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Summary

The Italian institution of the abrogative referendum presents two categories of problems that hamper its practical implementation. The first is the cumbersome nature of the legal regime governing the referendum initiative. The second is the various ways of neutralising the referendum initiative and its results. These problems relate to two specific phases of the referendum iter, one upstream and the other downstream of an intermediate phase which is the admissibility review carried out by the Constitutional Court. In this article, we seek to sketch a critical assessment of the case law of the Italian Constitutional Court in the light of the problems that arose before and after its intervention, thereby to determine the extent to which its contribution has helped to resolve or exacerbate the problems that have hampered the implementation of the abrogative referendum over the forty years of its existence.

Introduction

If constitutional scholars agreed that the Italian Republic is a representative democracy and should be classified as a liberal parliamentary system, the Italian constitutional system nevertheless has a number of features that are difficult to encapsulate in this general definition. Among these features, the one that is both the most salient and the most unusual is undoubtedly the typically Italian institution of the abrogative referendum whereby, at the request of 500,000 voters, a law passed by Parliament can be repealed, in whole or in part, by means of a popular vote. Over the four decades since it was first introduced on 13 May 1974 ([1]), two categories of problems have gradually emerged which undermine the practice of the abrogative referendum. The first is to be found at the beginning of the referendum procedure and consists of the cumbersome nature of the legal regime governing the popular initiative whereby citizens may request a abrogative referendum ([2]). The second is specific to the more advanced stages of the process, consisting of the various forms of neutralisation employed by the main political parties in order to deprive a repeal of any useful effect. Although these problems have not failed to elicit some criticism from legal scholars ([3]), it has to be said that they are most often dealt with in studies outside the legal field, mainly in the political and social sciences. On the other hand, the majority of legal doctrine is based on an internal view of the law ([4]), focusing more on the jurisdictional aspects of the referendum iter, particularly the admissibility review phase carried out by the Constitutional Court.

The constitutional admissibility check determines whether or not an initiative regularly supported by 500,000 voters is admissible under the Constitution, thereby determining whether or not a proposal for repeal will be put to the popular vote. It is therefore the most important stage in the referendum process between the initiative and the vote, and this importance has grown steadily throughout the history of the abrogative referendum. This increase in importance is mainly due to the incomplete nature of the original constitutional and legal provisions, combined with the total silence on the part of the legislator since the passing of the law of 25 May 1970 ([5]), which meant that the Constitutional Court was obliged to clarify the many questions left open by the Constituent Assembly of 1948 and the legislator of 1970. In this way, the original constitutional admissibility review has gradually been extended, giving rise de facto to its transfor bvcmation into a genuine preventive review of constitutional legitimacy ([6]). The result today is that the constitutional admissibility of a request for an abrogative referendum is largely governed by the Court’s case law, which constitutes a body of rules that is many times broader and more precise than the constitutional and legal norms on the subject.

This development in case law has been the subject of considerable scholarly interest for several decades, and there have been many contributions to the literature on the subject. That said, there are many grey areas, especially where the analysis of legal doctrine meets the field of extra-legal analysis. In fact, legal literature tends to approach the abrogative referendum from a mono-disciplinary angle, with a tendency to divide its analysis into as many legal questions as there are gaps and uncertainties in its normative framework. As an instrument of direct democracy, the institution of the abrogative referendum is ipso facto at the intersection of politics and constitutional law, an ambivalence it shares with the Constitutional Court and the admissibility review it conducts ([7]). In this article, we seek to shed light on one of these grey areas by drawing up a critical assessment ([8]) of the Court’s case law in order to elucidate the extent to which it has contributed to resolving or, on the contrary, exacerbating the problems hampering the referendum procedure upstream and downstream of its intervention.

The establishment of a critical assessment presupposes that we adopt a point of view, internal or external to the law, from which we apprehend the legal institution that is our object of study. As this research is largely based on the analysis of a body of case law emanating from the Italian Constitutional Court, a body situated on the boundary between the judiciary and politics ([9]), it seems to us that neither a purely internal nor a purely external point of view is able to account for the particularities inherent in the question to be elucidated. What is more, the rigorous separation of internal and external points of view exposes us to an epistemological problem that François Ost and Michel van de Kerchove have already highlighted in relation to the old divide between positivism and iusnaturalism, namely that of trapping legal thought in the alternative between “adopting either an internal point of view, or a ‘radically’ external point of view” ([10]), even though, in a world where the relative and gradual nature of the boundary between law and non-law is ever more widely accepted, this basic distinction seems to be becoming less and less relevant ([11]). Along with these authors, we therefore think it wise to try to break free from these shackles by adopting an intermediate position, that is, a ‘moderate external point of view’ ([12]). Among the works that follow in the wake of this trend, Hugues Dumont and Antoine Bailleux’s critical and interdisciplinary theory of law ([13]) stands out as offering a particularly appropriate methodological framework, as the three concentric circles proposed by these authors (i.e. object-law, doctrine, and legal sciences) enable us to grasp the complex normative framework that governs the abrogative referendum with singular clarity.

Seen in this light, the first circle, the “object-law”, situated within the other two circles, represents the formal normative framework of the abrogative referendum, i.e. the work of the law-making bodies, consisting for the most part of the Constitution and the law of 25 May 1970 on the implementation of the abrogative referendum. However, in accordance with Kelsen’s old lesson on the relativity of the opposition between the creation and application of the law ([14]), we should add the work of the bodies that apply the law, consisting for the most part of the case law of the Constitutional Court and, to a lesser extent, the works of doctrine and legal science that have contributed to the development of this case law. The second concentric circle is that of legal doctrine as such, which has the task of “describing the more or less coherent legal system formed by all the rules of law in force, as stated by the bodies that create the law and interpreted or evaluated and implemented by the bodies that apply the law, in a more or less broad field” ([15]), as well as “providing legal explanations and assessments that enable it to justify or criticise the interpretations and assessments produced by the bodies that create or apply the law” ([16]). The third circle is that of the interdisciplinary and critical science of law, which ideally serves to describe and explain from an external point of view the legal system “as it results from the activities of creation, application and interpretation, including doctrinal, of the law” ([17]), without excluding or losing sight of the internal point of view of the law, “which is that of the organs of creation and application of the law and of doctrine” ([18]), having recourse to relevant extra-legal explanations without confusing them with legal explanations. Articulating the subject of study in three concentric circles cannot, however, be limited to a simple dismemberment of the subject, given that these are porous concentric circles whose very definition inevitably depends on the most mediate circle, that of legal science as such ([19]). Consequently, the analysis will be structured around the first circle, i.e. the work of the bodies that enact the law and the work of the bodies that apply the law, supplemented by the relevant elements of doctrine and legal science.

On a more theoretical level, the development of the Court’s case law on the admissibility of requests for abrogative referendums is in line with what François Ost has called the transformation of a Jovian justice into a Herculean justice ([20]), i.e. the abandonment by the Constitutional Court of a legal and political monism subject to linear deductive rationality in favour of an inductive pluralism, concerned with “proposing the most judicious settlement of rival interests rather than the most appropriate one”, by a legal and political monism subject to linear deductive rationality concerned with “proposing the most judicious settlement of rival interests rather than ensuring the most correct application of the law” ([21]). Indeed, the gradual extension of the responsibilities of public authorities resulting from the transition from the liberal state to the social state had led to a significant expansion of state administrative services, as well as the emergence of a series of new areas of law ([22]). In addition, the post-war years saw the parallel development of movements advocating regional and international integration (notably the UN and the EU) and movements calling for greater local autonomy, leading to a gradual proliferation of levels of power and, consequently, a more complex legal system ([23]). Under this dual impetus, the classic legal model of the 19ème century, characterised by the dominant legal form of the law expressed in a “simple, clear and communicable” manner ([24]) in the great works of codification, gradually gave way to a system characterised by the work of the bodies responsible for applying and interpreting the law, namely the courts and tribunals and, to a lesser extent, legal doctrine.

Thus, Judge Jupiter, the man of law with an exhaustive code, gave way to Hercules, the judge who doubles up as a social engineer, carrying out his work not with a code of laws, but with a research dossier ([25]). While the features of this first transformation of the typical judge are becoming increasingly clear – including in our case study ([26]) – the same cannot be said of his future transformation into Hermes ([27]), a veritable postmodern judge who, as master not of one dossier but of an infinite number of dossiers, in other words of a database, channels the flow of information and legal meanings by presiding over their eternal circulation ([28]). In this sense, although some authors call for the consolidation of a post-modern law and justice system that is more closely aligned with the needs of those to whom it is addressed and more easily accessible to non-lawyers ([29]), it has to be said that, at present, the case law of the Italian Constitutional Court shows no tendency to make the institution of referendums more easily accessible to non-lawyers.

On the basis of these methodological and theoretical premises, our analysis will be structured along two main lines: the first (I) focuses on the normative framework of the abrogative referendum as an institution and on the problems affecting it in terms of both the cumbersomeness of its procedure and the neutralisation of its results. The second section (II) is devoted to the review of admissibility carried out by the Constitutional Court, tracing its case law from its origins to the end of the so-called First Republic, and then from the emergence of what is commonly called the Second Republic to the present day, in order to determine the extent to which its contribution has helped to resolve, or even exacerbate, the problems affecting abrogative referendums. We conclude (III) that, although the Court was forced to fill in the gaps in a system left incomplete by the legislature, the contribution of its case law was above all to restrict the range of potential action that the Constitution reserves for the abrogative referendum, rather than to correct the defects in its normative framework. Moreover, although these shortcomings are the subject of extensive literature, the constitutional reform that was voted down in the confirmative referendum of November 2016 did nothing to remedy them. Thus, unless the legislature radically reforms the Act of 25 May 1970 in the future, the Court’s action will inevitably result in the emergence of new problems.

What standards should be used to repeal standards?

“Il 2 giugno 1946 per suffragio di popolo a presidio di pubbliche libertà e a certezza di progresso civile fu proclamata la Repubblica italiana“.

“On 2 June 1946, the Italian Republic was proclaimed by popular vote, with due respect for public freedoms and the certainty of civil progress” ([30] ).

The Italian Republic owes its existence to an institutional referendum, which drew its original legitimacy from the principle of popular sovereignty ([31]), as recalled by the phrase engraved in the marble adorned on the rostrum of the President of the Italian Senate. The ‘call to the polls’ of 2 June 1946 consisted of a direct-democratic component, conferring on the people the exercise of a parcel of the original constituent powers to determine the form of the State, and an indirect-democratic component, namely the election of a Constituent Assembly charged with drafting a Fundamental Charter for post-fascist Italy. This dual exercise of direct and indirect sovereignty was far from insignificant, as it created an uneasy and contradictory relationship between these two democratic practices, the first symptoms of which could already be seen in the deliberations of the Constituent Assembly’s “75 Committee”. Indeed, after unanimously accepting the inclusion of various types of referendum in the Constitution, the Assembly only ratified a remnant of the initial draft in the final text it ultimately approved ([32]).

While the Christian Democrat Mortati ([33]), the Socialist Ruini ([34]) and the Republican Perassi ([35]) called for the inclusion of popular legislative initiatives, constitutional referendums and legislative referendums in the new Constitution, the enthusiasm of these three eminent jurists was far from universally shared among the members of the Assembly. Many deputies leaned towards the opinion of another jurist, the leader of the Communists Palmiro Togliatti, who, while affirming his attachment to the institution of referendums, voiced a multitude of practical and theoretical objections to the system proposed by Mortati, including in particular the risk that referendum initiatives would be used for obstructionist purposes to paralyse the legislative activity of Parliament. Togliatti felt that, although the referendum was a “timely and democratic corrective to the representative system” ([36]), certain laws had to be excluded from its scope if the country’s governability was to be adequately guaranteed. Thus, the original draft was progressively limited as the Constituent Assembly met, with the legislative referendum finally included only in its abrogative form in the final text of the Constitution. After a brief and daring push for direct democracy, the Constituent Assembly ended up relegating it to a position of strict subordination to representative institutions, constituting a “means of controlling individual and specific decisions of the legislative power”, but without allowing the population to decide directly on general national policy ([37]).

The abrogative referendum was enshrined in article 75 of the Constitution, which stipulates that, at the request of 500,000 electors or five Regional Councils, a popular referendum may be called for the purpose of deliberating the total or partial repeal of a law or act having the force of law ([38]). However, certain laws or acts having the force of law cannot be the subject of a request for an abrogative referendum, as the Constitution explicitly excludes from its scope tax and balance-sheet laws, amnesty and pardon laws and laws ratifying international treaties ([39]). Given that Article 75 refers only to State laws, it is necessary to add regional laws, regulations emanating from secondary sources adopted under the authority of an ordinary law, as well as regulations of constitutional rank, for which the mechanism for revising the Constitution is provided under Article 138 ([40]). All citizens entitled to vote in the election of the House of Representatives may take part in the referendum vote ([41]), and the referendum proposal is approved if the absolute majority of those entitled to vote have taken part in the vote, and if it has received an absolute majority of the votes validly cast ([42]).

Article 75 is silent on the other practical arrangements for implementing the abrogative referendum, which it leaves to an ordinary law ([43]). In the event, this law was almost twenty-two years in the making, as the current hostile to the legislative referendum – which became increasingly prominent throughout the debates of the Constituent Assembly – eventually prevailed over the more liberal current, leading to the formation of a tacit agreement between the main political parties to the effect that, despite its inclusion in the final text, the abrogative referendum would be buried, “archived in the limbo of the latent Constitution” ([44]). As a result, the legislative framework for the abrogative referendum took a rather unusual path, resulting in a law with many loopholes which, as we shall see, amply confirmed Kelsen’s lesson on the relativity of the opposition between the creation and application of law ([45]).

