The Leopard Paradox?
In early May, Prime Minister Giorgia Meloni hosted a roundtable to discuss institutional reforms designed to improve “the stability of governments and legislatures, and respect for citizens’ votes at the ballot box.” A central campaign promise of hers, the reforms are meant to address Italians’ exacerbating distrust of political institutions, rooted in the fact that Italy’s administrations are among the most short-lived in Europe. This adds to its comparatively low levels of ‘clarity of responsibility’. Three options emerged from the discussion. I will briefly discuss the potential and challenges of each option.
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Attention Is All You Need
Das Verbot ChatGPTs durch die italienische Datenschutzbehörde bietet Gelegenheit einen Klassiker neu aufzulegen: Eine bahnbrechende, Technologie aus dem Silicon Valley zerschellt am harten Beton des Brüsseler Datenschutzregimes. Während einige technikkritische Stimmen laut applaudieren, prügeln andere auf das vermeintlich innovationsfeindliche Datenschutzrecht ein. Doch gibt ChatGPT tatsächlich Anlass für derart fundamentale datenschutzrechtliche Bedenken im Hinblick auf generative KIs?
Continue reading >>Squaring the Circle
The Italian Data Protection Authority banned ChatGPT for violating EU data protection law. As training and operating large language models like ChatGPT requires massive amounts of (personal) data, AI's future in Europe, to an extent, hinges upon the GDPR.
Continue reading >>The New Populism is Responsible for the Massacres in the Mediterranean
The tragedy of the 73 people left to drown, without help, a few meters away from the beach near Cutro and the Italian government's pathetic attempts at justification for their inaction forcefully raise again the ‘migrants question’.
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The Italian “No Jab, No Job” Law Passes Constitutional Muster
The Italian legal system has known some unprecedented measures during the pandemic, including the lockdown regime, “green pass” system etc. Such measures have been probed by ordinary and administrative judges and by the Italian Constitutional Court (ICC). Notwithstanding some limited corrections, these measures stood up to scrutiny overall. This is also true for COVID-19 vaccine mandates. Now, with three judgments, the ICC dismissed all the challenges against it.
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Constitutionalising Insularity
A few days ago, the Islands Commission General Assembly of the Conference on Peripheral Maritime Regions, a French-based think tank lobbying the EU, gathered to discuss “A Pact for EU Islands” to be advocated in the upcoming Spanish Presidency of the Council of the EU, starting in the second half of 2023. So far, with the exception of a resolution passed by the European Parliament on 7 June 2022 and heralded by a 2021 study, in the past five years, insularity has been largely ignored in the European Union's political discourse.
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Klagewelle im Sonnenuntergang?
Im August 2022 hat ein Investor-Staat-Schiedsgericht Italien zu einer Entschädigungszahlung von 190 Mio. Euro plus Zinsen an das britische Öl- und Gasunternehmen Rockhopper verurteilt. Rechtsgrundlage war der Energiecharta-Vertrag), aus dem Italien bereits 2016 ausgetreten ist. Aufgrund einer Klausel im ECT könnte sich Italien – ebenso wie die vielen anderen Staaten, die sich derzeit vom ECT verabschieden – jedoch noch viele Jahre lang Klagen unter dem Vertrag ausgesetzt sehen. Die Entscheidung wirft somit Schlaglichter auf die Fragen, ob Italiens eigenmächtiger Austritt aus dem ECT als Vorbild für andere Vertragsstaaten dienen sollte, und welchen Spielraum der ECT für klimafreundliche Energiepolitiken gewährt.
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Meloni’s Illiberal Anti-Rave Law
Only ten days after it was sworn in and a week after it received the confidence vote from the Parliament, the new Italian government led by Giorgia Meloni presented its first decree-law containing numerous provisions on a variety of issues: health, justice, and security. The decree-law was the first legislative act presented by the new radical right-wing government. Members of the opposition argued that the decree, in particular the anti-rave norm, is a danger to the freedom of assembly of the Italian citizens and that is a law that Putin could have written.
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Waiting for Godot
The words of the President of the European Commission during her keynote speech at Princeton University on 22 September have caused quite a stir. Responding to a question about the (then) upcoming elections and the prospect of a right-wing government comprising members related to Putin, Ursula von der Leyen (VDL) surprised everyone with a reference to the well-known situations in Hungary and Poland. Now that the formation of a new Italian government is well underway, this contribution reconsiders the fears fueled by VDL’s statements in light of the past and current context to draw some more general conclusions on the institution’s duty to respect and promote the EU’s founding values.
