(25.11.2025)
Abstract
This paper reconstructs the
origins of constitutional justice in Italy. Even before the work of the
Constituent Assembly, the so-called Forti Commission was established to lay the
technical and conceptual groundwork for the Assemblys future tasks. After
examining the most significant aspects of the Commission's activity, the
analysis turns to the debates within the Constituent Assembly, where it becomes
clear that legal considerations concerning the new institution were often
overshadowed by political calculations that shaped both the discussion and its
outcomes.
Although the Constitutional
Court was formally created in 1948, it was able to begin operating only several
years later. From the outset, however, it proved equal to its role through a
gradual process of dismantling the fascist legal legacy. In its early years,
the Court focused on adapting its procedures to render them increasingly
efficient and aligned with its functions; in this context, it also developed
new types of decisions.
It is not easy to divide
the Court's activity into neatly defined phases. Some underlying tendencies can
be identified, but without clear chronological boundaries. Indeed, the
evolution of the Court's case law - alongside innovations not always tied to a
specific period - also reveals elements of continuity and gradual development.
A truly accurate diachronic account should consider not only procedural
structures and landmark decisions with "systemic" impact, but also
the broader jurisprudential trends emerging in particularly dense and
cross-cutting areas, such as the use of the equality/reasonableness principle
and the Court's growing openness to the supranational dimension. This is a line
of inquiry that cannot be pursued here but is certainly worthy of further
investigation.
ANTONIO
RUGGERI
L'esperienza della collana di "Diritto costituzionale
regionale" (gli obiettivi, i risultati)
(29.11.2025)
Abstract
After first bringing to
light the remarkable intellectual and moral qualities of P. Costanzo - the
creator of the series and its original editor - the text explains that the
primary goal of this publishing initiative was (and remains) to determine
whether, and to what extent, the Regions have shown themselves in practice to
be truly constitutional entities. For this reason, contributors were encouraged
to illustrate both the achievements and the missed opportunities within each
Region. It goes on to observe that the chief cause of certain glaring
deficiencies - especially evident in some Regions - lies, on the one hand, in a
stifling bureaucracy and, on the other, in the cultural decline of the
political class. Finally, it questions the real prospects for establishing a
model of regional autonomy marked by broad and diffused special status a
theoretically desirable outcome that, however, appears to be significantly
obstructed by the factors mentioned above, to the serious detriment of the
needs most widely and keenly felt by the people living in the regional
territories.
PAOLO
PILUSO
(25.11.2025)
Abstract
After a brief
reconstruction of the international agreements concluded by the European Union
within the framework of the sources of EU law, this contribution seeks to place
these acts in relation to the system of the sources of law in the domestic
legal order, proposing an extension of the scope of the Granital
doctrine. The topic also presents an opportunity to critically reconsider (but
not abandon) the classical distinction between monism and dualism.
ANNA
MARATEA-SILVIA PIERGIOVANNI
(24.11.2025)
Abstract
This article examines
Constitutional Court judgment no. 96 of 2025, which identified, but did not strike down, a
legislative omission in the rules governing personal liberty restrictions in
CPRs. It discusses whether the statutory referral to subordinate regulations
can be considered ʺrecettizioʺ under
Article 13 of the Constitution and analyses the divergent responses of ordinary
courts to this ʺascertained but not declaredʺ unconstitutionality.
The study highlights the resulting gaps in judicial protection and the
structural limits of Italys centralized constitutional review model.
MARIO
PANEBIANCO
Considerazioni minime sul Comunicato della Presidenza della
Repubblica del 15 aprile 2025
(24.11.2025)
Abstract
The article proposes some
minimum general considerations on the promulgation of the law starting from a
recent Press release of the Presidency of the Republic, which is part of a
consolidated practice.
LUDOVICO
A. MAZZAROLLI
(17.11.2025)
Abstract
The article reproduces the
presentation, held by the Author at the University of Venice last October 9th,
of the book by Nicolo' Zanon, "Le opinioni dissenzienti in Corte costituzionale.
Dieci casi", Bologna,
2024. The issue of dissenting opinions remains a sensitive theme in Italian
constitutional Justice. It will likely never be introduced, but thats not a
good reason not to discuss about it.