More recently, the Renzi government’s draft constitutional reform (which was initially approved by the House of Representatives and the Senate at third reading on in April 2016 only to be rejected by the popular referendum for ratification on 4 December of that year) made very few changes to the constitutional framework for abrogative referendums, leaving unchanged the constitutional conditions of admissibility set out in the original text ([46]). However, a slight change was made to the quorum rules: under the terms of the new Article 15 (which would have replaced the old Article 75), if the referendum initiative had the support of 800,000 rather than 500,000 voters, the quorum would not have been half plus one of those entitled to vote, but half plus one of the number of voters in the last elections to the Chamber of Deputies. In addition, a new Article 11/c stipulated that a constitutional law could introduce positive referendums and other forms of popular consultation for the purpose of encouraging citizen participation in the determination of public policy ([47]). However, stipulating that a constitutional law may introduce new types of referendum in the future was nothing new, given that nothing had ever prevented Parliament from introducing such a law, and that the reform merely stated this pre-existing possibility without putting it into practice. Thus, as far as referendums are concerned, the so-called “Renzi-Boschi” reform didn’t differ fundamentally from the work of the first Constituent Assembly, and it failed to address the vast majority of the problems that have arisen since then, as described below.

From normative overabundance to a lack of rules…

Several attempts were made to draft legislation during the “freezing of the abrogative referendum, notably during the first (1948-1953) ([48]), third (1958-1963) ([49]) and fourth legislatures (1963-1968) ([50]), but no text was ever finalised. It was only in 1970, following political negotiations between the main parties on the issue of divorce, the introduction of which was made conditional on the existence of a legal framework allowing it to be repealed by referendum ([51]), that the law needed to implement article 75 of the Constitution was finally passed by both Houses.

At first sight, Law no. 352 of 25 May 1970 “on referendums provided for in the Constitution and the people’s legislative initiative” ([52]) establishes a complete framework for the conduct of the abrogative referendum procedure, which it subdivides into eight distinct phases: [1] the Initiative, [2] the collection of signatures, [3] the deposit of signatures, [4] the formal admissibility check by the Central Office for Referendums attached to the Supreme Court of Cassation, [5] the legal admissibility check by the Constitutional Court, [6] the calling of the voters, [7] the vote, [8] and the announcement of the results. However, a detailed analysis of this law reveals that it mainly regulates the formal admissibility conditions subject to the control of the Central Office for the Referendum at the Court of Cassation, without further specifying its constitutional admissibility criteria. Only Article 33 refers to the Constitutional Court’s admissibility review, and this deals only with purely procedural aspects, except for paragraph 4, which merely states that the Court reviews the admissibility of applications in the light of the criteria set out in paragraph 2 of Article 75 of the Constitution. This provision therefore does not add any new criteria with regard to the review of constitutional admissibility and, consequently, the second paragraph of Article 75 of the Constitution remains the sole formal standard against which the Court may judge the admissibility of abrogative referendum requests.

The Act of 25 May 1970 therefore established a somewhat unbalanced legal regime, being much more concerned with the procedure surrounding the abrogative referendum by popular initiative than with the review powers of the Constitutional Court, even though it placed this review at the heart of the referendum iter ([53]). This omission is all the more surprising given that the admissibility review was instituted not by the Law of 25 May 1970, but by Constitutional Law no. 1 of 11 March 1953, which entrusted the Constitutional Court with the task of judging the constitutional admissibility of requests for abrogative referendums in relation to paragraph 2 of article 75 of the Constitution ([54]), while explicitly entrusting the ordinary legislator with the task of determining the modalities of this judgement in the law on the conduct of the referendum ([55]). In addition, the issue of the Court’s supervisory powers was discussed in detail as early as the first Republican legislature, on the fringes of the 1949 referendum bill ([56]), and was the subject of an extensive commentary by Roberto Lucifredi in 1951 ([57]), who noted that due to the very existence of constitutional limits on the admissibility of the abrogative referendum, “doubts and disputes are likely to arise as to whether or not the law whose repeal is sought belongs in one of the excluded categories” ([58]). This issue was raised again on several occasions during the first four legislatures during the discussions on the law implementing the abrogative referendum ([59]), ultimately meeting the same fate as these unfinished bills.

It is therefore a rather paradoxical legislative iter, the admissibility check having been instituted by a constitutional law which remained dormant for seventeen years, for want of the ordinary law required for its implementation which, despite nearly twenty years of reflection on the need to establish more detailed admissibility criteria, confined itself to making the same generic reference to the second paragraph of article 75 of the Constitution as the constitutional law of 1953. Even taking due account of the fact that the Act of 25 May 1970 was drafted in the midst of the political crisis linked to the issue of divorce, which dominated the debate at the turn of the 1960s-1970s, it would nevertheless be tenuous to assert that, after two decades of in-depth reflection, the urgency of the moment could have deprived the legislature of the possibility of incorporating additional indications concerning the constitutional admissibility of abrogative referendums into the text that its two assemblies eventually approved.

Consequently, one might be tempted to consider this omission as a deliberate one, and to think that – rightly or wrongly – the legislature chose not to consider the inclusion of particular criteria as a priority, and, consequently, that it deliberately left a very large number of questions to be assessed by the Constitutional Court, which was called upon to integrate the body of legislation directly by way of case law ([60]). Whether voluntary or not, the omission was nonetheless significant, constituting a challenge that the Constitutional Court was in a sense obliged to take up, otherwise it would lose all control over a key institution whose practical implications in relation to the State legal order were still far from clear at the time.

This development has not failed to elicit certain criticisms from academic writers, given that the need to supplement the legislative framework by means of new legislation inevitably entails the risk of giving the decision an appearance of contingency, that is to say, of paying excessive attention to the specific case, thus running the risk of undermining the authority of the Court’s decisions in this area, even though it was precisely because of this authority that the review of the admissibility of the abrogative referendum was assigned to the Constitutional Court ([61]). Despite doctrinal criticism, the Renzi-Boschi draft constitutional reform completely sidestepped this issue, confining itself to restating the five categories of law excluded by the Constitution of 1er January 1948. Thus, the draft reform constituted an implicit approval of the Court’s case law in this area and, despite the recurrent calls from academic writers, it did not add the slightest new clue that could guide the Court in the implementation of its admissibility review.

…trough the weight of formalities…

The abrogative referendum by popular initiative is subject to a particularly cumbersome procedure: a group of at least ten electors, the promoters, must first go to the Chancellery of the Court of Cassation with certificates attesting to their registration on the electoral rolls ([62]) and submit a memorandum clearly indicating the law or articles of law whose repeal they intend to promote ([63]), subject to a number of time restrictions. Once the request has been submitted in accordance with the legal requirements, the promoters of the initiative have three months in which to collect the necessary 500,000 signatures. If the Renzi-Boschi reform had been ratified by the electorate, the same rules would have applied to the collection of the 800,000 signatures required for the validity quorum to be reduced to half of the voters at the last election of the Chamber of Deputies.

The collection of signatures must likewise follow a laborious procedure in order to be declared admissible by the Central Office for the Referendum at the Court of Cassation: first of all, the signatures must be affixed to unstamped sheets of “stamped paper”, and each sheet registering voters must contain a heading in block letters indicating the law or articles of law to be put to the abrogative referendum ([64] ). All the sheets used to collect signatures must have been stamped beforehand by the municipal authorities or the chancelleries of the courts of justice, confirming that they comply with the legal requirements ([65]). Voters must sign the stamped sheet of paper and provide their general identity information as shown on their identity documents ([66]).

The signatures must then be authenticated by a notary public, or an official authorised to authenticate documents. In addition to authenticating the signatures, the promoters of the popular initiative must accompany each signature with an extract from the municipal electoral roll confirming their registration on the electoral roll ([67]). Compliance with these requirements is then examined by the Central Office for Referendums at the Supreme Court of Cassation, which issues an order on the formal and material admissibility of petitions that have obtained the support of at least 500,000 voters ([68]) and, where appropriate, takes the necessary measures to consolidate referendum petitions that are similar or uniform in subject matter ([69]). Petitions declared admissible by the Central Bureau are then referred to the Constitutional Court and subjected to its constitutional admissibility review, and the decisions handed down by these two authorities are not subject to judicial appeal ([70]).

The expenses incurred by the promoters of the referendum are only reimbursed on the twofold condition that the request has been declared admissible by the Constitutional Court and that a majority of those entitled to vote have participated in the ballot ([71]). As we shall see below, making the reimbursement of referendum expenses conditional on the actual participation of a majority of those entitled to vote provides Parliament with a formidable weapon, enabling it to inflict a double setback, political and financial, on the promoters of an abrogative referendum by using the various pre-referendum neutralisation techniques at its disposal.

…to the neutralisation of the substance.

Quite apart from the practical difficulties associated with the cumbersome legal framework governing the referendum on the repeal of a popular initiative, the referendum can be neutralised, both before and after it has taken place, by a series of techniques that can either hinder the referendum procedure or encourage the failure of the ballot, if not the circumvention of its results. The first of these techniques is not, strictly speaking, a neutralisation technique but rather a delaying tactic, which consists of the early dissolution of one or both chambers of Parliament in order to delay the holding of the abrogative referendum for at least 365 days from the parliamentary election, in accordance with Article 34, paragraph 2-3, of the Law of 25 May 1970. This provision was initially intended to guarantee the separation of the referendum campaign period from the parliamentary election campaign period, but it was diverted from this purpose as early as the first abrogative referendum in Italian history, that of 12 May 1974, the vote on which was initially scheduled for the spring of 1972, but which was delayed by two years as a result of the early dissolution of the chambers on 28 February 1972 ([72]). Although this early dissolution coincided with a broader period of political unrest, its main purpose was to buy time for the political parties so that they could devise a strategy for responding to the referendum in relation to a newly reconfigured parliamentary political balance ([73]). In addition to this delaying tactic, the pre-referendum phase is also subject to two neutralisation techniques in their own right.

The first consists of the repeal or amendment of the norms covered by the referendum before it is held, which, in accordance with Article 39 of the Law of 25 May 1970, results in the termination of the referendum procedure. Although its initial aim was to give the legislator an opportunity to prevent an operation as cumbersome as the abrogative referendum by means of legislative intervention, a deviant parliamentary practice emerged as early as 1974, consisting of the repeal sic et sempliciter of the provisions subject to referendum, followed by their reintroduction in a new law ([74]). This practice was censured by the Constitutional Court in 1978 ([75]), as the legislature could not confine itself to purely formal amendments in order to bring the referendum process to a close, and the referendum’s results would, on the contrary, be transposed to the new legislation if the latter made no substantial change to the previous normative discipline ([76]).

The second neutralisation technique consists of demobilising the electorate, i.e. using militant structures to convince voters not to get involved in the referendum process by abstaining from voting. This approach may offer a more promising strategy than campaigning for the rejection of the referendum proposal because of the quorum rules. Indeed, with a structural abstention rate of at least 10%, it is sufficient to demobilise 40% of the electorate for the quorum not to be reached and the referendum to be declared null and void, which is often much easier than convincing 50% of the electorate to vote against the proposed repeal. This tactic was developed gradually, with its use becoming more frequent from the mid-1980s onward, Bettino Craxi famously inviting the electorate to go to the sea rather than take part in the vote during the 1991 referendum campaign ([77]). Nevertheless, an attempt to demobilise the electorate is not without its dangers – as the example of Craxi in 1991 illustrates – since an explicit appeal by the main political parties not to take part in the vote can have the opposite effect, causing an increase in popular interest in the issue and resulting in a greater turnout at the polls. This type of behaviour can be seen as a reaction on the part of the electorate to an unnatural attitude on the part of the parties militating for demobilisation, an attitude in flagrant opposition to the traditional role of political parties, which is precisely to promote popular participation and not to thwart it ([78]).

However, even if electoral demobilisation entails risks, this has not prevented certain political parties from making very frequent use of it, including in combination with other anti-referendum manoeuvres such as early dissolution. For example, the referendum on the repeal of certain parts of the 2005 electoral law, initially scheduled for 18 and 19 April 2007, was postponed until 2009 pursuant to article 34, paragraph 2-3 of the law of 25 May 1970, following the early dissolution of the chambers on 6 February 2007. The aim of this referendum, often referred to as the Guzzetta referendum, was to amend the electoral law (law no. 270/2005, known as “the Porcellum”) by means of partial repeals, as had already been done successfully in 1993. The political danger posed by this referendum initiative was one of the reasons for the early dissolution on 6 February 2007, although this was not in itself enough to neutralise the initiative, which had been declared admissible by the Constitutional Court.

All that remained was to bank on electoral demobilisation. However, as fate would have it, the Law of 25 May 1970 only set the period for the organisation of the abrogative polls between 15 April and 15 June, when regional and European elections were already scheduled for 6 and 7 June 2009. These dates were imposed on the organisation of the referendum for reasons of economy and efficiency, but they also reduced to zero any hope of the referendum failing to achieve a quorum. An ad hoc law was therefore passed so that the referendum could be held outside the ordinary legal period, on 21 and 22 June 2009 ([79]), at the same time as the regional elections (which concerned only a small minority of Italy’s twenty regions), with abstentionism being actively encouraged by the majority of the parties represented in Parliament. The result of these manoeuvres was a resounding success: the referendum was declared null and void because the required quorum had not been reached, with only 23.5% of those entitled to vote turning out, marking the lowest turnout at the polls in the history of the Italian Republic ([80]).

Mention should also be made of Council President Matteo Renzi’s call to abstain from voting in the abrogative referendum of 17 April 2016 on oil drilling rights. He called on voters not to vote, declaring that it was “constitutionally legitimate to abstain” from the abrogative referendum ([81]). The constitutional legitimacy of each individual voter’s abstention is self-evident, given that Italy does not have compulsory voting. However, the second paragraph of article 48 of the Constitution stipulates that voting is a “civic duty” ([82]), and it is therefore questionable whether it is legitimate for the President of the Council of Ministers to openly call for the non-fulfilment of what the Constitution has raised to the level of a civic duty. What’s more, the Prime Minister in question was then presiding over the drafting of the Renzi-Boschi reform, which sought to resolve the quorum problem by adding a new rule, namely lowering the validity quorum to half of the voters in the last parliamentary elections if the request is regularly supported by at least 800,000 voters. Even if this reform was defensible in principle, it is difficult to evaluate what concrete contribution it would have made once ratified by the electorate since it served to resolve a problem which was simultaneously being exacerbated by those seeking to introduce it.

