2006

Judgment No. 50 of 2006 (Annibale MARINI, President - Alfio FINOCCHIARO, Author of the Judgment)

This case concerned the constitutionality of Article 274 of the Civil Code, which subjects court actions for a declaration of biological fatherhood to the condition that a prior ruling of the admissibility of the action be made, and which was challenged on various grounds. The Court ruled that the rule was inherently unreasonable since it left open the possibility for abuse of the measure by both plaintiffs and defendants seeking to delay proceedings even indefinitely, thereby violating Article 24 (right to take action) and Article 111 (reasonable length of proceedings). The original rationale of seeking to protect the interests of the minor cannot stand in the face of these constitutional violations, also in the light of the other changes to the arrangements governing such proceedings over the years.

Judgment No. 200 of 2006 (Annibale MARINI, President - Alfonso QUARANTA, Author of the Judgment)

In this case, the court considered a jurisdictional dispute between the President of the Republic (applicant) and the Minister of Justice (respondent) concerning the granting of a pardon to a convicted criminal. Whereas the President, having accepted the application for clemency, considered that the drafting of the relative decree of clemency was an “institutionally required act” on the part of the Minister. The Minister did not enter an appearance, and made his position clear in a ministerial note, essentially claiming substantive joint participation in the decision to grant a pardon, rather than a merely formal procedural role, hence implicitly limiting the President’s decision making autonomy. Whilst the Court did indeed recognise that the Minister had to countersign decrees granting pardons, it ruled that the substantive decision was vested exclusively in the President as a super partes institution. “To accept that the Minister may either refuse to conclude the necessary preliminary inquiries or may in any case remain inactive would be tantamount to asserting that he enjoy an inadmissible power of constraint, or a kind of veto, in relation to the conclusion of the procedure leading to the emanation of the decree of pardon desired by the Head of State.” Therefore, signature by the Minister is required in order simply to confirm “the completeness and regularity of the preliminary inquiries and the procedure followed”.

Judgment No. 266 of 2006 (Annibale MARINI, President - Alfio FINOCCHIARO, Author of the Judgment)

In this case the Court considered two references from lower courts in cases involving a disclaimer of paternity, in relation to a provision of the Civil Code, as interpreted by the Court of Cassation, which stipulated that the presumed father of a child may apply to a court requesting a genetic or blood test only when the question of adultery during the relevant period has been established as a preliminary and self-standing question. It was argued that this imposed an unreasonable burden, since adultery was particularly difficult to prove as a preliminary matter, especially if a significant amount of time has passed and witness testimony is no longer available. The state authorities intervened in favour of the provision, arguing that genetic and/or blood test evidence should not be ordered on “a mere suspicion of unfaithfulness”. The Court accepted the application, holding that both advances in the state of medical science as well as the practical difficulties in providing evidence of adultery were relevant considerations, accordingly striking down the provision insofar as challenged.

Judgment No. 341 of 2006 (Franco BILE, President - Gaetano SILVESTRI, Author of the Judgment)

In this case the Court considered a referral from a supervisory board in a dispute commenced by a prison inmate against a private company for which he worked whilst in prison. Jurisdiction was declined by the ordinary courts in favour of the supervisory board, which questioned the constitutionality of the relevant rule on the grounds that “are not compatible with the requirements of fair representation and audi alteram partem typical of employment law disputes”. The state authorities contested this view, arguing that the special arrangements were justified by the special nature of prison work, as well as the unreasonably high costs of proceedings before the ordinary courts. The Court held that, although “choice in favour of the hearing in chambers is not illegitimate in itself” and that “Parliament has a broad power of discretion in the design of procedural forms”, the contested provision “dictates procedural rules which within the context of employment law disputes are not suitable for ensuring the minimum adherence to the principle of audi alteram partem and fair representation to which all citizens are entitled in court proceedings”, and was therefore unconstitutional.

2007

Judgment No. 26 of 2007 (Franco BILE, President - Giovanni Maria FLICK , Author of the Judgment)

In this case, the public prosecutor in criminal proceedings challenged a rule by which the prosecution was precluded from appealing against trial court judgments acquitting the accused, which also applied to proceedings in progress at the time when the law came into force. The prosecution claimed that the provision violated the constitutional requirement of equality, was detrimental to the rights of society to the effective prosecution of offences, and removed a “necessary corollary of the procedural system in force”. The Court held that the fact that the opposing parties in criminal prosecutions were so different in nature meant that the principle of equality could not mandate the availability of identical rights at every stage of the proceedings. However, any differences in rights must “be justified by an adequate rationale pertaining to the institutional role of the public prosecutor”, and “must also not overstep the limits of rationality”. The Court held that the difference in treatment was unjustified because it was “general” (i.e. applying indiscriminately to proceedings for any offence) and “unilateral” (because there was no quid pro quo, consisting in a restriction on the rights of the accused in such cases). It accordingly found, on the facts, that the difference in treatment concerned was not rational, and hence declared it unconstitutional.

