Consulta OnLine (periodico online) ISSN 1971-9892

 

 

INDICE PER AUTORI

A-E        F-P         Q-R

 

2018/I

gennaio – aprile

 

 

PARTE I

STUDI

 

 

 

CARLA DI MARTINO

Leggi retroattive di contenimento della spesa pubblica e giusto processo (a margine della sentenza della Corte costituzionale n. 12 del 2018)

(27.04.18)

Abstract

Retroactive laws to contain public spending and due process (on the sidelines of the sentence of the Constitutional Court n. 12 of 2018)

The essay deals with the limits imposed to the legislature to enact retroactive laws in “civil matters”. The existing dichotomy between the European Court of Human Rights’ and the Italian Constitutional Court’s jurisprudence on the topic is considered as well.

The European Court of Human Rights has repeatedly ruled that the legislator is not prevented from regulating, through new retrospective provisions, rights derived from the laws in force. Nevertheless, the principle of the rule of law and the notion of a fair trial enshrined in Article 6 of the European Convention of Human Rights preclude, except for compelling public-interest reasons, interference by the legislator with the administration of justice designed to influence the judicial determination of a dispute. Statutory pension regulations are liable to change and a judicial decision cannot be relied on as a guarantee against such changes in the future, even if such changes are to the disadvantage of certain welfare recipients. However, the State cannot arbitrarily interfere with the process of adjudication.

Differently, the Italian Constitutional Court tends to recognize the possibility for the legislator to enact retroactive laws, if it is sufficiently justified under the reasonableness standard (S.F.)

 

 

UGO ADAMO

Materia “non democratica” e ragionevolezza della legge

(04.04.18)

Abstract

"Undemocratic" matter and reasonableness of the law

The author analyzes the standard of reasonableness of law in relation to scientific subjects, characterized by methods and rules known only to scholars of the discipline. The author wonders what is the role of reasonableness in the choices of the legislator (which is assumed reasonable when scientific knowledge is lacking) and in the engagement of technical experts (becoming a parameter of substantive legitimacy of the legislative activity). Finally, the author analyzes some decisions of the Constitutional Court in which scientific reasonableness emerges as a criterion. In conclusion, judgment n. 5 of 2018 (related to the obligation of vaccinations) is commented (S.F.).

 

 

CRISTINA NAPOLI

Uno sguardo al futuro muovendo dagli errori del passato: la sfida del ricorso diretto delle minoranze parlamentari

(04.04.18)

Abstract

A look at the future moving from the mistakes of the past: the challenge of direct appeal to parliamentary minorities

Starting from the investigation about the adequacy of the tools available to the Constitutional Court and given the need to apply procedural rules also in the disputes before the Constitutional Court, the author examines the possibility for parliamentary minorities to directly lodge an application with the Constitutional Court. The author takes into account the wide scholarly debate, divided between those who are against this possibility and those who, although not totally favorable, do not exclude it a priori. The author argues that in the Italian legal system it would be possible to grant parliamentary minority the chance to bring proceedings before the Constitutional Court as an ex post review (thus, the judgment would not influence the iter legis and parliamentary minorities could not resort to this possibility for obstructionist purposes), triggered by at least one fifth of the deputies or senators; the object of the judgment could be extended, including violation of parliamentary rules (S.F.).

 

 

DONATELLA LOPRIENO

Regionalismo e immigrazione. Le risposte degli ordinamenti regionali italiani al fenomeno migratorio

(04.04.18)

Abstract

Regionalism and immigration. The responses of the Italian regional systems to the migration phenomenon

The article analyzes the answers provided by the Italian legal system, composed of the State and the Regions, to the migration phenomenon, examining in particular measures adopted by the most exposed Regions, namely the Southern ones. There is a difference in the approach of regional governments, in particular between the North and South of Italy, on issues of work and immigration policy, due to a different impact on the unalike geographical areas and regional interventions in the field of immigration; the Southern regions appear more inspired by the constitutional principle of solidarity, perhaps also because of the desire to counter the «ongoing loss of citizens (S.F.).

