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“Additive Judgments”
469
reserved to the discretion of the legislator, and so the Court declared the ques-
tion manifestly inadmissible.
35
These criteria have been applied by the Court with regard to the question of
constitutionality regarding the lack of a specific discipline in the Italian system
on homosexual unions. In Judgment 138 of 2010, when the Court was called
to pronounce on the unconstitutionality of several articles of the 1942 Italian
Civil Code that do not allow homosexual couples to marry, the constitutional
judge stated that “The question raised by the two referral orders, regarding
Article 2 of the Constitution, must be declared inadmissible, because its pur-
pose is to obtain a non-constitutional compulsory additive judgment.”
36
It fol-
lows, therefore, that, within the scope of Article 2 of the Constitution, it is
the responsibility of the Parliament, in the exercise of its full discretion, to
identify forms of guarantee and recognize homosexual unions, leaving the
Constitutional Court the opportunity to intervene in the protection of specific
situations (as was the case of more uxorio relationships).
37
In fact, it may be
that, in relation to specific situations, there is a need for equal treatment of the
married couple and that of the homosexual couple that the Court can guaran-
tee through recourse to the parameter of reasonableness.
38
The expression rime obbligate, rather than the much more frequent “consti-
tutionally compulsory solution,” has been used by the Court since the nineties
with the purpose of identifying its presence and thereby pronouncing an addi-
tive judgment,
39
as well as its absence, consequently denying the possibility of
an additive judgment.
40
In Judgment 70 of 1994, which decided the questions
of constitutionality raised against the provision which established the manda-
tory postponement of the execution of a sentence against a person infected
with HIV in cases of incompatibility with the state of detention, the Court
stated that it belongs to the parliamentary prerogative to decide between the
immediate execution of the prison sentence or its temporary suspension, so it
does not involve any kind of rime obbligate solution.
41
In Judgment 432 of 2006, the Court dismissed as manifestly inadmissible
the question of constitutionality over which it was asked to add a new rule that
35
See also Order 185 of 2007 with reference to administrative process.
36
Considerato in diritto 5.
37
See Judgments 559 of 1989 and 404 of 1988.
38
Considerato in diritto 8.
39
As in Judgment 218 of 1995.
40
Among others, see Judgments 298 of 1993, 70 of 1994, 258 and 308 of 1994, and Order 432 of
2006.
41
Article 146, first paragraph, no. 3, of the Criminal Code, added to Article 2 of Decree Law no.
139 of 1993, converted with amendments by Law no. 222 of 1993.
470
Irene Spigno
would have brought about a change in the administrative law process. With
the required addition, the administrative judge would have been given the ex
officio power to transfer the extraordinary appeal to the courts if an act after the
extraordinary appeal to the Head of State were challenged before the admin-
istrative court itself. The question of constitutionality was meant to introduce
forms of coordination between the two remedies mentioned within the system
of administrative justice without taking into account that “the concrete ways
of coordination between the two remedies may be multiple and respond to
divergent objectives, ... without which none of them can be considered con-
stitutionally mandatory.” The decision on the merits of the issue stemmed
ultimately from the need to recognize “the existence of normative evaluation
characterized by high legislative discretion,” and therefore “the issue raised is
[resolved] in the request for an adjustment to the present [Constitution] and
not to rime obbligate.”
42
The Court explicitly acknowledges the presence of rime obbligate in order
to pronounce an additive sentence in only one case. In Judgment 218 of 1995,
on the (supposed) illegitimacy of the system of incompatibility between an
allowance (or pension) for disability and unemployment benefit, the Court
pointed out that even if it falls within the discretion of the legislator to estab-
lish the non-cumulation or incompatibility between different social security
or welfare benefits, balancing the needs provided for in Article 38 of the
Constitution (welfare support for some categories of citizens in disadvantaged
circumstances, such as citizens without work or disabled people), and the need
to preserve the balance of public finance (Article 81 of the Constitution), it has
to consider and satisfy the principle of equality and reasonableness (Article 3
of the Constitution), since it is not possible to exclude in the abstract the pos-
sibility that those people who suffer multiple adverse events may be exposed to
a situation of greater need than those who suffer only one adversity. According
to the Court, the system provided by the Italian legislation was a system of
rigid incompatibility, not tempered by the possibility of choice. For these rea-
sons, it manifested “intrinsic unreasonableness” because it was possible that
a person on a disability allowance might have another disability at the same
time, and this ought to justify, according to the Court, the concurrence of
unemployment benefit and the subsidy (or pension) for disability.
43
42
See Judgment 432 of 2006 and, for its discussion, Report of the Constitutional Court of the
Italian Republic, Legislative Omission in Constitutional Jurisprudence.
43
On this case, see the Report of the Constitutional Court of the Italian Republic, Legislative
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