Judgment No. 77 of 2007 (Franco BILE, President - Romano VACCARELLA, Author of the Judgment)

In this case the Court considered a provision contained in the Law on the Establishment of the Regional Administrative Tribunals which stipulated that, where an application was rejected by the administrative courts due to lack of jurisdiction, the effects of the original application (e.g. for the purposes of the time-barring of claims) could not be maintained in any subsequent proceedings before another court (such as the ordinary civil courts). Although the Code of Civil Procedure made provision for the transfer of proceedings, the law did not stipulate that “the court to which proceedings are referred to be able to rule on the claim brought before it as if it had been brought before it at the time when it was submitted to the court with no jurisdiction”. The Court held that, although the courts belonging to different branches of the judiciary were functionally independent from one another, “the Constitution …has since the outset … assigned to the court system as a whole the task of ensuring the protection through court proceedings of subjective rights and legitimate interests”. Therefore, a procedural error cannot have such far-reaching detrimental consequences for the merits of a claim. The Court therefore held that “the principle that the declining of jurisdiction entails the requirement to commence proceedings ex novo without maintaining in the new proceedings the substantive and procedural effects of the application originally made” was to be expunged from the legal order, and therefore declared the provisions concerned unconstitutional.

Judgment No. 103 of 2007 (Franco BILE, President - Alfonso QUARANTA, Author of the Judgment)

In this case, certain public sector directors challenged a law which provided for the automatic termination of their employment according to the logic of a political "spoils system". The Court held that, against the background of the "contractualisation" of the employment position of directors (i.e. their engagement on fixed-term contracts), it was necessary to provide adequate guarantees in order to uphold "principles of impartiality and the proper conduct of the business of administration". The ability of directors to work efficiently and effectively to achieve the results set for them would be compromised by the contested legislation, which the Court therefore struck down insofar as contrary to "the principle of continuity of administrative action which is closely related to that of the proper conduct of the business of administration".

Judgment No. 104 of 2007 (Franco BILE, President - Sabino CASSESE, Author of the Judgment)

In this case the Court considered various appeals from the Council of State relating to proceedings in which certain directors general within the health service had challenge legislation providing for their automatic “non-confirmation” (i.e. dismissal) within 90 days of the new regional cabinet taking office. The Court held that the contested provisions were unconstitutional insofar as they violated the principles of impartiality and the proper functioning of the public administration required that the post of director general be accompanied by guarantees, namely that appointments be made on the basis, amongst other things, of their aptitudes and professional capacities and that any early termination occur pursuant to an evaluation of the results obtained under which the director was guaranteed the right to a fair hearing. The Court therefore ruled the contested provisions unconstitutional.

Judgment No. 171 of 2007 (Franco BILE, President - Francesco AMIRANTE, Author of the Judgment)

In this case the Court considered a reference from the Court of Cassation in proceedings in which the Messina Court of Appeal ordered, pursuant to the provisions of a decree-law, that the mayor of that city be removed from office following his definitive conviction for the offence of the improper use of state assets. The Court reiterated its view that the prerequisites for the issue of a decree-law are urgency and necessity. Moreover, the conversion law cannot be considered in isolation from the decree-law, as if it were an ordinary piece of legislation, and therefore “the failure to comply with the requirement of ‘extraordinary circumstances of necessity and urgency’ translates into a procedural defect in the law in question”. However, the recourse to a decree-law “cannot be supported by a blanket assertion of the necessity and urgency of the measure, nor it is sufficient to assert that the legislation introduced is reasonable”, and it is also not possible to insert into a decree-law provisions which are extraneous to the subject matter treated by the decree (in this case provisions regulating budgetary and financial issues relating to the local authorities). The Court therefore struck down the converted decree-law.

Judgment No. 254 of 2007 (Franco BILE, President - Maria Rita SAULLE, Author of the Judgment)

In this case the Court heard a reference from the Tribunale di Venezia questioning presidential decree No. 115 of 2002 insofar as it did not provide for the appointment of an interpreter by the accused and their remuneration from public funds where the accused was receiving legal aid. The Court considered that an interpreter was necessary in order for the accused to be able to satisfy his defence requirements, whilst the state authorities argued that the activity carried on by interpreters was “not typical of the legal aid regime”. The Court held that the right of non-Italian speakers to appoint an interpreter fell under the constitutional guarantee of the right to a defence, also citing the ECHR and other international law instruments, holding also that interpreters should be remunerated under legal aid arrangements. The Court therefore declared the contested provisions unconstitutional insofar as challenged.

Judgment No. 320 of 2007 (Franco BILE, President - Giovanni Maria FLICK , Author of the Judgment)

In this case the Court considered a rule which prevented the prosecution from appealing against acquittals handed down in summary proceedings, along with a transitional provision that the rule was also to apply to proceedings in progress at the time when the contested provision entered into force. The Court stated that the principle of equality before the court did not dictate that the prosecution and the defence enjoy identical procedural rights, which may be justified by the asymmetrical division of the powers of the parties, provided that any restrictions respected the need for the efficient and proper administration of justice, and were reasonable. Although it had previously found that restrictions on the public prosecutor’s right to appeal against convictions which did not modify the offence charged were permitted on the grounds that they pursued the goal of a rapid conclusion to trials, the same did not apply to the contested provisions, since in the former situation the prosecution’s case was successful whilst in the latter it was not. Therefore, given that the accused already has the right to choose summary proceedings unilaterally, the complete removal of the prosecution’s right of appeal was not justified. Moreover, the arrangements were also inherently incoherent, since the prosecution may appeal against convictions which modify the offence charged (in which it is therefore partially successful), but not against acquittals (where it is entirely unsuccessful). The Court therefore struck down the provision due to its unjustified violation of the principle of equality before the court.

