The Invisible Constitution in Comparative Perspective

16.4.2.  Additive Judgments of Principle

In some cases, the Court remarks the existence of a gap to fill, but at the 

same time notes that if it were to fill the gap itself, it would invade the sphere 

of legislative competence. Due respect for legislative discretion produces the 

double effect of not precluding the declaration of the existence of unconsti-

tutionality, and stops the Court in its labor of mending the legal system in a 

coherent way: as has already been pointed out, in the case of more than one 

possible (and constitutionally allowed) addition, the Court has no power to 

choose.

If the Court were to opt for a declaration of unconstitutionality tout court, 

the discretion of the legislator would be safeguarded, but many collateral 

problems would arise, relating, for example, to provisions that offer guaran-

tees to a certain category of persons or situations. In this case, it is clear that 

declaring an entire provision unconstitutional would not provide a remedy 

against non-compliance with the Constitution, but would worsen the defect 

arising from the (further) reduction of the protected situations.

To address situations of this kind, the Court began to adopt the so-called 

“additive judgments of principle” in the late eighties. These are decisions in 

59 

See Judgments 219 of 2005, 231 of 2005, 133 of 2006, 213 of 2006, and 165 of 2007. For a discus-

sion, see the Report of the Constitutional Court of the Italian Republic, Legislative Omission 

in Constitutional Jurisprudence.

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“Additive Judgments” 

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which the Court, after declaring the unconstitutionality of the provision at 

issue “in the part in which it does not provide” (as in the “classic” additive 

judgments), does not indicate the missing normative fragment, but states  

the general principle in an attempt to fill the gap (on the assumption that the  

intervention in terms of legislation will follow, with effect erga omnes). In  

the ratio of these judgments, the Court sometimes sets a deadline for the leg-

islator to intervene and lays down the principles from which the lawmaker 

should take inspiration: in this way, the content of a true additive judgment 

and the content of a delegated decision are combined, reconciling the imme-

diacy of the declaration of unconstitutionality with safeguarding the legisla-

tor’s discretional sphere.

The Court has used this type of decision in particularly “sensitive” areas, 

such as the question of the protection of working mothers.

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 Pronouncing on 

the legitimacy of the rules under which it was expressly prohibited to make 

women return to work during the three months after childbirth but excluded 

premature parturition from protection, the Court stated that despite the possi-

bility of different solutions with specific regard to the commencement of the 

period of leave, moving commencement to the moment the child was to be 

moved to the family home or rather the presumed date of the physiological 

end of pregnancy, the choice between the various possible options fell to the 

legislator. But, given the evident unconstitutionality of the norm, and in the 

absence of legislative action, it was the Constitutional Court’s responsibility to 

identify the legal principle suited to govern the situation in accordance with 

constitutional principles. From this perspective, the declaration of unconsti-

tutionality targeted the contested provision “in the part in which it does not 

provide for the application of the terms of the compulsory abstention from 

work in the case of premature parturition required to ensure adequate protec-

tion of mother and child.”

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By recourse to the additive judgment of principle, the Court therefore estab-

lishes a dialogue, not only with the legislator called to fill legislative lacunae, 

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Examples include compensation for harm suffered by victims of road accidents, in which 

the Court declared the unconstitutionality of the existing regulation for not providing for the 

re-evaluation of the monetary value of compensation “in the part in which it does not provide 

for the adjustment of the value of currency” (Judgment 560 of 1987), ordinary unemploy-

ment benefits, stating the unconstitutionality “in the part in which it does not provide for the  

adjustment of the monetary value mechanism” (Judgment 497 of 1988), the liability of carriers 

for damages arising from loss or damage to transported goods “in the part in which it does not 

provide a mechanism for updating the maximum amount of compensation” (Judgment 420 

of 1991). See also the Report of the Constitutional Court of the Italian Republic, Legislative