Italian Constitutional Court Constitutional Law A.Y. 2016/17

Table of contents Composition of the Court Functions Judicial review of legislation Typology of decisions Effects of judgments Other functions Disputes between branches of government Disputes between State and Regions (and among Regions) Admissibility of abrogative referendums Judgement of the President of the Republic

Composition of the Court 15 members: 5 appointed by the President of the Republic 5 elected by the Parliament in joint session (with a 2/3 majority in the first two rounds; after the second round, a 3/5 majority is sufficient) 5 elected by the Highest judges: 3 by the Court of Cassation 1 by the Council of State 1 by the Court of accounts There is no prorogatio (consequently, any delay in the renewals will determine that the Courts operates not in its plenum. At least 11 judges are necessary, however) Currently: 14 judges, 1 missing (to be appointed by the President of the Republic)

Functions (art. 134) Judicial review of legislation Disputes (“conflitti di attribuzione”) between branches of government Disputes between the State and the Regions and among Regions Admissibility of abrogative referendum requests (since 1970) Compliance of regional statutes («Statuti») with the Constitution (art. 123, as reformed in 1999): a form of judicial review? Judgement of the President of the Republic (upon the impeachment issued by the Parliament), in special composition

Judicial review of legislation Justiciable acts: primary sources («parliamentary legislation and other acts with the same rank») Only (!): Parliamentary legislation (also constitutional amendment laws) Regional statutes Decree-laws Legislative decrees Access to the Court: State/regional reference (principaliter proceeding) Court reference (incidenter proceeding)

Principaliter proceeding (mainly) about the division of legislative competences between State and regions, as established in art. 117, par. 2, 3 and 4 After the constitutional amendment in 2001, it is always on laws already in force Even after the constitutional reform in 2001, still an asymmetry between the two parties: 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 State

Incidenter proceeding «during a court case before a judge» (“processo”, “giudice”) notion of «processo» => objective requirement notion of «giudice “a quo”» => subjective requirement Centralized system of judicial review ONLY the Constitutional court is empowered to strike down legislation Filter function of the individual judge, called to analyse some pre-conditions: Relevance of the doubt (“question”) The doubt must be “not clearly unfounded” (consistent interpretation?)

Basic elements of the judgement Question of constitutionality: a doubt of non-compliance between the object and the parameter Object: the norm to be applied Parameter: the Constitution (or the constitutional norm) that the applicant assumes to be violated by the object «norma interposta»: a norm that integrates the parameter in the judgement on the object (e.g. the parliamentary statute of delegation in the judgement upon the legislative decree: decision no. 3/1957)

Typology of decisions Question of constitutionality: a doubt of non-compliance between the object and the parameter The Court answers the question with Judgments (“sentenze”) Orders (“ordinanze”) Judgments Acceptance/dismissal (also partial) Interpretative (norms, not provisions…) Manipulative

Effects of the judgment Acceptance judgments: Annulment of the object General effects (erga omnes) Retroactive effects (ex tunc), with the exception of already judged cases Dismissal judgments The same question can not be raised again by the same judge in the same court case (but a different judge, or even the same judge, may raise a different question about the same object) Interpretative judgments The Court declares a certain interpretation of the given wording as unconstitutional

Disputes between branches of government Notion of «potere dello Stato» Constitutional bodies Individual judge (… judiciary as a diffused power) Promoters of the abrogative referendum … Excluding Political parties Parliamentary minorities/groups/individual MPs individuals

Disputes between State and Regions (and among Regions) Different from principaliter proceeding within judicial review of legislation It is not based on a piece of legislation (but on a norm of lower rank or, more frequently, on an administrative act or on a concrete behaviour) E.g.: a Region challenging the administrative act to build an infrastructure; a Regional council questioning the decision of the Court of account on parliamentary groups 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 Residual nature of the dispute as a judicial remedy

Admissibility of abrogative referendums Art. 75, some categories are expressly excluded, such as Ratification of international treaties Budget and tax laws Pardon laws These criteria have been refined by the Court Judgment 16/1978 Clarity, unambiguity, homogeneity of the question Exclusion of “constitutionally necessary” laws