While demobilisation has gradually become the tool of choice for countering an attempt at referendum repeal, it remains a means of pre-referendum neutralisation that is far from infallible. Thus, of a total of sixty-seven proposals put to the popular vote between 1974 and 2016, twenty-eight were declared null and void due to a lack of quorum, sixteen were rejected, and twenty-three were approved. Consequently, the approval of the referendum proposal by the electorate is a real possibility that any opposition strategy must take into account.

Once an abrogative referendum receives a majority of positive votes in the presence of the required quorum, the possibilities of neutralisation are drastically reduced. The result of the referendum is deemed to have the force of law, having been defined as a “source act of the legal system” ([83]), so that the legislature is somewhat limited in its freedom of action, not being authorised to formally or substantially reintroduce the repealed regulation, at least for a certain period of time ([84]). Within the limits of the repeal, however, the legislature retains considerable freedom of action, allowing it to respond to the challenge in several ways. Firstly, the legislature may, in accordance with the teaching of judgment no. 468/1990, correct, amend or supplement the residual rules ([85]), which makes it possible to mitigate the consequences of a repeal without having to openly oppose the popular mandate. If the residual rules provide a framework that is insufficient to be usefully corrected, amended or supplemented, the legislature may still neutralise the result of the referendum in an oblique manner.

Oblique legislative neutralisation consists of a series of amendments made to dispositions other than those affected by the referendum so that they replace the repealed text in some way, creating in substance the same legal effects even though, formally, the repealed legislation has not been reinstated. This technique was used following the abrogative referendum of 18 April 1993 on the public financing of political parties, which was substantially reintroduced by amending an existing law on the reimbursement of election expenses, so as to incorporate almost all of the public financing abolished less than six months earlier ([86]). Finally, where a referendum has effected a partial repeal, the legislature may still repeal the entire regulatory framework concerned and replace it with a new regulatory framework ([87]). As the referendum instrument is, in principle, a negative instrument, it never allows the electorate to dictate a positive will to the legislature, which remains perfectly free to legislate as it sees fit, without the slightest obligation to take account of the objectives of the promoters of the abrogative referendum.

What emerges is the outline of an institution that is faced with two categories of problems, hindering both its effectiveness and its efficiency, both of which find their ultimate cause in the work of the bodies that enact the law. It is therefore necessary to confront these problems with the work of the bodies that apply the law, in other words with the contribution of the Constitutional Court as it emerges from its case law, doctrine and legal studies dedicated to this subject.

From the judge’s policy to the political judge?

Before analysing the Court’s jurisprudence, it is necessary to clarify the nature of its intervention in the Iter of the referendum. In other words, what is constitutional admissibility review and how is it carried out? The nature of admissibility review has been discussed at length in academic circles, and at present there does not seem to be a majority view. Many different qualifications have been proposed on this subject, including that of a jurisdictional act ([88]), an act of voluntary jurisdiction ([89]), an administrative act ([90]), an act of objective law ([91]) and a legislative act ([92]), while still others sidestep the question by adopting the neutral qualifier of “review” ([93]).

Together with Andrea Pertici, we prefer to see it as an act of constitutional jurisdiction sui genreris, which has the particularity of being non-necessary ([94]), since it does not involve the opposition of two subjective legal positions under the guarantee of adversarial proceedings. On the other hand, being an act of constitutional jurisdiction, the exercise of the admissibility review remains the work of the Constitutional Court, employing the same generally accepted techniques of interpretation that it uses in judgements concerning the constitutional legitimacy of laws and acts having the force of law. There is no longer any doubt today that constitutional hermeneutics differs from the traditional interpretation of statute law ([95]), and in this respect, the constitutional admissibility review has evolved considerably since its inception in 1970. Indeed, its institutional role went through a period of initial uncertainty during which the Court remained strictly within the literal limits of the Constitution. However, as we shall see below, it managed to free itself from these limits in a very short space of time through the so-called “logical-systematic” interpretation.

The admissibility check is based on Article 2 of Constitutional Law no. 1 of 11 March 1953, which stipulates that “it is for the Court to judge whether the referendum petitions submitted pursuant to Article 75 of the Constitution are admissible within the meaning of the second paragraph of the same Article” ([96]), adding that “the procedures for this judgment will be established by the ordinary law on the conduct of the abrogative referendum” ([97]). As we have seen, these provisions lay dormant for almost two decades, awaiting the ordinary law needed to apply them. The ordinary law that was finally passed on 25 May 1970 confined itself to regulating the purely procedural aspects of the popular initiative abrogative referendum, giving no further indication as to the criteria for the constitutional admissibility of abrogative referendum applications other than a generic reference ([98]) to the laws excluded from the procedure by the second paragraph of Article 75 of the Constitution – that is to say, tax and balance-sheet laws, amnesty and pardon laws, and laws ratifying international treaties – without further specifying how the Court should have applied or interpreted these categories of excluded laws.

Faced with the shortcomings of the law-making bodies, the Court ended up freeing itself from the limits imposed by a literal reading of Article 75 ([99]). Thus, from its third review, in 1978, it began to subject applications to a so-called “logical-systematic” reading ([100]), assessing the exclusion of a matter on a case-by-case basis by taking ever stricter account of the wording of the application and, subsequently, the objectives pursued by the initiative’s promoters, leading to the emergence of a veritable range of jurisprudential admissibility criteria ([101]) and an increasingly marked tendency to go beyond the limits of constitutional admissibility in reviewing referendum initiatives ([102]).

It is therefore appropriate to trace the development of this case law and to analyse its main contributions, so as to be able to assess their impact on the problems affecting the institution of referendums. For the sake of clarity and precision, this chronicle of case law over the last forty years is then presented in the form of a summary table listing the main contributions of the rulings analysed.

A short walk towards autonomy

On the face of it, the Constitutional Court’s case law on the admissibility of requests for abrogative referendums shows a two-stage evolution: an initial period between 1972 and 1978, during which the Court based its review on a literal reading of the second paragraph of Article 75 of the Constitution, followed by a major turnaround in 1978, marking the start of a second period during which it undertook to extend its review powers, identifying a series of additional admissibility criteria over the years. This presentation is not entirely accurate, however, since a detailed reading of the case law prior to 1978 reveals that the turnaround in that year had already been presaged by the Court in its second admissibility review, carried out on 18 December 1975 ([103]).

In this judgment, the Court begins with a general reference to its 1972 case law, reiterating the limited purpose of its review ([104]), namely the application’s compliance with the second paragraph of Article 75 of the Constitution. However, it went on to affirm a radically new principle, stating that “by virtue of its inclusion in a unified process that is divided into a number of consecutive stages, and by virtue of its particular function of a single review of an act specific to an ongoing repeal procedure, [the review of constitutional admissibility] is exercised with specific and autonomous characteristics in relation to the other judgments reserved to the Court and, in particular, in relation to judgments on disputes concerning the constitutionality of laws and acts having the force of law” ([105]). This judgment was a milestone in the Court’s jurisprudence, paving the way for a – possible – future extension of its review by establishing a new principle: the autonomy of the review of constitutional admissibility of applications for abrogative referendums from any other type of judgment.

On the strength of this newly asserted autonomy, the Court did not have to wait long for an opportunity conducive to its practical application. In fact, from the end of the 1970s, a number of minority political groupings, particularly the Partito radicale, began to use the abrogative referendum as their main instrument of political action, marking the start of what has been called the “referendum drift” ([106] ), i.e. the development of an increasingly frequent and clever referendum practice, giving rise to a whole series of questions to which the Constitution and the law of 1970 did not provide any answers. Thus, in February 1978, the Court was called upon to carry out its constitutional admissibility review on several abrogative referendum applications for the first time, a total of eight different applications having been declared formally admissible by the Central Office for Referendums at the Court of Cassation. Faced with a number of applications that tested the limits of the subjects excluded by the second paragraph of Article 75 of the Constitution, the Court decided to embark on jurisprudential extension of its own constitutional prerogatives ([107]).

In its judgment of 2 February 1978 ([108]), the Court began by reaffirming the autonomy of its review of constitutional admissibility, as established in its judgment of 18 December 1975, and then ruled that a configuration of the admissibility review in which the Court would be limited solely to reviewing the conformity of applications in the light of the second paragraph of Article 75 of the Constitution would be “too restrictive” ([109]). Such a reading, it declared, would be based solely on “the presumption – postulated rather than demonstrated – that the textual indication of the grounds for inadmissibility contained in the second paragraph of Article 75 is rigorously peremptory” ([110]). It went on to conclude that it was therefore incumbent upon the Court to establish first whether “[…] there were other constitutionally relevant reasons for which it would be essential to exclude recourse to the electorate, in addition to the cases which the Constitution has specifically and expressly provided for […]” ([111]), and that it would be contradictory to admit, on the one hand, that the Constitution contains implicit hypotheses of inadmissibility, namely laws which, while not being covered by Article 75, paragraph 2, are nevertheless destined to “produce effects so closely linked to the operation of the laws expressly referred to in Article 75 that their exclusion is implied” ([112]), if, on the other hand, the Court does not have the power to draw the necessary consequences from such a conclusion for the sole reason that the Constitution does not explicitly mention them ([113]). It therefore declared that Article 75 “confers on the Court the power to assess the admissibility of referendums in a systematic manner” ([114]), and to “verify specifically whether, in the light of the first paragraph of Article 75, the petitions are really intended to give effect to a ‘referendum of the people’, and whether the acts which are the subject of them fall within the types of law that may be repealed by the electorate” ([115]).

On the basis of these considerations, the Court declared inadmissible applications relating to laws with “enhanced passive force”, also known as “atypical or enhanced laws”, since these are ordinary laws that cannot be repealed by ordinary laws ([116]). This is a rather special type of law such as, for example, the laws implementing the Lateran Pacts, which cannot be validly repealed by an ordinary law. Finally, the Court also declared inadmissible requests for non-homogeneous abrogative referendums, i.e. requests relating to a plurality of unrelated laws, giving the electorate only the possibility of repealing them en bloc, without being able to exercise its possible will to repeal only some of them and not others ([117]).

While the Court thus launched its very first thunderbolt against requests for popular referendums, it did not fail to simultaneously direct a second volley against the parliamentary practice of formally repealing a law for the sole purpose of thwarting the repeal procedure. Indeed, in its judgment of 17 May 1978, it ruled that Article 39 of the Law of 25 May 1970 was partially unconstitutional in that it allowed an amendment or repeal that did not change either the inspiring principles or the normative content of the individual legal provisions to obstruct the abrogative referendum, adding that, in such cases, the referendum would relate sic et sempliciter to the new relevant provisions ([118]).

It would therefore be somewhat misleading to present the development of admissibility review during these early years as a break in the case law marking the transition from a restrictive to an extended reading of the admissibility criteria laid down in the Constitution, since in reality it was a single three-stage development, from an initial review of admissibility exercised on the basis of the only admissibility criteria in existence at the time, which are exhaustively listed in the second paragraph of Article 75 of the Constitution, to the staking out of the extension of review powers in a second judgment, to the consummation of that extension in a third judgment, over a period of barely six years. Consequently, although the legislature chose to leave unanswered a number of questions relating to the constitutional admissibility of requests for abrogative referendums, the fact remains that the Court just as consciously chose to answer them, intervening without flinching when the Act of 25 May 1970 began to take on water from all sides by assuming a “role of substitute for the legislature’s failure to act” ([119]).

As was to be expected in such a configuration, the Court was soon forced to open the floodgates of interpretation even wider, identifying numerous new admissibility criteria under the pressure of the ever-increasing number of referendum motions filed from the early 1980s onwards. In 1981 alone, the Court was called upon to rule on a total of 13 repeal motions, concluding that five of them were inadmissible and introducing two subsequent innovations to the practice of admissibility review.

The first of these was the inauguration of the technique of separate examinations, which consisted of splitting the admissibility review into as many judgments as there were individual repeal applications, rather than subjecting them to a single judgment as had previously been the case. The advantage of this technique was that it allowed the Court to develop its arguments on a case-by-case basis, examining both the wording of the applications and the objectives pursued by their promoters, which a single argument covering all the applications made virtually impossible ([120]). This innovation was amply justified, although it should be noted that it also opened the door to ever greater contingency in individual judgments, with all the attendant risks of ambiguity and contradiction ([121]).

The second innovation stems from judgment no. 27 of 10 February 1981 ([122]), which specifies that the wording of a request for an abrogative referendum must be clear, unambiguous, simple and complete ([123]). Therefore, in order for a request to be deemed constitutionally admissible, its wording must necessarily cover all the rules affected by it, so as to give the electorate an unambiguous, simple and complete presentation of the objectives of the proposed repeal.

Once it had embarked on the path of logical-systemic interpretation, the Court continued to explore it step by step, sometimes identifying new admissibility criteria and sometimes restricting or broadening existing admissibility criteria, depending on the specific contingencies of the case in question ([124]). In 1987, for example, the Court introduced a further admissibility criterion, declaring inadmissible applications for the repeal of rules concerning the election of constitutional bodies or bodies of constitutional relevance – the operation of which does not tolerate any interruption – unless the proposed repeal would in no way interfere with the normal operation of the bodies concerned ([125]).

In 1990, the Court issued a second warning to the legislature, reminding it of the special nature of the abrogative referendum as a “source act of the legal system” ([126]) which – unlike the legislature, which may correct or even abolish what it has previously established – expresses a definitive and irrevocable will ([127]), preventing “the legislature from making the political choice to revive the same normative content, even on a transitional basis” ([128]). The Court nevertheless added an important qualification to this principle, stating that, while the legislature may not formally or substantially reintroduce rules repealed by the will of the people, it may still correct, amend or supplement the residual rules within the formal and substantive limits of the repealed provisions ([129]).

The Court has thus endorsed the principle that a repeal approved by the electorate limits the legislature’s freedom of action, even if the case law remains anything but clear on the extent of this limitation, especially as regards its temporal implications. Indeed, the limitation in question could never be eternal, given that the electorate has the right to change its mind. This is the particularly thorny problem of post-referendum constitutional review, which has been called the “grey area of constitutional justice” ([130]), given that despite a wealth of case law devoted to the review of the constitutional admissibility of referendums, the Court’s findings concerning the post-referendum implications of the results of the repeal are still extremely limited ([131]).