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The Wind Doesn’t Fall – it Drops
Excessiveness can be actually measured in many ways, but it is always time sensitive, and path dependent. As the Global financial crisis in 2008 has clearly demonstrated, excessive profits by banks in the first decade of the century were by far offset with the immense losses coming after, and the Governments were urged to grant subsidies and grants to the very same companies they overtaxed just some years before. The conclusion in this respect is that any judgment of excessiveness depends on the timespan considered. Both the Italian and the European legislator seem to have forgotten this aspect.
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What’s Next, Bro?
On September 25th, nearly 51 million Italians were called to the polls to elect the 19th Parliament of the Republic since 1948. All domestic and international media focused their attention on the two main novelties of this election: a landslide victory by a post-fascist, nationalistic, anti-European right-wing party and the paradox of the first female Prime Minister advocating a hyper-conservative view of women in society. Politically, these are no doubt major news. At the same time, Mrs. Meloni and her government-to-be is an unwritten piece of paper.
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The Shadow of the Past, the Challenges of the Future
The outcome of Italy's election has caused worried reactions and general alarm both across Italy and internationally. It is the first time since the dark days of fascism that a right-wing party has won the general election and will likely head the government. It is undoubtedly a turning point in Italian politics and history, a radical shift in the political spectrum. Is Italy’s constitutional system resilient enough to deal with the post-fascist legacy of Brothers of Italy? Is Italian democracy in danger? Three days after the elections we have to be cautious with any such predictions, but I think some preliminary answers are possible already at this early stage.
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No Institutional Upheaval in Sight in Italy
Will the new right-wing government in Italy under Giorgia Meloni attack the constitutional institutions? The program of the coalition and the numbers in Parliament both make that seem rather unlikely.
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Child Protection, Sexuality and Feindstrafrecht
Across EU Member States, we are witnessing the growing use of criminal law for punishing behaviors related to the sexualization of minors, which do not directly imply the abuse of actual minors. This use of criminal law presents many reasons for perplexity.
Continue reading >>A Parliament Shaped by the ‘Worst Election Law Ever’
The campaign for the next Italian general election, scheduled for […]
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The Italian Surname Saga
On May 31, 2022, the Italian Constitutional Court (ICC) finally rendered its much-awaited decision (ICC, decision no. 131/2022) about domestic legislation on surname attribution. The judgment deserves closer attention for two main reasons. Next to fostering gender equality, it also exemplifies the new role of the ICC within the Italian constitutional order.
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Compensation Without Recognition
The German-Italian dispute over civil liability for Germany’s crimes during World War II has developed into a veritable saga. This saga, however, might come to an end soon. By passing the Decree-Law of 30 April 2022, No. 36, the Italian government has temporarily blocked the distraint of properties of Germany located in Rome. Furthermore, the Decree-Law has established a fund through which the Italian government aims to definitively close the issue by paying compensation to the victims in place of Germany. Even if in the future Germany decides to contribute to those compensations, such a solution would fail to acknowledge that historical justice is not just about financial compensation. It is about listening and recognition.
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An Inappropriate Memorial Day
The Italian Parliament recently approved a statute that institutes a Memorial Day for the sacrifice of the Alpine Troops in the battle of 26th of January 1943, during WWII. The battle took place in Nikolajewka, a village which is now in Ukraine. This decision is confusing for a couple of reasons, and yet there has not been much of a public debate or opposition. A possible explanation is that this statute is part of the process of building up a ‘shared memory’ among political parties to legitimize the current political system.
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All Needs to Stay As It Is so All Can Change
The terms of office of Italian President Sergio Mattarella and German President Frank-Walter Steinmeier will end within few weeks from one another. Yet the two countries could not experience the two deadlines more differently. While the German President's re-election in the first round is certain, in Italy a sort of collective psychodrama has been going on for months.
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Maßnahmen zur Terrorismusbekämpfung als Mittel zur Migrationskontrolle
Seit den Anschlägen vom 11. September ist der öffentliche Diskurs […]
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Counterterrorism measures as a migration control device
While concerns over terrorism have not shaped Italian migration policy in a comprehensive way, the increased use of the administrative measure of expulsion of foreigners for counter-terrorism purposes must be questioned. It poses serious challenges to fundamental rights and rule of law principles and might foster a shift from a punitive to a preventive approach in the field of migration control.
