2025/III

settembre-dicembre

 

PARTE PRIMA

STUDI

MASSIMILIANO MEZZANOTTE

(27.10.2025)

La valutazione di impatto generazionale come tecnica di "programmazione"

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)

Le risorse aggiuntive del Fondo di solidarieta' comunale: la perequazione dal comma 3 al comma 5 dell'art. 119 Cost.

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

(23.10.2025)

Tradizioni e memoria nelle istituzioni

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)

La Consulta torna a dire della "doppia pregiudizialità" con riferimenti tuttavia non pertinenti e argomenti non stringenti (note minime a margine di Corte cost. n. 147 del 2025

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.

 

 

RUGGERO RUDONI

(20.10.2025)

Pronunce di incostituzionalita' in malam partem e inapplicabilita' in senso proprio della norma illegittima piu' favorevole

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

(13.10.2025)

Legge oscura e Diritto costituzionale

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)

"Regolare i conti" tra chi svolge un mandato elettorale e chi esercita la funzione giurisdizionale (nel campo penale). Il Governo Meloni torna sul punto

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)

Giudizio sulle leggi in via principale e durata del processo costituzionale: riflessioni suggerite da un'analisi statistica

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

(22.09.2025)

Lettera di ricordo e riflessione

 

 

AURORA MAGGI

(18.09.2025)

Oltre il limbo giuridico della persona minore: nota alla sentenza n. 68 del 2025 della Corte costituzionale

Abstract

This paper examines the Italian Constitutional Court’s 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 child’s 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 child’s 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 child’s 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 player’s 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 2012–2013 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".