ANNA
MARIA NICO
(17.11.2025)
Abstract
This article examines
Constitutional Court judgment no. 96 of 2025, which identified, but did not
strike down, a legislative omission in the rules governing personal liberty
restrictions in CPRs. It discusses whether the statutory referral to
subordinate regulations can be considered "recettizio"
under Article 13 of the Constitution and analyses the divergent responses of
ordinary courts to this "ascertained but not declared"
unconstitutionality. The study highlights the resulting gaps in judicial
protection and the structural limits of Italy's centralized constitutional
review model.
MARIA
CRISTINA CARBONE
La
disciplina dell'adozione tra scelta legislativa e decisione giurisprudenziale
(07.11.2025)
Abstract
This article explores the
Constitutional Court's evolving jurisprudence on adoption, which has
progressively reshaped the institution within a constitutional framework centered on the person and her relational dimension. The
Court's reasoning reveals a gradual shift from a formal and typified conception
of adoption to a substantive one, grounded in the best interests of the child
as a dynamic constitutional criterion. By reconstructing the meaning of
filiation considering affective ties and individual circumstances, the Court
has transformed the legal paradigm into a relational one, extending the judge's
role in concretizing constitutional principles. This development enhances the
effectiveness of rights protection but simultaneously exposes the legal system
to interpretative fragmentation and to the erosion of legislative coherence.
Adoption thus becomes a privileged site for observing the changing balance
between law and constitutional adjudication, where judicial creativity operates
within the silences of a hesitant legislator. The open question remains how the
constitutional order can reconcile the need to adapt to social transformation
with the preservation of its normative consistency.
GIORGIA
PAVANI - VALENTINA CAPUOZZO
(07.11.2025)
Abstract
This paper probes how
constitutional courts address legislative silence, using a John Cage inspired
analogy: as silence structures music, it also generates legal effects.
Distinguishing absolute vs. relative and determinate vs. indeterminate
omissions, it surveys three judicial responses - caducatory
(demolitory), collaborative (dialogic), and
manipulative (integrative) - plus hybrids. Brief case studies (Italy's additive
rulings and end of-life decisions; Spain's inconstitucionalidad
sin nulidad; Germany's compatibility declarations;
Portuguese state liability; Río Negro's staged remedy) illustrate varied
payoffs and risks. The analysis concludes that weak legislative follow-through
shifts norm-making toward courts, reframing separation of powers as a relational
principle and reviving legitimacy debates in contemporary constitutionalism.
CHIARA
GENTILE
Il
"tono costituzionale" nella giurisprudenza della Consulta
(06.11.2025)
Abstract
Judgment no. 181 of 2024
marks the introduction by the Italian Constitutional Court of a new expression
within the dialogue between courts namely with the Court of Justice of the European Union: the
"constitutional tone". The expression is not entirely new to the
Court's vocabulary, it has previously been used in the context of conflicts of
attribution; its novelty, however, lies in its application to potential violations
of both EU law
and the Constitution by
national legislation. This paper aims to explore the meaning and implications
of the notion of "constitutional tone", tracing its use in the
Court's evolving jurisprudence in order to clarify its
significance, and finally reflecting on a broader and potentially critical
consideration concerning the Court's constitutional lexicon. The essay aims to
verify how the crisis of political representation has led to a significant
"metamorphosis" of constitutional "jurisdiction", which is
increasingly called upon to provide for the omissions of legislator. Such a
circumstance caused a clear and marked emphasis on the so-called
"political soul" of the Court and a shift in the model of
constitutional justice regulated by the Italian Constitution. This theory will
be demonstrated by examining some decisions of the Constitutional Court in order to reflect on the Court's new communication
strategy. In order to safeguard the
"jurisdictional nature" of the Constitutional Court, the essay
introduces some de iure condendo
proposals. At the same time, the paper underlines the necessity that Parliament
fully exercise its functions.
