The Invisible Constitution in Comparative Perspective

Ordinamento dei servizi antincendi e del Corpo nazionale dei vigili del fuoco e stato giuridico e 

trattamento economico del personale dei sottufficiali, vigili scelti e vigili del Corpo nazionale dei 

vigili del fuoco.

30 

For a discussion of this case see the Report of the Constitutional Court of the Italian Republic, 

Legislative Omission in Constitutional Jurisprudence.

31 

See Judgment 322 of 1998 in which the Court declares the unconstitutionality of Article 2941 

no. 7 of the Italian Civil Code, in the part in which it does not provide that statutory limita-

tions are suspended in connection with relations between a mixed limited-unlimited liability 

partnership (società in accomandita semplice) and its administrators, as long as they are in 

office, with regard to liability actions against them, as already envisaged for companies with 

legal personality, because the ratio for the suspension of statutory limitations refers to the man-

agerial relationship that binds the company to the administrator; in this sense, it is obviously 

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468 

Irene Spigno

16.3.2.  The Compulsory Constitutional Solution or the 

“Rime Obbligate” (“Necessary Choice”) Doctrine

The elements that the Court includes in the wording of the disputed provision 

are the result of the incorporation of an element set out in a constitutional 

provision (as in Judgment 364 of 1988 on the recognition of the principle 

of the personality of criminal liability). Otherwise, they may derive from a 

general legal principle which, if not observed, brings about a violation of 

Article 3 of the Constitution by omission, as it is contrary to the principle of 

reasonableness.

The Court can pronounce an additive judgment only if the normative frag-

ment which is added is something indefectible, when it represents a “compul-

sory constitutional solution.” In this sense it is said that the Court rules from 

“necessary choice” (rime obbligate).

32

 According to the Court, “an additive 

decision is allowed . . . only when the adjusting solution is not the result of a 

discretionary evaluation but is necessarily the consequence of the judgment 

of legitimacy, so that the Court actually proceeds to a logically necessitated 

extension, often implied in the interpretative potential of the regulatory envi-

ronment in which the contested provision is inserted.” By contrast, “when ... 

there are a plurality of solutions, resulting from various possible evaluations, the  

Court’s intervention is not an option and the relevant choice belongs to  

the legislator alone.”

33

In reality, the decisions where the discretion of the legislator represents an 

insurmountable barrier to the Court are fairly frequent: in addition to crimi-

nal law, the Court is also cautious in other politically sensitive constitutional 

areas.

34

 The Court has developed the concept of the “constitutionally com-

pulsory solution” in a number of orders by which it has declared the issue of 

constitutionality manifestly inadmissible or unfounded. In Order 463 of 2002, 

the Court ruled that extension to a separated spouse of the measure against 

their property rights envisaged in divorce cases would entail the Court issuing 

an addendum to introduce, in the absence of any constitutional obligation, 

an institution other than the one the current complaints address. This would 

represent an obvious and unjustified intrusion in the sphere of attribution 

irrelevant insofar as it is a matter of a company with legal personality or – as in the case before 

the referring court – of a limited partnership, which has no legal personality.

32 

Vezio Crisafulli, “Questioni in tema di interpretazione della Corte costituzionale nei rapporti 

con l’interpretazione giudiziaria” (1978) Giurisprudenza costituzionale 929.

33 

See Judgment 109 of 1986, discussed in the Report of the Constitutional Court of the Italian 

Republic, Legislative Omission in Constitutional Jurisprudence.

34 

See later.

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