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Two Almost Identical Chambers Doing the Same Job Twice
On July 8th, the Italian Parliament adopted in the last reading an amendment to the constitution which lowers the voting age in Senate elections from 25 to 18 years. At first glance, an ode to democracy: the amendment eventually grants the right to vote for the upper chamber of the national Parliament to some 4 million young citizens. In reality, the amendment is the (so far) last step of a fragmented and schizophrenic set of reforms that are gradually dismantling the logic of the constitution of 1948 without proposing an alternative constitutional strategy.
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Visibility and Crime at Sea
On 30th June 2021, search-and-rescue activists from Sea-Watch witnessed a brutal attack by the so-called Libyan Coast Guard against a migrant vessel carrying 64 during an attempted pushback. Now, prosecutors in Sicily have launched an investigation against the Libyan Coast Guard for “attempted shipwreck.” This the first time, a European court opens an investigation against the Libyan Coast Guard, and the fact that an Italian court should do so bears legal and political importance.
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The Italian “No Jab, No Job” Law
While the world tackles the thorny issues of vaccine passports and “no jab, no job” policies, on April 1st 2021 Italy became (to the best of my knowledge) the first country to enact a law specifically prescribing COVID-19 vaccination for healthcare workers, with non-compliance entailing removal from healthcare activities or, when this is not possible, suspension from work and wage. This may appear as an infringement of the constitutionally protected right to health as a matter of self-determination. But in fact, given the case-law of the Italian Constitutional Court, the newly enacted obligation seems to meet the requirements of the Italian Constitution.
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Coping with Disloyal Cooperation in the Midst of a Pandemic: The Italian Response
The activity of the coalition Government between the Five Star Movement (5SM), the Democratic Party and other centre-left junior allies to tackle COVID-19 has been praised by some and severely criticized by others. Looking back at this first year of pandemic, a crucial problem of the Italian management of the disease and the related economic and social crises has been the lack of loyal cooperation; a principle entrenched into the Constitution (Art. 120, second para, Const.), with regard to the relationship amongst the different levels of government.
Continue reading >>Draghi’s New Cabinet Sails but Italian Political Institutions Do not Risk Reforms
On 13 February 2021, the new Prime Minister Mario Draghi was sworn in with his ministers by President Mattarella. Draghi had received the task of forming the government on 3 February, ten days earlier. The second Conte government had resigned on 26 January. The new government won the confidence of the Senate on 17 February and that of the Chamber of Deputies on the 18th: the crisis was resolved within eighteen days (twenty-three if the two parliamentary votes are taken into account). It must be emphasized that in Italy the government does not take office after the parliamentary vote, but before, with the oath of office (Art. 93 It. Const.). This is fundamental to understand the role of the Head of State.
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Call Me by Mum’s Name
In a recent decision, the Italian Constitutional Court took up the question of the choice of surname for newborns. In the absence of legislative reforms, it has tried to adapt the Italian legal framework, which still adheres to traditional naming practices, to constitutional and international standards of equality. This step shows the Court’s intention to counter the Parliament’s inertia on the issue.
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LawRules #2: We need to talk about Judicial Nominations
It's easy to agree that judicial independence is important – but who gets to be a part of the judiciary, who gets promoted to which court and who enters the highest ranks is a decision that has to be taken by someone, and a lot depends on who that someone is. Controlling judicial nominations is one of the key elements in all authoritarian takeover strategies which have been implemented in recent years in Poland, in Hungary and elsewhere. This is what we will discuss with the president of the European Network of Councils of the Judiciary, a member of the board of the Polish independent judges’ association IUSTITIA, and a German judge at the Bundesgerichtshof.
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Constitutional Dullness
Should the number of Italy’s Members of Parliament (MPs) be reduced from 945 to 600? Italian citizens will decide on that question in a constitutional referendum that will take place in less than two weeks. While other referendums in Italian history have been vectors of remarkable civic mobilisation, this one fails to capture the constitutional imagination of Italian citizens. What could – and should – be a radical public debate about Italy’s political system and the current order, in fact revolves around pettiness and trivial constitutional engineering.
Continue reading >>The Italian Government Enforces Gender Parity in Regional Elections
On 23 July 2020, the Italian government formally warned Apulia that if the region did not introduce gender parity election rules by 28 July 2020, it would do so in its place. Apulia failed to adopt a regional statute in that time frame. Thus, on 31 July 2020, the Italian government adopted Decree Law 86/2020 which essentially introduced a mechanism of “double gender preference” for the regional Parliament elections to be held on 20-21 September 2020. What is clear is that this summer’s events around the Apulia election are yet another example of the “irresistible rise of gender quotas in Europe”, where Germany increasingly stands out as the proverbial exception.
