«Leggi-provvedimento» (law-orders) and Legal Protection in the Italian Constitutional System

By Guglielmo Bernabei


As a starting point, this research adopts the custom of using legislative acts to exercise administrative functions and examines the constitutional and interpretative limits on the exercise of administrative functions by the Italian Parliament and Regional Councils. It also analyses the reasons that lead to the performance of administrative functions through administrative acts that have legislative form, which are delineated by Italian administrative law. Retracing the path of constitutional case law, this research highlights the issues relating to the protection of the rights of individuals who cannot directly access the Constitutional Court, which entails the «sterilization» of Article 24 of the Constitution in the context of leggi provvedimento (law-orders). The article criticizes the position of the Constitutional Court according to which, in the absence of a reserve on part of the administration, leggi provvedimento do not violate individuals’ right to judicial protection and only give rise to a transfer of competence from ordinary courts to constitutional justice. Instead, it is submitted that the interpretative solutions seeking to conform legal measures to the Constitution should consider the relationship between the right of action, the rule of law and democracy. Finally, the questions raised by the performance of administrative activity in legislative form arise only after the development of the concept of divisibility of power.