Antonia Baraggia

Governments, economists and intellectuals have called for common European bonds or increased own EU funds to address the recession induced by Covid19. Unfortunately, the German government, joined by the other members of the “Frugal Four” (Austria, Finland, the Netherlands), has categorically rejected to look into any such measures and favours using the ESM. This reaction created a déjà vu experience for citizens and governments of the heavily affected southern Member States of the EU. The proposal to use the ESM raises fears of another wave of austerity amounting to yet another lost decade for economic, social, and ecological development in Europe

Analisa a Constituição “invisível” da Itália e tenta estabelecer uma contribuição comparativa para o debate. Defende que, além das forças tradicionais de mudança constitucional informal, o caso italiano deve ser visto à luz da história constitucional específica da Itália. Afirma que somente olhando para a mudança constitucional informal no contexto mais amplo dessas evoluções históricas e políticas é possível compreender as características-chave da “Constituição não escrita da Itália”

The chapter addresses the role of the judiciary during the 2008 economic crisis, which affected Europe and its Member States. In particular, the chapter compares the attitudes of national constitutional courts in judging austerity measures adopted under emergency circumstances, identifying three main justifications of the courts’ attitude during the crisis: 1. national supreme courts acted in order to safeguard the constitutional core values threatened by the extraordinary circumstances posed by the economic crisis; 2. they acted as institutions engaged in a kind of “institutional competition” with other constitutional actors; 3. they acted in order to affirm the self-standing nature of national constitutional order, with respect to supranational and international interference. The chapter explores how in the future the EU should improve the virtuous relationship between its political and judicial actors in order to avoid the flaws and legal contradictions that have characterized it...

This chapter provides a new understanding of the separation of powers principle in the “post-national constellation”: a separation of powers that has acquired a “third” dimension, a vertical one transcending the boundaries of national states and operating between international institutions and national ones. Expressed in other terms, the rise of the administrative state beyond the state poses several conceptual challenges to the separation of powers. Is the triadic structure still capable of encompassing the transformation of the exercise of power? If not, what kind of the separation of power are we witnessing today? Is the new separation of powers compatible with the constitutional architecture of our legal orders? There is broad consensus on the fact the three-branch metaphor of the separation of powers is based on an outdated conception. There is no such a thing as the tripartite separation of powers because the development of constitutional systems has stretched the original triad to the point of creating two new powers: public administration and constitutional courts. The rise of a global constitutional space has vertically extended the already transfigured separation of power. What are the consequences of such an extension of the separation of powers? How does the new architecture of powers fit into the contemporary edifice of constitutionalism? This chapter is divided into two sections: section one (parts 2 and 3) analyses the rise of the administrative state and then the rise of a global administrative state, beyond states. The second section (parts 4 and 5) will try to show the impact of the rise of global administrative law on the separation of powers through the lens of a regulatory instrument deployed by several international organizations: the tool of conditionality.

In December 2020, the EU institutions finally approved the new Rule of Law Conditionality Regulation after a controversial legislative process. The new Regulation allows the Commission and the Council to suspend EU funds in case of breaches to the rule of law that have negative effects on the EU budget and financial interests. This article analyses the new Regulation against the background of the rise of conditionality as a tool of EU governance. It argues, in contrast to some of the first analyses of the new Regulation, that the amendments adopted during the legislative process cannot simply be seen as a watered-down compromise, but were crucial to ensure the legality of the new instrument. At the same time, the EU’s growing reliance on conditionality continues to raise profound constitutional questions that still needs to be adequately addressed in the institutional and academic debate.

The conclusion which I am warranted in drawing from these observations is, that a mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands. J. Madison, The Federalist no. 48

Italian Abstract: L'articolo analizza il recente caso Whole Woman's Health V. Hellerstedt deciso dalla Corte Suprema americana il 27 giugno 2016. Esso rappresenta una tappa importante del percorso giurisprudenziale intrapreso dalla Corte Suprema in tema di aborto. Nel caso in esame la Corte, pur utilizzando il c.d. undue burden test, introdotto dalla Corte stessa nel caso Planned Parenthood v. Casey del 1992, ne afferma una nuova interpretazione, suscettibile di condurre ad una riformulazione dei conflitti in tema di aborto nel sistema americano. English Abstract: The article analyses the US Supreme Court Case Whole Woman’s Health v. Hellerstedt, decided on June 27, 2016. It represents a landmark case within the case law of the US Supreme Court on abortion, in which the Court, eventhough it uses the undue burden test, framed by the Court itself in 1992 in Planned Parenthood v. Casey, gives a new interpretation to such a test, able to reshape the abortion conflict in the US l...

