Appunti Fundamental Rights- The Italian Constitutional Court

DISPUTES BETWEEN THE REGIONS AND THE STATE

This kind of proceeding is far from the within judicial review of legislation:

• It is not necessarily based on a piece of legislation (but on a norm of lower rank or, more frequently, on an administrative act or on a concrete behavior): a Region challenging the administrative act to build an infrastructure issued by the State; a Regional council questioning the decision of the Court of Account on parliamentary groups.
• This is the very difference from the principaliter proceeding.
• It is not related to the exercise of a specific legislative competence, but to a more general constitutional attribution.
• There is no deadline for the action.
• It has a residual nature of the dispute as a judicial remedy: it's a judicial remedy issued when it is not possible to apply a remedy offered by the Constitution.

ADMISSIBILITY OF ABROGATIVE REFERENDUM

The abrogative referendum has the power to repeal a piece of legislation.

of legislation, a legislative act, a decree law or a legislative decree, which with the abrogation ceases to have effects from that moment.

All the cases before, when the legislation was still enforced, are still disciplined by it.

The court is requested to verify whether the request of an abrogative referendum of a art.75 piece of legislation is admissible in the light of the .

Some categories are expressly excluded from the abrogative referendum, such as:

• Ratification of international treaties
• Budget and tax laws
• Pardon & Amnesty laws

These are the limits expressed by the Constitution. Judgment 16/1978

Then these criteria have been refined by the Court, through and extended in comparison to the original limits:

• Clarity, unambiguity, homogeneity of the question: if a question does not comply with these conditions, the Court can declare the inadmissibility of the referendum
• Exclusion of "constitutionally necessary" laws: law necessity for the functioning of a branch of

The Government.

JUDICIAL REVIEW OF LEGISLATION

Justiciable acts are those acts that can be the object of constitutional law.

In the italian case, only primary sources:

• Parliamentary legislation (parliamentary statutes, i.e. those approved through legislative proceeding)
• Regional statutes
• Decree-laws
• Legislative decrees

Differently from other courts, the Italian Constitutional Court is not capable of reviewing the constitutionality of administrative acts or decisions, through direct complaints of the citizens.

In order to perform this task, there are two paths:

1. a direct proceeding or principaliter- with a direct complaint by the state or region;
2. incidental proceeding of incidenter- : ordinary courts issue a referral to the Court.

In the first case, applicants directly go before the court. In the second case, the applicants must start a dispute before an ordinary judge. It's the judge that is asked to refer the question of constitutionality to the Court.

PRINCIPALITER

PROCEEDING

This proceeding is (mainly) about the division of legislative competences between State117, par. 2, 3 and 4.and regions, as established in art.Under par. 2 are listed all the exclusive legislative power of the state;The par. 4 states that all the other matters not listed by the previous paragraphs areregional.On this basis the Court carries out its own functions.Even after the constitutional reform in 2001, still an asymmetry between the twoparties:

• The State can claim any breach of the Constitution by a regional piece of legislation.
• The Regions can claim ONLY an invasion of their own competences by the Statecompetencies.

Regions can only challenge the validity of a legislative act or primary act, because it's atodds with the division of the regional competences.

THE INCIDENTER PROCEEDING

The reference to the constitutional court must be issued "during a court case before ajudge" ("processo", "giudice");This implies the two

Notions of processo and giudice:

• Notion of "processo/judicial proceeding": objective requirement
• Notion of "giudice 'a quo'/referring court or judge": subjective requirement

If one of the two requirements is missing, the Court will declare the referral inadmissible.

The Italian system of judicial review is Centralized.

ONLY the Constitutional court is empowered to strike down legislation: there is a monopoly - in German Verwerfung Monopol.

However, as an element of decentralization, it has been introduced a filter function of the individual judge, called to analyze some pre-conditions (to admit the question of constitutionality to the Constitutional Court):

1. Relevance of the doubt ("question"): there is the need to have an answer to the question to issue a decision on the case
2. The doubt of the judge on the constitutionality must be "not manifestly unfounded: it should not be a serious doubt..
3. Third pre-condition: interpretation

consistent with constitution.

The Rationale of judicial review was outlined by the decision no.356/1996:

«in principle, laws are not declared as unconstitutional because it is possible to find an unconstitutional interpretation of their wording (and some judges do so);

As a constitutional court, we do not declare a provision in the constitution just because the wording may be interpreted in an unconstitutional manner...laws are declared as unconstitutional because it is not possible to find any interpretation that is consistent with the Constitution»

Referring judges are therefore expected to perform an interpretation of the primary sources according to the Constitution.

THE ELEMENTS OF THE REFERRAL ORDER

What are the elements of the referral order by which the referring court will send a question of constitutionality?

Question of constitutionality- : a doubt of non-compliance between the object and the