Consulta OnLine (periodico online) ISSN 1971-9892
2023/II
Maggio-Agosto
PARTE I
STUDI
LOREDANA MURA
(25.07.2023)
Abstract
This essay examines the “particular forms and conditions
of autonomy”, mainly concerning the foreign trade sector, provided for by
Article 116 of the Italian Constitution. In this sense, it compares the forms
and conditions of “special autonomy”, already recognised
(even if never implemented) in the matter, with those of “differentiated
autonomy” that aspire to be recognised in our legal
system, noting their relevant differences also in relation to their respective
degree of compatibility with the prescriptions of the regulation in force. The
essay therefore concludes by observing that a constitutionally and
internationally oriented interpretation of Article 116 of the Italian
Constitution can only legitimise “particular forms
and conditions of autonomy” aimed at overcoming situations of regional
disadvantage that cannot be achieved through the exercise of the “ordinary”
statutory functions of the Regions. In this sense, the provisions of this
article can be well reconciled with the “special” forms and conditions of
autonomy already recognised in our State today, which
(if implemented) will make it possible to address the structural and permanent
regional problems for which they were instituted; on the other hand, it may
also be considered compatible with the recognition of “additional” and
“extraordinary” forms and conditions of autonomy provided that they are aimed
at enabling, the territorial entity invested with them, to overcome supervening
and contingent situations of disadvantage.
ALESSANDRO ROSARIO RIZZA
Il ricorso per conflitto tra poteri
dello Stato e l’eccesso giurisdizionale. Limiti e presupposti
(20.07.2023)
Abstract
The paper addresses the problem of excessive
jurisdictional power. In particular, the possibility of appealing to the
Constitutional Court to have the violation ascertained is analysed.
MATTEO MILANESI
(17.07.2023)
Abstract
This paper analyzes the judgment of the Italian
Constitutional Court no. 110/2023, which has affirmed that irremediably-obscure
legal rules are invalid for the violation of art. 3 of the Constitution. The
article examines critical elements of the decision and purposes an alternative
exegetical solution, which can be identified in the principle of certainty of
law.
LUCA DI MAJO
(13.07.2023)
Abstract
The Constitutional Court, with its judgment n.
110/2023, returns to the issue of the quality of legislation. The case law on
the subject has often been vague, because of the difficulty of seeking a
constitutional parameter that would allow the Court to sanction the obscure
law. With the pronunciation in comment seems to have found a wider perspective
for the union of constitutionality through art. 3 Cost.
SILVIO TROILO
(13.07.2023)
Abstract
The essay, also written to honour
the memory of Professor Gladio Gemma, dwells on the collective interest to
health and on the paradigmatic case of the compulsory vaccination against
Covid-19 imposed on certain categories of subjects. The introduction of such an
obligation through an act with the force of law, then converted into an Act of
Parliament, the purpose of protecting public health and the most fragile
persons, and the absence of forced subjection to treatment are elements that
highlight the certain constitutional legitimacy of the legislation in question,
as held by much of the doctrine, including Gladio Gemma. In fact, in the end,
the Constitutional Court also sanctioned the legitimacy of the Covid
vaccination obligation, in its rulings No. 14 and No. 15 of 2023.
FRANCESCO CIRILLO
Neurodiritti: ambiguità della “libertà
cognitiva” e prospettive di tutela
(12.07.2023)
Abstract
The progress of neurosciences and neurotechnologies led to the proposal of new neurorights to react to the unusual need for protection
aroused by the risks of technological interference. The contribution deals with
the critical perspectives and dogmatic questions of neurorights,
starting first from the relationships between cognitive sciences and the
conceptual categories of legal culture, therefore, investigating the practices
of neurotechnologies and the possible risks for the
rights of the person and the normative dimension currently referable to this
area (in biolaw, in criminal procedure, and on the
data protection front). Based on these analyses, we examine the main proposals
in the field of neurorights. Then, we analyze the
conditions and limits of the affirmation of new dimensions of protection in the
broader framework of the theoretical-general reflection.
DORINDA CACCIOPPO
(12.07.2023)
Abstract
The aim of this paper is to analyse
the information imbalance between institutions and practical reality through
the study of a concrete case. The law intended to equate the method of
biodynamic farming with that of organic farming allows for a cross-cutting
investigation. The issue involves themes that are now essential to the
constitutional debate: the relationship between politics and science,
legislative discretion and the problem of constraints arising from notions
borrowed from technology and science. Furthermore, the analysis of the
instrument of the informal hearing in the parliamentary enquiry leads the
research to question the appropriateness of introducing scientific advice in
Parliament. An operation perhaps required to balance the forementioned
information asymmetry.