Judgment No. 322 of 2007 (Franco BILE, President - Giovanni Maria FLICK , Author of the Judgment)

In this case the Court considered a reference from an investigating judge concerning a criminal law regulating concerning the statutory rape of minors under the age of 14. Since the fact that the minor in question had claimed to be older than 14, the provision effectively created strict liability under criminal law. There was a question of constitutionality because the de iure and de facto presumption that the accused was aware of the age of the minor disregarded the usual requirement that the prosecution establish the mens rea of the relevant offence. The state authorities on the other hand argued that the constitutional interest in guaranteeing special protection to minors outweighed the principle that blame was a necessary prerequisite for criminal responsibility. The Court held that the provision reflected Parliament’s intention to provide “particularly robust protection” to minors under 14, and that negligence may be sufficient to establish criminal responsibility, but that consideration should be given to the questions of excusable ignorance and unavoidable mistake regarding the minor’s age. However, the referring judge did not consider the possibility of a constitutionally informed interpretation of the provision, especially since the “principle of blame” counts as a canon of interpretation, and therefore ruled the question inadmissible. The Court noted obiter that a nuanced approach should be adopted in relation to the issue of unavoidable ignorance or mistake, since any space left for this excuse must take into account the fact that “a ‘duty’ of awareness [is imposed] that is proportional to the importance of the values in play, which may certainly not be exhausted through the mere reliance on statements by the minor”.

Judgment No. 348 of 2007 (Franco BILE, President - Gaetano SILVESTRI, Author of the Judgment)

This case involved a challenge to the sums payable as compensation for the expropriation of building land at amounts below the market value of the properties concerned, averring a breach of their rights under the ECHR. The Court held that, in accordance with the amended Article 117(1) of the Constitution, the ordinary courts did not have the power to set aside legislation where incompatible with the Convention. Moreover, although international law may not be used to set aside Constitutional law, the Court "must always aim to establish a reasonable balance between the duties flowing from international law obligations, as imposed by Article 117(1) of the Constitution, and the safeguarding of the constitutionally protected interests contained in other articles of the Constitution", although on the facts, "there is no indication, on the basis of the above findings, of any incompatibility between Article 1 of the First Protocol to the ECHR, as interpreted by the Strasbourg Court and the Italian constitutional order, with particular reference to Article 42 of the Constitution". The Court therefore struck down the contested legislation on the grounds that "The legitimate sacrifice which may be required in the public interest cannot have the practical effect of eliminating private property rights".

Judgment No. 349 of 2007 (Franco BILE, President - Giuseppe TESAURO, Author of the Judgment)

In this case, owners of certain property requested compensation for the state's seizure of property without concluding the required compulsory purchase procedures. The Court rejected the argument that the provisions of the ECHR were directly effective in Italian law by virtue of the ECJ's findings that Convention rights form part of the general principles which it is to uphold. The force of Article 117 is to impose "a duty on Parliament to respect [international law] when enacting ordinary legislation". Ultimately, when weighing up the public interest and the conflicting private property rights, the Court must take into account the ECHR and jurisprudence of the Strasbourg court. The Court therefore struck down the contested provision since it required a sacrifice by private individuals in order to achieve the general interest of the recovery of the public finances.

Judgment No. 378 of 2007 (Franco BILE, President - Paolo MADDALENA, Author of the Judgment)

In this case the Court considered various direct applications by the office of the Prime Minister against a law enacted by the autonomous province of Trento regulating environmental law matters (diversions of public waters for hydro-electricity, waste management and habitats protection). The Court struck down the legislation, insofar as not amended whilst the dispute was pending, on the grounds that: (a) it undermined the state's ability to enact uniform protection standards throughout the country, pursuant to its primary legislative competence over environmental law; (b) the provincial legislation purported to amend state legislation implementing Community directives; and c) relations with the EC are to be managed on a unitary level by the state and not by local self-governing bodies.

Judgment No. 401 of 2007 (Franco BILE, President - Alfonso QUARANTA, Author of the Judgment)

This Case concerned various direct references by regions regarding various provisions of “legislative decree No. 163 of 12 April 2006 (Code of public works contracts, public supply contracts and public service contracts implementing directives 2004/17/EC and 2004/18/EC)”. The Court held that “Once in fact it has been found that the legislative action by the state falls under competition law, it also has the power to enact the relevant provisions governing that sector including through detailed provisions contained in regulations; this is of course subject to the requirement that the provisions as a whole pass constitutional muster regarding the respect for the criteria of adequacy and proportionality, in relation to any specific provisions which may from time to time be subject to scrutiny”. The Court also found that “there is no duty to consult the regions where the state exercises its power to issue regulations in matters reserved to its exclusive legislative competence”. The Court ruled groundless, on the grounds of their generic or indeterminate nature, the various questions concerning aspects of competition law, competence over which was vested in the state, but rather struck down the detailed state provisions which related more specifically to the administrative organisation of the tendering organs (which fell under regional competence).

