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Developments in Italian Constitutional Law: The Year 2015 in Review

[Editor’s Note: In this special post, we feature a 2015 year-in-review of developments in Italian Constitutional Law. We are grateful to Marta Cartabia, Pietro Faraguna, Michele Massa and Diletta Tega for this important contribution to the study of comparative public law. We hope this will serve as a model for other scholars interested in preparing similar reports on their own jurisdictions.  –Richard Albert]

–Pietro Faraguna (University of Ferrara), in collaboration with Michele Massa (Catholic University of the Sacred Heart, Milano) and Diletta Tega (University of Bologna), coordinated by Marta Cartabia (Vice-President of the Italian Constitutional Court)

Introduction

In the era of “global constitutionalism” and an ever-growing judicial dialogue, accessibility of Constitutional and Supreme Courts’ case law is a serious issue for legal scholars. This is not only due to linguistic barriers. In 2015, the Italian Constitutional Court issued 276 decisions. Although the most important ones have been officially translated (official translations are available here), the international readership would probably be disoriented in front of such a vast amount of judicial material.

This report is offered a first-aid resource for public lawyers interested in an overview of the Italian Constitutional Court’s case law. Hopefully, this research tool will help facilitate the ongoing development, beyond the so-called judicial dialogue, of a dialogue within the “community of constitutional interpreters” in the Häberlian sense.

Trends and Evolution

The report reviews nine notable judgments of the Italian Constitutional Court from 2015. These judgments are classified under four sections.

The first section addresses a topic that tied up most Constitutional and Supreme Courts in Europe: the impact of the economic crisis on individual rights. In reviewing the so-called crisis legislation, the Italian Constitutional Court was confronted with two main challenges. On the one hand, the crisis legislation expanded State legislative powers over regional ones. On the other hand, the ever-increasing pressure for budget discipline and austerity put rights (particularly, social rights) at risk. On the first front, the Constitutional Court case law in 2015 generally confirmed that the economic crisis may lead to a strong “centripetal” pull in the distribution of powers between State and Regions. This pull found leverage in the constitutional clause (Article 117.3 It. Const.) enabling the State to set out basic principles for the coordination of public finances. The State relied extensively on this competence, and the Constitutional Court generally found this justified (many decisions point in this direction, see Nos. 19, 77, 82, 59, 125, 155, 238, 239). On the second front, the Italian constitutional Court has usually been extremely cautious, leaving a wide margin of appreciation to political actors in balancing fiscal needs and individual rights. Even though in 2015 this trend was not completely reversed, the Court occasionally struck down a few legislative provisions with judgments whose effects were significant from a financial point of view, but whose effects were expressly limited to the future (judgments No. 10 and 178). A limitation of temporal effects of “expensive” judgments was not systematically applied by the Court (see judgment No. 70), and thus generated some unpredictability.

The second section, dealing with the “frame of government”, is seemingly unrelated to the economic crisis. But in fact the Court’s judgment No. 118, declaring the inadmissibility of a referendum on the independence of Veneto, touches upon both the identity-related political claims and strong economic interests of a relatively rich Region.

The third section introduces three landmark judgments in the area of civil rights. In this respect, the economic crisis did not affect the settled strict scrutiny standard used by the Court to evaluate the constitutionality of laws concerning fundamental rights. Traditionally, the Italian Court has been called to judge both legislative action and legislative inaction of the Parliament. The Court’s case law in 2015 was no exception to this trend. As to scrutinizing legislative action, the Court continued a process of partially dismantling a very restrictive law on medically assisted procreation passed by the Parliament in 2004, which had already been declared partly unconstitutional in 2009 (see judgments Nos. 96, 229/2015 and No. 151/2009). As to scrutinizing legislative inaction, the Court issued a new judgment related to gender identity (judgment No. 221), holding that stipulating surgery as a mandatory prerequisite for the administrative correction of a person’s legal gender was incompatible with fundamental rights. This judgment comes after a series of landmark judgments in the field of gender identity, a subject on which the Court has expressed serious warnings to the legislator since 2010 (see judgment No. 138 of 2010, declaring the constitutional necessity of some sort of legal recognition of same-sex couples). Nonetheless, Court’s warnings remained unfulfilled by far.

