Italy is very far removed from the “written” Constitution.
Constitution Article 117.
460
Irene Spigno
different types of additive judgments traceable in the Italian Constitutional
Court’s case law. Lastly, I propose some concluding considerations on the
ability of such rulings not only to satisfy the “need to protect challenged nor-
mative acts,” but also to allow the Constitutional Court to make some invisible
parts of the Constitution visible. It is my opinion that, with all due reserve,
additive judgments are nothing more than an additional mechanism that
allows the Italian Constitutional Court to work as the Constitution’s supreme
guardian, not only in relation to the constitutional text, but also to the “mate-
rial Constitution” that Costantino Mortati had envisaged since 1939.
16.2. The Italian Model of Constitutional Justice
Breaking with a past dominated by the principle of parliamentary supremacy
(with the 1848 Albertine Statute),
11
the Fathers of the Republican Constitution
opted for a rigid constitution protected by a system of constitutional guar-
antees. Together with the provision of a constitutional review system more
complex than that envisaged for the ordinary legislative process,
12
they set up
a system of judicial review of legislation, strongly inspired by the Kelsenian
model: a centralized system where the guarantee of the constitutionality of
laws is entrusted to a constitutional court.
13
The composition of the Italian Constitutional Court reflects the search for
a balance between technical needs and legal expertise on the one hand, typi-
cal of judicial bodies, and the need to take into account the inevitably political
nature of constitutional review on the other. It is made up of fifteen judges
chosen from justices (including retired ones) of the ordinary and administra-
tive higher courts, university professors of law, and lawyers with at least twenty
years’ practice behind them. A third of the members are nominated by the
President of the Republic, a third by joint sitting of Parliament, and a third by
the ordinary and administrative supreme courts.
14
Article 134 of the Constitution sets out the jurisdiction of the Constitutional
Court. According to Article 134, the Constitutional Court can pass judgment
on controversies regarding the constitutional legitimacy of laws and enact-
ments having force of law issued by the State and Regions, conflicts arising
from the allocation of powers of the State and those powers allocated to the
11
Giorgio Rebuffa, Lo Statuto albertino (Bologna: Il Mulino, 2003).
12
Constitution Article 138.
13
Alessandro Pizzorusso, Vincenzo Vigoriti and Giuseppe LeRoy, Certoma “The Constitutional
Review of Legislation in Italy” (1983) 56
Temple Law Quarterly 503.
14
Constitution Article 135.
“Additive Judgments”
461
State and the regions, and among the regions themselves. It may also rule on
charges brought against the President of the Republic and Ministers accord-
ing to the provisions of the Constitution.
Article 2 of Constitutional Law no. 1 of 1953 added a further power, namely
to adjudicate on the admissibility of requests for referendums to repeal laws
(abrogative referendums), which may be proposed by 500,000 voters or five
regional councils, pursuant to Article 75 of the Constitution.
The Constitutional Court’s powers are limited and minimalist from vari-
ous points of view, especially if considered from the comparative perspective,
in particular with regard to the modalities of access to constitutionality pro-
ceedings, the object of the judgment, and to the types of decisions that can
be taken, as well as their effects. On the first point, despite the possibility of
“direct-abstract control” that can be activated only by Regions against State
laws or other regions’ laws depleting their own powers, and by the national
government against regional laws within sixty days of publication, no direct
action can be taken by private citizens, parliamentary groups, or local author-
ities at sub-regional level.
15
The more typical way to access constitutionality
proceedings is “incidental control” brought about by legal proceedings (called
an “a quo proceeding”) against a provision that a judge has applied in order to
close a case. “The keys to open the door of constitutional review” are therefore
in the hands of ordinary courts, which play an important role in selecting the
matters on which the Court will then pronounce.
16
As for the limits regarding the object of the constitutional proceedings, it
should be noted that constitutional review may only cover laws and acts with
the force of law, excluding all other kinds of law (such as delegated or admin-
istrative legislation that is reviewed only by ordinary and/or administrative
courts). These courts, however, cannot strike down statutes, although they can
strike down or set aside secondary legislation. In addition, the Court cannot
stray from the thema decidendum, i.e., the object and the parameter identi-
fied in the application (as stated in Article 27 of Law no. 87 of 1953, which
states that “when the Constitutional Court receives an application or appeal
concerning a question of constitutionality of a law or an act having the force
of law, it declares within the limits of the appeal, namely unconstitutional
legislative dispositions.”).
15
Ibid.
, 127; Gianluca Gentili, “A Comparison of European Systems of Direct Access to Con-
stitutional Judges: Exploring Advantages for the Italian Constitutional Court” (2012) 4 Italian
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