The conceptual definition of the constitutional court in italy. Giuseppe Franco Ferrari

1. THE CONCEPTUAL DEFINITION OF THE CONSTITUTIONAL COURT IN ITALY
GIUSEPPE FRANCO FERRARI
I. INTRODUCTION
The Italian Constitutional Court is not part of the judiciary. The judiciary power is ruled by Articles
101-110 (Section IV of Part II) of the Italian Constitution and is structured into three tiers, with the
Court of Cassation on top, though the relationship between the three levels is usually described as
non-hierarchical.1
Following the French model, the administrative justice system includes a first
instance of administrative tribunals, and a second instance Council of State, which also exercises a
consultative function with respect to the Government. The joint chambers of the Court of Cassation
are entrusted with assigning cases to “ordinary” or administrative justices in case of positive or
negative controversy about jurisdiction.2
The Constitutional Court does not belong to the judiciary; it is located out of it, not only in terms
of constitutional rules applicable to it (Articles 134-137), but also from the viewpoint of its very
nature. The Court itself for several decades,3
till a very recent decision,4
has qualified itself as a
non-judiciary body, in order to be exempted from the obligation to defer a question concerning the
interpretation of EU law to the European Court of Justice in Luxemburg, as all judges are
compelled to do. Therefore, it never works either as a Court of last instance or of appellate
jurisdiction. It does have jurisdictional nature, but its jurisdiction is limited to constitutional review,
that it confronts and manages in an exclusive way, being the authoritative constitutional interpreter
of the whole legal system, though Parliament is not precluded from rendering an authoritative
interpretation of the Constitution,5
under the ultimate control of the Court. However, its
interpretation, at the end of the day, is binding on judges, Parliament, Government and
administration only when it declares a statute unconstitutional, while in all other cases its decisions
have a merely moral authority, given that in Italy like in all civil law countries there is no precedent
doctrine, even in constitutional law matters.
The Italian Constitution is considered rigid, and not flexible, because it can only be revised or
amended through an entrenched procedure, implying two separate deliberations by each Chamber,
the second after a minimum time span of three months from the first one and with an absolute
majority of their members, with a further opportunity of confirmative referendum if a two-thirds
majority has not been reached. The Constitutional Court, like in Kelsen’s or Merkl’s theory,6
is
mainly the watchdog of the rigidity of the Constitution, presiding over the conformity of all acts of
Parliament to the Constitution, which could be by-passed through ordinary legislation, and
eliminating possible vices in the statutes or guaranteeing their perfection: this control is operated
both in a formal perspective, implying the relationship between two different types of norms, one of
which is stronger according to the rules governing the system of legal sources, and in a substantive
way, implying the protection of the core values included in the Constitution.7
These values are
either explicitly mentioned in the constitutional text or included in the Republican principle,
1
See A. Pizzorusso, Corte di Cassazione, in Enc. Giur., vol. IX (Roma, 1998).
2
See G. F. Ferrari, Giurisdizione amministrativa (diritto comparato), in Dig. Disc. pubbl., vol. VII (Torino, 1992),
pp. 567 ff.
3
See dec. 13/1960; 168/1991 e 536/1995.
4
Ord. 103/2008: see S. Bartole, “Pregiudiziale comunitaria e «intergrazione» di ordinamenti”, (2008) Le Regioni
898.
5
From a critical perspective see A. Ruggeri, Interpretazione costituzionale e ragionevolezza, in A. Pisaneschi, L.
Violini, Poteri, garanzie e diritti a sessanta anni dalla Costituzione (Milano, 2007), pp. 415 ff.
6
H. Kelsen, Wer soll der Hüter der Verfassung sein?, 1930-31 Die Justiz, Vi, 11-12; A.Merkl, Prolegomena einer
Theorie des rechtlichen Stufenbaus, in A. Verdross (Hrsg.), Gesellschaft, Staat und Rech (Wien, 1931), pp. 285 ff.
7
See for instance decisions 1146/1988, 366/1991, 73/2001.
1

2. exempted from revision according to Article 139. These supreme, intangible principles are not
subject to revision, at least in a regressive form, rendering their protection feebler or less effective.
The defence of the constitutional State (Verfassungsstaat) is entrusted to the Court, and it is
ordinarily supposed to include the interpretation of the so-called living constitution, combining
extensive constitutional review of legislative acts with a modern theory of legal sources in a theory
of the Constitution.
Of course, Italian and many other constitutional law scholars have wondered about the
legitimation of Constitutional tribunals in the exercise of such enormous powers. It is impossible
here to summarize a longstanding debate and its solutions. In brief, one can say that the
democracies of the part of the 20th century that follows the Second World War cannot find their
foundation simply in the democratic principles, but need to be strengthened through the principles
of a written constitution (“double legitimacy” theory).8
II. THE GENESIS OF THE ITALIAN CONSTITUTIONAL COURT
The Italian Constitutional Court is the first example of constitutional justice in the new European
order following the Second World War. The only models were the Weimar Court, mostly in charge
of the conflicts between the federal State and the Länder, the Austrian and Czechoslovakian Courts
of 1919 and 1920, and the shortly lived Tribunal Constitucional of the Spanish Republic of 1931.
The Constitutional Assembly, elected on 2 June 1946, paid a lot of attention to the judicial review
of legislation, though the supporters of the new organ had much difficulty in prevailing over the
opposition of the Marxist left-wingers like Togliatti, who did not want the ideas of popular
legitimation of government and parliamentary supremacy to be overturned through the creation of a
judicial body overseeing Parliament, and the small group of pre-war liberals, like Orlando and Nitti,
who preferred to stick to traditional concepts or to simply allocate such functions to the Court of
Cassation.9
Several young professors, like Costantino Mortati, Giorgio La Pira, Paolo Rossi, Tomaso
Perassi, succeeded in persuading the majority that the rigidity of the Constitution needs to be
defended both in a formal and in a material meaning by a judicial body, at the same time in charge
of the decision of any conflict between State powers and/or the newly created Regions and the State
itself. A further problem was how to trigger the new judicial mechanism: it was solved by deferring
it to a constitutional statute (Article 137, para. 1), which was however promptly approved by the
same Assembly before being dissolved in Spring 1948 (Constitutional Law 1/1948). The American
model was not seriously considered applicable, as much as a year later in Germany, where the
control of the American forces over the committee entrusted with writing the text of the
fundamental law was quite strict. Various reasons supported this almost unconscious choice. First
of all, the judiciary had not resisted the strengthening of the fascist dictatorship, swearing the oath
of loyalty without problems, witnessing the exclusion of Jewish judges in 1938, and even the
factual abrogation of the Statuto Abertino, without apparent reaction; all the three biggest parties
believed it was better to make serious changes in the State structure, instead of letting the “fascist
parenthesis”, in the famous words of Benedetto Croce, close without continuity solution, with the
return of the same personnel to delicate power positions. Secondly, all over Europe the separation
of powers, though strongly mentioned in the famous Article 16 of the French Declaration of rights,
has never been carefully implemented in the concrete organization of government, making the
judiciary fully independent and able to confront the Executive and Parliament.10
Moreover, once
8
T. Martines, Indirizzo politico, Enc. Dir., vol. XXI (Milano, 1971); A. Spadaro, Una Corte per la Costituzione.
Nota sull’originaria e prioritaria funzione della Corte costituzionale, in Studi in onore di P. Biscaretti di Ruffia, vol.
II (Milano, 1987), pp. 1237 ff.; G. Burdeau, La démocratie. Essay sintetique (Neuchatel, 1956).
9
G. D’Orazio, La genesi della Corte costituzionale (Milano, 1981), pp. 58 ff.; C. Mezzanotte, Il giudizio sulle leggi.
Le ideologie del Costituente (Milano, 1979).
10
G. Rebuffa, La funzione giudiziaria (Torino, 1993).
2