ALBERTO
RANDAZZO
(06.11.2025)
Abstract
The essay aims to verify
how the crisis of political representation has led to a significant
"metamorphosis" of constitutional "jurisdiction", which is
increasingly called upon to provide for the omissions of legislator. Such a
circumstance caused a clear and marked emphasis on the so-called
"political soul" of the Court and a shift in the model of
constitutional justice regulated by the Italian Constitution. This theory will
be demonstrated by examining some decisions of the Constitutional Court in order to reflect on the Court's new communication
strategy. In order to safeguard the
"jurisdictional nature" of the Constitutional Court, the essay
introduces some de iure condendo
proposals. At the same time, the paper underlines the necessity that Parliament
fully exercise its functions.
ROSA
SIGNORELLA
(05.11.2025)
Abstract
This paper explores the
tension between emerging bioethical rights - especially the right to a
dignified death - and the traditional separation of powers. As science and
society evolve, the legal system faces growing complexity, revealing a gap
between legislative inaction and judicial or administrative activism.
Through the Cappato case, the Constitutional Court effectively created
a right to assisted suicide, compensating for the lack of legislation and
prompting regional initiatives that raised issues of competence. The 2024
ruling no. 135 further refined the concept of life-support treatments, adopting
a more flexible, patient-centered view.
In the absence of clear
laws, ethics committees and administrations play a key role in implementing
these rights, though not without ambiguity. Overall, the study calls for a
reinterpreted separation of powers, based on institutional dialogue and coordinated
competences, to better protect fundamental individual rights.
GIUSEPPINA
BARCELLONA
Tanto rumore per nulla: brevi note a margine della legge toscana
del 14 marzo 2025 n. 16
(03.10.2025)
Abstract
Drawing inspiration from
the debate on the Tuscan regional law on 'end of life', the article addresses
the question of the 'nature' of the legal position recognised to terminally ill
patients by Constitutional Court ruling 242/2019. Analogical interpretation
represents the particular "point of view" from which the analysis of
the pars construens of the constitutional court's
ruling is approached and the prerogatives and limits of the right recognised
by the "Antoniani case" are defined.
RUGGERO
RUDONI
(28.10.2025)
Abstract
The paper explores the
constitutional implications surrounding the legal treatment of acts committed
under a more favourable criminal provision that is subsequently declared
unconstitutional. Although it is firmly established that such acts cannot
result in criminal consequences more severe than those provided by the
invalidated norm, the theoretical foundation of this outcome remains subject to
debate. The dominant jurisprudential orientation attributes this result to an
exceptional application of the unconstitutional provision, which raises
significant concerns in the light of constitutional principles. Drawing on an
alternative doctrinal framework, the author argues that a different
interpretative solution is viable. In fact, the interpretative approach
suggested reaches the same practical outcome without derogating from principles
related to the effects of Constitutional Court decisions declaring laws
unconstitutional and offers a more coherent justification for the influence
exerted by the declaration of unconstitutionality on the criminal adjudication
process.
MASSIMILIANO
MEZZANOTTE
La valutazione di impatto generazionale come tecnica di
"programmazione"
(27.10.2025)
Abstract
The article analyses the
annual simplification law currently being approved by Parliament, which
introduces generational impact assessment, a mechanism provided for in various
legal systems and which is now also coming to Italy.
Already established at the local level, the GIA is carried out with the help of
a Generational Impact Observatory, which is tasked with monitoring but also
making proposals on the impact of legislation. The question that arises is
whether this internal control is truly effective or whether it should be
carried out by an external body, as is the case in other legal systems.
GIULIA
MARIA NAPOLITANO
(27.10.2025)
Abstract
The Constitutional Court's
judgment No. 45 of 2025 definitively clarifies the distinction between general
equalization under Article 119, paragraph 3, of the Constitution, and special
interventions under paragraph 5, reaffirming the unconstitutionality of
earmarked quotas within the Municipal Solidarity Fund (FSC). In compliance with
the earlier judgment No. 71 of 2023, the Court upholds the legitimacy of the
Fund for Service Level Equity (FELS), intended to finance essential levels of
services (LEP), and qualifies it as a special, earmarked state fund. The
decision reaffirms the constitutional model of local financial autonomy while
criticizing the persistence of a derived system of local finance. At the same
time, it highlights the principle of "constitutionally necessary
expenditure" as a limit to across-the-board budget cuts and as an
instrument for safeguarding social rights.
