Riassunto esame Diritto costituzionale, Prof. Menegus Giacomo, libro consigliato The Constitution of Italy. A contextual analysis; Hart Publishing Oxford Portland, Cartabia, Lupo

There is, however, still an asymmetry: be a “giudice a quo” (referring court

regions can only claim an invasion of their or judge)

competences by the State, while the State Since we have a centralized system of

can question the constitutionality of any judicial review so the judge can only refer

regional piece of legislation. to a question of constitutionality and it is

only the Constitutional Court that is

empowered to strike down legislation

(monopoly- Verwerfungsmonopol).

However, judges in the IT system must

verify if there are two other conditions,

before going to the CC, necessary for the

ICC to examine the case:

1. Relevance of the doubt --> there is

the need to have an answer to the

question to issue a decision on the

case

2. The doubt must be “not manifestly

unfounded” --> judges are

requested to send a reasoned order

to the CC to argue the

constitutionality of a piece of

46 legislation. Judges must show that

they tried to interpret a provision in

line with the constitution, before

posing a question of

unconstitutionality.

Decision no 356/1996 ICC

«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); laws are declared

as unconstitutional because it is not possible to find any interpretation that is consistent with

the Constitution» --> Judges are expected to perform an interpretation of the primary

sources of law according to the Constitution. . The rationale for this doctrine lies in the

notion that statutes are to be quashed only if their incompatibility with the Constitution is

clear beyond any reasonable doubt and there is no other way to resolve the inconsistency.

Judges can submit questions of constitutionality not only if asked by the party of the main

judgment but also by the judge sua sponte. --> judges as gatekeepers of the constitutional

review of legislation.

Ordinary judges play a crucial role both before and after the decision of the Constitutional

Court: before, because it is up to them to identify the question and to refer it to the

Constitutional Court; and after, because it is then up to the ordinary judges who raised the

question to determine the concrete dispute in light of the answer provided by the

Constitutional Court. It is clear that judicial review of legislation in Europe depends upon

dutiful cooperation between ordinary judges and special courts.

Elements of the referral order

The question of constitutionality is referred by the judge to the const court with the issue of

a “Referral order” or “ordinanza di ritiro”, where there must be a part of it explaining the

doubt of non-compliance between the object and the parameter.

Object: the norm to be applied, on which the question of constitutionality is posed.

Parameter: the Constitution and the constitutional norms that the applicant assumes to be

violated by the object.

Sometimes, there may be interposed norms: a norm that integrates the parameter in the

judgement on the object. (questo poco chiaro)

Effects of ICC decisions

As mentioned before, the ICC is the only body empowered to strike down legislation.

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According to Art. 136 IC «When the Court declares the constitutional illegitimacy of a law or

enactment having the force of law, the law ceases to have effect from the day following the

publication of the decision. » --> Law ceases to have effect from the day following the

publication on the OG of the decision.

Moreover, Art. 30.3 no. 87/1953 states «Provisions declared as unconstitutional cannot find

application from the day following the publication of the decision. » which implies that

decisions of unconstitutionality of the Court have full retroactive effects.

In case of conflict between a provision of ordinary law and a constitutional provision, you

solve the conflict by using the criterion of hierarchy (vince la costituzione obv).

Exceptions to full retroactivity

The exceptions to full retroactivity are inspired to the principle of legal certainty, and are:

• Declarations of unconstitutionality do not affect relations that have been concluded

“rapporti esauriti” or “res iudicata”: for reasons of legal certainty, these decisions do

not affect situations that were already resolved by final judgments, claims that are

barred by statutes of limitation, and the like. Such decisions are final and cannot be

appealed.

However, in cases concerning imprisonment and criminal proceedings, even if the judgment

is final (so it is a chose jugée), if the criminal conviction has been entered pursuant to the

law now declared unconstitutional: the law provides that such a conviction and any related

punishment should cease (if the person is in jail, they are to be released). This is because

“habeas corpus” prevails over legal certainty.

The ICC has states, however, that retroactivity «only applies to legal relations that are still

producing their effects, and hence does not apply to those the effects of which have expired,

which continue to be regulated by the law struck down as invalid» (Decision no. 139/1984)

Limited management of the effects

According to Article 136.2 only decisions of unconstitutionality are deemed to be formally

binding.