3. assimilated the idea of a control over the exercise of popular sovereignty, the main parties accepted
a constitutional court as a body able to umpire between State powers and between State and
regional autonomies, but were not prepared to stand a direct petition against the State filed for the
protection of a right in any court. Finally, the absence, in Italy, like in all the other civil law
countries, of the stare decisis principle could have rendered the annulment of any statute provision
by any judge, though under the final decision of the Court of Cassation, quite puzzling.11
Once created, the Constitutional Court still had to be concretely activated. It took seven years,
till 1955, before all the fifteen judges could be elected or nominated, and the two constitutional
(Constitutional Law 1/1953) and ordinary (Law 87/1953) statutes necessary to its working could be
approved. The first decision could be published in April 1956. The delay in starting the whole
machinery by some contemporary interpreters was ascribed to a kind of “majority filibustering”:12
the Christian Democrats, at that time the relative majority party, would have lost interest, in the new
Cold War context which had generated a strong hostility toward the Communist Party and its allies,
for the implementation of reforms that could have limited their hold on political power. More recent
reconstructions seem to reach different conclusions.13
Incidentally one should mention that in the years prior to the activation of the Court its function
should have been carried out by the judges in a diffused way, exactly like in the United States,
according to the VI Final Disposition to the Constitution. The ordinary judges did not feel like
confronting the unconstitutionality of statutes: the main argument to apply such “passive virtues”
was that most of the provisions of the new Constitution, in particular those included in its first part,
concerning civil, social and economic rights, had no preceptive content, being mere general
propositions, binding only the legislator.
III. THE COMPOSITION
The Court is composed of fifteen judges. In the Constituent Assembly there was a lively debate
about their selection. Those who supported the election by Parliament as a method of selection
preferred to save a strong relationship between Parliament and the Court. A complete appointment
by the judiciary was suggested by very few, due to the aforesaid very limited tradition of
independence. Finally, a mixed system was chosen: one third of the members are elected by
Parliament in joint session, with a qualified majority of 2/3 in the first three ballots, which is abated
to 3/5 afterwards; five are appointed by the top judicial bodies, in detail three by the Court of
Cassation, one by the Council of State and one by the Court of Accounts, among their members; the
last five are appointed by the President of the Republic under his responsibility, though the
appointment decree is signed by the Prime Minister as well. The designation of the first and the last
five somehow shares a common political criterion. In the first round, when the communist
opposition was supposed never to become a government party, only one member was reserved to it.
In later years, till 1993 there has been more variety in the appointments by Parliament and the
President. The appointees are chosen among lawyers with a minimum of twenty years of experience
and tenured university professors of law. Their term lasts nine years, at least after the constitutional
amendment that in 1967 reduced it from the original twelve, and re-election is foreclosed. The
President of the Court is elected by the members and sits till the end of his mandate; traditionally
the most senior judge is elected, even for a few months, which means that the turnover is quite
frequent. For any judicial decision a quorum of eleven judges is required, while nine are enough for
other activities. Sometimes the Court came close to paralysis, in case of parliamentary deadlocks on
11
The whole story is told in details by G. D’Orazio, La genesi della Corte, pp. 141 ff., and more recently by P.
Pederzoli, La Corte costituzionale (Bologna, 2008), pp. 7 ff.
12
P. Calamandrei, “L’ostruzionismo di maggioranza”, (1953) 2 Il ponte 129.
13
A. Simoncini, “L’avvio della Corte costituzionale e gli strumenti per la definizione del suo ruolo: un problema
storico aperto”, (2004) Giur. Cost. 3065; U. De Siervo, “L’istituzione della Corte costituzionale in Italia:
dall’Assemblea costituente ai primi anni di attività della Corte”, (2006) www.consultaonline.
3

4. new nominees, depending on the need of an agreement between majority and opposition to reach
the prescribed number of votes.
Dissenting and concurring opinions were explicitly ruled out during the parliamentary work that
preceded the 1953 statutes. Therefore, decisions are always apparently unanimous. Sometimes their
motivation is short enough, in order to help reach a compromise solution, that too much detail
would prevent. After the first twenty years or so, there has been a growing trend towards longer and
more analytical motivations, as much as the need for consensus grew in a more fragmented societal
context.
IV. THE FUNCTIONS
The Italian Court carries out a plurality of functions. The first one is the main reason for its creation,
the decision “on disputes concerning the constitutional legitimacy of laws and acts having the force
of law, adopted by the State and the Regions” (Article 134, para.1). All State legislation can be
reviewed, ordinary statutes, law decrees and legislative decrees approved by Government; both
regional statutes approved in the exclusive legislative subject-matters of Article 117, para. 2 and the
concurrent legislation of Article 117, para. 3, conforming to the principles imposed by State
framework-statutes can be also reviewed. Parliamentary standing orders and rules governing the
work of regional councils are not reviewable. The parameter of judgment used in the constitutional
review of legislation is composed of all the constitutional norms and of constitutional laws as well,
approved following the entrenched procedure of Article 138. Over the years, the Court has also
applied integrative parameters, called “interposed rules”, like traditional principles of international
customary law, international conventions concerning human rights, beginning with the ECHR,
provisions implementing regional statutes in the five special Regions that acquired such a status
following the Second World War.
A claim can be filed before the Court following two different proceedings. The principaliter
proceeding is lodged by the national Government against a Region or by one of the Regions against
the State within sixty days after the publication of the contested piece of legislation. State and
Regions, after the constitutional revision of 2001 which amended Article 127 among several others,
are almost on an equal footing, because a regional law can now be impugned only after its coming
into effect, while in earlier times the State could file a claim even before, preventing it from
entering into effect. Yet, the two parties are still not perfectly on a par in terms of locus standi,
because, even after 2001, the State can invoke any violation of constitutional provisions, while the
Region can only lodge claims concerning invasion of legislative or administrative competences.
Furthermore, the Fundamental Statute of a Region, approved by the regional council with an
absolute majority of the assigned members with two separate ballots with an interval of no less than
two months, can also be brought to the Court within thirty days of its publication, suspending its
efficacy, according to Article 123.14
The incidenter proceeding originates “during the course of a
court case” (Article 1, Constitutional Law 1/1948), when an ordinary or administrative court (judge
a quo), after a preliminary review of the unconstitutionality of the statute the application of which is
at stake, considers relevant and not clearly unfounded the question and decides to suspend the
judgment and to ask the Constitutional court to decide.
The second function of the Court is the resolution of jurisdictional disputes between branches of
government, meaning bodies having the competence to express the final will of the branch to which
they belong. The dispute in this case can concern a jurisdictional or administrative act, when a
branch challenges the exercise of a power by another branch, assuming to be competent to carry out
that function or contesting the way it has been carried out. For instance, a quite frequent case is that
of public prosecutors lodging a claim against a Chamber of Parliament denying the authorization to
14
The details in J. O. Frosini, Constitutional Justice, in G. F. Ferrari (ed.), Introduction to Italian Public Law
(Milano, 2008), pp. 195 ff.
4

