The judiciary creation by the manipulation of the temporal factor's effects of the declaration of unconstitutionality : a look at the Italian and German constitutional judge

Aquesta ponència forma part del Workshop internacional de doctorands organitzat pel Programa de Doctorat en Dret de la UAB i la Facultat de Dret de la UAB, amb el suport de l'École Européenne de Droit de l'Université Toulouse CapitoleThe Italian Constitutional Court has in recent times adopted a particular form of law-making, namely the adjustment of the effects of its acceptance judgements, a decision-making technique previously employed in the past. Constitutional Judges, straining the norms that regulate the retroactivity of unconstitutionality judgements, have in fact over time even impinged upon the validity and effectiveness of an unconstitutional rule. This expansion of the Constitutional Court's "creative" powers into the temporal dimension has prompted the reactions of the common judges, who have shown no inclination to assume a respectful attitude towards this temporally creative case law. In fact, time-related determinations have been deemed "unlawful" by the relevant case law; the Court of Cassation, on the other hand, appears to have conformed to the principle of "temporal creativity." For the purposes of this article, an interesting comparison may be drawn with the German model of constitutional justice, which confers extensive legitimacy to the temporal adjustment of acceptance judgements and can avail itself of a wide range of jurisprudential tools, and seems therefore more amenable to a fruitful dialogue between constitutional and common judges