The Invisible Constitution in Comparative Perspective

in bonam partem with the purpose of restoring the general vigor of derogated 

rules, and it remains the sole province of the courts to assess the effective-

ness of such a pronouncement in the ongoing criminal proceedings, it is 

certain that it cannot, however, subtract specific cases from the common 

discipline in criminal matters in order to bring it under a special discipline 

which is deemed more appropriately safeguarded by the interests involved, 

and even less when this entails an aggravation of the punishment. Such a 

choice, which must be defined as eminently political, is in fact reserved to 

the legislature alone by Article 25 of the Constitution, excluding any possibil-

ity of intervention through so-called additive judgments.

49

47 

The Court took the same position in its Judgment 8 of 1987 on the presumed unconstitutional-

ity of the provision establishing that a parent intending to proceed to the belated recognition of 

his/her son, already recognized by the other parent, needed the consent of the latter, waivered 

only by a judgment of the Court which takes the place of the lacking parental consent: see the 

Report of the Constitutional Court of the Italian Republic, Legislative Omission in Constitu-

tional Jurisprudence.

48 

An additive action in the criminal field is contained, inter alia, in Judgment 139 of 1989, per-

taining to Article 266 of the Criminal Code, regarding the crime of inciting members of the 

armed forces to disobey the law.

49 

Considerato in diritto 4.

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“Additive Judgments” 

473

16.4.  The Various Types of Additive Judgments

According to the classification proposed in the doctrine, additive judgments 

come under the category of “manipulative judgments,” together with substi-

tutive judgments.

50

 Within the category of additive judgments, it is possible 

to distinguish between additive performance judgments and additive proce-

dural judgments. Despite the name, additive judgments of principle form an 

autonomous category. There are also some new types of additive judgments 

for which it is not yet possible to identify a category.

16.4.1.  Additive Judgments

16.4.1.1.  Additive Performance Judgments

With additive performance judgments, the Court introduces a “new” provi-

sion or, more frequently, extends the economically favorable effects of a law 

to categories originally excluded in an “unreasonable way” from the benefit.

51

 

Additionally, there may be additive judgments of performance adopted under 

the principle of solidarity, as envisaged in Article 38 of the Constitution.

52

 The 

peculiarity of this type of decision lies not so much in the ruling itself as in the 

reasoning and in the effects it produces, as they create an economic burden 

on public spending.

According to the third paragraph of Article 81 of the Constitution, which 

introduces the necessary “financial coverage” clause, “any law involving new 

or increased expenditure shall provide for the resources to cover such expend-

iture.”

53

 Strictly speaking, this provision does not apply to the decisions of the 

Constitutional Court, being directed only to Parliament and the Government. 

However, the Court cannot ignore this provision when addressing the nec-

essary balancing between the rights guaranteed by the added benefits, and 

respect for the principle of proper management of public finances. If the 

Court considers that the disputed provision is unconstitutional because of the 

breach of the principle of equality, two different scenarios are possible.

50 

See Judgments 15 of 1969 and 409 of 1989.

51 

See Judgment 1 of 1991.

52 

See Judgment 250 of 1994 on the integration of the minimum pension.

53 

Article 81 of the Constitution was modified by Constitutional Law no. 1 of 2012 in response to 

the 2012 Euro-crisis: see Tania Groppi, Irene Spigno and Nicola Vizioli, “The Constitutional 

Consequences of the Financial Crisis in Italy” in Xenophon Contiades (ed.), Constitutions in