5. arrest or search an MP during an investigation. The same kind of jurisdictional dispute can be
introduced by a Region against the State or another Region or by the State.
The third function, introduced by the Constitutional Law 1/1948 concerns the judgment of
admissibility of the abrogative referendums contemplated by Article 75 of the Constitution. It
implies the prerogative to verify whether the request of referendum, by half a million electors or by
five Regions, is encompassed in the constitutional limits and does not touch topics where its calling
is forbidden, though this judgment has been expanded over the years to include the clearness of the
language, the understandability of the question and of its possible consequences, the eventual
impact on constitutional bodies whose functioning cannot be paralysed. The verification of the
number of signatures in case of popular request or of the regularity of the collection proceeding is
not allocated to the Court, but to central office of the Court of Cassation.
The last function, that has never been exercised, concerns the judgment of the President of the
Republic in case of impeachment: the investigation is supposed to be completed by the immunities
committees of the two Chambers, and the accusation deliberated by a majority of the members of
the Chambers in joint session. The impeachment procedure can be activated only for two unique
crimes, high treason or attempts to overthrow the Constitution. Originally the Constitution also
assigned to the competence of the Court the ministerial crimes: the only occasion when it was
actually exercised was in the Lockheed case, for bribery in the process of buying airplanes from the
American firm. The Court was compelled to suspend almost all the other activities for several
months, thus generating an enormous backlog of cases that took some years to dispose of. Therefore
Constitutional Law 1/1989 repealed this provision from the constitutional text.
V. KINDS OF DECISIONS AND THEIR EFFECTS
The Constitutional Court can issue several types of decision, which can be classified according to
different parameters. From a procedural viewpoint, judgments are the final decisions concluding the
proceeding where the question of constitutionality has been raised; orders are procedural decisions
not closing the procedure or closing it only temporarily; decrees are adopted by the President and
normally regulate organizational matters. In more substantive terms, both incidenter proceedings
and principaliter proceedings are decided either with an inadmissibility decision, for instance
because the question was proposed by a body lacking judicial nature, or because the question lacks
concrete nature, or because it lacked relevance in the a quo proceeding, or even because the statute
to which the question refers has been abrogated or integrated and it might be necessary to get a
supplementary evaluation by the a quo judge; or on the merits. In this last case, unless the question
is clearly unfounded and can be disposed of with an order, the judgment is either of acceptance or
of dismissal. The dismissal decision rejects the question of unconstitutionality and saves the law:
this kind of decision only has inter partes effect, binding only the judge who proposed the question,
which can be proposed again by another judge or even by the same judge later on, even when
initially lodged through a principaliter proceeding by a Region. Given the absence any stare decisis
doctrine, the Court is allowed to change its mind, overruling its former decision. Such an event is
not very frequent, but it may occur when the interpretation which leads the Court to save the
contested provision is not followed by ordinary or administrative judges, and the question comes
back to the Court in later years. The acceptance decision, to the contrary, declares the statutory
provision unconstitutional and has erga omnes effect. The acceptance decision does not abrogate the
unconstitutional provision, which simply becomes non applicable from the publication of the case:
therefore, the decision has ex nunc effects.
The simple scheme which opposes acceptance and dismissal decisions has been elaborated over
the years and has given way to a much greater variety of options, which have represented a model
for several other European constitutional courts. A further type of decision, that cuts across the
former two, is the interpretative one. Since no binding consequence derives from the precedent, two
5

6. or more possible interpretations can be attributed to the same statutory provision by different
judges, and even by the Court of Cassation, at least before a Grand Chamber decision. Therefore,
when a constitutionality question gets to the Court through a claim lodged by an a quo judge, the
Court may recognize the existence of different normative meanings (in theory or even in practice)
and must opt for one of them before deciding the issue of constitutionality itself. When the Court
prefers to adhere to a normative meaning that leads it to state the unconstitutionality of the
contested provision, the interpretative judgment of acceptance is final, because the decision has an
erga omnes effect. When, to the contrary, the Court prefers to stick to a normative meaning that
allows it to save the provision as non-unconstitutional, there is no guarantee that ordinary and
administrative judges will confirm it in future cases, given the absence of erga omnes binding
effects of the dismissal decision; if another interpretation in fact prevails, a claim of
unconstitutionality can be lodged again and the interpretative decision of dismissal can leave place
to an interpretative decision of acceptance.
Manipulative judgments are another category of decisions including several more types. Partial
acceptance judgments, for instance, imply that confronting a normative text drafted in a
complicated manner, the Court finds itself obliged to sever parts of the statutory provisions, saving
some of them and declaring unconstitutional others. By so doing, the meaning of the surviving text
can be consistently different from the original intent of Parliament, if understandable. Over time,
the Court has been criticized for this approach, which in some cases produces the same effects of
the item veto in the US presidential experience. Its creativity reaches the apex and can produce a
relevant change in the normative meaning as a consequence of the selective elimination of some
parts of the provision only. On other occasions, the manipulation is even more intentional and far-
reaching when the Court, in declaring the unconstitutionality of a given provision suggests how to
replace the unconstitutional part of it, not by simply giving advice to Parliament, but by actually
introducing into the text a new proposition that it declares to be the only one compatible with some
constitutional principles, somehow directly filling a vacuum. These manipulative decisions are
called substitutive judgments. The most frequently mentioned case of this group15
goes back to
1969, when the Court, while declaring the unconstitutionality of the Criminal Code provision
subordinating the prosecution of the contempt of the Constitutional Court to the consent of the
Minister of Justice for endangering the independence of the Court, decided to integrate its reasoning
by stating that only the Court itself could be responsible for such an authorization. Additive
judgments belong to the same family, involving an increasing amount of judicial creativity. It
happens that a provision can be sanctioned as unconstitutional not for what it says, but for what it
omits to say. The declaration of unconstitutionality in that case necessarily implies that the Court
also states the rule that should integrate the provision in order to give it a sense that is compatible
with the Constitution: when there is a plurality of options, the choice is necessarily left to the
discretion of the legislative power; when only one seems to be available or to be compelled by
constitutional exigencies, then the Court may integrate the text right away. For instance, the
defendant in a criminal case according to international conventions has a right to an interpreter
when interrogated: since the Criminal Procedure Code did not contemplate any provision of such a
right, the Court directly integrated the Code, adding a constitutionally required provision.16
On very rare occasions the Court, while adding a provision into a statutory text deserving
integration in conformity with the Constitution, can find itself at odds with the exclusion from
welfare benefits of a group of subjects potentially in need on the same terms as others.17
Something
like that happened in the United States with the Supreme Court during the Burger presidency in the
first half of the 1970s, when the due process and the equal protection clauses started to be used to
15
Dec. 15/1969: see again J.O. Frosini, Constitutional Justice, p. 204.
16
Dec. 10/1993, see M. D’Amico, “Decisioni interpretative di rigetto e diritti fondamentali: una nuova strada per la
Corte costituzionale?”, (1993) I Giur. it. 2048.
17
For instance decisions 454/2007 on the right to social assistance; 432/2005 on the right to free access to public
transportation; 306/2008 and 11/2009 on the right to social benefits related to disability.
6

