Abstract

Constitutional Court ruling No. 71 of 2023 ascertains but does not declare the unconstitutionality of the budget constraints placed on the municipal solidarity fund aiming at guaranteeing specific essential levels of services.The Court held inadmissible the question of constitutionality on certain provisions of the State Budget Law for 2022. The Region sought to obtain a «free rhyme» ruling, of a substitutive-reconstructive nature. The examination of the merits of the petitum was consequently precluded to safeguard the margin of appreciation of the National legislator. The margin of appreciation of the legislator is opposed as a limit to judicial review of legislation despite the fact that the Court ascertains the violation of Article 119, paragraph 3, of the Constitution. In fact, many warnings are addressed to the legislator to highlight that it has not been ensured a strict distinction between general equalisation instruments (Article 119, paragraph 3, of the Italian Constitution) and special equalisation instruments (Article 119, paragraph 5, of the Italian Constitution) and that it has not been respected the principle of loyal cooperation in defining the mechanisms for allocating financial resources. This analysis of judgement no 71 of 2023 suggests the need to reflect on the different «consistency» that the margin of appreciaton of the legislator presents in certain «strands» of Constitutional Court case law developed in the excercise of judicial review of legislation through the indirect access (principle of proportionality in matters of criminal and recent rulings on the financial relations between the State and the territorial authorities developed where judicial review of legislation is excercised through direct access by Regions and State. The persistent violation of Article 119 of the Constitution and the failure of the legislative framework to «adapt» to the various warnings addressed to the legislature in previous rulings (Constitutional Court no. 220 of 2021) leaves open the question of making Article 119 of the Constitution more fully justiciable through direct access to judicial review of legislation. To this regard it is suggested to give a «broad-mesh» interpretation of the interest in appealing; to make a more frequent recourse to preliminary activities by the Constitutional Court; to activate of the different forms of reasonableness control on acts of a financial nature; to manipulate the temporal effects of the decision of uncostitutionality (rulings with limited retroactive effects defining «spending priorities» following previous warnings given by the Court or the activation of the preliminary activities, such as Corte cost. no. 6 of 2019 and no. 62 of 2020).