MARIO
BERTOLISSI
Tradizioni e memoria nelle istituzioni
(23.10.2025)
Abstract
Whether justified or not,
all of this has not prevented politics from giving way to the economy, and the
economy from retreating in favor of finance, leading
to an unconstitutional increase in inequalities among individuals, families,
and businesses, and, especially, between generations.
The Constituent Assembly
had intended that laws, even in their interpretation, should be "clear,
stable, and honest": conceived under the banner of responsible solidarity.
That vision, however, has not
been realized.
ANTONIO
RUGGERI
(20.10.2025)
Abstract
The note discusses
Constitutional Court judgment no. 147 of 2025, which revisits the long-debated
issue of "double preliminary reference" in light of
the latest developments in constitutional jurisprudence. It is observed that
the Court, while overlooking that the Treaty (and, by extension, Article 11 of
the Constitution) identifies direct applicability as the sole means of
resolving conflicts between domestic and self-executing Union norms,
nonetheless deems it compatible with the concurrent use of centralized
constitutional review a remedy that is itself not free from significant
drawbacks. The decision also contains an improper reference to judgment no. 15
of 2024, whose procedural context differs substantially from the present case.
(20.10.2025)
Abstract
The paper explores the constitutional implications
surrounding the legal treatment of acts committed under a more favourable
criminal provision that is subsequently declared unconstitutional. Although it
is firmly established that such acts cannot result in criminal consequences
more severe than those provided by the invalidated norm, the theoretical
foundation of this outcome remains subject to debate. The dominant
jurisprudential orientation attributes this result to an exceptional
application of the unconstitutional provision, which raises significant
concerns in the light of constitutional principles. Drawing on an alternative
doctrinal framework, the author argues that a different interpretative solution
is viable. In fact, the interpretative approach suggested reaches the same
practical outcome without derogating from principles related to the effects of
Constitutional Court decisions declaring laws unconstitutional and offers a
more coherent justification for the influence exerted by the declaration of
unconstitutionality on the criminal adjudication process.
LUIGI
D'ANDREA
Legge oscura e Diritto costituzionale
(13.10.2025)
Abstract
The author examines obscure
law as a constitutional pathology that undermines the rule of law. While a
degree of indeterminacy is inherent in complex legal systems, radical
unintelligibility nullifies the law's normative function and breaches
fundamental constitutional principles: legality, equality and reasonableness.
Drawing on Constitutional Court jurisprudence striking down an incomprehensible
regional provision, the author shows how obscurity disrupts the balance between
legis latio and legis executio,
endangering legal certainty and the effective protection of rights. Normative
clarity thus emerges as a constitutional imperative and a precondition for
citizens' autonomous participation under Article 118 of the Constitution.
ANTONIO D'ANDREA-ARIANNA
CARMINATI
(13.10.2025)
Abstract
The authors examines the Meloni Government's proposed constitutional
reform of the judiciary, focused on separating judicial and prosecutorial
careers and restructuring the High Council of the Judiciary (CSM). The reform -
introducing two distinct CSMs, random selection of members, and a new High
Disciplinary Court - arises in a climate of declining public trust in the
judiciary. Within this framework, the authors warn that such changes risk
undermining judicial independence and the separation of powers, reflecting a
broader tendency of political authority to evade constitutional checks and
weaken the rule of law. The article situates these developments within the
ongoing crisis of Western constitutionalism.
ROBERTO PINARDI-SIMONE SCAGLIARINI
(26.09.2025)
Abstract
The essay, based on a
statistical analysis of the duration of judgments defining conflicts on laws of
the State and Regions, focuses on the fastest and slowest processes,
respectively, to demonstrate how, even in the practice of this jurisdiction,
the Constitutional Court holds a wide margin of discretion in terms of time
management. Unlike what previous investigations have revealed in respect of
judgments on conflicts between state entities, however, in this specific case
the Court appears to be more cautious, reducing the political level of its
decisions, as a result of employing this discretionality on the most objective basis possible and
the ability to prioritise extrajudicial solutions to disputes that arise.