7. extend the welfare protection, almost introducing some welfare or social rights.18
These additive
judgments also have an expenditure content, because they deprive Parliament of its most natural
prerogative, that of finding the resources necessary to support social services. Therefore, after
receiving some criticism from legal scholars19
and political parties, the Court has more recently
switched to judgments where the omission is declared unconstitutional because it does not extend
constitutionally needed protection, but Parliament simply receives some instructions about how to
choose the appropriate solution within a range of given options, and keeps the exclusive
responsibility of looking for the financial resources and adjusting the delicate distributive problems
following the enlargement of the lot of beneficiaries.20
The last type of manipulation appears in the
decisions called exhortative, when the Court, confronting matters regulated by technical or
otherwise complex rules, does not feel like completely substituting its opinion for the discretion of
Parliament and prefers to deliver a message to the Legislature, asking for the adoption of new
statutes or even sketching some principles or guidelines for the Chambers to be followed in the
requested intervention.21
Many other colourful terms are used by public law scholars to describe
further kinds of judgments: for instance, “orthopaedic” are the cases where the Court makes an
effort to prevent a stumbling provision from collapsing by applying conservative techniques, like
inserting some new element through interpretation or emphasizing aspects formerly ignored or
understated.22
More types can be identified in the judgments concerning the admissibility of
referendums, where the relationship with Parliament can be even more complicated, depending on
the epoch of the statute, its legislative history, its links with the working of constitutional organs,
the severability of provisions to be abrogated from the rest of the text, and so on.23
Summing up, the Court has been elaborating a growing number of types of decisions, mostly
reacting or adapting itself to actions or omissions of Parliament, occupying room left free from
legislative inaction, remedying internal contradictions of pieces of legislation, filling loopholes in
statutory texts, occasionally preventing or regulating a posteriori conflicts between powers,
suggesting and guiding, admonishing and stimulating Parliament and Government, or even the
Judiciary, compensating when necessary and more often balancing values and principles, in
conformity with its most familiar attitude. An average number of about 350 decisions per year
offers not only a wide range of types, but also new chances of elaborating further kinds of
judgments, though the traditional classification should be considered consolidated. Decisions like
the so-called Previti case24
or the Citi case,25
in the sector of the conflicts of power, concerning the
refusal of criminal courts to put off some hearings in order to allow a member of Parliament to
attend his Chamber and balancing the interest of Parliament to the regularity of its work with the
interest of criminal justice to speedy trials, at the beginning of the century seemed to define once
and for all the criteria of evaluation of the causes of justification for hearing deferrals. In 2013 the
Berlusconi case26
offered new materials for a partially different reasoning. Or, as far as the privilege
18
See Goldberg v. Kelly, 397 US 254 [1970].
19
C. Panzera, Sentenze normative della Corte costituzionale e forma di governo, in A. Ruggeri, La ridefinizione
della forma di governo attraverso la giurisprudenza costituzionale (Napoli, 2006), pp. 516 ff.
20
Decisions 385/2005 and 77/2007.
21
See for instance decisions 32/2004 and 61/2006. On this issue see G. Zagrebelsky, La Corte costituzionale e il
legislatore, in P. Barile, E. Cheli, S. Grassi, Corte costituzionale e sviluppo della forma di governo in Italia
(Bologna, 1982), pp. 141 ff.
22
See decision 303/2003. See A. D’Atena, “L’allocazione delle funzioni amministrative in una sentenza ortopedica
della Corte costituzionale”, (2003) Giur. cost. 2782.
23
See for instance decision 13/2013: A. Ruggeri, Davvero inammissibili i referendum elettorali per la (supposta)
impossibilità di reviviscenza della normativa previgente rispetto a quella oggetto di abrogazione popolare (a prima
lettura di Corte cost. n. 13 del 2012), in AA.VV., Nel limbo delle leggi. Abrogazione referendaria della legge
Calderoli e reviviscenza delle leggi Mattarella? (Torino, 2012).
24
Dec. 225/2001.
25
Dec. 284/2004.
26
Dec. 168/2013.
7

8. of the President of the Republic is concerned, the Cossiga case in 2004,27
when a former President
challenged the treatment given by the Court of Cassation to his words, seemed to decree the final
word on the topic; however, the recent Napolitano case of 201328
where the President in office was
intercepted by the anti-mafia public prosecution office of Palermo, concerned unexpected events,
which had to be assessed in quite new terms, giving way to unprecedented reasoning. In a
completely different field, the approval of the new regional statutes after the constitutional
amendments of 1999 and 2001 started a season when the Court had to confront the new concept of
“harmony with the Constitution”, to distinguish between limited vices of unconstitutionality and
full incompatibility, graduating the effects of its decisions and regulating their follow-up.29
In other words, the typology of decisions is not static, but keeps on being enriched by various
institutional events that the Italian political system never ceases to produce.
VI. THE COURT AND TRANSNATIONAL COURTS IN EUROPE
A powerful evolutionary factor in the history of the Court has been its confronting with the
framework of international or supranational obligations, that have constantly compelled adjustments
and adaptations. The result has been the construction of what has been called a multi-level
constitutional system, where the role not only of the Italian Constitutional Court, but that of all the
constitutional tribunals of the European countries has been consistently rebuilt.
As far as the ECHR is concerned, before 2007 the ordinary judges tried to promote the
Convention from the level of ordinary law to a stronger force. According to Articles 10 and 11 of
the Constitution the force of an international treaty is that of the statute which introduces it into the
domestic legal system. After 2000 or, better, after the adoption of the Charter of Nice as an
intergovernmental agreement, some courts, among them even the Court of Cassation in Grand
Chamber, began to declare inapplicable national provisions contrasting with the Convention,
putting it on a par with European law, or considering the fundamental rights incorporated in the
Convention almost equivalent to principles of customary international law, or even relying on the
increased value of rights in the European order after Nice. The Strasbourg Court, on the other hand,
had often repeated that national judges should keep in mind its interpretative guidelines and lodge
claims even derogating to the rule of previous exhaustion of all available remedies.30
The
Constitutional Court had always confirmed the ordinary force of the Convention, though stating that
later statutes, like the Procedural Criminal Code, cannot derogate it, given the atypical force of the
legal source, not abrogable by ordinary laws. Finally, in 2007 in a famous pair of judgments31
the
Court recognized the quality of provisions integrating the constitutional parameter to the ECHR,
resting on the text of Article 117, para. 1, introduced in the constitutional amendment of 2001,
which imposes the observance of international obligations both to regional and State laws. At the
same time, the Court has reappraised the importance of the Strasbourg case-law, confirmed the need
for international obligations to conform to the whole Constitution, no matter whether in its
principles or in more detailed prescriptions, exactly as it requires of European law, opposing the
constitutional “counter-limits” to it; it also reinstated the bond to interpret domestic laws in
conformity with the ECHR as construed by the Strasbourg Court. Since then all judges have
27
Dec. 154/2004.
28
Dec. 1/2013.
29
For instance decisions 304 and 306/2002; 2, 378, 379/2004. See S. Mangiameli, “La nuova potestà statutaria delle
Regioni davanti alla Corte costituzionale”, (2002) Giur. Cost. 2358 e P. Passaglia, Il controllo di legittimità
costituzionale degli Statuti ordinari, in R. Romboli (ed.), Aggiornamenti in tema di giustizia costituzionale (2002-
2004) (Torino, 2005), pp. 135 ff.
30
See for example V. Sciarabba, Tra fonti e Corti. Diritti e principi fondamentali in Europa: Profili nazionali e
comparati degli sviluppi nazionali (Padova, 2008), pp. 305 ff.
31
Decisions 348 and 349/2007: among many commentaries, A. Bultrini, R. Cafari Panico, L.Tomasi, L. Montanari,
A. Ruggeri (2008) DPCE 171-222.
8