As we shall see below, although the Court’s current case law does not seem to rule out its ability to guarantee compliance with the results of a repeal approved in a constitutional legitimacy judgement, no case has yet given concrete expression to this type of post-referendum review.

From the First to the Second Republic

The 1990s were marked by the greatest political earthquake in post-fascist Italian history: the judicial operation known as Mani pulite and the vast system of politico-financial corruption it uncovered in 1992, known as Tangentopoli, which brought about the almost total destruction of the traditional political parties that had governed Italy since the end of the Second World War ([132]). The 1990s thus constituted a slow transition revolving around the years 1992-1993, marking the twilight of a political era whose influence on Italian institutions was so far-reaching that authors have invariably identified it with the State itself, describing its end as “the end of the First Republic”. The years of transition to the Second Republic were marked above all by a crisis of confidence between the electorate and the representative institutions, leading to a spectacular increase in the number of abrogative referendum petitions submitted to the Court for review, which amounted to sixty-seven between 1993 and 1999 ([133]). Despite the challenge that these ever-increasing waves of applications presented to the Court, its case law now constituted a large corpus, and it generally succeeded in sticking to the existing admissibility criteria by means of an elastic reading adapted to the needs of each case in question.

Thus, while in 1991 ([134]) it declared inadmissible a request for a referendum to repeal parts of the Senate electoral law on the grounds that the wording of the question was not sufficiently clear as to the objective of the repeal (which was to introduce a majority system for the election of the Senate), considering that “the meaning of the referendum question, evaluated both in its wording and in the light of the remaining regulations in the event of a positive result, are presented in non-unambiguous terms to the electorate” ([135]), in 1993 ([136]), it declared admissible a new petition pursuing exactly the same objective, based on a referendum question that was in fact a strategic reformulation of the question proposed two years earlier ([137]). This declaration of admissibility was all the more striking given that the proposed repeal was clearly positive rather than negative in nature, aiming to create a new legal framework through partial repeals, which the Court had always refused to admit before ([138]). The explanation for this about-turn lies in the extreme tension between Parliament and the electorate following the Mani pulite revelations, and in the proven inability of the political parties to reform the electoral system (which had been the subject of fruitless negotiations between the main parties for thirty years), with the result that the Court considered it more prudent not to hermetically seal the doors to a possible reform by referendum ([139]).

The Court also had occasion to extend the limits of its review in three of its sixteen judgments in 1995 ([140]), adopting a broad reading of the laws excluded by the second paragraph of Article 75, resulting in a significant broadening of the definition of fiscal and balance-sheet laws used by the Court compared with that set out in the text of the Constitution ([141]). Then, faced with the veritable tsunami of thirty referendum petitions filed in 1997, it proceeded to partially redefine the completeness criterion by introducing a new limit, affirming that the completeness of the referendum question implies that it be of such a nature as to include all the norms affected by the proposed repeal, not being limited to the repeal of norms which, on their own, are incapable of assuming autonomous normative content ([142]). On the basis of this articulation of the completeness criterion, the Court then extended its review to the “capacity of the referendum question to achieve its objective” ([143]), ruling that the inability of the norms referred to in the request to assume autonomous normative content gives the referendum the character of a general policy vote, which would be contrary to the negative character of the abrogative referendum ([144]). This judgment was all the more surprising in that it asserted for the first time a power of review over the conformity of the proposed repeals with the objectives set by their promoters, a review that verges on the limits of an anticipatory examination of the referendum results, something that the Court had always strictly refused to do until then ([145]).

On the strength of this prodromal judgment, the Court proceeded to a subsequent and, for the time being, final reversal of its case law on referendum petitions of a manipulative nature, i.e. partial repeals intended to produce the effect of legislative reform rather than simple repeal. In its judgment no. 36/1997, the Court therefore set about confirming its classic case law – which had become ambiguous and uncertain following judgment no. 32/1993 – which consisted of declaring inadmissible referendum petitions of a manipulative nature. However, it added for the first time an explicit reference to the constitutional value of the negative nature of the abrogative referendum ([146]), thus constituting a fundamental principle of the referendum system that the Court has a duty to review, including by introducing new criteria of constitutional admissibility ([147]). This judgment thus seems to prevent any future attempt to use the abrogative referendum to introduce a reform by referendum, even if, as the 1993 example teaches us, the emergence of exceptional circumstances will always constitute a source of exceptions to the lessons previously learned from the Court’s case law.

In 1997, the Court still had to clarify an important question relating to the possibility for the promoters of an abrogative referendum to ensure that the legislature did not actually respect the results of the vote. Without categorically ruling out the – hypothetical – possibility of the Court carrying out this type of control, it nevertheless ruled out any intervention by the promoters’ committees. In a judgement of 9 January 1997 ([148]), the Court declared inadmissible an action for conflict of powers brought against Parliament by the promoters of the referendum of 18 April 1993 on the public funding of political parties, the result of which had been indirectly neutralised by the Act of 10 December 1993 and then directly contradicted by the Act of 2 January 1997. Under the terms of that judgement, although the promoters’ committees exercised their functions as a “power of the State”, that capacity was conferred on them only for the duration of the referendum operations, which naturally ended with the conclusion of the procedure, thus preventing them from acting in that capacity in order to ensure that the results of the ballot were respected after the close of the operations ([149]). The Court added, however, that despite the inadmissibility of the action for conflict of powers, there remained the “possibility” that it would review compliance with the prohibition on the legislature formally or substantially reintroducing rules repealed by the will of the people ([150]). However, the Court has never established precise criteria on which this review should be based, and it is difficult to see how, in the absence of such criteria, any appeal could call into question the work of the legislature after the end of the referendum operations.

The constitutional admissibility reviews of the 2000s offer two more major lessons. Firstly, the Court has given a definitive ruling on the issue of Community-related matters, i.e. laws concerning matters that are subject to European regulations that are binding on the Italian State. Thus, in three rulings of 7 February 2000 ([151]) the Court ruled that requests for a referendum to repeal legislation whose repeal would place the Italian State in a situation of non-compliance with binding European law are inadmissible. It will be clear to the reader that this category of rules, unknown to the Constituent Assembly of 1947 and very new even to the legislator of 1970, has been growing steadily since the beginning of the 1950s ([152]), finally occupying an unparalleled position among the sources of international law binding on the Italian State from the end of the 20th century.

Consequently, we are dealing here with a source of exceptions to the referendum principle that is constantly expanding and that has not been apprehended by the constitutional or even ordinary legislature, so that a phenomenon of constant restriction of the field open to the abrogative referendum is taking place in the total absence of predefined limits to what can be withdrawn from the abrogative referendum initiative by the European legislature. The judgments of 7 February 2000 can also be seen as a partial reversal of the judgment of 17 May 1978 ([153]), in which the Court affirmed the prohibition on the legislature substantially reintroducing a provision repealed by referendum. Given that binding European norms are superior to domestic laws, a domestic norm repealed by referendum could immediately be reintroduced by the European legislature, essentially circumventing a referendum’s results directly, in the case of the regulation, or indirectly, in the case of the directive, since the judgments of 7 February 2000 prevent any further attempt at repeal. The result is a situation in which the field open to the direct exercise of popular sovereignty is subject to a process of continuous restriction, over which the holders of that same sovereignty have no control; in short, a development which, in the long term, presages a significant reduction in the role of the abrogative referendum in the democratic control of the legislative activity of the Italian Parliament.

Before concluding this article, I should briefly mention two subsequent judgments. Firstly, the important judgment of 13 January 2005, in which the Court finally clarified the complex issue of the constitutional admissibility of applications for the repeal of “constitutionally necessary” legislation ([154]). In this judgment, the Court ruled that petitions for the repeal of laws or acts having the force of law “whose normative nucleus could not be altered or deprived of effectiveness without corresponding damage to the Constitution itself [as supplemented by other constitutional laws]” were inadmissible ([155]). However, this judgment merely confirmed what the doctrine had always taken to be an implicit fact, namely that the institution of the abrogative referendum could under no circumstances be misused for the purpose of depriving a provision or principle of constitutional rank of its effectiveness.

Finally, it is worth mentioning the judgment of 12 January 2012, in which the Court declared inadmissible the application concerning the “Morrone referendum” ([156]). The promoters of this referendum initiative sought to revive the previous electoral law (laws no. 276/1993 and 277/1993), which have now been repealed, by repealing certain provisions of the 2005 electoral law, in order to circumvent the problems associated with the electoral law being a constitutionally necessary law, the full effectiveness of which does not tolerate any interruption. The Court rejected the arguments of the promoters, ruling that “the argument that provisions can be revived after being repealed cannot be accepted, because it is based on a ‘stratified’ vision of the legal order, in which the rules of each stratum, even when repealed, are to be regarded as quiescent and always ready to revive [quod non]”. ([157]).

Assessment

At the end of this analysis, it remains necessary to assess the contribution of the Court’s case law to the problems affecting the referendum system upstream and downstream of the review it carries out. In this respect, it should be emphasised at the outset that the Court’s scope for action in relation to problems arising from the cumbersome nature of the normative framework for referendums and the legislature’s cavalier attitude to the institution of referendums is inevitably fairly limited. Since the procedure instituted by the Act of 25 May 1970 makes the referendum for repeal by popular initiative into a remarkably complex and costly operation, the Court clearly had no way of making it simpler and more economical.

Nevertheless, if the Court is unable to lighten a procedure established by law, it is quite capable of making it even more burdensome through the solutions it finds in its case law, thereby exacerbating the basic problem. Irrespective of any qualitative assessment of the Court’s work, it has to be said that the plethora of new admissibility criteria it has identified have, on the whole, led to an increase in the complexity of an already highly complex procedure. It goes without saying that this development is defensible at all levels, given that the Court’s mission is to ensure respect for the Constitution, and that any consideration of the cumbersomeness of procedures is naturally alien to its reasoning and legal assessment. However, despite the undeniable wisdom of the Court’s past action, the great complexity of today’s abrogative referendum by popular initiative is no less real, and while the initiative is now better regulated from a legal point of view, it is also always less “popular” from a political point of view.

The same applies to the financing of referendum initiatives, since the expenses incurred by the promoters may only be reimbursed by the State on the twofold condition that the request has been declared admissible by the Constitutional Court and that a majority of those entitled to vote have taken part in the ballot ([158]). This condition is set out in the law and the Constitutional Court obviously has no power to change it. It is nevertheless surprising that a committee of promoters whose application has been declared constitutionally admissible and which, as the Court has often stated ([159]), as such enjoys the status of a “power of the State”, is likely to obtain reimbursement of its expenses only on condition that a majority of those entitled to vote actually take part in the ballot, even though many political parties – recipients of considerable public funding – actively campaign against such participation, thus inflicting a double setback on the promoters if the referendum fails. Unfortunately, both the issue of voter disenfranchisement and that of the reimbursement of referendum expenses are essentially political debates over which the Court has no control, with the result that, despite the existence of ambiguous if not openly disloyal behaviour on the part of the legislature, these issues can only be resolved by the legislature, therefore requiring a change in political mores rather than a change in constitutional case law.

In contrast to the previous problems, the issue of neutralising abrogative referendums appears on several occasions in the Court’s case law, even though it is always addressed in a strictly indirect manner and dealt with very partially. Two judgments in particular make implicit reference to this issue, namely the judgment of 17 May 1978 ([160]), which censured the practice of purely formal legislative repeals with the sole aim of putting an end to referendum operations, and the judgment of 9 October 1990 ([161]), in which the Court ruled that, because of its special nature as a “source act of the legal system” ([162]), the irrevocable will expressed by the positive outcome of an abrogative referendum prevents “the legislature from making the political choice to revive the same normative content, even on a transitional basis” ([163]). Although, in these two judgments, the Court censured unfair behaviour on the part of the legislature, it did so without noting that this behaviour was part of a wider problem, namely the legal grey area surrounding the referendum process downstream of the constitutional admissibility review. And while the Court has held that the result of a referendum is deemed to be a source act of primary rank ([164]), the content of which limits the legislature’s scope for future action for a certain period of time, it has not to date provided any clarification as to the criteria against which the extent and duration of this limitation may be established ([165]). Academic writers agree that no definitive answer can be given to this problem, and that “the lability and ambiguity of the prohibition on formally or substantially reintroducing a norm gives the legislature wide room for manoeuvre” ([166]).

Although no solution seems to be in sight for the time being, legal scholars are nonetheless unanimous in calling for a rationalisation of the admissibility criteria, whether through legislation or case law, so as to realign the function of constitutional admissibility review with its original purpose ([167]). In this respect, it is worth mentioning that the Renzi-Boschi constitutional reform did not pay the slightest attention to this issue, leaving unchanged the conditions of constitutional admissibility as defined in 1946-1947, without even including a mention of the broad categories of exceptions identified by the case law, including in particular the recent exclusion of any initiative whose subject matter is a regulation deriving from related Community law. By this omission, whether deliberate or not, the constitutional legislator would therefore appear to have definitively abandoned the field of admissibility of referendum petitions to the Constitutional Court, confirming its case law by its failure to intervene in the matter. Moreover, even if a positive referendum is introduced in the future, it will in all likelihood be subject to a constitutional admissibility review, in which the Court would probably be led to apply the same limitations that it currently applies to abrogative referendums in many areas, including in particular the general exclusion of rules with EU-derived legal content.

SUMMARY TABLE OF JUDGMENTS ANALYSED (1972-2012)

Stop

Lessons learned from the Court

Source

Consulted on

Article page(s)

Sent. n°10/1972 of 19/06/1972

The Court carried out its very first admissibility review, stating that its purpose was limited to verifying that the application complied with the second paragraph of Article 75 of the Constitution.

LINK

06-02-16

13-14

Sentence no. 251/1975 of 18/12/1975

The Court affirms that the review of the constitutional admissibility of petitions for abrogative referendum is exercised with specific and autonomous characteristics in relation to the other judgments reserved to the Court and, in particular, in relation to judgments on disputes concerning the constitutionality of laws and acts having the force of law.