No open possibility to use tools practiced by other constitutional Courts (e.g. in Germany):

• Fristsetzung (to set a future moment when the effects of the declaration of

unconstitutionality will start to run)

• Unvereinbarkeit (declaration of «simple» incompatibility, without the effects of the

declaration of unconstitutionality)

The Court has developed a rich variety of judgments, that arise from the need, recognized

by the Constitutional Court itself, to limit the impact of its decisions on the legal system as a

whole and on other branches of government, particularly the Judiciary and the Parliament

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Therefore, the ICC has been using some “intermediate” decisions, while using a variety of

tools to try and manage the effects of its decisions:

• Interpretative decisions: the law is not unconstitutional, because the interpretation

of the referring court was wrong. In this way the Court says what it the right

interpretation

• Manipulative decisions: these are decisions that manipulate the text and are,

a. decisions of partial unconstitutionality (only a part of the provision is

considered unconstitutional).

b. Integrative («the law is unconstitutional because it does NOT foresee that…»)

c. Substitutive («the law is unconstitutional because it foresees X instead of Y»)

• Additive of principles (when no clear solutions are available) The Cort sends a

message to Parliament, pointing out the principle of the constitution according to

which parliament must regulate on the matter.

Temporal Effects

Two general cases:

1. Unconstitutionality of the laws older than the constitution (In Germany is not like

this)

For example, decision no 1/1956 stated that laws from the fascist period were not

abrogated with the entry in force of the constitution, but they were with this decision,

deemed unconstitutional.

Thanks to this decision many pieces of legislation coming from the fascist regime were

repealed.

Starting with Judgment no 1/1956, the Constitutional Court, instead of taking sides in

existing political disputes, emerged as a defender of the anti-fascist constitution that was

hammered out on the basis of an agreement between all the political parties. Despite the

personal and professional records of some of its members,19 the Constitutional Court was

able to do its job and to disseminate the new constitutional principles within a legal system

that was very much in need of renovation.

2. Decisions on laws which became unconstitutional because of a later fact of

constitutional relevance (‘supervening unconstitutionality’) --> they are not

unconstitutional at the beginning but may become unconstitutional with time.

a. A law becoming unconstitutional because of a subsequent constitutional

amendment

b. Decision no. 266/1998 --> a law becoming unconstitutional because of a new

interpretation of a constitutional principle emerging from a decision of the

ICC taken meanwhile 49

c. Decision no. 178/2015 --> a law becoming unconstitutional because it

violates a subsequent decision of the European Court of Human Rights (which

means a violation of art. 117.1 of the IC)

In these cases, unconstitutionality starts when the contrast occurs (for example, when the

constitutional amendment was made), therefore, the decision of the ICC does not have full

retroactive effects.

Special cases

• ICC no. 10/2015, one of the most controversial cases of the ICC. “Robin Hood Tax”

Decree-law no. 112/2008 introduced an additional tax targeting big energy companies, with

the aim to drain resources from a sector less affected by the starting economic crisis and

using this additional income with the prohibition to transfer the costs in the increase of

fares on customers.

The Constitutional Court found this tax to be in contrast with art. 3 and art. 23 of the

Constitution.

The decision specifies that the provisions introducing the tax are unconstitutional «with

effect from the day after publication of this Judgment in the Official Journal of the Republic»

Explanation for these deferred effects (§ 7 and § 8 in law) --> There are no full retrospective

effects. effects, because: « The role assigned to this Court as the guarantor of the

Constitution requires it to avoid any declaration that a statutory provision is

unconstitutional from resulting paradoxically, in «effects which are even more incompatible

with the Constitution» (see decision no. 13 of 2004)

«The institutional task vested in this Court requires the Constitution to be systematic and

unfragmented protection guaranteed as a unitary whole in such a manner as to ensure»

(see decision no. 264 of 2012)

«In the present case, the retroactive application of this declaration of unconstitutionality

would result first and foremost in a serious violation of the balanced budget requirement

under Article 81 of the Constitution »

• ICC no. 1/2014: The unconstitutionality of the electoral law

The court found the law used to elect parliament to be unconstitutional. The ICC however

did not take the consequence of the necessary dissolution of the Parliament (or the

invalidity of the laws passed meanwhile), considering the electoral process as a «closed

relationship»

• ICC, order no. 207/2018,

• Judgment no 242/2019 (CAPPATO CASE!) --> The court gave parliament time to

regulate the matter in a way that could be considered constitutional, saying that

they gave parliament 1 year and then they would consider the case again.

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