9. followed the Court’s will, ceasing to declare inapplicable domestic statutes contrasting international
obligations, leaving this syndicate only with the Court. Finally, in another pair of judgments of
200932
the Court specified that any international provision, before being used as an interpretative
parameter, needs to be verified as compatible with the Constitution itself, and even balanced
towards constitutional provisions guaranteeing other rights already protected in the domestic order,
so that their protection be improved and not jeopardized. Such a formula has achieved some
stability; the case law of Strasbourg, which is quoted much more than before, is considered as
totally binding on Italian judges, including the Court, be it fully consolidated or not, unanimous or
not, of one chamber or of the Grand Chamber, adopted against Italy or other countries, of
condemnation or indemnification.33
The higher rate of citations of Strasbourg cases by Italian
judges is likely to depend on the tough confrontation between the Italian Court of Cassation34
and
the Strasbourg Court on the excessive duration of criminal trials: the unconstitutionality of the
domestic provisions has been stated by the Constitutional Court only after a plurality of ECHR
cases confirming repeated violations of the Convention in circumstances similar to those under
examination. Some authors describe the reasoning of the Constitutional Court in recent years as
resembling the Anglo-American art of distinguishing and much more careful about facts, due to the
influence of Strasbourg.35
As far as European law is concerned, the Italian Constitutional Court, starting its activity before
its potential was fully understood, started what was called its “European walk”36
first examining the
constitutional legitimacy of the European treaties,37
then admitting its direct effect in the domestic
system though on an equal footing with ordinary statutes,38
and more reluctantly of regulations and
other directly applicable provisions like self-executing directives.39
With the latter Constitutional
Court accomplished the realization of a continuum between domestic law and European law,
leaving behind the classic theory of the separation of legal systems and using both Article 11 of the
Constitution and Article 249 (formerly 189) of the EC Treaty40
in order to invent (by derogating
from the domestic rules concerning the legal sources) the non-application of non-compatible
national rules, carried out by all judges, in a diffused system of control. Finally, its decision
232/1989, at more or less the same time of the Solange judgment of the German Constitutional
Tribunal, created the counter-limit doctrine, saving the procedural and substantive Kompetenz-
Kompetenz and preserving the supremacy of constitutional principles and above all of fundamental
rights in the domestic formulation over the penetration of communitarian provisions of European
Community law.
The counter-limit doctrine, created and fed in order to protect individual rights, should be
designed to save what is left of sovereignty, but in fact has proved almost devoid of content. Only
once did the Court get near declaring unconstitutional Article 177 of the EEC Treaty41
interpreted as
authorizing the Luxembourg Court to limit the temporal effects of an acceptance decision excluding
any consequences for the controversies originating the case under judgment and rendering it merely
prospective.42
Furthermore, differently from the German Constitutional Tribunal, the Italian Court
has always denied its possibility of annulling a regulation for violation of the core content of rights.
32
Decisions 311 and 317.
33
See E. Lamarque, “Gli effetti delle sentenze della Corte di Strasburgo secondo la Corte costituzionale italiana”
(2010) Corr. Giur. 955.
34
Cass. Sez. un. civ. 26 January 2004, nos.1338, 1339, 1340, 1341.
35
Again E. Lamarque, Gli effetti delle sentenze, p. 960.
36
P. Barile, “Il cammino comunitario della Corte” (1973) Giur. Cost. 2406; F. Sorrentino, “Il diritto europeo nella
giurisprudenza della Corte costituzionale: problemi e prospettive” (2006) Quad. reg. 625.
37
Dec. 98/1965 and 183/1973.
38
Dec. 14/1964 and 183/1973.
39
Dec. 183/1973, and later 170/1984, 113/1985, 168/1991, 384/1994, 94/1995, 509/1995.
40
And now Article 288 of the TFEU.
41
And now Article 267 of the TFEU.
42
Dec. 232/1989.
9