VALENTINA MILANESE
Lavoro pubblico “contrattualizzato”:
responsabilità per ritardata assunzione
(08.07.2023)
Abstract
The purpose of this essay is to address the issue of
damage from delay in hiring of a public employee. The delay may be due to the
adoption of unlawful administrative measures in the course of the procedure or
to the lack of founds to be able to proceed with
recruitment.
The majority jurisprudence qualifies the liability
of the public administration for delayed hiring of public employee as
non-contractual liability, to which, however, it applies the schemes of
pre-contractual liability, since, generally, in the terms that will be
illustrated, it grants compensation for negative interest only. It should be
kept in mind that delayed recruitment of a public employee does not only result
in harm to the candidate placed in service with delay. In fact, this particular
case involves the onset of additional problems, such as the possible violation
of the articles 3 and 51 of the Constitution and increased workload for other
public employees working at the same public entity that has delayed hiring a
new employee, with the possibility that, due to the failure to achieve the
objectives ascertained by the performance evaluation procedure, managerial
liability also arises.
ARMANDO GIUFFRIDA
(08.07.2023)
Abstract
The contribution, based a broad jurisprudence,
highlights the essential profile of the duties and responsibilities which, in
the ambit of the foreigner's integration process, goes hand in hand with the
profile of the protection of fundamental rights. Especially with regard to
those who are in Italy for purely economic reasons or in situations of
irregularity or illegality, it does not appear unreasonable to request, from
the first entry into the national territory, a greater degree of responsibility
and the assumption of certain obligations towards the host community, and
therefore a greater effort to integrate into the community itself, albeit with
all the necessary precautions and graduating the degrees of responsibility
according to the particular subjective situations.
ANTONIO MALASCHINI
ChatGPT e simili: questioni giuridiche
ed implicazioni sociali
(06.07.2023)
Abstract
After clarifying what ChatGPT is, the essay
examines its potential and the risks associated with its use. The focus moves
to intellectual property, copyrights and patents in data acquisition.
Particular attention is given to the importance of the data available to
"the machine". In the final part, the author examines the ongoing
debate on generative artificial intelligence, highlighting the ethical, social
and historical issues that the rapid development of this tool entails.
GIACOMO MENEGATTO
(06.07.2023)
Abstract
This paper starts from a new case of promulgation
of a law complemented by a letter sent to the Presidents of the two branches of
the Parliament and to the President of the Council of Ministers. It focuses on
the current admissibility, in the Italian legal system, of a partial
promulgation of the laws and, therefore, of a partial suspensive veto that the
President of the Republic could exercise towards the laws. To give an answer to
this question, the essay will analyze the Acts of the Constituent Assembly on
the topic, the normative context and the custom the Presidents followed during
the Republican history. Then, it will explore the (in)opportunity of the
insertion of such an institute in the Italian Constitution and it will examine
some aspects of the veto policy in relation to the laws that convert the
governmental decrees.
FRANCESCO SEVERA
(01.07.2023)
Abstract
The paper draws up a reflection regarding the
proportionality of administrative sanctions starting from the most recent
constitutional jurisprudence, in particular from sentence n. 40 of 2023. The reflection examines
the topic from the aspect of both its substantive and procedural implications.
Under the first point of view, reference is made to the qualification of
proportionality as a right or as a principle and to the consequences of preferring
one or the other definition. Under the second point of view, it is investigated
the sustainability of the so-called “schema Modugno”, noting its critical
points and proposing new rules of procedural method that impose recourse to
“rime obbligate” only as an extrema ratio.
ALESSIA CONTI
L’ergastolo
ostativo che move la Corte costituzionale e l’altre stelle
(26.06.2023)
Abstract
This article takes
inspiration from the constitutional trial on the obstructive life sentence,
which, after two postponements to a fixed date waiting for the action of the
lawmaker (ord. nn. 97/2021 and 122/2022), ended with the return to the referring Court due
to ius superveniens (ord. n. 227/2022). The new legislation is of governmental origin:
it is the Decree-Law No. 162/2022, adopted by the executive a few days before
the hearing set for the discussion. In this way, the Court considered the
warning to the “legislator” fulfilled even though the required intervention was
acted by a (temporary) governmental decree-law and not by parliamentary law.
