The Invisible Constitution in Comparative Perspective

“Additive Judgments” 

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fundamental rights imply claiming positive benefits from public facilities, 

they are subject to precise conditions, especially from the point of view of 

expenditure.

It has been established in this regard that the right to health is subject to 

“the determination of the instruments, the timing and the means of imple-

mentation” of the relevant protection indicated by the ordinary legislator. 

The dimension of the right to health implies that, as with any right to pos-

itive benefits, the right to obtain medical treatment is guaranteed to every 

person as a “conditional” constitutional right by the implementation of the  

ordinary legislature. In balancing the interest protected by that right with the  

other constitutionally protected interests, the Court takes into account  

the objective constraints that the legislature encounters in its implementation 

work in relation to the necessary organizational and financial resources. This 

principle, which is common to other constitutional rights, certainly does not 

imply degrading the fundamental protection enshrined in the Constitution to 

a purely legislative one. Rather, it implies that the constitutionally mandatory 

protection of a given good (in this case the right to health) will be imple-

mented gradually as a result of reasonable balancing with other interests or 

assets enjoying the same constitutional protection, and with the real and objec-

tive possibility of having the necessary resources for the same implementation.

As additive performance judgments represent a serious burden on public 

budgets (a particularly acute problem in times of financial crisis), over the last 

twenty years, the number of these pronouncements has gradually declined. 

A mechanism the Court has adopted to limit the financial consequences of 

these judgments is that of the additive judgments of principle.

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16.4.1.2.  Additive Procedural Judgments

These additive judgments are wholly comparable from the structural point of 

view with the “classic” additive and additive judgments of principle.

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 The dif-

ference lies in the content of the addition, which concerns the procedure for 

the formation of the disputed law from the point of view of constitutionality, or –  

more often – other acts enacted according to the dispositions of the said law. 

In other words, the Court adds normative content to a procedural disposition 

in order to insert stages or phases in the approval process.

This type of decision, theoretically applicable to any procedure, takes on 

special importance in relations between the State and the regional organs, 

57 

See in detail later; see also: Judgments 307 of 1990, 26 of 1999 and 385 of 2005.

58 

See later.

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Irene Spigno

since the recent decisions of the Court have spread a pervasive application of 

the principle of loyal cooperation (leale collaborazione) between local organs, 

suggesting a departure from “dual regionalism” (originally only an Italian 

phenomenon) in favor of a greater connection between the different levels of 

government.

In this context, it should be noted that additive judgments have become 

particularly significant in recent years as a result of the new division of legis-

lative and administrative powers between the State and the territorial auton-

omies (brought into being by Constitutional Law no. 3 of 2001 under which 

Title V of the Constitution was modified). Subject matter and skills interact, 

often in the absence of any certain, unambiguous criterion for bringing the 

contested regulation within well-defined constitutional parameters. Given 

this situation, the use of cooperative modules is essentially a remedy for a 

regulatory gap and, at the same time, for the failure of the legislator to provide 

for the intervention of a joint body, whose institutional role would be the res-

olution of conflicting interests between the State and territorial autonomies.

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