Lecture 20 Flashcards
1
Q
The Sources of Law
A
The hierarchy of the sources of the law in the Italian constitutional system
- 1: Constitutional-level sources
- 2: EU law
- 3: Primary sources
- 4: Secondary sources
- 5: Conventions and uses (praxis)
2
Q
The Sources of Law: Constitutional-level Sources (type of constitution, hierarchical level, amendments, other sources that follow the same procedure)
A
- The Constitution of the Republic: fundamental source (rigid) of the Italian legal system (special “rigidity” for fundamental principles and rights)
- Constitutional amendment laws: laws that amend the Constitution, produced through the process regulated by art. 138 Cost.
- Constitutional laws: in some cases, the Constitution requires that a law is adopted through the process outlined by art. 138 Cost. (e.g.: special regional statutes; judgments before the Const. Court; etc.)
3
Q
The Sources of Law: Primary Sources
A
- Ordinary law: the main primary source of the law (Parliament)
- Acts having the same force of ordinary laws (issued by the Government)
1. Law-decree
2. Legislative decree - The Internal Standing Orders of the Houses of
Parliament (autonomy)
4
Q
The Sources of Law: EU Law
A
- Italy is a member State of the EU
- Italy voluntarily renounced parts of its sovereignty through the European Treaties
- Legal basis is article 11 Cost.: “Italy agrees, on conditions of equality with other States, to the limitations of sovereignty that may be necessary to a world order ensuring peace and justice among the Nations. Italy promotes and encourages international organisations furthering such ends”
5
Q
The Sources of Law: EU Law– Phases
A
PHASE 1
- Every European act must be ratified as for
any international Treaty (Corte Cost. 14/1964)
- Chronological criterion: European acts have the same legal force of the national act that introduces them in the national legal system (ordinary law)
- ECJ objects: This system does not guarantee the
primacy of European law on national law. National
law cannot unilaterally abrogate European law (Costa v. Enel, C-6/64)
PHASE 2
- If there is a contrast between European law and national law, the judge must raise a question of constitutionality of national law for violation of art. 11 Cost. (Corte Cost. nos. 183/1973, 232/1975)
- Hierarchical criterion: European law as an “intermediate” parameter of constitutionality
- ECJ objects: in order for the primacy of European law to be effective, European law should also be
directly applicable in national legal systems (Simmenthal, C-106/1977)
PHASE 3 (current)
- If there is a contrast between European law and national law, the national judge must disapply national law (primacy of European law) (Corte Cost. n. 170/1984)
- The European legal system and the Italian legal system are separate (dualist theory)
- Attribution criterion (non-application)
- No need to raise a question of constitutionality before the Constitutional Court
6
Q
The Sources of Law: Primary Source– Abrogative Referendum
A
- Instrument of direct democracy
- Has a mainly counter-majoritarian / oppositivenature: used only to «repeal», not to «propose»
- Article 75 Cost. was implemented only in 1970 (with law no. 352/1970)
- Historical reasons: compromise between majority and opposition (referendum of 1974 on the ordinary law on divorce)
- Initiative: Request by 500.000 voters (signatures on the application form filed in the Central Office of the Court of Cassation by the “promoters”) or 5 Regional Councils (same deliberation approved by absolute majority)
- The abrogative referendum cannot be requested 1 year before and 6 months after the natural dissolution of the Houses
- Contents: an ordinary law or an act having the force of ordinary law (totally or partially)
- Explicit limits: tax laws, budget law, international treaties, amnesty and pardon laws
- Implicit limits
1. On the content: laws that are constitutionally necessary (e.g.: election law), referendums that would produce an unconstitutional law (e.g.: euthanasia)
2. On the question: homogeneous and clear - Legality Review: Central Office for the Referendum (Court of Cassation)
- Admissibility Review : Constitutional Court with a specific type of judgment
- The day of voting is determined by the President of the Republic on the proposal of the Council of
Ministers. It must be a Sunday between the 15th of April and the 15th of June (suspended for 1 year in
case of anticipated dissolution/elections) - Quorum: Structural (50%+1 of those eligible to vote: voters for the Chamber of Deputies; it is necessary an affluence of at least half the electors with voting rights to consider the referendum valid) and Deliberative (50%+1 of “yes” votes)
- Announcement of the results: in case of approval, decree of the PotR declaring the abrogation
- If the law subjected to the referendum is changed by the legislative power before the vote, the referendum is automatically “transferred” on the new law by the Central Office, except for the case in which the modifications affect the essential elements or the general principles of the legislative provision: in this case the referendum is revoked
- If the result of the referendum is “no” the same request cannot be submitted again for 5 years
7
Q
The Sources of Law: Primary Sources– Regional Statutes (+ majority needed, n. of votations, regional referendum: time limits, what is required; promulgation by whom, question of constitutionality)
A
- The statute of autonomy (ordinary Regions) is adopted by the Regional Council for a first time by absolute majority
- The same text of the statute (no amendments) is approved again (second time) by the Region Council after at least 2 months and by absolute majority
- The statute of autonomy may be subject, within the next 3 months, to a popular referendum, if it is required by 1/50 of the regional voters or 1/5 of the members of the Regional Council. The referendum has no quorum of participation
- The statute of autonomy is promulgated by the President of the Region, published, enters into force
- If the Government finds that the statute is incompatible with the Constitution, it may raise a question of constitutionality, before the Constitutional Court, within 30 days
- “Reinforced” primary source of the law (higher than regional laws?)
- Regional laws (“leggi regionali”): primary source of the law on matters of regional competence (article 117 Cost.)
- The regional legislative power is exercised by the Regional Council according to a legislative process regulated by the regional statute (except for the power of the President of the Region to promulgate the regional laws, as this power is directly regulated by the Constitution)
- Regional referendum: regional instrument of direct democracy
- The regional referendum is regulate by the regional statute of autonomy and regional laws (except for the power of the President of the Region to call for the referendum, as this power is directly regulated by the Constitution)
- The regional referendum may by abrogative, propositive or consultative, on regional laws and regulations
8
Q
The Sources of Law: Secondary Sources
A
- Regulations (Government)
- Regional regulations: Regional regulations are approved by the Regional Council according to a process regulated by the statute of autonomy and by regional laws
- Regulations of the Regional Executive (“delibere
della Giunta”) - Local regulations (Municipalities)
9
Q
The Sources of Law: Statutory Limits
A
- Absolute: a matter must be regulated entirely by an ordinary law or by an act having the same force of an ordinary law (law-decree/legislative decree)
- Relative: a matter must be regulated partially by an ordinary law or by an act having the force of an
ordinary law and, eventually, by regulations - Simple: the Constitution establishes that it must be an ordinary law to regulate a certain subject matter, without setting limits to its content
- Reinforced: a matter must be regulated (totally/partially) by an ordinary law adopted with a certain restricted content or with a certain procedure
- Formal: a matter must be regulated by an ordinary law (no other primary sources)