10. Should it ever run across a regulation suspected of unconstitutionality, the Court could only resort
to the unconstitutionality of the Italian statute ratifying the Treaty and thus consenting the adoption
of such a regulation, possibly after asking Luxembourg prejudicially a previous verification of the
compatibility of its provisions with the principles of the European system.
Till 200843
the Court has traditionally denied its legitimation as remittal judge and in case of
doubt of unconstitutionality of a European provision has always returned the question to the a quo
judge, escaping a direct confrontation or dialogue with the Court of Justice, assuming a non-
aggressive approach. On its side, the Luxembourg Court was developing a growingly protective
attitude toward rights, like for example defence, due process, injunction in the administrative law-
suit, jurisdictional protection of rights. At the beginning of the 1970s, after Nold and Stauder,44
and
later on at the mid-1990s with decisions like Zuckerfabrik and Atlanta45
the Court often used the
container of the constitutional traditions of the member States, though it has never really reasoned
as a comparatist, limiting itself to select some principles or theories useful to follow paths already
chosen to decide the case before it. This technique, as rough and discretionary or even arbitrary as it
might be, has finally yielded the codification of the rights of the European citizen in the Nice
Charter. At the same time, the Luxembourg Court has progressively resorted to the balancing of
values and interests, typical of constitutional courts, such as between freedom of expression and
protection of personal data,46
property, right to be heard and public security,47
freedom of enterprise
and intellectual property.48
VII. AN OVERVIEW: ROLE AND LEGITIMATION OF THE CONSTITUTIONAL COURT
The Italian Constitutional Court has been imposing itself as an important player on the Italian
institutional stage, starting from an uncertain position, due to the novelty of such a creature in the
legal and political landscape of Italy, as well as of the other European countries, since,
notwithstanding an eight years delay, it was been the first one to be activated in 1956. At the
beginning, both public law scholars and politicians found themselves at odds in defining its nature
and its position in the constitutional system. The very identity of the Court was initially far from
clear in the eyes of both public opinion and the lawyers. Nothing was obvious: several judges
believed that the sanction of unconstitutionality could be applied to post-Constitution laws only,
while older statutes, including the most intrinsic to the Fascist regime, were beyond the competence
of the Court. The Court of Cassation was persuaded that most constitutional provisions had no real
normative strength, being only a sort of cluster of principles in a long-term political program, and
could not be used as a parameter for constitutional review. The Court had to make serious efforts to
have its role understood, let alone accepted. Still in 1960, almost five years after its concrete
activation, it had to clarify that it was not a part of the judiciary, and that the function of
constitutional review, of supreme guarantee of the observance of the Constitution by the
constitutional organs was unique and not amenable to any of the classical powers.49
Therefore the Court, from its very first judgment,50
had to explain that all the provisions of the
Constitution were on a par, equally binding and equally useful as a parameter of unconstitutionality,
and that all statutes could be sanctioned, independently from the time of their approval. At the first
hearing President De Nicola stated that the mission of the Court was to protect the country from
“confusion and mistakes”, possibly alluding to the contemporary French turmoil, which would soon
43
Ord. 103/2008.
44
See dec. 14 May 1974 C-4/73 and dec. 12 November 1969 C-29/69.
45
Dec. 17 November 1993, C-134/92 and dec. 9 November 1995, C-465/93.
46
Bodil Lindqvist, 3 November 2003, C-101/01.
47
Kadi, 3 September 2008, C-402/05.
48
Scarlet Extended, 24 November 2011, C-70/10.
49
Dec. 13/1960.
50
Dec. 1/1956.
10

11. lead to the Fifth Republic.51
This feeling of novelty in search of legitimation was likely the cause of
exclusion of dissenting and concurring opinions: this measure was probably conceived as
temporary, to be set aside after achieving stability, but in practice it was never cancelled.
Sometimes it happens that the President, in his annual press conference or on other public
occasions, mentions some disagreement in the bench, without names nor numbers. Only once, in
1987, did a serious controversy on the election of the President lead to the resignation of a member,
for not having been elected, he assumed, due to political reasons: in that case the contraposition
came openly to the surface.
Within a couple of years, by 1958, the role of the Court had become clear to both scholarship
and public opinion. It came to be defined as a role of spur and impulse,52
of supervision of the other
constitutional organs, of correction of deviations or mistakes of the political system; the functions
carried out were identified as non-jurisdictional and non-legislative, though the Legislature might
be in need of being replaced or guided; its position as outside and over the three classical powers.53
Still in 1960 the Court had a tough confrontation with the current President of the Senate Merzagora
in order to a definition by its President as a pillar of the constitutional order.
The first twelve years, coinciding with the span of the term of the first fifteen nominees, later
reduced to nine by Constitutional Law 2/1967, were dedicated to define the space occupied by the
Court. It showed great capacity of clearing the legal system of most traces of fascist legislation, like
in the field of civil rights, such as domicile, peaceful assembly and association, in that of family
law, in the criminal trial and in treatment of crimes, in the sphere of industrial relations.
Furthermore, it actively intervened in the promotion of the condition of women, such as in the civil
service, in the parliamentary politics of deficit spending in violation of Article 81 of the
Constitution, and began to confront the problems deriving from the growing consolidation of the
European Communities. By 1968 it had reached a relative stabilization both in the perception of the
political system and the public opinion and in the definition and use of its types of judgments, for
instance shifting from frequent interpretative dismissal decisions, that ordinary judges often did not
respect, choosing different interpretations, to partial acceptance decisions.
In the following decade the instrument most resorted to was the living Constitution, defined in its
real terms through the case law of ordinary and administrative justice, in an effort of adaptation to
the evolving necessities of the time, subject to the Court’s intervention. During the same period the
Court confronts some important cases about the admissibility of referendums concerning delicate
statutes, such as those introducing divorce54
and abortion.55
Again in the 1970s the Court came to
grip with the problems of a more modern society, like the application of annulment and divorce to
concordat marriage,56
pre-trial detention,57
freedom of expression,58
trade unions and their activity,59
the right to privacy versus phone tapping,60
defence rights of the accused,61
State monopoly in the
radio and television sector,62
the judiciary oath formula;63
many controversies began to concern the
complex relationship between the State and the Regions, the latter having been concretely set up in
51
See F. Bonini, Storia della Corte costituzionale (Roma, 1996), pp. 117 ff.
52
P. Barile, “La Corte costituzionale organo sovrano: implicazioni pratiche” (1957) Giur. Cost. 907; P. Biscaretti di
Ruffia, Il problema della giurisdizione costituzionale e la sua recente soluzione in Italia, in Scritti in onore di
Vittorio Emanuele Orlando, vol. I (Padova, 1957), pp. 125 ff.
53
M. Cappelletti, “La giustizia costituzionale in Italia” (1960) Giur. Cost. 469.
54
Dec. 10/1972.
55
Dec. 251/1975.
56
Dec. 169/1971 and 176/1973.
57
Dec. 64/1971 and 17/1974.
58
Dec. 199/1972 and 142/1973.
59
Dec. 54/1974.
60
Dec. 34/1973.
61
Dec. 172/1976.
62
Dec. 202/1976.
63
Dec. 117/1979.
11