LINK

06-02-16

14

Sentence no. 16/1978 of 02/02/1978

The Court ruled that a review of admissibility in which its examination was confined solely to checking that applications complied with the second paragraph of Article 75 of the Constitution would be “too restrictive”, concluding that it was therefore incumbent on it to establish whether “there are other constitutionally relevant reasons for which it would be essential to exclude recourse to the electorate, in addition to the cases which the Constitution has specifically and expressly provided for”. It deduced that Article 75 “confers on the Court the power to assess the admissibility of referendums in a systematic manner”, and to “verify specifically whether, in the light of the first paragraph of Article 75, the petitions are really intended to give effect to a ‘referendum of the people’, and whether the acts which form the subject-matter of the petitions fall within the types of law capable of being repealed by the electorate”. The Court thus declared inadmissible applications relating to laws with “enhanced passive force”, also known as “atypical or enhanced laws”, which are ordinary laws that cannot be repealed by ordinary laws, as well as so-called “non-homogeneous” petitions, i.e. petitions relating to a plurality of unrelated laws, giving the electorate only the possibility of repealing them en bloc, without being able to exercise its possible will to repeal only some and not others.

LINK

06-02-16

14-15

Sentence no. 68/1978 of 17/05/1978

The Court ruled that Article 39 of the Law of 25 May 1970 was partially unconstitutional in that it allowed an amendment or repeal that did not change either the inspiring principles or the normative content of the individual legal provisions to prevent the abrogative referendum from taking place, adding that, in such cases, the referendum would relate sic et sempliciter to the new relevant provisions.

LINK

12-02-16

15

Sentence no. 27/1981 of 10/02/1981

The Court specified that the wording of a petition for an abrogative referendum must be clear, unambiguous, simple and complete. Therefore, in order for a petition to be deemed constitutionally admissible, its wording must necessarily cover all of the norms affected by it, so as to provide the electorate with an unambiguous, simple and complete presentation of the objectives of the proposed repeal.

LINK

12-02-16

16

Sentence no. 29/1987 of 03/02/1987

The Court ruled that petitions seeking the repeal of rules concerning the election of constitutional bodies or bodies of constitutional relevance – the functioning of which does not tolerate any interruption – are inadmissible unless the implementation of the proposed repeal in no way impedes the normal functioning of the bodies concerned.

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14-02-16

16

Sentence no. 468/1990 of 09/10/1990

The Court reaffirmed the special nature of the abrogative referendum as a “source act of the legal system” by which – unlike the legislature, which can correct or even abolish what it has previously instituted – a definitive and irrevocable will is expressed, making it impossible for “the legislature to make the political choice to revive the same normative content, even on a transitional basis”. The Court nevertheless mitigated this principle by stating that, while the legislature may not formally or substantially reintroduce rules repealed by the will of the people, it may nevertheless correct, amend or supplement the residual rules within the formal and substantive limits of the repealed provisions.

LINK

14-02-16

16

Sentence no. 47/1991 of 17/01/1991

The Court declared inadmissible a request for a referendum to repeal parts of the Senate electoral law on the grounds that the wording of the question was not sufficiently clear on the objective of the repeal (which was to introduce a majority system for the election of the Senate), considering that “the meaning of the referendum question, evaluated both in its wording and in the light of the remaining regulations in the event of a positive result, are presented in unequivocal terms to the electorate”.

LINK

14-02-16

17

Sentence no. 32/1993 of 16/01/1993

The Court declared admissible a new petition pursuing exactly the same objective as the petition declared inadmissible by its judgment no. 47/1991, the new petition being based on a referendum question that was a strategic reformulation of the question proposed two years earlier, with the additional feature that it was in the nature of a proposal rather than a legislative repeal, which the Court had generally refused to admit, both before and after this judgment. The political context at the end of the First Republic played an important role in this partial reversal.

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14-02-16

17

Sentence no. 02/1995 of 11/01/1995

The Court adopts a broad reading of the laws excluded by the second paragraph of Article 75, resulting in a significant extension of the definition of fiscal and balance-sheet laws adopted by the Court in comparison with the one set out in the text of the Constitution.

LINK

14-02-16

17

Sentence no. 30/1997 of 30/01/1997

The Court partially redefines the criterion of the completeness of the referendum question by introducing a new limit, stating that the concept of completeness implies that the referendum question must be capable of including all the norms affected by the proposed repeal, and cannot be limited to the repeal of norms which, on their own, are incapable of assuming an autonomous normative content. On the basis of this articulation of the criterion of completeness, the Court then extended its review to the “capacity of the referendum question to achieve its objective”, ruling that the inability of the norms referred to in the request to assume an autonomous normative content gives the referendum the character of a general policy vote, which would be contrary to the negative character of the referendum on repeal.

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14-02-16

18

Sentence no. 36/1997 of 30/01/1997

[168]The Court ruled that manipulative referendum petitions are inadmissible, referring explicitly to the constitutional value of the negative nature of the abrogative referendum, which constitutes a fundamental principle of the referendum system that the Court has the duty to review, including by introducing new criteria of constitutional admissibility.

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14-02-16

18

Order no. 9/1997 of 09/01/1997

In this order, the Court ruled that the function of “power of the State” exercised by the committee of promoters of a referendum is valid only for the duration of the referendum operations, naturally extinguished by the conclusion of the procedure, making it impossible for the committee of promoters to act in this capacity in order to ensure compliance with the results of an abrogative ballot.

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14-02-16

18-19

Sentence no. 31/2000 of 07/02/2000

The Court ruled that requests for a referendum to repeal legislation whose repeal would place the Italian State in a situation of non-compliance with binding European law were inadmissible.

LINK

14-02-16

19

Sentence no. 45/2005 of 13/01/2005

The Court ruled that applications for a referendum to repeal laws or acts having the force of law “whose normative nucleus could not be altered or rendered ineffective without corresponding damage to the Constitution itself [as supplemented by other constitutional laws]” were inadmissible.

LINK

14-02-16

20

Sent. n°13/2012 of 12/01/20012

With this ruling, the Court declared inadmissible the application concerning the “Morrone referendum”. The promoters of this referendum initiative sought to revive the previous electoral law (laws no. 276/1993 and no. 277/1993), which have now been repealed, by repealing certain provisions of the 2005 electoral law, in order to circumvent the problems associated with the nature of the electoral law, which is constitutionally necessary and therefore does not tolerate any interruption in its full effectiveness. The Court rejected the arguments put forward by the promoters, stating that “the argument that provisions may be revived following their repeal cannot be accepted, because it is based on a ‘stratified’ view of the legal order, in which the rules of each stratum, even when repealed, are to be regarded as quiescent and always ready to be revived [quod non]”. [cons. 5.2, §2].

LINK

05-08-16

21

The judgments listed above are taken from http://www.giurcost.org/, a non-governmental site dedicated to digitising the judgments of the Italian Constitutional Court, which is managed by Prof. Dr. Pasquale Costanzo, Professor of Constitutional Law at the University of Genoa.

Conclusion: from Jupiter to Hercules…to Hermes

Rightly or wrongly, the Italian Constitutional Court has opened its doors to a truly Herculean task, inaugurating an entirely new type of review based on a “logical-systematic” interpretation technique ([169]), calling on a potentially unlimited number of admissibility criteria. From a theoretical standpoint, this development reveals the features of a veritable metamorphosis of the Constitutional Court: Jupiter, deciding on admissibility at the top of the judicial pyramid by means of a rigorously exhaustive code, is transformed into Hercules, relentlessly tackling “the heroic task of rationally reconstructing the legal system” ([170]) through the formidable task of interpreting the relevant admissibility criteria on a case-by-case, file-by-file basis.

In practical terms, on the other hand, we are faced with a sui generis judicial control with plastic contours, slowly shaped by the incessant toil of a Court called upon to arbitrate the increasingly conflictual relationship between Parliament and its electorate ([171]), while avoiding politics at all costs. However, this task was far from easy, especially as the Italian Constitutional Court is made up of three panels of five judges, elected respectively by Parliament, the President of the Republic, and the High Courts (Court of Cassation, Council of State, Court of Auditors) ([172]), so that, although autonomy from the political world is an essential characteristic of constitutional justice ([173]), the Italian constitutional judges nevertheless remain fairly close to it, and they are invariably chosen in such a way as to respect the political balance of the Chambers, reproducing roughly the same divisions between the parliamentary parties within the Court itself ([174]).

Moreover, although the Court is at pains to repeat that, in reviewing the admissibility of referendum petitions, its sole objective is “to establish the legality of the means” and not “to assess the political legitimacy of the ends pursued” ([175]), the fact remains that, in the words of emeritus constitutional judge Sabino Cassese, “it is impossible to ignore that many cases have political implications or are political decisions, even if they are taken following a technical-legal analysis based on rational elements” ([176]). This same observation has already been made by the former President of the Constitutional Court, Gustavo Zagrebelsky, who defines the Constitutional Court as a Corte in-politica, i.e. a court that is both political and apolitical, judging in full awareness of the political significance of its rulings, without becoming the longa manus of parliamentary politics ([177]).

On this point, however, the Court’s decision to gradually broaden the scope of its admissibility review proved somewhat contradictory. While initially widening its room for manoeuvre, the extension of the criteria for constitutional admissibility paradoxically ended up having the opposite effect, with the superimposition of successive layers of case law resulting in a certain rigidity of the existing criteria, forcing the Court to make ever more subtle distinctions in its own rulings, “touching on – or even reasonably suggesting – the intervention of assessments that are not strictly legal” ([178]). In addition, the gradual emergence of a genuine teleological assessment of applications – taking the analysis of the subjective intentions of the promoters not as an instrument of clarification but as a fundamental parameter of the judgment ([179]) – is likely to blur the boundary between admissibility review and the judgment of constitutional legitimacy, even though the two are essentially different in nature and purpose (the former being a “preventive and hypothetical” review, the latter a “successive and real” review) ([180]), and this despite case law that has been consistent since 1987, according to which “the hypothetical constitutional illegitimacy of the request in its effects cannot be taken into consideration and weigh on the declaration of inadmissibility of the referendum request” ([181]).

The emergence of this type of assessment has not failed to elicit some criticism in academic circles ([182]), given that it entails the serious risk of transforming the review of constitutional admissibility into a genuine preventive review of the constitutional legitimacy of the results of a proposed repeal ([183]). The disappearance of the distinction between these two types of review is also open to criticism with regard to the right of the people to request a referendum, which “would run the risk of being abusively restricted by the Constitutional Court” in such a configuration ([184]). Therefore, although it would undoubtedly be excessive to attribute a truly political role to the Italian Constitutional Court, the fact remains that its decision to gradually broaden its own review powers has forced it to straddle the line between the political and the judicial more and more often, and although the Italian Constitutional Court is certainly not a political court, the political weight of its admissibility review has nevertheless increased over the forty years of its existence.

This being the case, the Constitutional Court’s task was undoubtedly an extremely difficult one, all the more so as the numerous gaps in the normative framework for constitutional admissibility review placed it on the horns of a dilemma: either adopt a purely Jovian vision of its task by limiting its review to the – incomplete and ambiguous – letter of the law and the Constitution, or adopt a Herculean vision, by itself developing, on a case-by-case basis, the criteria necessary to ensure its review. In theoretical terms, this dilemma is reminiscent of the question of the “new loyalties of the judiciary” raised by François Ost, i.e. how can a modern magistrate “explicitly assume social and political responsibility without forfeiting loyalty to the law, independence and impartiality” ([185]).

The Italian Constitutional Court resolved this issue by adopting the traits of the typical Hercules judge, who, by rapidly emancipating himself from the letter of the law, took on the immense task of completing the incomplete work of the legislator while seeking not to become involved – or appear to become involved – in Italian politics. However, as it is only an ideal type, the Herculean model alone cannot encapsulate the entirety of the Court’s case law on the abrogative referendum. Indeed, although the case law in question shows a certain continuity, it is not homogeneous throughout its duration. Three main stages in the development of this case law can be identified: firstly, in his first three judgments (1972, 1975, 1978) Justice Jupiter became Hercules, freeing his review from the letter of Article 75 of the Constitution through logical-systematic interpretation. Then, between 1978 and 1990, Justice Hercules developed a number of basic inadmissibility criteria, forming the hard core of constitutional admissibility rules for abrogative referendum motions. Between 1990 and the present, however, there has been an oscillation between liberal jurisprudence in the early 1990s, particularly the judgment of January 16, 1993, and increasingly restrictive jurisprudence, as illustrated by the judgments of 1997, 2000 and 2012.

As we saw above, this oscillation was largely influenced by the major political crisis precipitated by the revelations of the Mani pulite investigation between 1991 and 1993, from which almost no traditional political party emerged unscathed. Therefore, we might well ask whether the typical figure of Justice Hercules did not also undergo a certain transformation in the course of these kaleidoscopic events. We tend to think so. Indeed, Judge Hercules was first and foremost a judge, trying to find the best legal solutions by analysing opposing claims on a case-by-case basis, without interfering in parliamentary politics. With the shock of Mani pulite, this balance was violently upset. In the space of less than two years, almost all the traditional political parties collapsed, and the electorate’s confidence in representative institutions reached its lowest point since the establishment of the Republic. The result was a plethora of abrogative referendum initiatives, with referendums seen as the only way to reform the parliamentary political system by an ever-increasing number of voters. In these circumstances, and in spite of himself, the constitutional judge suddenly found himself invested with a responsibility that was many times greater than before: no longer the simple judge who had to weigh the opposing claims of an electorate and its Parliament within the framework of a stable and well-established political system, the Court suddenly became the guardian of the State’s constitutional order as such, having to maintain a precarious balance between an electorate demanding in-depth reforms and a political class that had been completely discredited.

Thus, the constitutional judge was called upon to exercise a new type of admissibility review: that of impartial arbitration between the extremely conflicting claims of the holders of the direct and indirect exercise of sovereignty, while preserving the structural integrity of the established constitutional order. Consequently, the jurisprudential oscillation of the 1990s reveals the features of a genuine transformation of the admissibility review, with Justice Hercules being transformed into Hermes ([186]). No longer the master of a simple case file, but rather of a database capable of channelling the torrential flow of legal discourse that is submitted to him, Hermes departs from the classic figure of the judge by adopting the characteristics of a true arbitrator. Like a sports referee, his role is above all to ensure that the game runs smoothly, that it can be played to its conclusion and that a fair application of the pre-established rules leads to an uncontested outcome. However, the abrogative referendum game is not a game like any other, since it is a form of competition in which the two opposing teams obey fundamentally different rules. Thus, while the parliamentary team has a wide range of means at its disposal to delay the game, stop the game in mid-play, cancel the result, or arrange for the result not to count, the team of promoters of the initiative has no means of defence against these manoeuvres, nor even the capacity to guarantee respect for the result of any game won.

