Accoglimento ex nunc e bilanciamento di interessi (osservazioni a margine di Corte costituzionale, sent. n. 135 del 2025)

With judgment no. 135 of 2025, the Constitutional Court, having ascertained the occurrence of a constitutional vulnus dating back to 2022, nevertheless declared the unlawfulness of the contested legislation only «as from the day following the publication» of its decision in the Official Gazette and thus «without retroactive effect». The Author criticizes the decision-making technique employed by the Court in this case, both in relation to its (self-)qualification as a mere declaration of «supervening unconstitutionality» (whereas it should rather be considered a decision of «deferred unconstitutionality», with all the objections that the recourse to this model of ruling entails), and because, in the present case, the judgment entirely lacks any explanation of the reasons that led the constitutional judge to postpone the dies a quo of the established unconstitutionality. In this way, a logical gap arises in the argumentative process developed by the Bench, rendering the judgment inherently contradictory.