12. 1970; for the first time a conflict between the judiciary and Parliament had to be solved;64
it also
reacted against too wide a use of referendums in sectors like the concordat between Church and
State, parts of the Criminal Code, the organization of the army,65
imposing its exclusion when
constitutional values could be jeopardised. The docket became overloaded, and came to a real crisis
between March 1977 and February 1979, when all other activities had to be suspended due to the
Lockheed trial against two Ministers, when the Court had to be integrated by sixteen more
members, drawn out of a list of forty-five elected by Parliament in joint session among citizens
possessing the qualifications required to become a Senator, as prescribed by Article 135, para. 6 of
the Constitution After the end of the trial, it became necessary to decide thousands of unsettled
questions by speeding up the pace of decisions and publishing a greater number of judgments for
several years.66
In these years the Court was finally accredited as a normal player in the institutional framework,
whose intervention is expected and sometimes solicited, the natural place of conflict regulation, the
final instance of value balancing. The 1980s and the 1990s confirm this role of the Court and at the
same time put it in an even more central position both in the role of guidance of the legal system, at
a time when the growing importance of the ECHR and the gradual strengthening of the European
Communities, later European Union, force the legal sources and the institutional powers to look for
a new cohesion, and as a centre of the political scene, as the most important stakeholder, mostly
around and after 1993, when Italian politics go through a very difficult phase, when the electoral
system is changed, some traditional parties disappear, public prosecutors aggressively interfere in
the latter’s organization and working, the web of privatization and liberalization comes close to
change the social structure more deeply than the industrial boom of the late 1950s and early 1960s.
In the first of the aforementioned decades, the Court seemed to engage in adjusting former trends
and giving finishing touches to its own case law, keeping a low profile attitude and at the same time
dedicating itself to making its reasoning more elaborated. Above all, it had to get rid of the docket
overload accumulated during the Lockheed criminal trial. It took more or less ten years to do so.
After 1985, and increasingly after 1987 under the Saja Presidency, a new internal organization and
the use of work groups in charge of screening the old cases, some going back to seven years,
allowed the Court to publish over 1500 judgments per year, with a maximum of 2074 in 1988.
Many decisions were taken in the form of simplified orders, due to inadmissibility or other
procedural mistakes leading to manifest irrelevance. Some scholars complained about a too
summary reasoning, but the work was done decently: the response by the judiciary was an
increasing number of claims lodged on a per year basis, up to 1.490 in 1984, reaching a final
average of about 1000 around 1992, most of them concerning very recent statutes, like the new
Criminal Procedure Code of 1990 or the fair rent laws or the expropriation compensation statute,
sanctioned several times of unconstitutionality and reformulated many times. Referendum requests
also increased, as is probably obvious in times of political turmoil, and so did the conflicts between
the Regions and the State.
Anyway, it found the time to define important questions concerning, for instance, the
overcoming of the State television monopoly,67
the protection of linguistic minorities,68
the
condition of foreigners,69
eminent domain and compensation,70
the so-called right to housing71
and
other social rights, such as to healthcare and transportation,72
new rights like the right to a safe
64
Dec. 259/1974.
65
Dec. 68, 69 and 70/1970, 251/1975, 16/1978.
66
F. Amirante, Che cosa è la Corte costituzionale, Corte Costituzionale, Roma, 2009, available on the website of the
Italian Constitutional Court: www.cortecostituzionale.it/ActionPagina_216.do.
67
Dec. 148/1981.
68
Dec. 28/1982.
69
Dec. 215/1983.
70
Dec. 223/1983.
71
Dec. 252/1983 and 217/1988.
72
Dec. 245/1984.
12

13. environment,73
the relationship between European regulations and self-executing directives and
domestic sources,74
conscientious objection in the draft.75
Many decisions during this period
concerned the building or revising of the Italian welfare system, with particular attention to
retirement indemnities76
and social security,77
and to benefits to members of non-marriage
families.78
Another event which became common between the 1980s and the 1990s was the trend towards
the entering into politics of past Presidents or members of the Court. Giuseppe Branca, Francesco P.
Bonifacio, Leopoldo Elia, Giuseppe Corasaniti and others accepted to be candidate and were
elected to Parliament after the end of their terms, somehow laying themselves and the Court itself
open to criticism, lest their independence be undermined by politics.
During the 1990s the stabilization and adjustment work went on, but the Court was also called
upon to confront an increasing demand of constitutional review in the most difficult period in the
history of the Republic. On the one hand, it had to decide on the constitutionality of the new Local
government act of 1990, which had significant impact on the whole of the organization of the
regional structure;79
on the conflict concerning the designation procedure of top magistrates
between the Secretary of State for Justice and the Supreme Judiciary Council;80
on the relationship
between public prosecutors and judges in the new criminal trial,81
on the parliamentary assent to
investigations against an MP;82
on the protection of health after the diffusion of AIDS.83
On the
other hand, the Court had to verify the admissibility of referendum requests on various occasions84
and tried to put on different premises its traditional attitude towards expenditure judgments, less and
less compatible with the new exigency of reducing the public debt, the amount of which had
surpassed the GDP.
Finally, in the last twelve years or so the Court has been very busy dealing with several themes.
First of all, the constitutional amendment of 2001 completely changed the regional system of
government. Therefore, a new wave of controversies between Regions and the State arose both as
principaliter judgments and as conflicts. Though the trend has been towards upholding previous
doctrines as much as possible, it has taken much work to define the renovated balance in terms of
extension of the respective legislative powers: for instance, the new sector defined competition has
allowed several State interventions validated on a cross-sectional basis;85
environmental problems
have also required a new umpiring activity.86
Most general regional statutes have been controlled.87
Another unusual judgment concerned the claim by the two Chambers against the Court of Cassation
in order to prevent the interruption of medical assistance to a patient in state of irreversible coma.88
73
Dec. 226/1983.
74
Dec. 170/1984 and 113/1985.
75
Dec. 164/1985.
76
Like dec. 137 and 178/1986.
77
Like dec. 266, 286 and 616/1987.
78
Dec. 310/1989.
79
Dec. 243/1991.
80
Dec. 379/1992.
81
Among several others, dec. 462, 463, 464, 474, 478/1993.
82
Dec. 443/1993.
83
Dec. 210, 218 and 308/1994 and 438/1995.
84
Dec. 47/1991; 26-38/1993; 1-2/1994; 11/1995; 14-42/1997. The whole story is told by A. Pertici, I giudizio di
ammissibilità del referendum abrogativo, in R.Romboli (ed.), Aggiornamenti in tema di processo costituzionale
(1996-1998) (Torino, 1999).
85
See e.g. dec. 14 and 272/2004, 80/2006 and 430/2007. See L. Ceraso, “La recente giurisprudenza della Corte
costituzionale sulla “tutela della concorrenza” (art. 117, comma 2, lett. e): linee di tendenza e problemi aperti”
(2005) Giur. Cost. 3447.
86
See e.g. dec. 407/2002, 108/2005, 367 and 378/2007, 214/2008 and 315/2010.
87
See e.g. dec. 304 and 306/2002, 306/2002, 2/2004, 372, 378 and 379/2004, ord.31 and 353/2005, dec.469/2005, 4
and 12/2006.
88
Ord. 334/2008.
13