2008

Judgment No. 26 of 2008 (Franco BILE, President - Alfonso QUARANTA, Author of the Judgment)

This case concerned a jurisdictional dispute between the public prosecutor’s office at the Tribunale di Roma and the Parliamentary Investigatory Committee on the Deaths of Ilaria Alpi and Miran Hrovatin, in which the former requested the court to order that the latter was not entitled to prevent the former from carrying out joint technical and non repeatable investigations on the vehicle on board which Alpi and Hrovatin were travelling at the time of the attack in which they lost their lives. The Court held that the duty of loyal cooperation required each body to respect the investigative powers of the other. Since the purpose of the parliamentary information (fact finding) and the judicial proceedings (establishment of criminal responsibility) are different, the exercise of the powers of the one may never occur to the detriment of the other.

Judgment No. 51 of 2008 (Franco BILE, President - Sabino CASSESE, Author of the Judgment)

In this case the Court considered questions raised by various regions concerning a range of questions concerning the regulation of airports under state legislation. The Court dismissed as inadmissible the applications based on the fact that the regions concerned were shareholders in the airport operators. On the other hand, the complaints that the state legislation violated the principle of loyal cooperation were upheld, on the grounds that the legislation covered a “confluence of several areas of law”, over one of which (regulation of airports) competence was shared, and therefore the Court held that the Joint Assembly should be consulted.

Judgment No. 64 of 2008 (Franco BILE, President - Franco GALLO, Author of the Judgment)

In this case, the Court heard a reference from the Tribunale di Roma concerning a provision which stipulated that the tax courts should have jurisdiction over disputes concerning a charge for the occupation of public spaces and areas. The Court held that once it has been held that a particular issue is not a tax law matter, “the conferral on those courts of jurisdiction over the dispute in question inevitably results in the constitutionally prohibited creation of a “new” special court”. Since the charge concerned was more a consideration than a levy, it was not a tax, and therefore it was unconstitutional to vest jurisdiction in the tax courts.

Judgment No. 85 of 2008 (Franco BILE, President - Giovanni Maria FLICK , Author of the Judgment)

In this case the Court heard a reference from the Rome Court of Appeal against an amendment to the Code of Criminal Procedure removing the right to appeal against acquittals “it does not allow the accused to appeal against judgments which discontinue proceedings due to the application of the statute of limitations, following the decision to take mitigating circumstances into account”, along with the provision applying the new arrangements to proceedings in progress. The Court pointed out that the acquittal is not a single genus, but embraces markedly different outcomes, including a finding that the accused was responsible for the offence but cannot be punished. Moreover, such verdicts may have ramifications on civil, administrative or disciplinary proceedings to the detriment of the accused. In particular, following judgment No. 26 of 2007, the exclusion of the public prosecutor’s is unconstitutional; thus the prosecution, unlike the accused, may appeal against any verdict, which hence violates the principle of equality before the court. Therefore the Court declared the contested provision unconstitutional, although it did not extend the finding to summary offences for which only a fine may be imposed.

Judgment No. 102 of 2008 (Franco BILE, President - Franco GALLO, Author of the Judgment)

In this case the Court heard an application by the President of the Council of Ministers challenging certain Sardinian legislation creating a regional tax on capital gains on properties used as second homes, a regional tax on second homes used for tourism and a regional tax on aircraft and regional craft, all of which were levied only on persons not resident for tax purposes in Sardinia. The Court declared the first tax unconstitutional since it departed from the national arrangements governing capital gains. The second tax was also struck down on the grounds that it was essentially a property tax rather than a tax on tourism, and it did not have any effective tourist-environmental rationale. Moreover, the discriminatory effects of this tax were particularly serious for undertakings “since the exemption from the tax only for undertakings resident for tax purposes in Sardinia (or even where their owner was born in Sardinia) results in an unreasonable economic benefit which distorts competition”. The third tax on the other hand was intended to pursue a typically regional interest, and satisfied the requirement of reasonableness. Finally, regarding the third tax, the Court held that there was a legitimate question of Community law as to whether the tax imposed a restriction on the freedom to provide cross-border services, and also as to whether it amounted to a prohibited state aid, and accordingly that the prerequisites for a preliminary reference to the ECJ were fulfilled (see order No. 103 of 2008).

