Diritto Pubblico Comparato ed Europeo

Sommario

1. Les validations législatives: un dibattito dal duplice profilo. – 2. La prima fase della giurisprudenzadel Conseil sulle validations: l’autorità del giudicato. – 3. La seconda fase della giurisprudenza del Conseil: lavalutazione sul merito delle scelte legislative. – 4. Uno standard sostanziale di decisione. – 5. La certezza deldiritto. – 6. Considerazioni conclusive.

Abstract

The lois de validation and more generally, the acts of amendment in the various codes whichaim to prevent the efficacy of an administrative act being altered by a judgement of its validity,raise questions about the importance and the contents of the principle of the separation of powers. In this sense, the French debate, following the model of the evolution of jurisprudence of the ConseilConstitutionnel, is particularly interesting since it first drew attention to the essentially formalaspects of the separation of powers and then, conscious of their limits, led to consider its fundamentalelements. From the debate emerged the attactive theory that the fundamental elements of separation ofpowers are referable to the value of the certainty of law.Of great interest is the fact that the remarks about this value were suggested, in part, by the jurisprudenceof the European Court of Human Rights which unlike national judges, extends itsjudgement on the use of public “power” and not on the dynamics of public “powers”. The shifting of the debate from a European to national level, and from a general vision of“power” to the peculiar one of “powers”, meant using standards of judgement covering the relationshipbetween the sphere of freedom of citizens and the exercise of public power.