 

 

ROBERTO CONTI

La legge 22 dicembre 2017, n. 219 in una prospettiva civilistica: che cosa resta dell’art. 5 del codice civile?

(04.04.18)

Abstract

The law of 22 December 2017, n. 219 in a civil law perspective: what remains of the art. 5 of the civil code?

The article concerns the analysis of law no. 219/2017 (rules on informed consent and advanced treatment instructions), expected for several years, in which the role of courts’ case law was decisive; the author focuses on some key parts of this piece of legislation, also referring to the ECHR’s case law on the right to life and self-determination and remarking the existence of a legislative legal vacuum (some possible solutions are proposed in this regard) in law no. 269/2017 « (S.F.).

 

 

VITTORIA BERLINGÒ

The New Italian Code of the Third Sector: towards a New Model of Welfare

(29.03.18)

Abstract

The New Italian Code of the Third Sector: towards a New Model of Welfare

The paper explores the links between the new rules of the Italian Legislative Decree no. 117 of July 3, 2017, know as Code of the Third Sector, and a specific theory on the Italian Welfare system regarding the safeguarding of social rights and other related guarantees. In particular, the paper shows how cooperation between Third Sector entities and public bodies is able to introduce a particular type of goods, called relational goods, into a specific legal area (S.F.).

 

 

GIOVANNI POGGESCHI

Ridere e deridere.La satira negli USA ed in Francia fra libertà individuale ed esigenze collettive

(26.03.18)

Abstract

Laugh and mock. Satire in the US and in France between individual freedom and collective needs

The author examines freedom of satire with reference to France and the USA.

The two examined countries offer common and at the same time different elements. The article analyzes satire, as part of freedom of expression, from a historical and legal perspective, pointing out some issues that arose in relation to the problem of racism (USA), to the laical state and to the relationship with religion (France). The contribution recognizes the current importance of freedom of satire also considering the evolution of technologies and diversity present in global law (S.F.).

 

 

ANTONIO RUGGERI

Dopo la sent. n. 269 del 2017 della Consulta sarà il legislatore a far da paciere tra le Corti?

(23.03.18)

Abstract

After the sent. n. 269 of 2017 of the Constitutional Court will be the legislator to act as peacemaker between the Courts?

The author believes that only an assertive intervention of the legislator can limit the serious risks of conflicts between Courts, potentially caused by the constitutional preliminarity and of the European preliminarity. The author does not support the hypothesis of the choice between the widespread and centralized system of constitutional review, but he argues in favour of a combination of the two systems, even if only in cases of joint violation of the Charters and through the intervention of the constitutional legislator. The author considers the proposed solution admissible, since it is about a joint violation of two «typically constitutional» documents, and he admits its extensibility to the ECHR, maintaining some perplexity with reference to the other Charters (S.F.).

 

 

DAVIDE GALLIANI

Sul mestiere del giudice, tra Costituzione e Convenzione

(22.03.18)

Abstract

On the job of the judge, between the Constitution and the Convention

The judge’s job is characterized by some problems, among which the fact that in the contemporary age he has to carry out his functions in a a complex context, having to perform his own interpretative activity taking into consideration not only the Constitution but also the ECHR. For these reasons, the author proposes some ideas aimed at reconsidering the foundations of the issue concerning motivation, without relinquishing basic principles (S.F.).

 

 

ANDREA BONOMI

Il reclutamento e il favoreggiamento della prostituzione al banco di prova dei principi costituzionali. Qualche osservazione alla luce di una recente ordinanza di rimessione alla Corte costituzionale

(22.03.18)

Abstract

Recruitment and facilitation of prostitution on the test bench of constitutional principles. A few remarks in the light of a recent referral order to the Constitutional Court

The author examines the ordinance of 6 February 2018, through which the Court of Appeal of Bari raised a question of constitutional legitimacy of the criminal provision punishing those who knowingly and voluntarily recruit and aid prostitution, with reference to articles 2, 3, 13, 25, c. 2, 27 and 41 of the Constitution. He examines potential grounds of unconstitutionality and, at the same time, asks himself whether the possibility to engage in prostitution  can be considered an inviolable right (in the sense of a right to express one’s own sexuality) deriving from article 2 of the Constitution (S.F.).

