The Invisible Constitution in Comparative Perspective

the Global Financial Crisis: A Comparative Analysis (New York: Ashgate 2013) 89. The same 

financial coverage clause was provided in the previous version of the fourth paragraph of Arti-

cle 81 of the Constitution.

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474 

Irene Spigno

In the first one, if the Court fails to take into account the financial cover-

age clause, it will “extend” the number of recipients of the benefits including 

those who, unconstitutionally, were not originally contemplated. According 

to the second scenario, if the Court takes into account the financial coverage 

clause, respect for the principle of equality will impose a “limit” on the num-

ber of recipients of a given benefit, thus excluding those people who are not 

in a comparable condition to those considered in the disputed provision. This 

approach is mainly based on the idea that “available resources are limited, 

and the Government and Parliament have to introduce changes to spend-

ing legislation in the financial maneuver where this is necessary to safeguard 

the State budget’s equilibrium and to pursue the objectives of financial pro-

gramming”; “[m]oreover, it is undeniable that [t]he legislature, in balancing 

the exercise of its discretion and taking into account fundamental economic 

policy requirements, must balance all the legally relevant factors.”

54

 On the 

other hand, “the principle of equality does not operate unidirectional and is 

necessarily directed to extend the scope of a more favorable discipline referred 

to as tertium comparationis, but it may also develop in the sense of remov-

ing the unjustified privilege arising from a more favorable discipline than the 

one indicated for comparison.”

55

 The Court imposed this approach due to the 

“evolution of the social conscience” and the ”serious crisis of public finances.” 

However, the legislator remains free to act as it sees fit in handling the issue by 

bringing it under normative discipline.

There have been some decisions in which the Constitutional Court has 

adopted an additive judgment that has brought about new expenses, albeit 

indirectly.

56

 It is also true that, beyond any need for balancing, the Court may 

consider, when it is necessary, to declare the unconstitutionality of an act, 

doing so irrespective of any economic effects on the institutions. Nowadays, 

the constitutional court tends to take “costing” decisions on matters such 

as public employment, social security, public assistance (e.g., on minimum 

wages, social and health care, contributory capacity, or the minimization of 

pension benefits). In Judgment 455 of 1990, the Court pointed out that when 

54 

See Judgment 99 of 1995.

55 

See Judgment 421 of 1995.

56 

See Judgments 284 of 1987 (which allows lecturers who have not done a certain number of 

years’ service to take part in the procedures for the inclusion in the list of researchers who have 

not done that number of years’ service), 399 of 1988 (which allows “temporary workers” to 

benefit from the positions left over on the reserve list of teachers) and 39 of 1989 (which allows 

lecturers who take part in examinations to be put on the official list of confirmed university 

researchers who are regulated by Article 24 of the Law no. 62 of 1967): Report of the Constitu-

tional Court of the Italian Republic, Legislative Omission in Constitutional Jurisprudence.

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