Order No. 103 of 2008 (Franco BILE, President - Franco GALLO, Author of the Judgment)

In this case the Court considered a direct application by the Office of the Prime Minister challenging a Sardinia region law introducing a regional tax on tourist stopovers by aircraft and recreational craft, applicable to natural and legal persons resident outwith the region. The region justified the tax on the grounds that (i) undertakings liable to pay the tax benefited from local services although they did not otherwise contribute to them through local taxation, and (ii) undertakings resident for tax purposes in the region were geographically and economically disadvantages compared to non-island undertakings. The Office of the Prime Minister considered that the tax raised a question of Community law, since the ECJ had already struck down similar provisions to those establishing the stopover tax where found to render the cross-border provision of services more onerous, but it had never considered a case in which the provisions concerned discriminated against undertakings from other regions of a Member State, as well as those from other Member States. It was also argued that the ECJ should be asked whether the exemption from the tax amounted to a state aid unlawful under Community law. The Court accepted the submissions of the Prime Minister’s Office, holding that the prerequisites for making a preliminary reference to the ECJ had been satisfied, and that the Court has standing to make a preliminary reference in cases in which it is seized directly.

Judgment No. 112 of 2008 (Franco BILE, President - Giuseppe TESAURO, Author of the Judgment)

In this case the Court considered a challenge to the rule that industrial property appeals filed after the entry into force of the Industrial Property Code shall be referred to the specialist sections even if the proceedings at first instance were commenced and celebrated in accordance with the arrangements previously in force. However, the authorisation contained in the declared parent statute did not concern the regulation of the jurisdiction and transitional arrangements applicable to disputes referred to the specialist sections in industrial and intellectual property law. In fact, such matters were covered by a different parent statute, which contained a specific directional principle governing transitional provisions, according to which the government was obliged to “ensure that the specialist sections mentioned in sub-section 1(a) not be encumbered with an initial procedural burden that would prejudice the efficient commencement of their activities”, though which had in the meantime lapsed. Accordingly, since the provision did not fall within the ambit of the discretion of the secondary legislator, as it did not consistently develop and complete the choices made in the parent statute, but on the contrary conflicted with the solution reached under the terms of the authorisation concerning the specialist sections, the Court declared it unconstitutional.

Judgment No. 128 of 2008 (Franco BILE, President - Alfio FINOCCHIARO, Author of the Judgment)

In this case the Court considered a decree-law, converted into law, ordering the expropriation of the Petruzzelli Theatre in Bari. The Court recalled its prior jurisprudence according to which decree-laws were required to satisfy the prerequisites of necessity and urgency, and that any subsequent conversion into law did not have any remedying effects on eventual defects in the decree. However, the goal stated in the preamble of the “a timely renewal of the cultural activities of public interest at the Petruzzelli Theatre in Bari” did not in itself constitute a matter of extraordinary urgency and necessity, nor was a blanket assertion that these prerequisites had been satisfied sufficient. The Court therefore declared the legislation unconstitutional.

Judgment No. 131 of 2008 (Franco BILE, President - Luigi MAZZELLA, Author of the Judgment)

In this case the Court considered a challenge by the President of the Council of Ministers against a Calabria Region law containing general provisions regulating the international activity of the region, who argued that the provisions violated the state’s exclusive competence over foreign policy. The Court struck down the provisions which purported to regulate the area of development cooperation, as well as humanitarian and emergency cooperation, whilst it upheld the constitutionality of those intended to familiarise regional citizens with a culture of tolerance and cooperation which did not infringe the exclusive prerogatives of the state.

Judgment No. 143 of 2008 (Franco BILE, President - Giovanni Maria FLICK, Author of the Judgment)

In this case the Court considered the constitutionality of the national legislation implementing Council Framework Decision 2002/584/JHZ of 13 June 2002 on the European Arrest Warrant insofar as it did not provide that the pre-trial detention in a foreign country executing a European arrest warrant was to be taken into account also for the purposes of calculating the procedural effects of periods in pre-trial custody. The Court drew a distinction between the European arrest warrant regime and traditional extradition proceedings, stating that the former was based on direct relations between the relevant court authorities, rather than on the inter-governmental level. Therefore, “any imbalance between the guarantees regarding the duration of preventive custody related to the place – whether in Italy or abroad – in which the custody occurs is on a constitutional level all the more intolerable”, and the Court accordingly declared the contested legislation unconstitutional.

Judgment No. 181 of 2008 (Franco BILE, President - Paolo Maria NAPOLITANO, Author of the Judgment)

In this case the Court examined the provisions of the law on bankruptcies governing applications by the insolvent debtor for discharge during the year following the order terminating bankruptcy proceedings, according to which the law did not provide for the notification of the creditors that such an application was pending. The Court recalled its prior case law that in discharge proceedings the minimum guarantees of a fair hearing must be respected, including the right to participate. Since the arrangements did not contain any provision enacted in order to ensure the said participation, the Court found that the legislation breached Article 24 of the Constitution and accordingly declared it unconstitutional.

Judgment No. 200 of 2008 (Franco BILE, President - Gaetano SILVESTRI, Author of the Judgment)

In this case the Court considered certain regional arrangements applying to the Regional Board of Appeal for Calabria, the guarantee body ensuring compliance with the regional statute, which purported to give the Board members immunity from civil, criminal or administrative liability for acts carried out in their official capacity, and also provided “that the Board may adopt decisions and opinions with binding effect on the interested parties and on all regional bodies and authorities, a feature which is characteristic of court rulings”. The Court struck down the immunity provision, holding that the regions do not have powers to create new grounds for immunity in addition to those specified in the Constitution. With regard to the role of the Board, the Court held that it was legitimate for the Board to have a consultative, pre-legislative role, but that insofar as the legislation purported to grant the Board powers to review the legality of legislative or administrative acts it went beyond the powers vested in the regions by the Constitution, and was hence unconstitutional.