Europe can be considered a sort of fortress of the protection of socio-economic rights. However, this bright scenario has been unsettled by the eruption of the Eurozone crisis, which has challenged the narrative of social Europe and swept away protections for social rights in Member States grappling with sovereign debt crises such as Greece, Portugal, Ireland, Cyprus, Latvia and Romania. In these countries, austerity measures led to persistent violations of social rights, under the external constraint of conditionality regimes which involved cuts in wages, pensions and welfare services. Consequently, austerity measures were challenged in domestic and European Courts and before the ECSR. In other words, there has been a ‘turn to the law’, in order to give concrete effect to the potential offered by the relevant legal instruments. What has been the general attitude of the Courts and quasi-judicial bodies to actions challenging austerity measures? Since the analysis of how the Courts a...

Arguably no idea has been more central to democratic government than the separation of powers. In this seminal book, Prof. Giovanni Bognetti (1930- 2013), traced the history and the evolution of this foundational idea in modern constitutionalism. Prof. Bognetti distinguishes two models of separation of powers: the \u201cclassic\u201d model, emerged in reaction to the centralization of powers typical of absolutist states as an effort to protect individual liberties and the \u201csocial\u201d model, which reflects the new paradigm of social rights protection in modern democracies. In the latter, according to Prof. Bognetti, we perceive a kind of political and legal transformation of the classic conception of separation of powers\u2014a transformation that becomes even more pronounced against the backdrop of globalization, multiculturalism and the rise of supranational legal orders. This seminal book represents a fundamental contribution to the current global debate on the separation of powers

Canada is and will for the foreseeable future be a peaceful and prosperous liberal democracy whose Constitution Act, 1867, now 150 years old as of 2017, has become a model for the modern world. The Constitution of Canada has exerted considerable influence on other countries, particularly since the coming into force of its Constitution Act, 1982, which included the celebrated Canadian Charter of Rights and Freedoms. Just as Canada drew from foreign and international experiences in drafting its Charter, the world has learned a great deal from Canada, not only as to rights protections but also as to the separation of powers, the judicial function, and the structure of government. In light of these impressive achievements, an international symposium on the Canadian Constitution was held in Pisa at the Scuola Sant’Anna under the auspices of the Sant’Anna Legal Studies project and with the support of the DIRPOLIS (Law, Politics and Development) Institute at the Scuola Sant’Anna, the Canad...

International and constitutional law, originally distinct realms with limited areas of intersection, are getting closer and closer, particularly in the European landscape within the human rights protection field, where these mere contacts between the two systems have become intersections and overlaps. The present article will try to shed light on the still unsolved and problematic issues to which overlapping human rights protection systems give rise, by focusing on an analysis of the heterologous in vitro fertilization case, where both the Strasbourg Court and the Italian Constitutional Court delivered relevant judgments on very similar matters (ECtHR’s S.H. Judgment; Judgment No. 162/2014 from the Italian CC). Such analysis revealed useful in highlighting connections and disconnections between the different levels of protection of rights, and led us to argue that the development of a multilevel protection of rights is also, at least partially, a tale of Courts, each competing to ha...

The article analyses, in comparative perspective, the most recent developments in the abortion regulation in Ireland and Northern-Ireland. The article highlights that, in both the legal systems, the evolution of abortion regulation developed along the tension among jurisdiction and legislation. Moreover, the article stressed the role of the international legal order on the national regulation of abortion, with reference to the role of the ECHR and the UN Committee. The article aims at offer a contribution to the debate on the role of courts and legislators in the definition of highly moral controversial issues. SOMMARIO: 1. Introduzione-2. Ex uno plura: i diversi percorsi attuativi dell'Offences Against the Person Act del 1861-3. "Dal popolo alle Corti": le vicende della regolamentazione dell'aborto in Irlanda a seguito dell'introduzione dell'Ottavo Emendamento-3.1 Il legislatore in azione: il Protection of Life During Pregnancy Act (PLDPA)-3.2 Dalle Corti al popolo? La Citizens' Assembly e il Referendum del 25 maggio 2018-4. Il caso nord-irlandese: la sentenza della UK Supreme Court del 7 giugno 2018-4.1 Il rapporto giudice-legislatore nella sentenza della Corte: due visioni a confronto-4.2 Dalle corti al legislatore. Ma quale legislatore?-5. Una postilla: L'ordinamento internazionale come forza motrice della liberalizzazione dell'aborto-6. Riflessioni conclusive: principio democratico e scelte eticamente controverse.  Contributo sottoposto a referaggio in base alle Linee guida della Rivista.

This chapter provides a new understanding of the separation of powers principle in the “post-national constellation”: a separation of powers that has acquired a “third” dimension, a vertical one transcending the boundaries of national states and operating between international institutions and national ones. Expressed in other terms, the rise of the administrative state beyond the state poses several conceptual challenges to the separation of powers. Is the triadic structure still capable of encompassing the transformation of the exercise of power? If not, what kind of the separation of power are we witnessing today? Is the new separation of powers compatible with the constitutional architecture of our legal orders? There is broad consensus on the fact the three-branch metaphor of the separation of powers is based on an outdated conception. There is no such a thing as the tripartite separation of powers because the development of constitutional systems has stretched the original triad to the point of creating two new powers: public administration and constitutional courts. The rise of a global constitutional space has vertically extended the already transfigured separation of power. What are the consequences of such an extension of the separation of powers? How does the new architecture of powers fit into the contemporary edifice of constitutionalism? This chapter is divided into two sections: section one (parts 2 and 3) analyses the rise of the administrative state and then the rise of a global administrative state, beyond states. The second section (parts 4 and 5) will try to show the impact of the rise of global administrative law on the separation of powers through the lens of a regulatory instrument deployed by several international organizations: the tool of conditionality.

