462
Irene Spigno
The kinds of decisions the Court can adopt are also limited. From the
formal point of view, it can hand down sentenze (judgments) and ordinanze
(orders).
17
The latter is a decision which does not decide the question, playing
a merely interlocutory role or rejecting an application on procedural grounds.
These are usually justified due to lack of standing or lack of other admissibility
requirements.
18
The former are decisions that concern the substantive part of a
question. According to the constitutional and legislative provisions pertaining
to the Constitutional Court, the range of judgments available is limited: they
can either accept or reject constitutional challenges, and these are known
respectively as sentenze di accoglimento and sentenze di rigetto.
19
The effects
produced by these two types of decision are defined by law. According to Article
136 of the Constitution, when the Court declares the constitutional illegiti-
macy of a law or enactment having force of law, the law ceases to have effect the
day following the publication of the decision. This decision of the Court must
be published, and Parliament and the Regional Councils concerned
must be notified, so that wherever deemed necessary, they act in conformity
with constitutional procedures. The typical effect of judgments whereby the
Italian Constitutional Court declares the constitutional illegitimacy of a stat-
utory provision is simply striking down, which deletes the unconstitutional
norm from the legal system (with retroactive [ex tunc] and erga omnes effects).
Conversely, if the Court rejects an issue because it finds the question regard-
ing constitutionality groundless, this decision only binds the referring court
(a quo judge) and does not produce erga omnes effects. Another judge could
challenge the same rule (it produces no retroactive [ex nunc] and inter partes
effects). However, if the latter judge does not present new arguments in favor
of unconstitutionality, the “reiterated” question will be declared “manifestly
unfounded” in an order (ordinanza) deliberated in closed session.
Despite all those limitations imposed by the Constitution and the legisla-
tion, and under pressure to solve practical problems for which no help comes
from the functions explicitly bestowed upon the Court, since the earliest days,
the Constitutional Court has shown great creativity by “producing” different
kinds of decisions characterized by a special modulation of the effects on the
legal order (but also in its relations with the other branches of government and
parliament, and the courts in particular).
20
17
Law no. 87 of 1953 Article 18.
18
Groppi and Spigno, Supra note 16.
19
Constitution Articles 134–7; Law no. 87 of 1953.
20
The Constitutional Court became operational in 1956.
“Additive Judgments”
463
Establishing a distinction between provisions (
disposizione, i.e., the linguis-
tic expression by which the will of the legislative power is manifested) and
rules (norma, i.e., the result of an interpretive process built around the dispo-
sizione; the interpretative process of a provision can lead to the production of
more than one rule from a single provision or a single rule from a plurality
of provisions), the Constitutional Court departed from the rigid idea of being
only a “negative legislator,” preferring to consider itself as having the implicit
power to “manipulate” legal texts.
21
The Court applied this distinction right from its first decision, adjudicating
questions relating to the constitutionality of legislative acts enacted before the
1948 Constitution and conflicting with its dispositions.
22
Given the failure of
the new Republican legislator in its responsibility to give effect to the con-
stitutional principles by modifying or repealing the existing laws, the Court
considered the need to reinterpret legislative texts and derive constitution-
ally compatible meanings from them. The Court gradually disaggregated the
disputed provisions and eliminated only the incompatible interpretations
without formally altering the text. But this was not all. The Court not only
functioned as a body with the power to interpret provisions and to declare any
provisions contrary to the Constitution void, but it also came to define itself
as a body able to “manipulate” provisions through different strategies: (1) abla-
tion; (2) replacement; or (3) addition.
(1) In “ablative” decisions, the Court declares the unconstitutionality of a
provision “in the part in which” it provides for something for which “it
should not provide,” thereby deleting a fragment of the text.
23
(2) In “substitutive” decisions, the provision is declared unconstitutional
“in the part in which” it provides for something “instead” of providing
for something else: the decision of the Constitutional Court usually has
the effect of replacing one fragment with another.
24
(3) In “additive” decisions, the declaration of unconstitutionality affects the
provision not in terms of what it provides for but for what it fails to
21
Distinction introduced by Crisafulli (1956).
22
Judgment 1 of 1956.
23
See Judgments 63 of 1966 and 11 of 1979. For a further description of these judgments, see
the Report of the Constitutional Court of the Italian Republic, Legislative omission in con-
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