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With Tragedy Comes Farce
The Italian Prime Minister has recently adopted the the so-called ‘Step 2’ measures. They aim to prudently alleviate the severe limitations on personal liberty imposed so far, but result in obvious uncertainty as for what exactly is forbidden – which adds to their slender ties with parliamentary legislation in exposing the legitimacy deficit of the overall crisis discipline. Particularly, the notion of ‘congiunto’ as a person that one can go visit is likely to cause tragicomic, yet remarkable, turmoil.
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Not a Safe Place?
In an unprecedented move, the Italian government has declared Italy’s ports “unsafe” due to the COVID-19-pandemic. It did so by issuing an executive decree late Tuesday last week, seemingly in response to the rescue of 150 shipwrecked by the Sea-Eye’s Alan Kurdi. This is not the first time that the Italian government has used decrees to close its borders for sea-rescue ships. However, given the extraordinary circumstances of this case in the midst of the on-going Corona-crisis and the novel argument made by the Italian government, the decision warrants closer examination.
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The Need for Clear Competences in Times of Crisis
All Italian institutions established at different levels of government have been at the forefront in the health emergency to fight the spread of the coronavirus disease (see Diletta Tega and Michele Massa). Yet, they had to take action in the absence of a consistent legal framework establishing a clear division of competences and chain of command in the management of the emergency. The resulting legal uncertainties have been delaying the timely adoption and effective implementation of the containment measures which led to the national lockdown.
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Corona Triage
Triage - this is the sorting of patients in groups to be treated preferentially or subordinately when the mass of patients vastly exceeds the available resources. It has always been a delicate and stressful procedure. The Italian Society for Anesthesia, Analgesia, Resuscitation and Intensive Care Medicine (SIAARTI) has recently given recommendations to intensive care physicians who are currently no longer able to provide lung ventilators to all Covid-19 patients in need. The aim of those recommendations was to relieve the practitioners of the burden of taking personal responsibility for the selection decisions and to make the criteria explicit and communicable. The criteria, or so the authors propose, should also be made accessible to those affected and to their families to maintain trust in the public health service. If the criteria are now made public, one must however be allowed to comment on them. This is what I intend to do here.
Continue reading >>Corona-Triage
Triage – das ist die Sortierung von Patienten in Gruppen vor- und nachrangig zu Behandelnder bei einem die verfügbaren Ressourcen weit übersteigenden Massenanfall von Bedürftigen. Das ist schon immer ein heikler und belastender Vorgang gewesen. Die italienische Gesellschaft für Anästhesie, Analgesie, Reanimations- und Intensivmedizin (SIAARTI) hat den Intensivmedizinern, die derzeit nicht mehr allen bedürftigen Covid-19-Patienten Beatmungsgeräte bereitstellen können, dazu kürzlich Empfehlungen an die Hand gegeben. Man wolle auf diesem Wege die Praktiker davon entlasten, die Auswahlentscheidungen persönlich verantworten zu müssen, und man wolle die Kriterien explizit und kommunikabel machen. Wenn die Kriterien öffentlich gemacht werden, muss man sie freilich auch kommentieren dürfen. Das möchte ich hier tun.
Continue reading >>Coronavirus Emergency and Public Law Issues: An Update on the Italian Situation
The emergency caused by the “new” Coronavirus disease (that we discussed here) reached a new peak in Italy in the last few days, since cases have tripled compared to just a couple of days ago. Italy is now the second most affected country after China. This situation induced Italian public authorities to take new, stricter measures to try to contain the expansion of the virus. From a constitutional law perspective, the Coronavirus sheds light on the need to reconsider Italy’s “emergency constitution” .
Continue reading >>The Island of Hope in a Sea of Misery
On 17 January 2020, the Italian Court of Cassation (‘Court’) ruled that Carola Rackete, captain of the Sea-Watch 3, was not criminally liable for hitting an Italian Guardia di Finanza vessel and allowing 40 shipwrecked to disembark in Lampedusa in July 2019. The judgment is remarkable for its unequivocal stance on the right to disembark.
