1. A study of cases on the – manipulative, additive, integrative, “creative” – decisions by which the Italian Constitutional Court, in the current jurisprudential practice, poses as a positive legislator requires certain introductory remarks on the typology of the constitutional decisions and, before that, some outlines of the model of control of constitutionality operating in Italy, with particular regard to the proceeding in an incidental way.
Although, especially on the morrow of the constitutional revision of 2001 that reformed the Italian regional system, the procedure in the direct way – on state appeal, for control of regional laws; on regional initiative, for control of the legislative acts of the State and other Regions (art. 127 of the Constitution) – recorded a considerable quantitative increase, on these pages, it is opportune to limit oneself to judgment in an incidental manner (incidenter proceeding).
Indeed, the latter makes up the seat of control of the constitutionality of laws in a general way – any legislative act may be its subject, and any constitutional provision may make up the parameter – and in that context, the typology of constitutional decisions was historically and overridingly elaborated, starting from the interpretative and manipulative ones (and likewise monitory, or of address, with which the Court directs warnings to the legislator, in an almost advisory key).