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

2. 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

3. 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)

4. 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

5. 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)

6. 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

7. 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?)

8. 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)

9. 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

10. 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

11. 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

12. 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

13. 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