The article elaborates on Ackerman's proposed diagnosis of the European crisis. Precisely, the fact European democracies have arisen from different "constitutional paths" can help in understanding the crisis of legitimacy that afflicts the European Union. Starting from this perspective the Author discusses the role of Courts in the EU composite legal space and the "EU trilemma" of rights, identities and legitimacy.

In the last decades, we have witnessed the renaissance of Comparative Constitutional law as field of research. Despite such a spread, the methodological foundations and the ultimate ratio of Constitutional comparative law are still debated among scholars, divided along many different methodological approaches. This article starts from the definition of the Comparative Constitutional law given by one of the most prominent comparative constitutional law scholars in Italy, prof. Giovanni Bognetti, who, in his seminal book “Introduzione al diritto costituzionale comparato” defines comparative constitutional law as the “main joining ring between the historical knowledge of the modern law and the history of the humankind in general and of its various civil realizations”. Comparative constitutional law is in other words a kind of mirror of the “competing vision of who we are and who we wish to be as a political community” (Hirschl), reflecting the structural tension between universalism and particularism, globalisation and constitutional tradition.
Starting from this perspective the article aims at addressing the main contemporary methodological challenges faced by the studies of Comparative constitutional law. It will focus on 2 main strands:
1. the relationship between globalization (which promotes the migration of constitutional ideas) and the roots of constitutional identity. 

2. the relationship between comparative constitutional studies and other scientific disciplines, such as political science, anthropology, sociology, history. 

The article argues that contemporary comparative constitutional studies should address these challenges 1) integrating the classical “horizontal” comparative method with a vertical one – regarding the international and supranational influences on constitutional settings – and 2) fostering an interdisciplinary approach, taking into account the perspective of the social sciences.

LA TUTELA DEI DIRITTI IN EUROPA NEL DIALOGO TRA CORTI: "EPIFANIE" DI UNA UNIONE DAI TRATTI ANCORA INDEFINITI

Di Antonia Baraggia - in Saggi

Il contributo affronta il tema della tutela dei diritti fondamentali nell’ordinamento dell’Unione europea a seguito dell’entrata in vigore del Trattato di Lisbona che ha sancito la forza vincolante della Carta di Nizza. Da allora, il dibattito circa la natura dell’Unione europea come Europa dei diritti e della Corte di Giustizia come “human rights adjudicator” ha avuto una decisa accelerazione. Guardando a questa svolta, il presente contributo intende mettere in luce i nodi problematici che permangono nell’intreccio europeo e nazionale nella tutela dei diritti, che in ultima analisi risiedono nell’ancora incerta fisionomia dell’Unione e nell’insistenza nello spazio europeo di ordinamenti distinti ma interconnessi, la cui relazione non può tuttavia essere letta in termini meramente gerarchici.
La lente attraverso la quale si analizza il tema è quella del “dialogo tra Corti”, non solo perché la tutela dei diritti in Europa avviene sempre di più in via giurisdizionale (mancando una vera e propria policy europea dei diritti), ma anche perché è proprio dall’interazione tra i vertici giurisdizionali dei rispettivi ordinamenti che traspare in maniera netta la natura conflittuale e problematica del c.d. dialogo.
Il tema verrà messo a fuoco attraverso l’analisi dei più recenti leading cases della Corte di Giustizia (Åkerberg Fransson, Melloni, Siragusa) e delle risposte che alcune Corti supreme nazionali hanno prontamente dato nel tentativo di definire i confini tra i diversi standard di tutela dei diritti fondamentali.



The article deals with the theme of the fundamental rights protection in the European Union after the entry into force of the Charter of Nice in 2009.
Since then, the nature of the European Union as human rights organization and of the ECJ as human rights adjudicator had been debated among legal scholars.
The article is aimed to shed lights on the critical issues that characterize the intertwined systems of rights protection at the European and national level. We argue that the problematic issues are due to the still undefined nature of the European Union, and to the existence within the EU space of different but connected legal orders, without a hierarchical relationship.
The perspective through which the theme will be analysed is that of the judicial dialogue, not only because human rights protection in the EU is mainly a matter of the judiciary, lacking a EU human right policy, but also because it is emblematic of the confrontational and problematic nature of the relationship among legal orders.
The analysis will be conducted through the study of the ECJ case law (Åkerberg Fransson, Melloni, and Siragusa cases) and that of the national supreme courts in dialogue with their European counterpart.