Judgment No. 215 of 2008 (Franco BILE, President - Giuseppe TESAURO, Author of the Judgment)

In this case the Court considered legislation de-criminalising certain gaming offences, which however provided that for offences committed before the entry into force of the new legislation, the old penalties would apply. The Court recalled its jurisprudence according to which, although exceptions to the principle that the lex mitior should apply were permissible, “such limitations and exceptions must be justified with reference to the need to uphold countervailing interests of similar importance”. Since the Court found that no such countervailing interests could be identified as underpinning the indiscriminate exception to the general principle, it ruled that the legislation was unconstitutional.

Judgment No. 219 of 2008 (Franco BILE, President - Ugo DE SIERVO, Author of the Judgment)

In this case the Court considered a reference from the Court of Cassation concerning the arrangements governing pre-trial detention, which did not contemplate any right to compensation where the period spent in pre-trial detention was longer than the sentence imposed, and proceedings were discontinued due to the application of the statute of limitations. The Court found that the institute of compensation for imprisonment was informed by solidarity principles, and accordingly was to be considered on an ex post basis (i.e. where the custody turned out to be unfair by virtue of the acquittal of the accused); however, the contested provision required an acquittal on the merits. The Court held that whilst pre-trial detention called on the accused to make a sacrifice that was balanced out by the public interest at large, “where however the duration of the pre-trial custody is longer than the sentence subsequently imposed, ...in order to pursue the aforementioned goals, the legal order requires of the guilty party a sacrifice directly impinging upon his freedom which, as much as it may be justified in the light of the above goals, surpasses the extent of his personal responsibility”. Therefore, in view of the foundation in solidarity, the situation of a person acquitted on the merits was only superficially different from that of a person convicted, but to a shorter term, which meant that in both cases there was a violation of constitutional rights giving rise to an entitlement to compensation. The Court therefore declared the provisions unconstitutional insofar as challenged.

Judgment No. 306 of 2008 (Franco BILE, President - Francesco AMIRANTE, Author of the Judgment)

In this case the Court considered a rule that rendered the award of a carer's allowance for the incapacitated subject to the requirement of possession of a residence card for foreign nationals, which in turn was subject to income requirements. The Court found “that it is manifestly unreasonable to render the award of a social security benefit such as the carer's allowance – the prerequisites for which are, as mentioned above, the complete inability to work, as well as the inability to walk unaided or to carry out everyday acts alone – subject to the possession of the right to reside lawfully in Italy which requires for its conferral, amongst other things, the receipt of an income”. It was also found to violate “Article 10(1) of the Constitution since the generally recognised norms of international law include those which, in guaranteeing the fundamental rights of the person irrespective of their membership of particular political entities, outlaw discrimination against foreigners lawfully resident in the state”. The Court therefore declared the provisions unconstitutional as challenged.

Judgment No. 326 of 2008 (Franco BILE, President - Sabino CASSESE, Author of the Judgment)

In this case various regions seized the Court directly with a challenge to legislation implementing a decree-law issued by the government imposing certain limits on companies under public ownership or with mixed public-private ownership established by regional or local authorities which were more stringent than the limits placed on similar companies established by the state. The Court upheld the contested legislation on the grounds that it fell “under the state's exclusive legislative competence over private law insofar as ...aimed at defining the boundaries between administrative operations and business operations, ...and under the state's exclusive legislative competence over competition law insofar as ..aimed at eliminating distortions to competition”.

Order No. 334 of 2008 (Franco BILE, President - Ugo DE SIERVO, Author of the Judgment)

In this case the Court considered a jurisdictional dispute between the Milan Court of Appeal and the Court of Cassation on the one hand and the two houses of Parliament on the other concerning a case in which the courts had ordered the termination of the feeding of a person in a persistent vegetative state. The Chamber of Deputies and the Senate claimed that the courts had adopted “a substantially legislative decision”. The Court dismissed the dispute, finding that the houses of Parliament had sought to challenge the substantive merits of the court rulings, rather than establish that the courts “used the contested measures – which had all the characteristics of court rulings typical of them, and which thus had effects only in the case before them – as mere formal pretexts for exercising legislative functions or for infringing Parliament's lawmaking powers”.

Judgment No. 350 of 2008 (Giovanni Maria FLICK, President - Ugo DE SIERVO, Author of the Judgment)

In this case the Court considered an appeal from the Regional Administrative Tribunal for Lombardy concerning legislation enacted in order to regulate premises providing telephone and internet services to the general public. The legislation stipulated various sanitation requirements which such premises were obliged to comply with, and that any business activity for which a permit had not been issued was to be closed. The Court stuck down the legislation in toto because it provided for regime of authorisations parallel to that stipulated in the Communications Code, implementing various Community directives, which had the status of a general principle of state legislation that was accordingly binding on regional legislatures.