In such a configuration, the existential crisis of the Italian political system precipitated by the Mani pulite investigation could only strengthen representative institutions at the expense of institutions based on direct democracy. Indeed, faced with the ruin of the traditional political system and an electorate that was increasingly hostile to representative institutions, Judge Hermes was called upon to arbitrate, having to find solutions that could guarantee the continuity of the game and compliance with the rules in force, regardless of the honesty or dishonesty of the opposing teams. Having allowed a large number of repeal applications in the early 1990s, its case law gradually became stricter with the gradual restoration of the authority of political parties. In 1997 ([187]), it returned to its traditional case law, declaring inadmissible applications of a “manipulative” nature, i.e. applications whose purpose was to reform a legislative framework by means of partial repeals. Then, in 2000, it introduced the principle that any application for repeal relating to a law with Community content is constitutionally inadmissible. In other words, with the disappearance of the risk to the continuity of the game, Justice Hermes was able to focus fully on controlling the game itself, resulting in an increasingly restrictive application of the admissibility criteria developed by Justice Hercules.

This is an evolution that could almost be attributed to fate: a chain of events set in motion during the drafting of the Constitution between 1946 and 1947 led to the constant transformation of a judicial review with plastic contours, exercised within limits determined not by the law, but by the contribution of innumerable layers of case law gradually developed under the aegis of Justices Jupiter, Hercules and Hermes. Nevertheless, after forty years of jurisprudence in this area, it must be said that, while Hercules succeeded in filling in the gaps in the normative framework of the original constitutional admissibility review, and Hermes succeeded in ensuring that a fair balance was maintained between the often contradictory claims of the direct and indirect expression of popular sovereignty, the main means of action of these judges was inevitably the introduction of new criteria of constitutional inadmissibility, inevitably resulting in a progressive reduction in the potential scope of action of abrogative referendums by popular initiative.

We might therefore conclude that the problems affecting the abrogative referendum require above all the intervention of the legislature, given that forty years of case law clearly demonstrates the impossibility of resolving them by means of jurisprudential elucidation alone. This is precisely where the majority of the basic problems have arisen, as the Constitutional Court has been forced to progressively broaden the scope of its review due to the shortcomings of the legislative framework and the lack of political will to reform it. In this respect, it should be noted that, despite the explicit appeal of a well-established doctrinal trend ([188] ), past Italian governments have not seen fit to make the slightest change to this controversial regulatory framework. Consequently, although the Court has succeeded in resolving a great many problems, and its past action was generally devoted to guaranteeing the proper functioning of the institution of referendums, without reform, the admissibility review carried out by Justice Hermes will inevitably contribute to the persistence of some problems and the emergence of new ones.

References

  1. A. Chimenti, Storia dei referendum. Dal divorzio alla riforma elettorale. 1974-1999, Editori Laterza, Roma-Bari, 1999, p. 39.

  2. This is the particularly cumbersome and complex system provided for by law no. 352 of 25 May 1970 “on referendums provided for by the Constitution and the people’s legislative initiative”, publication no. 147 of 15 June 1970.
  3. On the problem of neutralising the abrogative referendum, see inter alia: M. Della Morte, Rappresentanza vs. Partecipazione? L’equilibrio costituzionale e la sua crisi, Franco Angeli, Milano, 2012, pp. 29-173, which gives a comprehensive review of the doctrine concerning the relationship between the effectiveness of the principle of popular sovereignty and the representative system, citing on this subject a number of sources which maintain that the referendum instrument must be used in a way that gives concrete expression to this principle, which Parliament has the constitutional responsibility to protect and promote [p. 39, note 31]; G. Dattiroli, Rispettare la Costituzione. Parlamento, governo, presidente della Repubblica secondo l’assemblea costituente, Youcanprint, Tricase, 2012; the author of this work argues that the principle of popular sovereignty is very often deprived of any practical effect, and that the Constitution is currently interpreted in a way that neutralises this principle, which he maintains is contrary to the letter of the Constitution and the spirit of the Travaux préparatoires of the Constituent Assembly [pp. 31-35; 35-62]; T. Martines, Diritto costituzionale, Giuffrè Editore, Milano, 2011, pp. 221-226; L. Violante, P. Mantini, Buone regole per la casta: Lodi, garanzie parlamentari, insindacabilità, conflitti di interesse ed altre storie, Gangemi Editore, Roma, 2011, pp. 147-148; this work finds that the neutralisation of the referendum of 18 April 1993 constitutes a real ‘betrayal’ on the part of Parliament, and seeks to establish the links between the normative and functional autonomy of Parliament, technically known as autodichìa, and the oligarchic mechanisms operating the transformation of this power into a tool of political-financial guarantee for the maintenance of a parliamentary caste; W. Mastropasqua, “Considerazioni sul concetto di opinione pubblica”, in: AA. VV., Quaderni dell’Osservatorio sulla rappresentanza dei cittadini, N°6/2009, pp. 105-112, Gangemi Editore, Roma, 2009, p. 107, note 15; M. Fotia, Debole come una quercia: il neoliberalismo di sinistra, Edizioni Dedalo, Bari, 1999, pp. 109-110.
  4. The dichotomy between internal and external points of view on law was theorised by H. L. A. Hart, The Concept of Law, Oxford University Press, Oxford, 1961, pp. 97-100, based on the question of the rules of recognition and validity of a legal norm, characterising the internal point of view in terms of an actor, belonging to a social group, who accepts and uses the rules of conduct imposed there, the external point of view being that of an actor observing ab extra the existence of these rules of conduct without himself making use of them or adhering to their prescriptions. A large number of nuances and clarifications have since been added to this concept, see in particular F. Ost, M. van de Kerchove, Jalons pour une théorie critique du droit, Publications des Facultés universitaires Saint-Louis, Bruxelles, 1987, pp. 27-51, as well as H. Dumont and A. Bailleux, “Esquisse pour une théorie critique du droit”, Publications des Facultés universitaires Saint-Louis, Bruxelles, 1987, pp. 27-51. Bailleux, “Esquisse d’une théorie des ouvertures interdisciplinaires accessibles aux juristes”, Droit et société 2010/2 (n° 75), pp. 275-293.
  5. The Act of 25 May 1970 contains the bulk of the legal provisions concerning the repeal referendum, the Constitution being rather laconic on the subject. This subject will be dealt with in detail below.
  6. A. Barbera, A. Morrone, La Repubblica dei referendum, Il Mulino, Bologna, 2003, p. 201.

  7. Cf. A. Pertici, Il Giudice delle leggi e il giudizio di ammissibilità del referendum abrogativo, Giappichelli Editore, Torino, 2010, pp. 214-215.

  8. The notion of criticism is used in a wide variety of ways in legal literature, constituting a broad spectrum of “critical visions of the law”, which are generally linked only by the fact that they challenge what is generally referred to as “traditional legal thinking”, Once again, this is a misleading expression because, far from being a monolithic whole dominated by a single hermeneutical and axiological framework, traditional legal thought is also made up of a broad spectrum of currents of thought that are so different that it would be illusory to try to bring them together in a single definition. In this respect, see in particular M. Villegas, M. P. Saffon, “Un siècle de critique juridique”, in X. Dupré de Boulois, M. Kaluszinski, Le droit en révolution(s). Regards sur la critique du droit des années 1970 à nos jours, L.G.D.J, Paris, 2011, who recently classified the various contemporary critical theories of law according to two fundamental points of view, one epistemological, the other teleological, the first serving to distinguish criticism internal from criticism external to law, opposing – in its most extreme manifestation – an analysis of law based solely on the social sciences to an analysis of law based solely on law, the second is used to distinguish between critical currents according to their purpose, namely, on the one hand, to challenge the autonomy of the law, advocating a vision based on the axiom that the internal rationality of the law depends on social, political and cultural factors, and, on the other hand, to challenge the political neutrality of the law, advocating a vision based on denouncing the political and domineering nature of the law. As far as we are concerned, we prefer to stick to the more general definition of a critical reading, namely: “the methodical examination of a work, undertaken with a view to appreciating its value or analysing it from different aspects”, Dictionnaire de l’Académie française: 9th edition, critique, II, 2, taking shape here through the application of the methodology specific to the theory of critical and interdisciplinary law proposed by F. Ost and M. van de Kerchove, then refined by H. Dumont and A. Bailleux, with a view to analysing the Constitutional Court’s case law on the admissibility of repeal referendums from the point of view of the problems preventing their implementation, as they emerge from practice and the literature cited in footnote 3, and to assess their contribution in terms of resolving, if not exacerbating, these problems.

  9. The Italian Constitutional Court is made up of three panels of five judges, elected respectively by Parliament, the President of the Republic, and the High Courts (Court of Cassation, Council of State, Court of Auditors), according to a selection system designed to reflect the political balance as represented by the two chambers of Parliament, cf. P. Pederzoli, La Corte costituzionale, op. cit., p. 106.

  10. F. Ost, M. van de Kerchove, Jalons pour une théorie critique du droit, op. cit, p. 32.

  11. F. Ost, Dire le droit, faire justice, Bruylant, Brussels, 2007, pp. 45-46.

  12. Cf. F. Ost, M. van de Kerchove, De la pyramide au réseau? Pour une théorie dialectique du droit. Publications des Facultés universitaires Saint-Louis, Brussels, 2002, p. 449-488.

  13. H. Dumont, A. Bailleux, “Esquisse d’une théorie des ouvertures interdisciplinaires accessibles aux juristes”, op. cit. pp. 275-293.

  14. H. Kelsen, Théorie pure du droit, translated by H. Thévenaz, 2ème edition, Éditions de la Baconnière, Boudry-Neuchâtel, 1988, p. 137.

  15. H. Dumont, A. Bailleux, “Esquisse d’une théorie des ouvertures interdisciplinaires accessibles aux juristes”, op. cit. p. 282.

  16. Ibid, p. 282.

  17. Ibid, p. 284.

  18. Ibid, p. 284.

  19. Ibid, p. 279.

  20. F. Ost, Dire le droit, faire justice, Bruylant, Brussels, 2007, p. 34.

  21. Ibid. pp. 38-39; 44.

  22. B. Frydman, “Le droit, de la modernité à la postmodernité”, in Réseaux, no. 88-90, 2000, pp. 67-76, p. 71.

  23. Ibid, pp. 71-72.

  24. P. Bourdieu, “Habitus, code et codification”, in Actes de la recherche en sciences sociales, no. 64, September 1986, p. 42.

  25. F. Ost, Dire le droit, faire justice, Bruylant, Brussels, 2007, pp. 38-42; p. 41.

  26. According to a well-established line of doctrine that will be dealt with in greater detail below, the Italian Constitutional Court significantly extended its constitutional powers stricto sensu with regard to the constitutional admissibility of requests for an abrogative referendum through a so-called “logical-systematic” interpretation of the constitutional text, leading to the emergence of a range of jurisprudential admissibility criteria not provided for in the Constitution, cf. P. Pederzoli, La Corte costituzionale, Il Mulino, Bologna, 2008, p. 222; this is an interpretation technique introduced by the Court in judgment 16/1978 of 2 February 1978.

  27. In the definition given by François Ost, Dire le droit, faire justice, op. cit, pp. 34-36, the law of the Hermes judge, i.e. post-modern law, is “a networked order that results in an infinite amount of information that is instantly available and at the same time difficult to control, like a database”, This calls for an approach that, like Hermes, is neither transcendent nor immanent, but rather dialectical, dedicated to deciphering the meaning of the “infinitely complex and entangled language games” that post-modern law presents to judges and lawyers.

  28. F. Ost, Dire le droit, faire justice, op. cit. p. 36.

  29. On the concept of ‘post-modern law’, see in particular F. Ost, Dire le droit, faire justice, op. cit. and P. Maisani, F. Wiener, ‘Réflexions autour de la conception post-moderne du droit’, in Droit et société, no. 27, 1994, pp. 434-464, who analyse this recent legal trend, highlighting its contributions to legal science, while expressing a number of reservations of a theoretical and practical nature. Overall, they see in the post-modern paradigm a means of taking into account the addressees of the law and of making the law more accessible to non-lawyers, acting not only as a means of understanding the legal developments of the past, but also as a safeguard against the reproduction of its errors [pp. 463-464].

  30. Words inscribed on the rostrum of the Italian Senate repeated by Senator P. Giaretta, session no. 219 of 10 June 2009, from the official Senate website, http://www.senato.it/japp/bgt/showdoc/frame.jsp?tipodoc=Resaula&leg=16&id=00424292&part=doc_dc-ressten_rs-gentit_sidllgnads-intervento_giarettapd&parse=no&stampa=si&toc=no, consulted on 15/01/2016.

  31. C. Bova, L’iniziativa legislativa popolare in Italia e in Svizzera, CEDAM, Milano, 2012, p. 2.

  32. The initial draft included both the preventive legislative referendum, a veritable popular veto that could be imposed on certain laws immediately after their adoption, and the repeal legislative referendum, allowing the repeal, in whole or in part, of an existing law, by means of a popular referendum; cf. Travaux préparatoires de la Constitution italienne, pp. 231-232, Commission pour la Constitution de l’Assemblée constituante, plenary session of 29 January 1947; from the official website of the House of Representatives, http://legislature.camera.it/_dati/Costituente/Lavori/Commissione/sed024/sed024nc.pdf, accessed on 18/01/2016.

  33. AA. VV., Il Parlamento italiano 1861-1988. 1946-1947: Repubblica e Costituzione. Dalla luogotenenza di Umberto alla presidenza De Nicola. Vol. XIV, Nuova CEI, Milano, 1989, p. 367.

