O Tribunal Constitucional italiano e o STF - a proporcionalidade e a modulação:
O blog I Connect publica hoje uma postagem abordando a questão do
funcionamento do Tribunal Constitucional Italiano.O papel da Corte
italiana já está devidamente consolidada. Não nos surpreende mais o
despontar de inovações institucionais. A postagem discute, em
realidade, a modulação temporal. O Tribunal defende a aplicação da
proporcionalidade na modulação temporal porque acarretaria uma função de
limitar um efeito, por exemplo, de arbitrariedade. Na semana passada,
no plenário do STF, sustentou que, na modulação temporal, ao adotar a
proporcionalidade esta teria uma especificidade
An Evolution in
“Italian Style”: The Constitutional Court says it will Govern the
Effects of its Judgments (and Will Use the Proportionality Test to Do
It)
Posted: 19 Mar 2015 05:21 PM PDT
–Erik Longo (University of Macerata) and Andrea Pin (University of Padua)
Since the adoption of the Constitution in 1947, Italy's Constitutional
Court (CC) has had the primary purpose of defending the normative
superiority of constitutional law within the legal order. The Italian
model of judicial review of legislation largely takes inspiration from
the so-called 'centralized' or 'European' model of review that Hans
Kelsen developed for the Austrian Constitution of 1920.[1]
Italy's CC retains sole power to invalidate legislative provisions as
unconstitutional. If lower courts suspect that a law they are expected
to apply in a controversy is unconstitutional, they only can suspend the
trial before them and request a preliminary ruling from the CC on the
relevant legal provision.
The decision of the CC to invalidate a
statute applies not only to the concrete case that led to that ruling,
but to all cases, present and future. The only exceptions are those
cases that have exhausted all judicial remedies and therefore are barred
from relitigation: such cases were subject to the law as applied before
it was declared unconstitutional since they cannot be reopened.
In other words, the CC's declarations of unconstitutionality have
retroactive effect.[2] Moreover, as a general rule, the CC itself has no
power to mitigate the effects of its decisions.
There has always
been little question that the CC's judgments would affect present and
future cases alike, with no leeway for the CC itself to modulate the
effect of its decisions. Legal doctrine, however, has divided sharply
between those who endorse this approach and those who prefer that the CC
have a broader spectrum of solutions available.[3] Endowing the CC with
the ability to control the effects of its own decisions would bring its
discretion closer to that which is afforded to the legislature. This
change would be a major shift in the understanding of the CC's role.
Nevertheless, the CC has occasionally carved minor exceptions to this
rule under specific circumstances. For example, it has controlled the
effect of its decisions by invalidating the law under its review only
prospectively. Or, it has limited the retroactive effects of a decision.
Only a handful of cases have applied these limits, though, and the CC
each time has clarified that compelling constitutional interests urged
it to deviate from the general rule. For example, it limited the
retroactive effects of a judgment in which it struck down a piece of
State legislation financing daycares because it interfered with Regional
competencies. Retroactive effects would have caused daycares to pay
back the public funds they received from the State in restitution and
face bankruptcy. Thus, the CC protected the transactions that had been
enacted up to that point.[4] But such decisions were sporadic, and the
justifications for such deviance from the general rule were
narrowly-tailored and piecemeal.
The lack of control over the
effects of its decisions, together with the poor theorization of
exceptions it provided, traditionally has put the CC in a difficult
position. The CC has oftentimes declined to invalidate tax or fiscal
laws whose incompatibility with the Constitution was at least arguable,
because of the financial difficulties that such a decision would have
caused for the State. The CC realized that the decision's retroactive
effects would have required the State to give back to taxpayers the
revenues that it had been collecting for years. The CC's lack of power
to mitigate its decisions' effects resulted in the CC relaxing its
scrutiny of tax and fiscal laws.
Only now, with judgment no. 10,
on 2 March 2015,[5] has the CC made the bold affirmation that it has the
power to govern the effects of its decisions.
The CC
was asked to make a preliminary ruling on a tax law issue. Some
provisions in force since 2008 levied extra corporate income taxation
from oil enterprises,[6] under the assumption that such economic
activities were benefited by extra profit, if compared with companies
operating in other areas. The oil companies were required by law not to
externalize the extra taxation by increasing the final oil price.