 

 

VITTORIA BERLINGÒ

L’effettività dell’integrazione lavorativa del disabile alla luce delle più recenti riforme della pubblica amministrazione

(14.03.18)

Abstract

The effectiveness of working integration of the disabled in the light of the most recent public administration reforms

This article deals with the evolution systems aimed at integrating disabled people into the labour market in an increasingly full and effective way. He analyzes the European obligations to protect disabled workers, their integration as regulated by the new Code of public contracts and recent domestic case law, in which a substantive approach favoring companies seems to prevail (even if not univocally) (S.F.).

 

 

VANESSA MANZETTI

Decretazione d’urgenza ed autonomia finanziaria di entrata degli enti territoriali: profili di finanza locale

(14.03.2018)

Abstract

Emergency decree and financial autonomy of financial income of local authorities: local finance profiles

The practice for the use of decree-laws in the context of local finance, despite having had periods of weakening, especially after the historic decision of the Constitutional Court no. 360 of October 17, 1996, has remained essentially constant since the years 1970s, creating a complex and multilayered field discipline, but most often characterized by impermanence and uncertainty.

The resulting ripple effect is therefore a continuing need to take measures to ensure that buffer in extremis the financial equilibrium of the entities, which have come to affect all sectors of the field.

And, alas, that effect has been gradually increasing in the wake of the current economic crisis and the urgent need to respect the financially compensated constraints imposed by EU, not so much with a view to strengthening the legislative branch of Government, but, more than anything, to overcome the endemic slowness of the current legislative procedure. (V.M.)

 

 

 

ALESSANDRO MORELLI

La riscoperta della sovranità nella crisi della globalizzazione

(12.03.18)

Abstract

The rediscovery of sovereignty in the crisis of globalization

The paper aims to reconstruct interactions between the paradigm of sovereignty and the process of globalization, in order to grasp some recent tendencies oriented to the recovery of a strong role of States in the dynamics of the supranational integration process. Several recent episodes suggest reflecting on the theme for trying to define a more realistic picture of the state systems status, in consideration of a possible slowdown in the process of expansion of human relations on a global scale. Such events could be the symptoms of a passing crisis or the forerunners of an epochal change, in which sovereignty could demand a central role also in supranational dynamics (O.C.).

 

 

ANTONIO IANNUZZI

L’obbligatorietà delle vaccinazioni a giudizio della Corte costituzionale fra rispetto della discrezionalità del legislatore statale e valutazioni medico-statistiche

(05.03.18)

Abstract

The mandatory nature of vaccinations in the judgment of the Constitutional Court between compliance with the discretion of the state legislature and medical-statistical evaluations

The sentence of the Constitutional Court no. 5 of 2018 rejected all the questions of constitutional legitimacy raised by the Veneto Region against the decree-law no. 73 of 2017, containing urgent provisions about vaccination, converted with amendments by the law no. 119 of 2017, which extended from four to ten the number of mandatory and free vaccines for minors from zero to sixteen and all unaccompanied foreign minors. The note focuses on some aspects of interest of the sentence: the incidence of the medical-scientific fact on the choice of the decree-law source, the judgment on the exercise of legislative discretion in comparison with the medical-statistical evaluations, the legitimacy of a decree-law with deferred effectiveness and the verification of the legitimacy of state intervention in material areas in which Regions also have competences (O.C.).

 

 

 

ANTONIO RUGGERI

Una prima, cauta ed interlocutoria risposta della Cassazione a Corte cost. n. 269/ 2017 (a prima lettura di Cass., II sez. civ., 16 febbraio 2018, n. 3831, Bolognesi c. Consob)

(23.02.18)

Abstract

A first, cautious and interlocutory reply from the Court of Cassation to cost. n. 269/2017 (first reading of the Court of Cassation, II civil section, 16 February 2018, No. 3831, Bolognesi v. Consob)

The decision confirm a hypothesis that emerged following sentence no. 269 of 2017 of the Constitutional Court, according to which, in the event of dual preliminarity, the legitimacy judge considers that the question of constitutionality should be privileged with respect to the preliminary question that can be raised pursuant to article 267 TFEU. Furthermore, the configurable scenarios also appear to be significant following a possible rejection of the Constitutional Court, particularly the threat by the Court of Cassation of the future disobedience to an indication by the Constitutional Court that improperly delimits the area of action of the preliminary ruling to the Court of Justice of the European Union (O.C.).

