San Diego 9-11 August 2013
Relazione San Diego

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, 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 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 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 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 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 group[15] 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 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 scholars[19] 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 case[24] 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 case[26] offered new materials for a partially different reasoning. Or, as far as the privilege 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 2013[28] 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 judgments[31] 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 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 2009[32] 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 Cassation[34] 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 Treaty[40] 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 Treaty[41] 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. 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 2008[43] 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 Atlanta[45] 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 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 divorce[54] 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 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 housing[71] and other social rights, such as to healthcare and transportation,[72] new rights like the right to a safe 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 indemnities[76] 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 occasions[84] 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]

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 agents[89] 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 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.