The CC outlawed such a discipline, holding that the extra taxation was
discriminatory and irrational: on one hand, it burdened some specific
types of economic activities with more taxation than others for an
unlimited time; on the other hand, it failed to ensure that the extra
taxation would not be externalized and eventually charged to the final
consumers of oil.
In the traditional solution, the CC would have
annulled the extra tax retroactively and caused the oil companies to be
fully reimbursed for the 2008-2015 period, the full time the law had
been in effect. But this would have had two paradoxical results, as the
CC itself stressed. First, the State also would have needed to reimburse
economic enterprises that had been able to externalize the extra
taxation, and therefore give money to companies that had never
concretely paid those sums out of their own profits. Second, since the
extra tax revenue was extremely high, this reimbursement would have
urged the State to introduce new taxes to cover the budget deficit that
the decision was creating.
Therefore, in a further effort to
minimize the financial impact of its decisions, the CC mitigated the
effects of its judgment by declaring explicitly that the law's
illegitimacy was effective only "starting from the day following its
publication." Tax levied up to that very day would not need to be
reimbursed. This solution protected the State budget from any actual
harm: the legislature can now fix the problem by quickly passing a law
with a different tax regime, but the State doesn't need to pay back the
tax revenues it levied so far.
The CC stated explicitly that this
modulation of the decision's effects was still exceptional, but this
time it wanted to nail down that such power is grounded in the
Constitution itself, as long as the constitutional text is read as a
whole. The CC affirmed that some constitutional values commanded that it
mitigate the decision's effects. It explained that having a sound
budget was a constitutional value,[7] and added that erasing the
challenged legal provisions from the point of their introduction would
have meant enriching oil companies with public money in compensation of
taxes they had never really paid from their own profits. This payment
thus would constitute a further violation of the constitutional
principles of equality and solidarity, entrenched in Articles nos. 2[8]
and 3[9] respectively.
Still, the CC had to face two distinct
issues to explain how and why it can control the effects of its
decisions in light of the longstanding tradition of automatic
retroactive effects attached to its judgments of constitutional
invalidity. Specifically, it had to show, first, how the CC can
determine when its decisions become effective and, second, the origin of
its power to make this determination, which Italian law does not
explicitly provide to the CC.
On the first point, the CC stated
clearly that the mitigation of a decision's effects is acceptable and
not arbitrary, because it is subject to a "strict proportionality test,"
which is composed of two inquiries: there must be a "compelling need to
protect one or more Constitutional principles which would be otherwise
endangered" by a radical nullification; and the limitation of
retroactive effects must be strictly necessary for this purpose.
These two points are significant. The CC has already insisted on the
"proportionality test" as a tool to scrutinize legislation.[10] But here
"strict proportionality" has a new purpose: it limits the CC's new
power to modify the effects of its decisions. After putting the
legislature under the "proportionality test" check, the CC is now
putting itself under it as well. Proportionality is the proxy that the
CC uses to circumscribe its discretion in modulating its decisions'
effects and to avoid both the risk and appearance of arbitrariness.
As to the second point, the origin of the Court's power to control the
decisions' effects is more problematic. Here the CC drew from the
principle of proportionality considered in its own and other States'
constitutional settlements. It names Austria, Germany, Spain, and
Portugal to infer that such models, which all contemplate preliminary
ruling as a means of judicial review, enable Constitutional Courts to
control the effects of their jurisprudence, whether their own
constitutional texts accord them the power or not. A quick comparative
look into other legal regimes led the CC to conclude that this power is
normally exercised abroad "regardless of the fact that the Constitution
or the legislature ha[s] conferred" it.
This part of the CC's
reasoning is striking. The CC conceded that no explicit legal text
endows it with this new power. Rather, the CC seemed persuaded that this
power is simply part of the common heritage of constitutional
adjudication. It stems from the very idea of judicial review of
legislation and from the CC's need to address the Constitution as a
whole.
One can applaud that the CC is putting itself under the
control of "proportionality," but nonetheless legitimately wonder what
other quintessential features of constitutional adjudication still lie
beneath the Constitutional Courts' common praxis and could be
analogously imported in the future.