In the fourth and final section, this report collects two judgments dealing with the impact of ECtHR’s case law in the internal legal order. After almost a decade since the Court explicitly recognized a prominent role to ECHR and ECtHR’s case law within the Italian legal system (judgments Nos. 348 and 249/2007), the 2015 decisions hold that national legal operators, including first and foremost the ordinary courts, should never turn into passive or superficial recipients of Strasbourg judgments. Ordinary courts are properly bound by a ECtHR ruling only on three conditions:

  1. It concerns the specific controversy, subsequently adjudicated by an Italian court;
  2. It corresponds to consolidated Strasbourg case law;
  3. It is a pilot judgment.

In any case, the duty to interpret national law in a manner compatible with the ECHR is subordinate to the overriding task of reading the law in a manner compatible with the Constitution.

The Constitution During Times of Economic Crisis

1. Judgment No. 10 of 2015Surcharge on taxes, economic crisis and the constitutional balanced budget rule

In this case, the Court heard a reference from a tax board challenging legislation providing for a surcharge on corporate income tax, which was applicable only to companies operating in specific sectors, namely energy and oil. The Court declared the surcharge unconstitutional holding that, although the challenged surcharge did not in itself violate “the principle of capacity to pay tax and the principle of equality”, the legislation was inadequate for its purpose and unreasonable due to

its configuration as an increase in the rate applied to the company’s entire income, rather than only to ‘excess profits’; the failure to subject it to a time limit or to associate it with mechanisms capable of verifying whether the economic climate used as justification still obtains; and the fact that it is impossible to put in place assessment mechanisms capable of ensuring that the obligations resulting from an increase in the tax do not translate into increases in consumer prices.

However, the Court also held that the declaration of unconstitutionality would not take effect retroactively, as usual, but only for the future,  upon publication of the judgment, in order to respect other requirements of constitutional law (including the balanced budget rule introduced in 2012 by constitutional amendment).

  • English full-text available here
  • See further, Erik Longo & Andrea Pin, An Evolution in “Italian Style”: The Constitutional Court says it will Govern the Effects of its Judgments (and Will Use the Proportionality Test to Do It), Int’l J. Const. L. Blog, Mar. 20, 2015, at ICONnect

2. Judgment No. 70 of 2015Freezing of old age pensions annual revaluation increase

In this case, the Court heard referral orders questioning the constitutionality of a rule which limited the annual re-evaluation increase for old-age pensions for larger pensions, allowing the full increase only to pensions up to three times the minimum pension (i.e. up to € 1.217,00 net per month). The Court struck down the legislation as unconstitutional on the grounds that it failed to comply with the principles of reasonableness and proportionality. The Court held that the legislation was “limited to a generic reference to the ‘contingent financial situation’, whilst the overall design of the legislation does not establish why financial requirements should necessarily prevail over the rights affected by the balancing operation, against which such highly invasive initiatives are adopted.” Although the right to an adequate pension was not found absolute, any sacrifice in the name of budgetary requirements must be justified in detail. The legislator fell short in offering such a detailed justification.

  • English full-text available here

3. Judgment No. 178 of 2015Collective bargaining in the public sector and the economic crisis

In this case, the Court considered two referral orders challenging legislation which extended the suspension of collective bargaining rounds and pay increases for public sector workers on the grounds that it violated “the principles of equality, protection of work, the proportionality of the remuneration of work carried out and freedom of collective bargaining”. The Court struck down the legislation as unconstitutional on a supervening basis, declaring that restrictions were first legitimate when enacted, but only on the strength of their transient nature, and subsequently became unlawful when extended and put on a structural footing.  Consequently, the declaration of unconstitutionality has no effect for the past, but only for the future (e.g. collective bargaining rounds are no longer paralyzed).

  • English full-text available here

Frame of Government

1. Judgment No. 118 of 2015Italy’s Cataluňa? A referendum for independence in Veneto

In this case, the Court heard two applications from the President of the Council of Ministers challenging Veneto’s regional legislation providing for the calling of referenda respectively on independence and autonomy for the Region. The Court upheld most challenges on the grounds that they concerned “fundamental choices on constitutional level, which are as such precluded from the scope of regional referenda according to the case law of the Constitutional Court”, as well as the area of budget and taxation, in respect of which the Veneto statute does not allow consultative referenda to be held.

