478
Irene Spigno
but also with judges who are tasked, pending parliamentary intervention, with
following up the principle relied on in the decision of unconstitutionality.
In fact, the Court has stressed that
the declaration of constitutional illegitimacy of a legislative omission – such
as that recognized in the event of failure to provide a suitable mechanism to
ensure its effectiveness through a norm of constitutionally guaranteed right –
leaves the legislator with the task of introducing and regulating such a
mechanism retroactively by recourse to abstract standards, administered by
a principle which the merits judge is authorized to refer to in order to find a
remedy to the omission in the process of identifying the rule applicable to a
specific case.
62
16.4.3. New Types of Additive Judgments
After the reform of Title V of Part II of the Constitution, there has been a sig-
nificant increase in litigation between the State and the Regional Authorities.
The difficulty of resolving such disputes has sometimes obliged the Court to
develop new types of additive judgments in order to achieve the full realiza-
tion of the principle of loyal cooperation between the State and the Regions.
The full realization of this principle has, in some cases, made it sufficient
to merely add an opinion;
63
in others, however, the Court has held that the
unconstitutionality of the contested provision resides in the failure to include
an agreement with the State-Regions Conference,
64
or with the individual
Region concerned.
65
A special additive effect occurs when the Constitutional Court, pursuant
to Article 117 of the Constitution, declares a conflict with the provisions of
the European Convention on Human Rights as interpreted by the Strasbourg
Court (in the orientation begun with Judgments 348 and 349 of 2007). In
such situations, the Court may find it necessary to introduce, for example,
new procedural rules to guarantee the effective protection of a fundamental
right, which the European Court of Human Rights has found to be infringed
by Italian law.
66
62
Judgment 295 of 1991.
63
Among the most recent, Judgment 33 of 2011.
64
Ex plurimis, Judgments 163 of 2012 and 79 of 2011.
65
Among many others, see Judgment 263 of 2011. See the Report of the Constitutional Court of
the Italian Republic, Legislative Omission in Constitutional Jurisprudence.
66
See Judgment 113 of 2011 on the Dorigo case.
“Additive Judgments”
479
In some cases, before proceeding to a declaration of unconstitutionality, the
Court makes an “admonition” to the legislature, indicating areas of unconsti-
tutionality or normative contradiction, which it is first of all up to the legislator
to remove. This can happen for various reasons: it may be a criminal matter
and striking it down would cause an expansion of criminal penalties, which
are only the province of statutory law (so-called additive sentences in malam
partem). It may be a case in which the areas of unconstitutionality cannot be
eliminated by an additive judgment, because there is no single constitution-
ally imposed solution; it may be a case involving dispositions whose elimina-
tion would result in the transformation of an entire sector of the regulatory
system. In other cases, it may involve norms whose elimination would result
in a vacuum in some delicate matter for the protection of fundamental rights.
Other hypotheses could be formulated, and others have definitely occurred
over the more than fifty years of the Court’s activity.
The follow-up to these judgments may vary: the legislator may accept the
admonition and consequently amend the contested provision according to the
indications of the Court. On the other hand, Parliament may entirely fail to
act, and this inertia will force the Court to declare the norm unlawful, based
on the prevalence of the need to eliminate the unconstitutional norm on the
grounds of systemic impediments, for which the legislator has already been
admonished.
16.5. Conclusion
From a theoretical point of view, it seems clear that in its use of additive judg-
ments the constitutional judge is no longer a mere “negative legislator,” but
has become a “creator of legal norms,” thus invading a space that the Italian
constitutional system reserves to Parliament.
67
In the overall contexts of the 1948 Italian Constitution, the Constitutional
Court is the body that must ensure compliance with, and guarantee, the
supremacy of the Constitution, and in doing so it can also make the will
of Parliament ineffective: the last word when constitutional values are at
stake belongs to the Constitutional Court.
68
In its activities as guarantor of
the Constitution, the Court has adopted different types of decisions which,
despite leaving the narrow confines indicated in the Constitution and the laws
are meant to “clean up” the existing legislation. Some authors have called the
67
Article 70 of the Constitution.
68
Valerio Onida,
La Costituzione (Bologna: Il Mulino, 2007).