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Private (Transnational) Power without Authority
On 9 September 2019 Facebook banned from its platforms all pages and profiles related to the Italian far-right organization “CasaPound”, for the violation of its Community Standard no. 12 (hate speech and incitement to violence). On 11 December 2019, the Tribunal of Rome (ToR) adopted the precautionary measure ordering Facebook Ireland Ltd. to restore the pages and their content and to pay the losses. The decision raises significant issues in several respects and might serve as a model to courts beyond Italy.
Continue reading >>The Italian Constitutional Court Opens Up to Hear the Voice of Civil Society
On January 8 2020, the Italian Constitutional Court gave civil society a voice on the issues discussed before it. The Court amended the regulations governing the conduct of proceedings before it and puts itself in a position where it is able take account of expert opinions as well as civil society stakeholders.
Continue reading >>Doch noch ein Verfassungsreferendum in Italien
Die Verkleinerung des italienischen Parlaments wurde im vergangen Oktober beschlossen, jedoch haben sich knapp vor Ablauf der Frist genügend Parlamentarier zusammengeschlossen, um die Entscheidung doch dem Wahlvolk durch ein Verfassungsreferendum zu überlassen. Die traditionelle Scheu der italienischen Wähler vor Verfassungsänderungen dürfte diesmal durch eine Annahme dieses „Reförmchens“ höchstwahrscheinlich überwunden werden. Nichtdestotrotz bestätigt das Vorgehen die Richtigkeit einer Verfassungsbestimmung, die für konstitutionelle Novellierungen einen breiten Konsens vorsieht, damit die Verfassung nicht Spielball der Tagespolitik wird.
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Shying Away from Strasbourg
Last week, the Italian Constitutional Court published its reasoning on a judgment regarding the so-called ergastolo ostativo (life sentence without parole). The challenged provision excludes persons convicted of serious crimes – primarily mafia-type – from a series of benefits (for example, permits and conditional release) in the event that they do not want to collaborate with the authorities. Italy’s Constitutional Court now held that this provision is not in line with the constitution but missed a chance to give full effect to the case law of the European Court of Human Rights.
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Constitution Before Administration
On 5 December 2019, Italy’s Constitutional Court nullified regional legislation which made it extremely difficult for religious minority groups to set up places of worship. The provisions in question vested the administrative authorities with nearly unfettered discretion in deciding on the approval of applications. The Constitutional Court has now made clear that the constitutionally guaranteed freedom of religion cannot be circumvented by administrative procedures.
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Menschenrechte im Mittelmeer
Was bedeutet es Rechte zu haben? Diese Frage bekommt drängende Relevanz, wenn es um die Reichweite menschenrechtlicher Verantwortung geht, so im Fall S.S. und andere gegen Italien, der vor dem Europäischen Gerichtshof für Menschenrechte anhängig ist. Der EGMR hat zu entscheiden, inwiefern die Unterstützung der libyschen Küstenwache und Koordination von Rettungsaktionen eine Verantwortung Italiens nach der Europäischen Menschenrechtskonvention auslöst.
Continue reading >>The Erosion of Italian Regionalism
Elections in the small, peaceful, politically stable region of Umbria in central Italy normally go rather unnoticed. This didn’t change when the direct election of regional presidents was introduced in 1995, making Italy the only European country with a presidential system at regional level. The stunning victory of the right not only brought Umbria into the spotlight of national politics but also cast light on the erosion of regionalism in Italy.
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Es hat viel gedonnert, aber kaum geregnet
Mit dem Beschluss der Abgeordnetenkammer vom 8. Oktober 2019 hat das italienische Parlament entschieden, sich selbst um ein gutes Drittel der Sitze zu verkleinern. Aus 945 Parlamentariern sollen künftig 600 werden. Obwohl die von der Fünf-Sterne-Bewegung angestrebte Reform in der italienischen Verfassungsdebatte nicht neu ist, beschränkt sie sich auf eine rechnerische Verkleinerung, ohne Rolle und Kompetenzen der Volksvertretung in der Gegenwart ernsthaft zu hinterfragen.
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“Constitutional Paternalism” and the Inability to Legislate
On 25 September 2019, the Italian Constitutional Court (ICC) has made clear that assisted suicide is not punishable under specific conditions. The judgment came one year after the ICC had ordered the Italian Parliament to legislate on the matter – which it did not do. The entire story is indicative of the inability of Parliaments to respond to social demands as well as the current trend of high courts to act as shepherds of parliaments rather than as guardians of the constitution.
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