Suchergebnisse

The aim of the paper is to look at Italy's invisible Constitution to identify the drivers of informal transformations and create a snapshot of the Italian case in order to make a comparative contribution to the debate. I argue that, in addition to the traditional forces of informal constitutional change – namely constitutional conventions, the role of the judiciary in interpreting the constitution and the role of relevant institutional actors – the Italian case must be seen in the light of the specific constitutional history of Italy, especially two fundamental "moments" of this history: the specific political context in which the Constitution was drafted in 1947 and Italy's participation in the EU integration process. Only by looking at informal constitutional change in the broader context of these historical and political evolutions can we understand the key features of the "Italy's unwritten Constitution".

The article analyses the evolution of abortion legislation in two emblematic countries: USA and the Republic of Ireland. These two countries, despite starting from different (even opposite) abortion regulations, today seem to converge: in the US, where abortion is a constitutional right recognized by the US Supreme Court, we witness the ongoing states' attempt to restrict abortion's access; on the contrary, in Ireland, where art. 40.3.3. of the Irish Constitution protected the life of the unborn, after the referendum of 25 May 2018, we can observe that the system is moving towards a more liberal abortion legislation. The article highlights these converging trends in comparative perspective and it focuses on the constitutional paths that determined the current abortion regulation in the USA and Ireland.

In the last few decades, we have witnessed the renaissance of Comparative Constitutional law as field of research. Despite such a flourishing, the methodological foundations and the ultimate ratio of Constitutional comparative law are still debated among scholars. This article starts from the definition of comparative constitutional law given by one of the most prominent comparative constitutional law scholars in Italy, prof. Bognetti, who defined comparative constitutional law as the main joining ring between the historical knowledge of the modern law and the history of the humankind in general and of its various civil realizations. Comparative constitutional law is in other words a kind of mirror of the "competing vision of who we are and who we wish to be as a political community" (Hirschl), reflecting the structural tension between universalism and particularism, globalization and tradition. The article aims at addressing the main contemporary methodological challenges faced by the studies of the field. The article argues that contemporary comparative constitutional studies should address these challenges integrating the classical "horizontal" comparative method with a vertical one - regarding the international and supranational influences on constitutional settings - and fostering an interdisciplinary approach, taking into account the perspective of the social sciences.

Il contributo affronta il tema della tutela dei diritti fondamentali nell'ordinamento dell'Unione europea a seguito dell'entrata in vigore del Trattato di Lisbona che ha sancito la forza vincolante della Carta di Nizza. Da allora, il dibattito circa la natura dell'Unione europea come Europa dei diritti e della Corte di Giustizia come "human rights adjudicator" ha avuto una decisa accelerazione. Guardando a questa svolta, il presente contributo intende mettere in luce i nodi problematici che permangono nell'intreccio europeo e nazionale nella tutela dei diritti, che in ultima analisi risiedono nell'ancora incerta fisionomia dell'Unione e nell'insistenza nello spazio europeo di ordinamenti distinti ma interconnessi, la cui relazione non può tuttavia essere letta in termini meramente gerarchici. La lente attraverso la quale si analizza il tema è quella del "dialogo tra Corti", non solo perché la tutela dei diritti in Europa avviene sempre di più in via giurisdizionale (mancando una vera e propria policy europea dei diritti), ma anche perché è proprio dall'interazione tra i vertici giurisdizionali dei rispettivi ordinamenti che traspare in maniera netta la natura conflittuale e problematica del c.d. dialogo. Il tema verrà messo a fuoco attraverso l'analisi dei più recenti leading cases della Corte di Giustizia (Åkerberg Fransson, Melloni, Siragusa) e delle risposte che alcune Corti supreme nazionali hanno prontamente dato nel tentativo di definire i confini tra i diversi standard di tutela dei diritti fondamentali. ; The article deals with the theme of the fundamental rights protection in the European Union after the entry into force of the Charter of Nice in 2009. Since then, the nature of the European Union as human rights organization and of the ECJ as human rights adjudicator had been debated among legal scholars. The article is aimed to shed lights on the critical issues that characterize the intertwined systems of rights protection at the European and national level. We argue that the problematic issues are due to the still undefined nature of the European Union, and to the existence within the EU space of different but connected legal orders, without a hierarchical relationship. The perspective through which the theme will be analysed is that of the judicial dialogue, not only because human rights protection in the EU is mainly a matter of the judiciary, lacking a EU human right policy, but also because it is emblematic of the confrontational and problematic nature of the relationship among legal orders. The analysis will be conducted through the study of the ECJ case law (Åkerberg Fransson, Melloni, and Siragusa cases) and that of the national supreme courts in dialogue with their European counterpart.

