[Editor’s Note: Today we publish the 2016 Report on Italian constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available in a smaller file size for downloading and emailing: https://ssrn.com/abstract=3014378.]
–Pietro Faraguna (LUISS University of Rome), Michele Massa (Catholic University of the Sacred Heart, Milano), Diletta Tega (University of Bologna), coordinated by Marta Cartabia (vice-President of the Italian Constitutional Court)
The Constitution of Italy entered into force on January 1, 1948, following its adoption by a popularly elected Constituent assembly, which led Italy out of a difficult transition from the fascist regime to a full-fledged democracy. The Constitution is based on a series of fundamental principles that are common heritage of liberal states: separation of powers, checks and balances, due process of law, universal suffrage, and fundamental freedoms (of expression, of association, of assembly…). Among the most significant departure from the previous regime – which was characterized by a flexible, liberal constitution (Statuto Albertino) – was the incorporation of social rights into the new Constitution, and the safeguarding of the Constitution through its rigidity. Consequently, constitutional provisions have a higher rank than ordinary legislation and this higher rank is safeguarded through judicial review of legislation. The establishment of the Italian Constitutional Court (ICC) was one of the most impacting institutional novelty by the Constitution. It represented one of the earliest examples of the post-war European model of constitutional adjudication. However, its implementation was far from an obstacle-free route. The clearest sign of the distrust of political actors towards this institutional novelty was the delayed implementation of the ICC, which was only able to pronounce its first judgement in 1956. In 2016, the Court celebrated the 60th anniversary of its first judgement. It is undisputed that the Court has become one of the most influential and stable authorities in the Italian constitutional architecture. Although, there has been many changes in 60 years, one permanent character of the Court’s activity has been its “relational character”: the ICC has always maintained an open and relational approach to other constitutional actors, both domestically and in the supranational and international dimension. This trend was also present during 2016 and emerges from the case law reported here.
This report firstly provides a brief introduction to the Italian Constitutional system, with a particular emphasis on the system of constitutional justice (section II). Secondly, the report contains a narrative exposition of two particularly important controversies from 2016 (section III). In these decisions, the ICC actively engaged as the supranational dimension of constitutional law, showing at the same time a high level of compliance to the principle of openness towards supranational and international law, and a firm stance in upholding the complex substantive and institutional balance of the Italian Constitution. In section IV, the report provides an overview of landmark judgements adopted by the ICC in 2016. The last section draws some conclusions.