Giacomo D'Amico

Governo legislatore o governo giudice? Il decreto-legge n. 80 del 2004 al vaglio della Corte costituzionale, ovvero dell'irresistibile tentazione del legislatore a farsi giudice in causa propria

  • Abstract

Informations and abstract


The writing examines Court of Cassation ruling n. 7327 of 14 April 2004 concerning the question of the constitutionality of Art. 7 of Law by Decree n. 80 of 2004. Interest in the ruling derives from the fact that behind the Government measure would seem to be a hidden attempt to affect a judicial matter in progress, influencing the outcome thereof. For this reason, the analysis of the profiles dealt with in the ruling is accompanied by some considerations in relation to the transformation of the form of parliamentary government following the electoral reform introducing the majority system. Returning to the issues touched on by the Court of Cassation's ruling, the present work first concerns itself with the problems in relation to the applicability of the Single Text as regards local government institutions in Sicily, including in light of the reform of Title V of Part II of the Constitution. Next dealt with are the questions connected with the presumed retroactivity of the laws providing an authentic interpretation and, in general, with the norms having retroactive effect. In particular, these topics are analysed on the basis of certain well-established orientations of the Court of Cassation and the Constitutional Court. But the main point of the examination of the above-mentioned remission is constituted by the examination of the jurisprudential orientations of the Judge of the laws as to the verification of the special cases of necessity and urgency that legitimate recourse to law by decree. Closely tied to this problem is the question concerning the presumed remedial effect of the law of conversion with respect to eventual flaws in the decree. In this regard, the analysis of the most recent constitutional jurisprudence makes it possible to discern a thread that joins rulings apparently inspired by differing doctrinal orientations.

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