LARA TRUCCO
Lettera di ricordo e riflessione
(22.09.2025)
AURORA MAGGI
(18.09.2025)
Abstract
This paper examines the
Italian Constitutional Courts recent ruling on the constitutionality of Article
8 of Law no. 40/2004 concerning the legal status of children born through
medically assisted procreation (MAP) carried out abroad by same-sex female
couples. The Court limited its analysis strictly to the childs status (status
filiationis), excluding broader questions such as the right to parenthood for
same-sex couples or the prohibition of surrogacy. Central to the judgment is
the best interest of the child, which serves as the sole criterion guiding the
constitutional scrutiny. By excluding other intersecting yet distinct legal
claims, the Court emphasizes the need for clear, focused evaluation of the
childs fundamental rights, especially in light of
their heightened vulnerability. This methodological choice does not deny the
relevance of other legal interests but underscores their irrelevance within the
scope of this specific case. The judgment thus reflects a deliberate
constitutional strategy to safeguard the childs legal protection in an
effective and timely manner.
GIAN PAOLO DOLSO
La
Corte si pronuncia sulla detenzione amministrativa degli stranieri
(08.09.2025)
Abstract
The paper examines Judgment
No. 96 of 2025, in which the Italian Constitutional Court, while acknowledging
the unconstitutionality of administrative detention of foreigners for violation
of Article 13 of the Italian Constitution, declared the questions inadmissible.
The analysis critically addresses the use of evasive adjudicative techniques,
the lack of reasoning on alternative remedies, and the distorting effects on
ordinary case law.
SIMONE SCAGLIARINI
La
Corte alza la posta in gioco sulle misure di contenimento della dipendenza da
azzardo
(08.09.2025)
Abstract
In its decision 104/2025,
the Constitutional Court declares the constitutional illegitimacy of the
prohibition to offer in public establishments devices that allow access to
gambling platforms. While agreeing with the merits of the decision, the
operative part of which could in any case have upheld the prohibition on
devices intended exclusively for gaming, the ruling contains ultroneutral and dangerous arguments, in that it
legitimises the spread of gaming and aligns itself with the legislative trend
towards ever greater liberalisation of the sector, to the serious detriment of
the individual players and public health.
IGNAZIO TARDIA
Adozione internazionale e persona singola: additiva di
principio, idoneità in concreto e ordine pubblico «esterno» (nota a Corte
cost., 21 marzo 2025, n. 33)
(01.09.2025)
Abstract
The note analyses Italian
Constitutional Court judgment No. 33/2025, which removes the status-based bar
in art. 29 bis (1) of Law No. 184/1983 that excluded single persons from
accessing the preliminary fitness procedure for intercountry adoption. The ruling
reframes the constitutional-conventional parameter (art. 2 Cost. + art. 8 ECHR)
in terms of positive obligations, applies a "strong" proportionality
test (suitability/necessity/strict proportionality), and narrows the margin of
appreciation where identity and private life are at stake and a European
consensus exists. The decision does not create a subjective right to
parenthood: it restores the centrality of the individualized assessment under
art. 6 (age, affective fitness, ability to care and maintain), treating the
foyer stable et harmonieux as a functional criterion
rather than a proxy for marriage and giving structural weight to the
applicant's family-social network. Systemically, the ruling aligns domestic law
with the 20122013 reforms (unity of the status filiationis), mitigates
export/import asymmetries in the 1993 Hague framework, and coheres with the
"law of families" and the "right to family".
Parte Seconda
RICERCHE E MATERIALI
PATRIZIA MAGARO (ed. by)
A definitive Rights Turn in
Climate Change Litigation
(31.10.2025)
Abstract
This collection of essays
has been developed within the framework of a Jean Monnet European project
dedicated to the "Rights Turn in Climate Change Litigation" and
brings together the outcomes of research and teaching activities carried out as
part of a university course specifically designed to analyse the growing
centrality of fundamental rights in the governance of the climate crisis. Its
purpose is to offer young scholars a comprehensive and interdisciplinary
overview of the ongoing normative and jurisprudential transformations, in the
awareness that climate change today also constitutes a matter of genuine
constitutional pedagogy.
Consulta OnLine (periodico online) ISSN 1971-9892