  • English full-text available here
  • On this decision, see Diletta Tega, Venice is not Barcelona: A Less Aggressive Regional Question gets a More Nuanced Constitutional Answer, Int’l J. Const. L. Blog, July 22, 2015, on ICONnect

Civil Rights

1. Judgment No. 96 of 2015Medically Assisted Procreation/1

In this case, the Court heard two referrals challenging parts of a 2004 Law providing rules on medically assisted procreation, which permitted access to medically assisted procreation only in cases of certified and incurable sterility or the infertility of a couple.

The referrals dealt with two claims brought by fertile couples who were carriers of serious genetic diseases, and who had ended natural pregnancies in the past by means of abortion upon discovering that they had conceived offspring affected by the respective diseases. Both couples wanted to access medically assisted procreation methods with preimplantation diagnosis to select embryos unaffected by their respective diseases. The Court held the questions to be founded on the basis of the claimed violations of the principle of equality and the right to health, respectively enshrined in art. 3 and art. 32 of the Constitution.

The Court held that prohibiting fertile couples who were carriers of genetic diseases from having access to medically assisted procreation methods unreasonable in light of their constitutional right to a healthy child. The Court interpreted this right also in light of the 1974 Law on the social protection of motherhood and the voluntary termination of pregnancy, which allows couples to pursue their goal of having a healthy child by means of therapeutic abortion to eliminate natural pregnancies affected by anomalies and malformations meeting a normative threshold for seriousness. The Court found the contested provisions to set an unreasonable balancing of the interests involved, since any offspring affected by the relevant genetic diseases would be, in any case, legally exposed to abortion. The Court also found a violation of a woman’s right to health. In the Court’s view, the challenged provisions substantially induced women to resort to the traumatic method of voluntary abortion in order to obtain the objective of a healthy child. In fact, the challenged provisions prevented these women from having access to anterior means that the Court considered less dangerous to her mental and physical health.

  • English full-text available here

2. Judgment No. 221 of 2015 (Trans)gender identity

In this case the, Court heard a referring order challenging legislation which apparently stipulated as a mandatory prerequisite for the administrative correction of a person’s gender the requirement that the person had undergone sex reassignment surgery, arguing that the imposition of the prerequisite of surgery for the rectification of the assigned gender violated the fundamental right to gender identity. The Court rejected the question as unfounded, holding that, when the provision was interpreted from a human rights perspective (of the right to gender identity as an expression of the right to personal identity), it could not be construed as stipulating surgery as a mandatory prerequisite.

  • English full-text available here

3. Judgment No. 229 of 2015Medically Assisted Procreation/2

After its Judgment No. 96 of 2015 (see above), the Court considered another referral order questioning the constitutionality of parts of the 2004 Law on medically assisted procreation. The issue focused on the prohibition – and related criminal sanctions – to any form of embryonic selection for eugenic purposes. The challenged provision did not allow any exception in the definition of the offense for situations in which medical actions were taken to avoid implanting embryos affected by genetic diseases in the woman’s uterus. The Court noted that its prior Judgment No. 96 of 2015 had declared unconstitutional certain provisions of the same Law, thereby already rendering legal the form of embryo selection in question. Therefore, the Court held that the provisions that had criminalized the embryo selection, in contradiction with that Judgment, were unconstitutional – although the Court also noted that an embryo, “whatever the more or less ascertainable legal status connected with the beginning of life, certainly cannot be reduced to mere biological matter”. Another question concerned the legal prohibition of the destruction of embryos, including those affected by serious genetic diseases: the Court held this question unfounded, as there were no prevailing, conflicting, constitutionally-protected rights at stake that would carry the provisions outside the boundaries of legislative discretion.

  • English full-text available here

The Italian Constitution in Europe

1. Judgment No. 49 of 2015The Italian Constitution and the ECtHR unsettled case law

In this case, the Italian Constitutional Court heard two referral orders submitted by the Court of Cassation and the Tribunal of Teramo. Both referral orders addressed the issue of the effect of the judgments of the European Court of Human Rights in the Italian legal order. Referrals questioned the constitutionality of a piece of Italian legislation providing regulations, including criminal and administrative sanctions, in the building sector. In particular, the application of the confiscation of property was at stake. The referring courts stated that, whilst the traditional interpretation of the legislation would have allowed confiscation in the pending cases, the judgment by the European Court of Human Rights in Varvara v. Italy now precluded such an outcome. The Court ruled the questions inadmissible, holding that the referring courts had ascribed an excessive scope and binding force to the Varvara judgment, and that the judgment in the Varvara case left scope for interpretation in a manner consistent with the consolidated Italian law permitting expropriation. On the Italian Constitutional Court’s account, although the national courts cannot disregard the case law of the Strasbourg Court once it has become consolidated, isolated rulings that have not achieved such status need not be applied generally beyond the narrow facts of the individual case.