This decision, however, could
have finally put an end to a vexed trend in the CC's case law.
Admittedly, starting from 2008 especially, the CC saved many debatable
tax laws and budget cuts, fearing that negative decisions with
retrospective impact would have created a hole in State budgets. This
trend could be over.
Suggested Citation: Erik Longo & Andrea
Pin, An Evolution in "Italian Style": The Constitutional Court says it
will Govern the Effects of its Judgments (and Will Use the
Proportionality Test to Do It), Int’l J. Const. L. Blog, Mar. 20, 2015,
at:
http://www.iconnectblog.com/…/an-evolution-in-italian-style…
[1] Articles 137-148. See H. Kelsen, Judicial Review of Legislation: A
Comparative Study of the Austrian and the American Constitution, The
Journal of Politics, 1942, 183-200.
[2] Until now, two rules
constrained the CC's power to review legislation: (1) Art. no. 136 of
the Constitution, which states that "when the Court declares the
constitutional illegitimacy of a law or enactment having the force of
law, the law ceases to have effect from the day following the
publication of the decision;" and (2) Art. no. 30 of Law no. 87 of 1953:
"once a law is declared illegitimate, it cannot be enforced starting
from the day following the publication of the decision." These two rules
diverge significantly. Art. no. 136 formally works as an abrogation of a
legal provision, so that only cases initiated after the declaration of
unconstitutionality won't be governed by the challenged provision. While
Art. no. 3 prevents the unconstitutional law's application in any case
that may be brought before a judge, regardless of whether the case was
initiated before or after the judgment of unconstitutionality. In either
case, the boundaries of the CC's decisions were firmly settled by its
case law: the legislature left no power for the CC to determine their
effects. See G. Zagrebelsky, V. Marcenò, Giustizia costituzionale, il
Mulino, 2012, 347.
[3] For an example of this debate, see G.
Cosmelli, Efficacia Intertemporale delle Declaratorie di Illegittimità
Costituzionale e Situazione Sostanziale: Appunti in Tema di
"incostituzionalità sopravvenuta," Giurisprudenza costituzionale, 2012,
1564-1567.
[4] Judgment no. 370 of 2003. Text available in Italian at
http://www.cortecostituzionale.it/actionPronuncia.do (last accessed: March 2, 2015).
[5] Text available in Italian at
http://www.cortecostituzionale.it/actionPronuncia.do (last accessed: March 2, 2015).
[6] The challenged provisions, which were later modified multiple
times, are Art. nos. 16, 17, and 18 of Decree-law 25 giugno 2008 , n.
112 ("Disposizioni urgenti per lo sviluppo economico, la
semplificazione, la competitivita’, la stabilizzazione della finanza
pubblica e la perequazione Tributaria"). The original text is available
at "
http://www.governo.it/backoffice/allegati/39417-4815.pdf (last visited: 9 March 2015)."
[7] This, the CC added, was especially true after the 2012
constitutional amendment that commanded that "the State shall balance
revenue and expenditure in its budget, taking account of the adverse and
favourable phases of the economic cycle" (Art. no. 81 Const.). Cf.
Italian Constitution: text available in English at
http://www.quirinale.it/…/cost…/pdf/costituzione_inglese.pdf
[8] "The Republic recognises and guarantees the inviolable rights of
the person, as an individual and in the social groups within which human
personality is developed. The Republic requires that the fundamental
duties of political, economic and social solidarity be fulfilled."Ibid.
[9] "All citizens have equal social dignity and are equal before the
law, without distinction of sex, race, language, religion, political
opinion, personal and social conditions.
It is the duty of the
Republic to remove the economic and social obstacles which by limiting
the freedom and equality of citizens, prevent the full development of
the human person and the effective participation of all workers in the
political, economic and social organisation of the country." Ibid.
[10] Judgment no. 1, 2014, text partially available in English at
http://www.cortecostituzionale.it/…/recent_ju…/1-2014_en.pdf
(last accessed: March 2, 2015). See E. Longo, A. Pin, Don't Waste Your
Vote (Again!). The Italian Constitutional Court's Decision on Election
Laws: An Episode of Strict Comparative Scrutiny, to be published in the
Icon-s Working Paper Series.