  34. Travaux préparatoires de la Constitution italienne, p. 1268, speech by Mr Ruini, Second Sub-Committee for the Constitution of the Constituent Assembly, Ante-Meridian session of 16 October 1947; from the official website of the House of Representatives,http://legislature.camera.it/_dati/costituente/lavori/Assemblea/sed260/sed260nc.pdf, accessed on 19/01/ 2016.

  35. Travaux préparatoires de la Constitution italienne, p. 1268, speech by T. Perassi, Second Sub-Committee for the Constitution of the Constituent Assembly, Ante-Meridian session of 16 October 1947; taken from the official website of the Chamber of Representatives of the Italian Republic,http://legislature.camera.it/_dati/costituente/lavori/Assemblea/sed260/sed260nc.pdf, accessed on 19/01/ 2016.
  36. Travaux préparatoires de la Constitution italienne, pp. 231-232, intervention by P. Togliatti, Commission for the Constitution of the Constituent Assembly, plenary session of 29 January 1947; from the official website of the House of Representatives, http://legislature.camera.it/_dati/Costituente/Lavori/Commissione/sed024/sed024nc.pdf, accessed on 18/01/2016.
  37. S. Bartole, “Les référendums et la Cour constitutionnelle en Italie”, in AA. VV., Science et technique de la démocratie, No. 14, “Justice constitutionnelle et démocratie référendaire”, Proceedings of the UniDem seminar held in Strasbourg on 23 and 24 June 1995, Council of Europe Publishing, Strasbourg, 1996, p. 51; G. Rolla, Il sistema costituzionale italiano. Volume I – L’organizzazione costituzionale dello Stato, Giuffrè Editore, Milano, 2010, p. 147.
  38. Cost. Art. 75, paragraph 1er : “È indetto referendum popolare per deliberare l’abrogazione, totale o parziale, di una legge o di un atto avente valore di legge, quando lo richiedono cinquecentomila elettori o cinque Consigli regionali.”, official website of the Italian Government, http://www.governo.it/Governo/Costituzione/2_titolo1.html, accessed on 25/01/2016.
  39. Ibid. art 75, paragraph 2: “Non è ammesso il referendum per le leggi tributarie e di bilancio, di amnistia e di indulto, di autorizzazione a ratificare trattati internazionali”.

  40. F. Del Giudice, Compendio di diritto costituzionale, Edizioni Giuridiche Simone, Roma, 2012, p. 81.
  41. Cost. art. 75, paragraph 3: “Hanno diritto di partecipare al referendum tutti i cittadini chiamati ad eleggere la Camera dei deputati.”.

  42. Ibid. art 75, paragraph 4: “La proposta soggetta a referendum è approvata se ha partecipato alla votazione la maggioranza degli aventi diritto, e se è raggiunta la maggioranza dei voti validamente espressi.”.

  43. Ibid. art 75, paragraph 5: “La legge determina le modalità di attuazione del referendum”.
  44. A. Chimenti, Storia dei referendum. Dal divorzio alla riforma elettorale. 1974-1999, op. cit. p.20
  45. H. Kelsen, Théorie pure du droit, translated by H. Thévenaz, 2ème edition, Éditions de la Baconnière, Boudry-Neuchâtel, 1988, p. 137.
  46. Constitutional Revision Act No. 2613-D, known as “Renzi-Boschi”, Gazzetta Ufficiale, publication No. 88 of 15 April 2016, http://www.gazzettaufficiale.it/eli/id/2016/04/15/16A03075/sg, accessed on 28/07/2016.

  47. Constitutional Revision Act no. 2613-D, art. 11 c), Gazzetta Ufficiale, publication no. 88 of 15 April 2016, http://www.gazzettaufficiale.it/eli/id/2016/04/15/16A03075/sg, accessed on 28/07/2016.

  48. Draft law presented by the De Gasperi Government on 21 February 1949, cf. A. Pertici, Il Giudice delle leggi e il giudizio di ammissibilità del referendum abrogativo, op. cit., p. 16.

  49. Draft law presented by the Fanfani government on 5 December 1958, ibid. pp. 30-31.

  50. Draft law presented by the Moro government on 31 August 1968, ibid. pp. 33-34.

  51. S. Bartole, “Les référendums et la Cour constitutionnelle en Italie”, in AA. VV, Science et technique de la démocratie, no. 14, op. cit. p. 52.

  52. Law no. 352 of 25 May 1970 “on the referendums provided for in the Constitution and the people’s legislative initiative”, publication no. 147 of 15 June 1970, Official Gazette of the Italian Republic, from the official website of the Italian Constitutional Court, http://www.giurcost.org/fonti/referendum.htm, accessed on 24/01/2016.

  53. S. Bartole, “Les référendums et la Cour constitutionnelle en Italie”, in AA. VV, Science et technique de la démocratie, no. 14, op. cit. p. 52.

  54. Constitutional Law no. 1 of 11 March 1953, art. 2, para. 1er , Official Gazette of the Italian Republic, publication no. 62 of 14 March 1953, http://www.giurcost.org/fonti/lcost1-53.htm, accessed on 26/01/2016.

  55. Ibid, art. 2, paragraph 2, “Le modalità di tale giudizio saranno stabilite dalla legge che disciplinerà lo svolgimento del referendum popolare”.

  56. A. Pertici, Il Giudice delle leggi e il giudizio di ammissibilità del referendum abrogativo, op. cit. p. 15.

  57. R. Lucuifredi, “Il controllo sulla costituzionalità delle richieste di referendum abrogativo”, in Rivista trimestriale di diritto pubblico, 1951.

  58. Personal translation, R. Lucuifredi, “Il controllo sulla costituzionalità delle richieste di referendum abrogativo”, op. cit. p. 128.

  59. A. Pertici, Il Giudice delle leggi e il giudizio di ammissibilità del referendum abrogativo, op. cit. pp. 29-34.

  60. Ibid, p. 29.

  61. Ibid, p. 29.

  62. Law no. 352 of 25 May 1970, art. 7, paragraph 1er .

  63. Ibid., art. 7, paragraph 1er .

  64. Ibid, art. 7, paragraph 3.

  65. Ibid, art. 7, paragraph 4.

  66. As shown by the criteria cited in the second paragraph of Article 8 of Law no. 352 of 25 May 1970.

  67. Law no. 352 of 25 May 1970, art. 8, paragraph 6; under the terms of this article, certificates of registration on electoral rolls must be issued by the municipal authorities within 48 hours of the request.

  68. M. Fatin-Rouge Stéfanini, Le contrôle du référendum par la justice constitutionnelle, Presses Universitaires d’Aix-Marseille, Aix-en-Provence, 2004, pp. 212-213.

  69. Law no. 352 of 25 May 1970, art. 32, para. 4.

  70. M. Fatin-Rouge Stéfanini, Le contrôle du référendum par la justice constitutionnelle, op. cit. p. 215.

  71. This condition is currently contained in law no. 157 of 3 June 1999, Official Gazette of the Italian Republic, publication no. 129 of 4 June 1999, art. 1, para. 4; http://www.camera.it/parlam/leggi/99157l.htm, accessed on 05/02/2016.

  72. L. Ricolfi, B. Loera, S. Testa (eds.), Italia al voto, Le elezioni politiche della Repubblica, UTET Libreria, Trofarello, 2012, p. 189.

  73. P. V. Uleri, “On referendum voting in Italy: YES, NO or non-vote? How Italian parties learned to control referendums”, European Journal of Political Research, Vol. 41/2002, pp.863-883, p. 869 ; L. Ricolfi, B. Loera, S. Testa (eds.), op cit, pp. 215-216.

  74. M. Fatin-Rouge Stéfanini, Le contrôle du référendum par la justice constitutionnelle, op. cit. p. 141.

  75. Corte costituzionale della Repubblica italiana, sent. no. 68/1978 of 15/05/1978, http://www.giurcost.org/decisioni/1978/0068s-78.html, accessed on 06/02/2016.

  76. Ibid. cons. 3, § 3-4.

  77. F. Ceccarelli, “Quando Craxi disse: tutti al mare”, in: La Repubblica, 04 June 2011, http://ricerca.repubblica.it/repubblica/archivio/repubblica/2011/06/04/quando-craxi-disse-tutti-al-mare.html, accessed 05/02/2016.

  78. P. V. Uleri, P. V. Uleri, “On referendum voting in Italy: YES, NO or non-vote? …”, op. cit. pp. 867-868.

  79. La Stampa, 18 April 2009, “La Lega vince ancora. Si voterà il 21 giugno.”, http://www.lastampa.it/2009/04/18/italia/politica/la-lega-vince-ancora-si-voter-il-giugno-BH96DabdrNI0Y36iGsfxZN/pagina.html, accessed 02/08/2016.

  80. Results taken from the official list of referendums published by the Comune di Arezzo, Ufficio Servizi demografici, archivio e protocollo, http://www.comune.arezzo.it/il-comune/direzione-generale/ufficio-protocollo-e-statistica/servizio-statistica-e-censimenti/risultati-elettorali-1994-2011-1/consultazioni-referendarie-1946-2011.-tavola-sinottica, accessed on 15/10/2015.

  81. La Repubblica, 14 April 2016, http://www.repubblica.it/politica/2016/04/14/news/trivelle_napolitano_d_attorre-137610742/, on 30/07/2016.

  82. Cost. art. 48, paragraph 2: “Il voto e` personale ed eguale, libero e segreto. Il suo esercizio e` dovere civico”.

  83. Corte costituzionale della Repubblica italiana, sent. no. 468/1990 of 09/10/1990, cons. 4.3, §1, http://www.giurcost.org/decisioni/1990/0468s-90.htmll, accessed on 14/02/2016.

  84. Ibid. cons. 4.3, §2; it should be noted that the doctrine remains divided on the exact length of this minimum period of time; it seems to us, however, that there is a certain consensus on the fact that this period should exceed one year, if not several years.

  85. Ibid. cons. 5.

  86. The amendments in question were introduced by law no. 515 of 10 December 1993, Official Gazette of the Italian Republic, publication no. 292 of 14 December 1993; http://www.camera.it/_bicamerali/rai/norme/l515-93.htm, accessed on 05/02/2016.

  87. Among other things, this solution was adopted in 1993 following the repeal of certain provisions of the Senate electoral law, resulting in the introduction of a single-member plurality electoral system; the legislator then preferred to repeal the entire electoral law and introduce a new one, rather than maintain in force the legislation as amended by referendum, resulting, in this case, in the enactment of the Leggi Mattarella which reintroduced the principle of proportional representation, abolished purely and simply by referendum, for 25% of the senatorial seats to be filled; cf. L. Ricolfi, B. Loera, S. Testa (eds.), Italia al voto, Le elezioni politiche della Repubblica, UTET Libreria, Trofarello, 2012 , pp. 328-330.

  88. On this subject, see inter alia: A. Chiappetti, L’ammissibilità del referendum abrogativo, Giuffrè Editore, Milano, 1974, pp. 76 ff; A. M. Sandulli, “La giustizia costituzionale in Italia”, in AA. VV, Giur. Cost, 1957, pp. 907 ff; M. Luciani, La formazione delle leggi, tome I, 2, “il referendum abrogativo”, in AA. VV., Commentario della Costituzione, Zanichelli, Bologna-Roma, 2005, pp. 7 ff, as well as P. Carnevale, “Può il giudizio di ammissibilità sulle richieste di referendum abrogativo divenire la sede del controllo di costituzionalità sulla legislazione elettorale?”, http://archivio.rivistaaic.it/dottrina/giustizia_costituzionale/carnevale.html, consulted on 02/02/2016, who states in this contribution that, even if it is appropriate to qualify the admissibility review as a jurisdictional act, this can only be done by giving a very broad meaning to the word judgment.

  89. This minority position was supported by C. Carbone, Novissimo Digesto Italiano, v° referendum, vol. XIV, UTET, Torino, 1967, p. 1108.

  90. This theory, also in the minority, was put forward by P. Virga, Diritto costituzionale, Giuffrè Editore, Milano, 1975, pp. 632 ff.

  91. This position was supported by G. Zagrebelsky, La giustizia costituzionale, Il Mulino, Bologna, 1988, p. 473, who asserted that because of its special characteristics, admissibility review could not be described as a judicial act, especially since many of the concepts specific to judicial bodies, such as the party, the interest in bringing proceedings and even the adversarial process, are completely foreign to admissibility review. This review should therefore be seen as a sui generis power exercised by means not of a judgment, but of an act of “objective law”.

  92. This qualification was put forward, among others, by G. Cerrina Feroni, “Il contradittorio nel giudizio di ammissibilità del referendum abrogativo”, in V. Angiolini (ed.), Il contradittorio nel giudizio sulle leggi, Giappichelli Editore, Torino, 1998, pp. 401 ff, who, for reasons similar to those put forward by Zagrebelsky, considers that the review of the admissibility of the abrogative referendum is in fact an act of a legislative nature.

  93. A. Pertici, Il Giudice delle leggi e il giudizio di ammissibilità del referendum abrogativo, op. cit. pp. 214-215.

  94. Ibid. pp. 224-225; moreover, it is still unnecessary in that a body other than the Constitutional Court could have carried out the admissibility review in accordance with arts. 24 and 113 of the Constitution, such as Parliament or an ad hoc body, which had initially been proposed during the 1949 deliberations [pp. 15-17].

  95. On this subject, see H. Dumont, “Les spécificités de l’interprétation constitutionnelle au seuil du XXIe siècle”, in AA. VV., En hommage à Francis Delpérée : itinéraires d’un constitutionnaliste, Bruylant, Brussels, 2007, pp. 477-500. The sui generis nature of constitutional interpretation is widely accepted in Italian doctrine, cf. C. Pinelli, “Il dibattito sull’interpretazione costituzionale fra teoria e giurisprudenza”, in AA. VV., Scritti in memoria di L. Paladin, III, Jovene, Napoli, 2004, pp. 1665 ff, and A. Morrone, v° Bilanciamento (giustizia cost) in A. Falzea, P. Grossi, E. Cheli, R. Costi (eds.), Enciclopedia del diritto. Annali, Volume 2, Giuffrè Editore, Milano, 2007, pp. 198-200; the notion of bilanciamento identified by this author is a distinctive feature of the Italian constitutional court, which cannot limit itself to interpretation alone, i.e. attributing a meaning to a statement, and must also weigh up the fundamental principles at stake.

