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(“necessary choice,” literally “prescribed verse”), and substantive limitations
to additive judgments in criminal matters.
16.3.1. Equality and Tertium Comparationis
The logical-deductive process that leads to the identification of the normative
fragment lacking in the provision (and that should be added) must be clear
and evident in the Court’s argumentation. The added fragment must be the
result of a comparative process where the disputed provision is subject to the
constitutional process (working here as a tertium comparationis). The object
of this comparative analysis is to identify common areas and differences able
to justify or otherwise the extension of the scope of the provision through an
addition to the text. In other words, depending on the outcome of this com-
parative process, the Constitutional Court evaluates whether the principle of
equality (to be considered according to Article 3 of the Constitution, i.e., to
treat equal situations equally and different situations differently) is applica-
ble. As a matter of fact, the “constitutional addition” is possible only in cases
where this comparison has provided a positive result vis-à-vis the assimilability
of the cases. Moreover, the Court must also explain the existing relationship
between this provision and the norm that it has been asked to add in explicit
terms.
With regard to the principle of equality, the Court states that the rule
referred to as tertium comparationis must be valid for the role, and making the
omission unconstitutional through the additive judgment must be the only
possible option.
27
In this sense,
the principle of equality cannot be invoked when the provision of law from
which the tertium comparationis has been taken represents a derogation from
a general rule. In this case, the function of the constitutional review accord-
ing to Article 3 of the Constitution can be nothing less than the restoration of
the general discipline, unjustifiably derogated from by that particular provi-
sion, and not the extension to other cases of the latter, which would worsen
rather than eliminate the lack of coherence of the regulatory system.
28
Based on this idea, Judgment 97 of 1996 declared groundless the question of
constitutional legitimacy concerning Article 2, letter (c) of Act no. 469 of 1961
on the National Fire Brigade “in the part in which” it did not provide for the
27
Judgment 2 of 1998.
28
Judgment 383 of 1992. See also Judgment 295 of 1995 discussed in the Report of the Constitu-
tional Court of the Italian Republic, Legislative Omission in Constitutional Jurisprudence.
“Additive Judgments”
467
possibility of the owners of areas used for public performance being able to
establish their own fire prevention and extinguishing systems by recourse to
private firefighting teams, even within the limitations of, and based on the
criteria established by, the competent Ministry of the Interior.
29
According to
that law, only the owners of factories, warehouses, and similar enterprises were
allowed to set up a private service. According to the a quo judge, this amounted
to discriminatory treatment of these two categories and, furthermore, the com-
pression of the right to private economic initiative by the owners of public
entertainment areas. The Court replied pointing out that the diversity of the
rules regarding industrial factories and places of public entertainment, as far
as the faculty to make use of a private service rather than the public one is
concerned, is justified because it concerns specific and distinct realities and
the object of the protection granted by the legislation is totally different. This
object is to be identified, on the one hand, in the safety of employees at work,
and on the other in the safety of the public during a show or entertainment.
The difference between the two situations leads the Court to consider the
different treatment justified “even setting aside any consideration that the pos-
sibility that the principle of equality would have been usefully evoked in this
case considering that the provision assumed as tertium comparationis [was]
an exception, in derogation from the general rule deducible from the overall
regulatory system.”
30
However, in a subsequent judgment, the Court worked on the idea of the
“equality” ( omogeneità) of the cases being compared; “equality” must be eval-
uated in relation to the ratio of the contested norm, verifying in particular
whether this ratio can be applied to all the cases under comparison with abso-
lutely no distinction. Once this “equality” is found, the difference in legal
treatment wholly removes any reasonable justification from the contested pro-
vision, and therefore infringes the principle of equality.
31
29
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