Consulta OnLine (periodico online) ISSN 1971-9892
2025/III
settembre-dicembre
PARTE PRIMA
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