14. Conflicts between powers of the State have constantly grown in number and importance, and it
has been impossible to avoid deciding them as political questions or adopting other elusive
techniques, due to their extreme importance for the political system and the public opinion. There
have been decisions concerning State secrets, like in the case of a suspect of terrorism kidnapped by
Italian and American secret agents89
or in that of the works in the residence of the premier;90
cases
concerning the roles of the President and the Minister of justice in the grant of pardon;91
cases
relating to the transfer of judges and the powers of the Council of Magistracy;92
the controversy
between former President Cossiga and the Court of Cassation about declarations of the former;93
the
problems of indirect interceptions of MPs and of the President of the Republic,94
of the acquisition
by the public prosecutors of the records of phone calls of MPs,95
of the legitimate impediment
barring MPs, Ministers, and the premier to attend criminal hearings,96
of the limits of ministerial
responsibility,97
leaving aside the traditional questions about the censurability of opinions of MPs
outside Parliament.98
In this turmoil, the number of incidentaliter proceedings has decreased, but some new trends
have emerged. First of all, the Charter of Nice has been mentioned at random even before its formal
incorporation into European law,99
and above all the ECHR has found a well defined and possibly
final position in the system of legal sources, being recognized as able to integrate the constitutional
parameter, as an “interposed” norm,100
thanks to the new Article 117, para. 1, though itself subject
to constitutional review due to the “counter-limit” doctrine, protecting national democracy from
outside encroachments. Secondly, the Court has emphasized the focus on the quality of legislation
and the possible defects of drafting,101
not only with reference to the necessary homogeneity of the
law-decrees and the abuse of them by the Government or the evident lack of their premises of
urgency.
Third, the Court has increasingly underlined that the a quo judges must be absolutely sure, before
filing the question in the Court’s docket, that no interpretation in conformity to the Constitution of
the statutory provision suspect of unconstitutionality is possible. All judges must make all possible
efforts in reviewing the alternative meanings of the norm and choose one of them, even the only
one, capable of giving the provision a sense compatible with the Constitution, because the sanction
of unconstitutionality is the last resort when it has been demonstrated that no reasonable
interpretation according to the constitutional text is available.102
They have to consider the law in
action, as coherently interpreted by merit judges and the Court of Cassation, and stick to the most
commonly shared opinion when in conformity with the Constitution. If they follow a different
method, and try to use the Court as a guide, asking it to state which is the best interpretation, the
89
Dec. 106/2009.
90
Ord. 404/2005, 124, 125, 337, 338/2007.
91
Ord. 354/2005 and dec. 200/2006: see M. Luciani, “Sulla titolarità sostanziale del potere di grazia” (2007)
Corriere giur. 190.
92
E.g. dec. 290/2007.
93
See R.Bin, G.Brunelli, A. Pugiotto, P. Veronesi (eds.), Il “Caso Cossiga”. Capo dello Stato che esterna o privato
cittadino che offende? (Torino, 2003).
94
Dec. 390/2007 and 1/2013.
95
Dec. 390/2007, 188/2010.
96
Dec. 225/2001, 263/2003, 284/2004, 451/2005, 168/2013.
97
Ord. 8/2008, dec. 241/2009 and 211/2010.
98
Dec. 10 and 11/2000, 379/2003, 120/2004, 347 and 348/2004, 163/2005. About the whole story, see R. Romboli
(ed.), Aggiornamenti in tema di processo costituzionale (2002-2004) (Torino, 2005), pp. 297 ff.; Id., Aggiornamenti
in tema di processo costituzionale (2005-2007) (Torino, 2008), pp. 331 ff.; Id., Aggiornamenti in tema di processo
costituzionale (2008-2010) (Torino, 2011); V. Tondi Della Mura, M. Carducci, R.G. Rodio (eds.), Corte
costituzionale e processi di decisione politica (Torino, 2005).
99
Dec. 394/2006 and 349/2007.
100
See the aforementioned dec. 348 and 349/2007, and also ord. 161 and 368/2006.
101
See e.g. dec. 182/2007.
102
Among many judgments, see e.g. 245, 250 and 252/2005, 209, 244, 280, 324/2006, 369, 392, 396, 464/2007,
154, 155, 226/2008, 317/2009, 3, 197/2010.
14

15. claim might be declared inadmissible. The law in action, or “living law”, and its use become the
dividing line between admissibility and non-admissibility of the incidentaliter claim.
Finally, the Court has had to manage a growing number of referendum requests, more and more
complicated and often assuming a manipulative attitude, i.e. not simply aiming at the abrogation of
a statute or of some of its provisions, but trying to clip words or phrases in order to obtain quite a
new law, the meaning of which is far from the original one.103
Such an approach requires a very
careful handling and the elaboration of sophisticated devices on the side of the Court, though the
electorate is becoming tired with too frequent consultations, so that the minimum turnout prescribed
by Article 75 of the Constitution, i.e. the majority of voters, is reached on less and less occasions.
During the republican experience, the Constitutional Court has represented much more than an
authoritative interpreter of the Constitution.104
Of course it has been the judge of first and only
instance in constitutional review and has carried it out in a quite extensive manner.105
In this
capacity, from the very beginning it has applied the typical syllogistic and deductive method of the
confrontation between constitutional parameter and ordinary statute, which is common to all
constitutional tribunals in civil law countries. But it has also had to persuade public opinion and
stakeholders of the Italian political life that a new subject was on the stage and deserved respect and
cooperation. To achieve such a goal it had to refrain from emphasizing the political implication of
its functions. During that effort, it was able to elaborate a cluster of types of decision which were
assumed as models by many other European constitutional tribunals of its generation and of later
ones. The only kind of judgment it did not create nor imitate was the German decision that defers its
own application to future dates, moulding its prospective content.
Immediately after conquering, first in Europe, the place it was worthy of, it had to settle a
reasonable coexistence with no less than two transnational Courts, on their way towards the
expansion of their role. While it was working on this aim, it succeeded in playing the part of a body
capable of correcting malfunctioning and mistakes of the system, that of a counter-power in conflict
or in tension with the others. It took time and efforts to persuade a judiciary that was not
accustomed to any binding effects of precedents to help building up a living constitution together
with the Court. The same difficulties the Court had to overcome in persuading Parliament to accept
its role of “parallel legislator”, with a capacity to admonish, to solicit, to persuade, sometimes to
impose. It has had fewer problems solving confrontations with the President of the Republic, with a
few exceptions, such as during the Cossiga term, while full cooperation has been recently reached
with Ciampi and Napolitano.
During this evolution, the Court has been variously defined as regulator of social conflicts,
supreme moderator of all balances, superparliament, permanent constituent assembly, clearinghouse
of the other powers.106
In fact it has played a vicarious role, supplementing other powers or bodies
when it was necessary, mainly in moments of crisis or of evolution of the institutional system. This
supplementary function has been carried out most of all toward Parliament, when it was too busy or
too “sleepy” to handle themes that needed new regulations or update of existing rules. In doing so,
there were periods when it had to map out a route and walk ahead of Legislature and Government,
and other seasons during which it was better to apply passive virtues and let other bodies find the
way to politically shared solutions. From this viewpoint, its experience has not been too different
from that of the US Supreme Court, notwithstanding its nature of court of general jurisdiction in a
common law framework.
103
Like in dec. 31-51/2000, 41-46/2003, 24-25/2004, 45-49/2005, 15-17/2008, 24-29/2011, 174/2011.
104
In the words of M. Rosenfeld, “Constitutional Adjudication in Europe and the United States, Paradoxes and
Contrasts” (2004) 2 Int.J.Con.L. 633.
105
To use the language of M. Rosenfeld, “Comparing constitutional review by the European Court of Justice and the
U.S. Supreme Court (2006) 4 Int.J.Con.L. 618.
106
A summary of these doctrinal positions in S. Rodotà, “La Corte, la politica, l’organizzazione sociale” (1982)
Pol.dir. 170.
15