Judgment No. 351 of 2008 (Giovanni Maria FLICK, President - Sabino CASSESE, Author of the Judgment)

In this case the Court considered an administrative law reference from the Council of State. A director general of a Lazio health authority had been dismissed from his post under the terms of regional legislation which removed certain senior officials from their posts in the aftermath of regional elections, operating a so-called political spoils system. That legislation was ruled unconstitutional by the Court (judgment No. 104 of 2007). In order to avoid reinstatement, the Regional Council enacted legislation providing that the director could be compensated. The Court struck down the legislation on the grounds that the private law principle of compensation for unfair dismissal could not be extended to the public sector, in which the dismissal of civil servants was detrimental also to the public interest on various grounds.

Judgment No. 411 of 2008 (Giovanni Maria FLICK, President - Giuseppe TESAURO, Author of the Judgment)

In this case the Court considered a direct application by the office of the Prime Minister challenging a Sardinian regional law making various provisions in the area of public sector contracts (also implementing directive 2004/18/EC). The Court struck down the regional legislation because it enacted exceptions to the general rules enacted in the framework state legislation contained in the Code of public works contracts, public supply contracts and public services contracts, and also made provision in the area of competition law and private law, both matters reserved exclusively to the state.

Judgment No. 438 of 2008 (Giovanni Maria FLICK, President - Maria Rita SAULLE, Author of the Judgment)

In this case the Court considered a direct application by the office of the Prime Minister against regulations issued by Piedmont Region setting out requirements relating to informed consent from a parent or guardian for the administration of psychoactive drugs to minors, as well as the provision of information regarding possible alternative treatment. The Court struck down the contested regulations on the grounds that they purported to regulate matters directly touching on a fundamental principle in the area of healthcare, over which competence was reserved to the state legislature, and were not limited to the issue of detailed ancillary regulations.

2009

Judgment No. 10 of 2009 (Giovanni Maria FLICK, President - Paolo Maria NAPOLITANO, Author of the Judgment)

In this case the Court considered provisions enacted by Puglia Region which prohibited the treatment of hazardous and non hazardous special waste produced outwith the region, unless the treatment plant located in Puglia was geographically closest to the place where the waste is produced. The Court drew a distinction between non hazardous urban waste, for which the principle of self-sufficiency in disposal applied, and special waste, where self-sufficiency could not apply due to difficulties in precisely forecasting the quality and quantity of waste for disposal (even though it was an aspiration under state legislation). Furthermore, the legislation was also unconstitutional since it infringed the state's exclusive legislative competence over the "environment and ecosystem".

Judgment No. 11 of 2009 (Giovanni Maria FLICK, President - Francesco AMIRANTE, Author of the Judgment)

In this case the Court considered a body of legislation which made the award of incapacity benefit (a measure of income support) to foreign nationals subject to possession of an EC residence card for long-term residents (the issue of which is dependent on receipt of a minimum level of income). The Court declared the provisions unconstitutional, first due to the unjustified difference in treatment between Italian citizens and foreign citizens legally resident in Italy, and secondly because "the subjection of the award of this benefit to the possession by the foreigner of a right of residence, the granting of which presupposes the receipt of an income, renders the inherent unreasonableness of the body of legislation under review even more evident.

Judgment No. 19 of 2009 (Giovanni Maria FLICK, President - Maria Rita SAULLE, Author of the Judgment)

In this case the Court considered a legislative decree from 2006 which granted an entitlement to paid leave to various cohabiting family members of seriously disabled persons, but not to the cohabiting child who was the only cohabiting family member able to provide care and assistance. The Court applied by analogy its ruling from judgment No. 158 of 2007 (which extended such a right to the cohabiting spouse). The Court therefore read the legislation as providing such a right also to cohabiting children, as a requirement of solidarity (Article 2), on equality grounds (Article 3) and pursuant to the right to healthcare (Article 29).

Judgment No. 20 of 2009 (Giovanni Maria FLICK, President - Luigi MAZZELLA, Author of the Judgment)

In this case the Court considered a challenge to the arrangements governing the marking of professional examinations for lawyers which stipulated only the requirement that an alphanumeric grade be given, and that there was not need to give reasons. The referring court claimed that the contested provisions violated candidates' rights to effective protection through the courts. The Court ruled the question inadmissible, finding that the procedural principles raised were not relevant in this particular case, which concerned “the substantive aspect of the prerequisites for the validity of the decision to exclude the candidate”.

Judgment No. 28 of 2009 (Giovanni Maria FLICK, President - Ugo DE SIERVO, Author of the Judgment)

In this case the Court considered a challenge to a law which granted compensation to persons infected with HIV following compulsory vaccinations, transfusions or administration of blood or blood derivatives, but did not provide for analogous compensation for infection with hepatitis. Although judgment No. 476 of 2002 had extended such protection to persons infected with hepatitis following blood transfusions, those infected following the administration of blood derivatives still lacked cover. The Court accordingly read the provision as providing compensation also for those infected with hepatitis following the administration of blood derivatives, on equality grounds (Article 3) since there was no justification for the unreasonable difference in treatment.