  • English full-text available here
  • See further Andrea Pin, A Jurisprudence to Handle with Care: The European Court of Human Rights’ Unsettled Case Law, its Authority, and its Future, According to the Italian Constitutional Court,Int’l J. Const. L. Blog, May 1, 2015, and Diletta Tega, A National Narrative: The Constitution’s Axiological Prevalence on the ECHR–A Comment on the Italian Constitutional Court Judgment No. 49/2015, Int’l J. Const. L. Blog, May 1, 2015, both on ICONnect

2. Judgment No. 71 of 2015Extraordinary expropriations from Rome to Strasbourg and back

In this case, the Court heard four referrals questioning the constitutionality of parts of a 2001 Law on expropriations, as amended in 2011. The contested provisions established an extraordinary mechanism to allow the public administration to adopt an acquisition measure concerning real property already occupied or modified for public interest purposes (so-called “extraordinary expropriations”). The Court declared two of the referrals to be inadmissible for lack of relevance, and ruled on the remaining two constitutional questions. The Court declared these questions unfounded, citing the facts that:

  1. The provision entailed a reinforced duty to provide justification by indicating current and exceptional reasons of public interest and the absence of reasonable alternatives;
  2. It called for both pecuniary and non-pecuniary damage;
  3. It conditioned the transfer of property on payment of monies owed within a set time frame; and finally
  4. It required communication of the adoption of an acquisition measure to the Court of Accounts.

The Court found that the provision contained sufficient protections of the private right of property, providing for both pecuniary and non-pecuniary compensation, with an additional safeguard clause allowing an owner to present evidence of greater damage than that provided for, and that administrative case law outlined various solutions for reacting against the inertia of the public administration that carried out the offense. This case law prevented the administration from having an unlimited time window in which to issue the measure, despite the absence of term limits in the provision. Remarkably, the Italian Constitutional Court noted that the challenged provision contained significant innovations when compared with the ones previously scrutinized by the ECtHR (Scordino v. Italy, 6 March 2007), which rendered the mechanism compatible with the case law of the ECtHR as far as so-called indirect expropriations are concerned.

  • English full-text available here

What the Future Holds

Having reviewed major judgments of the Italian Constitutional Court in 2015, it is worth looking ahead to inquire what the future holds for Italian constitutional law in the four themes presented above.

Broad economic trends will remain in the background of several issues to be discussed before the Italian Constitutional Court. For example, may incentives to solar-produced energy be reduced, also for enterprises which invested in new plants taking into account the pre-existing system? May Regions limit alternative transport services (such as Uber)?

Litigation between State and Regions is still bustling, and will also touch upon recent, far-reaching reforms of the public sector (for instance in education and public administration). Other controversies involve both institutional architecture, and rights protection: does the new civil liability of judges infringe upon their independence and impartiality? May a constitutional body (e.g. the Senate) have reserved jurisdiction on controversies with its own employees?

Civil rights will be at stake as well, including the right of religious minorities to build places of worship; the expectation of atheistic associations to negotiate accords with the State; and stepchild adoption in homosexual marriages governed by foreign (U.S.) law.

The relations with Europe will be assessed particularly in the field of criminal law, where differences with the supranational courts have arisen on several basic points. For example, the ECJ called for the disapplication of the permissive statute of limitations for financial crimes against the EU (Taricco case); in the coming months, the Constitutional Court will be called to decide whether this is compatible with the broad nulla poena sine praevia lege principle recognized in the Italian legal tradition – a principle which might have the status of a limit (“counter-limit”) to the primacy of EU law.

The future rulings of the Italian Constitutional Court promise to be interesting and important, and certainly of great relevance to scholars of comparative public law.

Suggested Citation: Pietro Faraguna, Michele Massa, Diletta Tega and Marta Cartabia, Developments in Italian Constitutional Law: The Year 2015 in Review, Int’l J. Const. L. Blog, Mar. 4, 2016, at: http://www.iconnectblog.com/2016/02/developments-in-italian-constitutional-law-the-year-2015-in-review

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Published on March 4, 2016
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