Paolo Carnevale

The Declaration of Unconstitutionality 'Deferred' Between the Need to Safeguard the Incidental Model and the Problem of Selfattribution of Power by the Judge of Lawsi

  • Abstract

Informations and abstract


Starting out from recent pronouncements of the Constitutional Court (in particular Decision 10 of 2015) ruling the deferment of the effects of the declaration of unconstitutionality, the essay aims to analysing both the compatibility of such decisions with incindenter mechanism of review and the actual foundation of the power to defer effects of itw own rulings. From a first standpoint the author claims that, within the Italian system of constitutional justice, the requirement of the relevance of the question raised by the court "a quo" has to be understood as mere applicability. It should not be the capacity to exercise actual "influence" over the court a quo to count then, which is something possible but not necessary. From a second standpoint, the case law in question is put in context with those decisions dealing with a conflict between a statuory law and a constitutional provision entered into force after the enactement of the former. In both such cases a nexus of derivation between the construction of a constitutional flaw by the Constitutional court and the definition of the effects over time of the decision to annul the law as unconstitutional is at stake. This assimilation, though, where a balancing regarding temporal effects takes place, does not seem viable because in the case of deferment of effects the object of manipulation is not the legal provision contested but the decision itself as to when its effects start.

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