  96. Personal translation, constitutional law no. 1 of 11 March 1953, art. 2, para. 1er , Official Gazette of the Italian Republic, publication no. 62 of 14 March 1953, http://www.giurcost.org/fonti/lcost1-53.htm, accessed on 26/01/2016.

  97. Id., paragraph 2.

  98. Law no. 352 of 25 May 1970, art. 33, para. 4.

  99. F. Del Giudice, Compendio di diritto costituzionale, op. cit. p. 82.

  100. P. Pederzoli, La Corte costituzionale, Il Mulino, Bologna, 2008, p. 222, a technique introduced by the Court in sent. 16/1978.

  101. Ibid. pp. 222-223.

  102. A. Pertici, Il Giudice delle leggi e il giudizio di ammissibilità del referendum abrogativo, op. cit. pp. 254-255.

  103. Corte costituzionale della Repubblica italiana, sent. no. 251/1975 of 18/12/1975, http://www.giurcost.org/decisioni/1975/0251s-75.html, accessed on 06/02/2016.

  104. Ibid. sent. no. 10/1972 of 19/06/1972, cons. 1, §4, http://www.giurcost.org/decisioni/1972/0010s-72.html, consulted on 06/02/2016.

  105. Ibid, sent. no. 251/1975 of 18/12/1975, cons. 1, §4, personal translation.

  106. P. Pederzoli, La Corte costituzionale, op. cit., p. 222.

  107. Ibid, p. 222.

  108. Corte costituzionale della Repubblica italiana, sent. no. 16/1978 of 02/02/1978, http://www.giurcost.org/decisioni/1978/0016s-78.html, accessed on 06/02/2016.

  109. Ibid. cons. 2, §3.

  110. Ibid. cons. 2, §3, personal translation.

  111. Ibid. cons. 2, §4, personal translation.

  112. Ibid. cons. 3, §5.

  113. Ibid. cons. 2, §4.

  114. Ibid. cons. 2, §4, personal translation

  115. Ibid. cons. 2, §4, personal translation.

  116. Ibid. cons. 3, §3.

  117. F. Del Giudice, Compendio di diritto costituzionale, op. cit. p. 81.

  118. Corte costituzionale della Repubblica italiana, sent. no. 68/1978 of 17/05/1978, cons. 3, §3-4, http://www.giurcost.org/decisioni/1978/0068s-78.html, accessed on 12/02/2016.

  119. A. Chimenti, Storia dei referendum. Dal divorzio alla riforma elettorale. 1974-1999, op. cit. p. 62.

  120. Ibid.

  121. A. Pertici, Il Giudice delle leggi e il giudizio di ammissibilità del referendum abrogativo, op. cit. p. 29.

  122. Corte costituzionale della Repubblica italiana, sent. no. 27/1981 of 10/02/1981, http://www.giurcost.org/decisioni/1981/0027s-81.html, accessed on 12/02/2016.

  123. Ibid. cons. 1, §1.

  124. P. Pederzoli, La Corte costituzionale, op. cit. p. 224.

  125. Corte costituzionale della Repubblica italiana, sent. no. 29/1987 of 03/02/1987, cons. 2, §3; http://www.giurcost.org/decisioni/1987/0029s-87.html, consulted on 14/02/2016.

  126. Id. sent. no. 468/1990 of 09/10/1990, cons. 4.3, §1, http://www.giurcost.org/decisioni/1990/0468s-90.html, consulted on 14/02/2016.

  127. Ibid. cons. 4.3, §1.

  128. Ibid. cons. 4.3, §2.

  129. Ibid. cons. 5; this exception to the principle was confirmed by judgment no. 33/1993, Corte costituzionale della Repubblica italiana, sent. no. 33/1993 of 16/01/1993, http://www.giurcost.org/decisioni/1993/0033s-93.html, consulted on 14/02/2016.

  130. F. T. Giupponi, “Il ‘giudizio di legittimità’ sull’esito referendario e i limiti al legislatore”, in R. PINARDI (ed.), Le zone d’ombra della giustizia costituzionale. I giudizi sui conflitti di attribuzione e sull’ammissibilità del referendum abrogativo, G. Giappichelli Editore, Torino, 2007, pp. 307-331, p. 307.

  131. Ibid. pp. 1-2.

  132. On the Mani pulite (clean hands) investigation and the system of public/private corruption known as Tangentopoli (which translates as “Bribes-the-City”) see inter alia: G. Barbacetto, P. Gomez, M. Travaglio, Mani pulite: La vera storia, 20 anni dopo, Chiarelettere, Milano, 2012; A. Carlucci, 1992: i primi cento giorni di Mani pulite, Baldini & Castoldi, Milano, 2002.

  133. P. Pederzoli, La Corte costituzionale, op. cit. pp. 226-227.

  134. Corte costituzionale della Repubblica italiana, sent. no. 47/1995 of 17/01/1991, http://www.giurcost.org/decisioni/1991/0047s-91.html, accessed on 14/02/2016.

  135. A. Chimenti, Storia dei referendum. Dal divorzio alla riforma elettorale. 1974-1999, op. cit. p. 112, personal translation.

  136. Corte costituzionale della Repubblica italiana, sent. no. 32/1993 of 16/01/1993, http://www.giurcost.org/decisioni/1993/0032s-93.html, accessed on 14/02/2016.

  137. P. Carnevale, “La Corte e il referendum: un novo atto”, in AA. VV, Giurisprudenza costituzionale, II, 1993, p. 2259.

  138. A. Chimenti, Storia dei referendum. Dal divorzio alla riforma elettorale. 1974-1999, op. cit. p. 139.

  139. Ibid, p. 116.

  140. Corte costituzionale della Repubblica italiana, sent. no. 02/1995 of 11/01/1995, http://www.giurcost.org/decisioni/1995/0002S-95.htm ; id. sent. no. 11/1995 of 11/01/1995, http://www.giurcost.org/decisioni/1995/0011s-95.htm ; id. sent. no. 12/1995 of 11/01/1995, http://www.giurcost.org/decisioni/1995/0012s-95.htm, consulted on 14/02/2016.

  141. A. Barbera, A. Morrone, La Repubblica dei referendum, op. cit. pp. 181-189.

  142. Corte costituzionale della Repubblica italiana, sent. no. 30/1997 of 30/01/1997, cons. 3, §2, http://www.giurcost.org/decisioni/1997/0030s-97.html, consulted on 14/02/2016.

  143. A. Barbera, A. Morrone, La Repubblica dei referendum, op. cit. p. 201.

  144. Corte costituzionale della Repubblica italiana, sent. no. 30/1997 of 30/01/1997, cons. 3, §3, http://www.giurcost.org/decisioni/1997/0030s-97.htm,http://www.giurcost.org/decisioni/index.html consulted on 14/02/2016.

  145. S. Bartole, “Les référendums et la Cour constitutionnelle en Italie”, in AA. VV, Science et technique de la démocratie, no. 14, op. cit. p. 57.

  146. Corte costituzionale della Repubblica italiana, sent. no. 36/1997 of 30/01/1997, cons. 4, §6, http://www.giurcost.org/decisioni/1997/0036s-97.html, consulted on 14/02/2016

  147. Chimenti, Storia dei referendum. Dal divorzio alla riforma elettorale. 1974-1999, op. cit. p. 172.

  148. Corte costituzionale della Repubblica italiana, ord. no. 9/1997 of 09/01/1997, cons, §4, http://www.giurcost.org/decisioni/1997/0009o-97.htm, consulted on 12/02/2016.

  149. F. T. Giupponi, “Il ‘giudizio di legittimità’ sull’esito referendario e i limiti al legislatore”, op. cit. p. 324.

  150. Corte costituzionale della Repubblica italiana, ord. no. 9/1997, cit. cons. 5.

  151. Corte costituzionale della Repubblica italiana, sent. n°31/2000 of 07/02/2000, http://www.giurcost.org/decisioni/2000/0031s-00.html; Id. sent. n°41/2000 of 07/02/2000, http://www.giurcost.org/decisioni/2000/0041s-00.html ; Id. sent. n°45/2000 of 07/02/2000, http://www.giurcost.org/decisioni/2000/0045s-00.html consulted on 14/02/2016.

  152. The DC-led governments of the 1950s, under Alcide De Gasperi until 1953, saw Italy’s full integration into the Western bloc through its subscription to the North Atlantic Pact, its participation in the ECSC through its accession to the Treaty of Paris in 1951, and in the creation of the European Economic Community through the Treaty of Rome in 1957; cf, T. Ball, R. Bellamy (eds.), The Cambridge History of 20th Century Political Thought, Cambridge University Press, Cambridge, 2003, p. 177 ; pp. 636-637.

  153. Corte costituzionale della Repubblica italiana, sent. no. 68/1978 of 17/05/1978, cons. 3, §3-4, http://www.giurcost.org/decisioni/1978/0068s-78.html, accessed on 12/02/2016.

  154. F. Del Giudice, Compendio di diritto costituzionale, op. cit. p. 81.

  155. Corte costituzionale della Repubblica italiana, sent. no. 45/2005 of 13/01/2005, cons. 5, §2, http://www.giurcost.org/decisioni/2005/0045s-05.html, consulted on 14/02/2016.

  156. ( ) See A. Barbera, A. Morrone, Referendum elettorale e reviviscenza di norme abrogate – Sull’ammissibilità dei quesiti per il ripristino del “Mattarellum”, Bononia University Press, Bologna, 2012.

  157. Corte costituzionale della Repubblica italiana, sent. no. 13/2012 of 12/01/2012, cons. 5.2, §2,http://www.cortecostituzionale.it/actionSchedaPronuncia.do?anno=2012&numero=13, accessed on 05/08/2016.

  158. In accordance with law no. 157 of 3 June 1999, Official Gazette of the Italian Republic, publication no. 129 of 4 June 1999, art. 1, para. 4; http://www.camera.it/parlam/leggi/99157l.htm, accessed on 05/02/2016.

  159. F. T. Giupponi, “Il ‘giudizio di legittimità’ sull’esito referendario e i limiti al legislatore”, op. cit. p. 324.

  160. Corte costituzionale della Repubblica italiana, sent. no. 68/1978 of 17/05/1978, http://www.giurcost.org/decisioni/1978/0068s-78.html, accessed on 12/02/2016.

  161. Id. sent. no. 468/1990 of 09/10/1990, http://www.giurcost.org/decisioni/1990/0468s-90.html, consulted on 14/02/2016.

  162. Ibid. cons. 4.3, §1.

  163. Ibid. cons. 4.3, §2.

  164. F. T. Giupponi, “Il ‘giudizio di legittimità’ sull’esito referendario e i limiti al legislatore”, op. cit. p. 307.

  165. Ibid. pp. 322-323.

  166. F. T. Giupponi, “Il ‘giudizio di legittimità’ sull’esito referendario e i limiti al legislatore”, op. cit. p. 325.

  167. A. Pertici, Il Giudice delle leggi e il giudizio di ammissibilità del referendum abrogativo, op. cit. pp. 253-255; p. 255.

  168. P. Pederzoli, La Corte costituzionale, op. cit., p. 222.

  169. H. Dumont, A. Bailleux, “Esquisse d’une théorie des ouvertures interdisciplinaires accessibles aux juristes”, op. cit. p. 281.

  170. A. Chimenti, Storia dei referendum. Dal divorzio alla riforma elettorale. 1974-1999, op. cit. pp. 102-103.
  171. P. Pederzoli, La Corte costituzionale, op. cit. p. 106.

  172. G. Zagrebelsky, “La justice constitutionnelle, une fonction républicaine”, in AA. VV., En hommage à Francis Delpérée : itinéraires d’un constitutionnaliste, Bruylant, Brussels, 2007, pp. 1765-1775, p. 1768.

  173. S. Cassese, Dentro la Corte. Diario di un giudice costituzionale, Il Mulino, Bologna, 2015, p. 124

  174. A. Chimenti, Storia dei referendum. Dal divorzio alla riforma elettorale. 1974-1999, op. cit. p. 116

  175. S. Cassese, Dentro la Corte. Diario di un giudice costituzionale, op. cit. p. 24.

  176. G. Zagrebelsky, “La Corte in-politica”, Quaderni costituzionali, no. 2/2005, pp. 273 et seq.

  177. P. Pederzoli, La Corte costituzionale, op. cit. pp. 224-228.

  178. A. Chimenti, Storia dei referendum. Dal divorzio alla riforma elettorale. 1974-1999, op. cit. pp. 154-155.

  179. G. Zagrebelsky, “Il giudizio di ammissibilità del referendum abrogativo”, in AA. VV, La Giustizia costituzionale, Il Mulino, Bologna, 1988, p. 476.

  180. Corte costituzionale della Repubblica italiana, sent. no. 26/1987 of 16/01/1987, cons. 5; http://www.giurcost.org/decisioni/1987/0026s-87.html, consulted on 14/02/2016, translation taken up in M. Fatin-Rouge Stéfanini, Le contrôle du référendum par la justice constitutionnelle, op. cit., p. 225.

  181. In particular L. Paladin, Profili problematici della giurisprudenza costituzionale sull’ammissibilità del referendum abrogativo, Actes du Séminaire sur le jugement d’admissibilité du référendum abrogatif tenu à Rome le 5-6 juillet 1996, Giuffrè Editore, Milano, 1998, pp.9-10.

  182. A. Chimenti, Storia dei referendum. Dal divorzio alla riforma elettorale. 1974-1999, op. cit. p. 201.

  183. M. Fatin-Rouge Stéfanini, Le contrôle du référendum par la justice constitutionnelle, op. cit. p. 230.

  184. F. Ost, Dire le droit, faire justice, op. cit, p. 107.

  185. Ibid, pp. 35-36.

  186. Corte costituzionale della Repubblica italiana, sent. no. 36/1997 of 30/01/1997, cons. 4, §6, http://www.giurcost.org/decisioni/1997/0036s-97.html, consulted on 14/02/2016

  187. A. Pertici, Il Giudice delle leggi e il giudizio di ammissibilità del referendum abrogativo, op. cit. pp. 253-255; p. 255.

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