Judgment No. 61 of 2009 (Francesco AMIRANTE, President - Paolo MADDALENA, Author of the Judgment)

In this case the Court considered a challenge by the Prime Minister's Office to a Valle d'Aosta region law which changed the state and Community law definition of waste, and also lowered the level of environmental protection established under state law. The Court struck down the legislation as unconstitutional on the grounds that, if the state lays down “minimum standards of environmental protection”, this means that the regions may enhance such protection, but may not lower it. The Court also rejected as groundless a further complaint by the Applicant challenging provisions which permitted the preliminary deposit of waste in brownfield sites.

Judgment No. 69 of 2009 (Francesco AMIRANTE, President - Gaetano SILVESTRI, Author of the Judgment)

In this case the Court heard a challenge from the Parliamentary Committee on Broadcasting to a decision by the Finance Minister to dismiss one of the directors of RAI, without having previously consulted the Committee and obtained a resolution to that effect. The Court held that, although a literal interpretation of the contested legislation appeared to support the Finance Minister's position, it was necessary to interpret the provisions from a systematic viewpoint and avoid a situation in which different members of the Committee were subject to different arrangements and were the position of some was more precarious than that of others, since this would be detrimental to the constitutionally guaranteed rights and freedoms relating to public broadcasting.

Judgment No. 86 of 2009 (Francesco AMIRANTE, President - Alfio FINOCCHIARO, Author of the Judgment)

In this case the Court considered a reference from an unmarried mother whose long-term partner, who was also the father of her child, had been killed in an industrial accident, seeking the award of a widow's annuity on the same conditions as a married survivor, or in the alternative an annuity as the person with parental responsibility for the minor. The Court rejected the main claim, on the grounds that the discrimination between married and unmarried couples was justified under constitutional law due to the principle that marriage be protected. However, with regard to the child, the child of married parents would also be able to benefit from the annuity awarded to the surviving spouse in their own right, in this case the child would suffer discrimination were he to receive only the part of the annuity due to the child, and therefore the court ordered that the child should be awarded the supplementary annuity due in cases where the child has lost both parents, rather than only one.

Judgment No. 106 of 2009 (Francesco AMIRANTE, President - Alfonso QUARANTA, Author of the Judgment)

In this case the Court considered a reference from the criminal court of Milan regarding the classification by the Prime Minister of certain information relating to the activities of the security and intelligence services as state secrets, some of which was already on file pursuant to pre-trial discovery. The Court rejected the complaint, finding that the information had been validly classified, and that any review of the substantive merits of that classification was a matter for Parliament and not the courts. Although certain information which could be useful to the inquiries was indeed classified, the offence as such was not an official secret, and the courts were not barred from investigating, and where appropriate prosecuting, the offence (the abduction and “extraordinary rendition” of Abu Omar) on the basis of non classified information.

Judgment No. 224 of 2009 (Francesco AMIRANTE, President - Paolo MADDALENA, Author of the Judgment)

In this case the Court considered a provision which imposed a disciplinary penalty on a magistrate who took up an appointment in a political party as president of its provincial federation on the grounds that it violated the equality of political rights and the judge's right of association. The Court ruled the question groundless, finding that the requirement for the judiciary to be, and to appear, impartial was sufficiently significant to justify a restriction on the judge's political rights. “the introduction of the prohibition is the corollary of a duty of impartiality which applies to the magistrate, extending also to his conduct as an ordinary member of the public, at all times of his working life.”

Judgment No. 239 of 2009 (Francesco AMIRANTE, President - Ugo DE SIERVO, Author of the Judgment)

In this case the Court considered the constitutionality of a provision which stipulated that land and buildings developed unlawfully were to be confiscated following criminal proceedings for the offence of unlawful development “including in the event that the accused are acquitted on grounds other than the conclusion that there was no case to answer, and including for property belonging to persons not involved in the criminal trial”. The contested provision was stated to have introduced a criminal law penalty (on the basis also of the ECHR ruling on admissibility in the Sud Fondi case), thereby violating the constitutional law principles of “equality, the requirement that offences be regulated by statute and the personal nature of criminal law responsibility”. The Court ruled the question inadmissible on the grounds that: (i) the description of the facts of the case was insufficient; (ii) it is not clear whether the measure would be applied against the accused who had been acquitted or against third parties not involved in the proceedings; (iii) the referring court did not establish that the ECHR ruling cited was in point; and (iv) the referring Court had not attempted to resolve the issue through interpretation.

Judgment No. 262 of 2009 (Francesco AMIRANTE, President - Franco GALLO, Author of the Judgment)

In this case the Court considered a reference from two criminal courts concerning the temporary immunity from prosecution (for the duration of one legislature) of the holders of the four highest offices of state. The Court struck down the legislation (law No. 124 of 2008) on the grounds that, insofar as it purported to regulate inherently constitutional matters, Parliament was not entitled to enact ordinary legislation but should have used the appropriate procedures for amending the Constitution. The Court decided the case on procedural grounds alone and did not consider the substantive merits of the legislation.