The constitutional story of
the obstructive life sentence provides an opportunity to reflect both on the
governmental legislation and on the dialogic-relational dimension of the
Italian Constitutional Court, extended to the government.
ANTONIO RUGGERI
(22.06.2023)
Abstract
The paper highlights the
features of convergence and sometimes real identity that are found between some
truths of faith and some incontrovertible constitutional truths, starting from
the one that sees in the human person a "metavalue",
thus examining the corollaries that from it linearly descend. Particular
attention is paid to the value of peace, understood in a broad sense, that is
to say for the importance it assumes on the level of the relationship of the
person with himself and with his fellow men, even before that of international
relations. The study concludes with an examination of the deadly theoretical
question relating to how to reconcile the conceptual and juridical specificity
of each fundamental value with the vocation of all to structurally integrate
each other.
MARIO BERTOLISSI
(22.06.2023)
Abstract
Article 116, 3 sec., of the
Italian Constitution has been designed to enable regions, disadvantaged by
their geographical location, to eliminate or at least mitigate existing
disadvantages in relation to neighboring regions. In this situation, there is only
one Region: Veneto, which requested more autonomy, using the constitutional
novel of 2001. It happened, however, that almost all the regions were
activated, causing chaos, which generated, among the publicist's researchers,
an impressive number of abstract elaborations. However, this contrasts with an
indisputable premise: autonomy cannot be for everyone, but only for those who
are culturally and psychologically autonomous. The
Calderoli bill goes along those lines.
MASSIMILIANO MEZZANOTTE
(21.06.2023)
Abstract
The right to be forgotten
regarding oncological diseases protects so-called cancer survivors from those
data that do not consider that the passage of a certain period of time since
the last health treatment carried out can lead to their previous pathological
state being forgotten, especially in the presence of treatments carried out for
reasons inherent to loans or mortgages. A special discipline is envisaged in
some states; for its part, the European Union foresees the approval of a law by
member states by 2025. In Italy, after an initial attempt, a legislative
initiative by CNEL is being discussed to introduce this right in favor of a
particularly fragile category of individuals.
ROBERTO DI MARIA
(19.06.2023)
Abstract
The paper analyses the
matter of the “parliamentary unquestionability”, as provided by the art. 68,
par. 1, of the Constitution. After the reform of the 1993 – which actually
regarded only the “immunity” – the Constitutional Court severely and progressively
restricted its jurisprudence regarding the application of the first of the
aforementioned prerogatives, as a result – it is inferred – of the social and
political crisis that led both to the constitutional reform and to a new
balance between Parliament and Judiciary. Although such jurisprudence has
shored up through the years, nowadays it is legitimate to ask if it still is
currently related to the new forms of expression that characterize – also – the
political communication: social media, etc. And then, if time has come to
revise the positioning of the Constitutional Court on the “parliamentary
unquestionability”.
CLAUDIO PANZERA
Titolarità
dei diritti fondamentali e società democratica
(19.06.2023)
Abstract
The essay, also written to
honor the memory of Professor Gladio Gemma, dwells on the recognition of
fundamental rights beyond citizenship. Dialoguing with Gemma's thought on the
aims and limits of a constructive interpretation of constitutional rights of
aliens, the paper focuses on the concepts of 'democratic societies' (within the
ECHR) and 'constitutional pact' (within national legal orders) as normative
backgrounds for interpreting and balancing operations of both the political
bodies and the judiciary. It finally tests this theoretical framework in the
paradigmatic case of the right to asylum and the access to territory.
(12.06.2023)
Abstract
The short paper highlights
the innovations contained in decision no. 110/2023 of the Constitutional Court
which finally establishes an autonomous parameter of validity for violations of
legislative drafting.
UGO ADAMO
La
legge dimenticata. Le
D AT a cinque anni dalla
loro introduzione
(08.06.2023)
Abstract
More than five years ago,
Law N. 219/2017 came into force. This law transformed the principle of
self-determination and the choice to refuse medical treatment into positive
law. This law also regulated the directives capable of deciding ‘today for
then’, which are now referred to as ‘Advance treatment provisions’. Not much
time has elapsed since the approval of Law No. 219/2017, but this time allows
us to make some considerations about it and the difficulties of its
implementation. This difficulty is mainly due to the understanding of the legal
institution, as can be deduced from the ‘Alfredo Cospito case’, which is
already dramatic and susceptible to generates conflicts and disharmonies in the
legal system.
