same time notes that if it were to fill the gap itself, it would invade the sphere
of legislative competence. Due respect for legislative discretion produces the
tutionality, and stops the Court in its labor of mending the legal system in a
tees to a certain category of persons or situations. In this case, it is clear that
“additive judgments of principle” in the late eighties. These are decisions in
“Additive Judgments”
477
which the Court, after declaring the unconstitutionality of the provision at
issue “in the part in which it does not provide” (as in the “classic” additive
judgments), does not indicate the missing normative fragment, but states
the general principle in an attempt to fill the gap (on the assumption that the
intervention in terms of legislation will follow, with effect erga omnes). In
the ratio of these judgments, the Court sometimes sets a deadline for the leg-
islator to intervene and lays down the principles from which the lawmaker
should take inspiration: in this way, the content of a true additive judgment
and the content of a delegated decision are combined, reconciling the imme-
diacy of the declaration of unconstitutionality with safeguarding the legisla-
tor’s discretional sphere.
The Court has used this type of decision in particularly “sensitive” areas,
such as the question of the protection of working mothers.
60
Pronouncing on
the legitimacy of the rules under which it was expressly prohibited to make
women return to work during the three months after childbirth but excluded
premature parturition from protection, the Court stated that despite the possi-
bility of different solutions with specific regard to the commencement of the
period of leave, moving commencement to the moment the child was to be
moved to the family home or rather the presumed date of the physiological
end of pregnancy, the choice between the various possible options fell to the
legislator. But, given the evident unconstitutionality of the norm, and in the
absence of legislative action, it was the Constitutional Court’s responsibility to
identify the legal principle suited to govern the situation in accordance with
constitutional principles. From this perspective, the declaration of unconsti-
tutionality targeted the contested provision “in the part in which it does not
provide for the application of the terms of the compulsory abstention from
work in the case of premature parturition required to ensure adequate protec-
tion of mother and child.”
61
By recourse to the additive judgment of principle, the Court therefore estab-
lishes a dialogue, not only with the legislator called to fill legislative lacunae,
60
Examples include compensation for harm suffered by victims of road accidents, in which
the Court declared the unconstitutionality of the existing regulation for not providing for the
re-evaluation of the monetary value of compensation “in the part in which it does not provide
for the adjustment of the value of currency” (Judgment 560 of 1987), ordinary unemploy-
ment benefits, stating the unconstitutionality “in the part in which it does not provide for the
adjustment of the monetary value mechanism” (Judgment 497 of 1988), the liability of carriers
for damages arising from loss or damage to transported goods “in the part in which it does not
provide a mechanism for updating the maximum amount of compensation” (Judgment 420
of 1991). See also the Report of the Constitutional Court of the Italian Republic, Legislative
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