sexta-feira, 20 de março de 2015

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:…/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 (last accessed: March 2, 2015).
[5] Text available in Italian at (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 " (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…/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…/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.
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 ‘central…

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