MARCO LADU – NADIA
MACCABIANII
L’autodeterminazione popolare nell’era digitale: tra
opportunità normative e tecnologiche
(03.06.2023)
Abstract
The paper, after a brief
introduction of the risks and opportunities entailed by the digital
transformation process in respect of the right to vote, focuses on some legal
(§ 4) and technological (§ 3) developments in order to understand in which
terms they intersect with the constitutional purposes that referendum underlie
(i.e. the strengthening of popular self-determination). In this last respect,
any new right is requested but rather the enhancement of traditional principles
and rights by means of further specific “qualifications” that aims at
reinforcing both, the awareness and empowerment of the voter. Consequently, the
pivotal issue falls on the implementation of those prerequisites that support
the voter's ability to take “direct decisions” for the collective life by means
of technological tools functional to his empowerment (what we deem could be
found in the double arrangement between referendum and technological systems
like blockchain and gamification), as well as by means of regulatory tools functional
to his awareness (what we deem could be found in the address followed by some
European initiatives that support equity and transparency).
ANTONIO RUGGERI
Costituzione
e verità (prime notazioni)
(03.06.2023)
Abstract
In the opinion of the
author, the Constitution, alongside certain indisputable truths, refers to
truths still in the making, the object of uncertain semantic reconstructions,
dwelling on the relationship of mutual nourishment that exists between them and
develops in experience. In this perspective, are examined some tenacious,
albeit inexplicable, resistances opposed by political decision-makers and
legislators to accepting some scientific truths and to offering them the
opportunity to become constitutional truths. That is a matter of the
fundamental right to the truth and of how it is placed before other fundamental
rights. The study concludes with a brief reflection on the relationship between
text and constitutional truths and on its developments as a consequence of the
cultural habits of their recognition.
SILVIA FILIPPI
(31.05.2023)
Abstract
The essay analyzes the
recent Italian Constitutional Court case law concerning law-decrees, with
specific reference to the concept of homogeneity. The paper aims to identify
whether it is possible detecting some
recurring elements in the constitutional jurisprudence concerning law-decrees
conditions, in order to identify the violations of the principle of homogeneity
in the forthcoming judicial cases.
ANGELO LICASTRO
(18.05.2023)
Abstract
The Court of Justice of the
European Union has ruled that the grant of public subsidies to denominational private
schools may be reserved for churches and religious societies recognized by a
Member State. The Court has held that the recognition requirement under
national law complies with EU law and, in particular, with article 49 TFEU (on
the right of establishment), read in conjunction with Article 17(1) TFEU.
According to the Author, this is the first time that the principle enshrined in
Article 17(1) TFEU impacts on the scope of application of the basic principles
of EU free market law.
MARCO PODETTA
(17.05.2023)
Abstract
This paper analyzes some issues related to the implementation of the
so-called differentiated regionalism in the light of the relevant provisions of
the 2023 budget law for 2023 and the Calderoli draft
law presented at the beginning of the XIX Legislature. In particular, the
research tries to highlight the need to strengthen the role of the Parliament,
the inadequacy of the funding mechanism, and the incorrect method of
determining the essential levels of services and the financial resources.
LOREDANA MURA
(04.05.2023)
Abstract
The article relates the
outcomes of Constitutional Judgment No. 131 of 2022 to those that have matured
within the framework of well-known and established European systems, such as
that of the EU and the ECHR. In this sense, it deals not only with the issue of
the transmission of surnames to children, but also with closely related issues,
such as equality and non-discrimination, personal identity and domestic
violence in the light of the repercussions they have on minors and, more
generally, on present and future young generations. The overall results of this
survey show, therefore, that the elaboration effort made by our Constitutional
Court if, on the one hand, it proves to be new and interesting, on the other
hand, however, it has several limitations that make it necessary to complete
it. An objective, the latter, that cannot be achieved without abandoning
outdated and counterproductive operational models and, on the other hand,
seeking solutions that can credibly and effectively resolve the current problems
in full respect of the principles and values that revolve around the human
person.
Consulta OnLine (periodico online) ISSN 1971-9892