The aim of the paper is to look at Italy's invisible Constitution to identify the drivers of informal transformations and create a snapshot of the Italian case in order to make a comparative contribution to the debate. I argue that, in addition to the traditional forces of informal constitutional change – namely constitutional conventions, the role of the judiciary in interpreting the constitution and the role of relevant institutional actors – the Italian case must be seen in the light of the specific constitutional history of Italy, especially two fundamental "moments" of this history: the specific political context in which the Constitution was drafted in 1947 and Italy's participation in the EU integration process. Only by looking at informal constitutional change in the broader context of these historical and political evolutions can we understand the key features of the "Italy's unwritten Constitution".

In December 2020, the EU institutions finally approved the new Rule of Law Conditionality Regulation after a controversial legislative process. The new Regulation allows the Commission and the Council to suspend EU funds in case of breaches to the rule of law that have negative effects on the EU budget and financial interests. This article analyses the new Regulation against the background of the rise of conditionality as a tool of EU governance. It argues, in contrast to some of the first analyses of the new Regulation, that the amendments adopted during the legislative process cannot simply be seen as a watered-down compromise, but were crucial to ensure the legality of the new instrument. At the same time, the EU's growing reliance on conditionality continues to raise profound constitutional questions that still needs to be adequately addressed in the institutional and academic debate.

Abstract
Europe can be considered a sort of fortress of the protection of socio-economic rights. However, this bright scenario has been unsettled by the eruption of the Eurozone crisis, which has challenged the narrative of social Europe and swept away protections for social rights in Member States grappling with sovereign debt crises such as Greece, Portugal, Ireland, Cyprus, Latvia and Romania. In these countries, austerity measures led to persistent violations of social rights, under the external constraint of conditionality regimes which involved cuts in wages, pensions and welfare services. Consequently, austerity measures were challenged in domestic and European Courts and before the ECSR. In other words, there has been a 'turn to the law', in order to give concrete effect to the potential offered by the relevant legal instruments. What has been the general attitude of the Courts and quasi-judicial bodies to actions challenging austerity measures? Since the analysis of how the Courts and other human rights bodies manage the complex and controversial balance between austerity and social rights is an excellent 'stress test' to determine the 'weight' of the latter not only in the political debate, but also in the human rights discourse, this paper will focus on the 'crisis cases' in Europe, so as to shed light on the actual level of protection for social rights.

Abstract
International and constitutional law, originally distinct realms with limited areas of intersection, are getting closer and closer, particularly in the European landscape within the human rights protection field, where these mere contacts between the two systems have become intersections and overlaps. The present article will try to shed light on the still unsolved and problematic issues to which overlapping human rights protection systems give rise, by focusing on an analysis of the heterologous in vitro fertilization case, where both the Strasbourg Court and the Italian Constitutional Court delivered relevant judgments on very similar matters (ECtHR's S.H. Judgment; Judgment No. 162/2014 from the Italian CC). Such analysis revealed useful in highlighting connections and disconnections between the different levels of protection of rights, and led us to argue that the development of a multilevel protection of rights is also, at least partially, a tale of Courts, each competing to have the last word on human rights adjudication.