 

 

UGO ADAMO

«Senza distinzione … di religione». Libertà di manifestazione del pensiero e tutela del sentimento religioso

(23.02.18)

Abstract

"Without distinction ... of religion". Freedom of expression of thought and protection of religious sentiment

The purpose of the paper is to investigate the space recognized in the Italian constitutional order to the right of expression (which also includes that of satire) when the subject of discussion concerns religious faith. Furthermore, the author wants to probe the persistent space of protection offered to the religious sentiment that is configured as a criminal law limit to the exercise of freedom of expression. The essay wishes to go into the current legal framework (increasingly open to inter-state protection) and in the context of some important rulings issued by the European Court of Human Rights in recent decades (O.C.).

 

 

LUCA GRIMALDI – COSIMO PIETRO GUARINI

Su alcuni conflitti di attribuzione tra poteri dello Stato sollevati a seguito della «situazione venutasi a creare» con le ultime leggi elettorali (a margine delle ordinanze nn. 277 e 280 del 2017)

(07.02.18)

Abstract

On some conflicts of attribution between State powers raised following the "situation that arose" with the latest electoral laws (in the margins of ordinances 277 and 280 of 2017)

With the ordinances under review, the Constitutional Court declared the inadmissibility of four appeals for attribution conflict between powers of the State, promoted against the Government or the Houses. The conflicts have been raised following the situation that arose with the law no. 52 of 2015 (better known as Italicum) and with the approval of the law no. 165 of 2017 (better known as Rosatellum-bis). The paper explores the issue of procedural legitimacy of parliamentary subjects and citizens-voters in the conflict between powers, as well as the alleged abuse of the use of the matter of confidence and the consequent impact of this misuse on the protection of the electorate, on the freedom of vote of parliamentarians, on the exercise of their free mandate and on the parliamentary form of government (O.C.).

 

 

ANTONELLO LO CALZO

Il controllo di legittimità costituzionale sugli atti normativi interni di Camera e Senato (a margine della sent. n. 213 del 2017 della Corte costituzionale)

(30.01.18)

Abstract

The control of constitutional legitimacy on the internal legislative acts of the Chamber and the Senate (in the margins of the ruling n. 213 of 2017 of the Constitutional Court)

The sentence of the Constitutional Court no. 213 of 2017 addresses the topic of the application of the solidarity contribution to the pensions of former employees of the Chamber of Deputies. It also allows reflecting on the different approaches that the domestic justice organs of the Houses of Parliament adopt in the control of legitimacy on the "internal" normative acts, according to the relationship existing between these ones and the "general" law (O.C.).

 

 

PIERLUIGI TOMAIUOLI

L’ “altolà” della Corte costituzionale alla giurisdizione dinamica (a margine della sentenza n. 6 del 2018)

(24.01.18)

Abstract

The «stop» of the Constitutional Court to dynamic jurisdiction (in the margin of sentence no. 6 of 2018)

The note examines the decision no. 6 of 2018 in which, called to rule on the constitutional legitimacy of the forfeiture envisaged by article 69, par. 7 of legislative decree no. 165 of 2001, the Constitutional Court declared inadmissible due to a lack of relevance the matter proposed by the Court of Cassation in joint sections, seized with appeal for reasons related to jurisdiction against a sentence of the Council of State. This ruling is based on the conclusion that the discussed concept of dynamic jurisdiction is contrary to the notion presupposed by the Constitution in the eighth paragraph of the article 111 and it undermines the plurality of jurisdictions as thought by the members of the Constituent Assembly (O.C.).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Consulta OnLine (periodico online) ISSN 1971-9892