Richtervorlagen in Deutschland und Italien

Luca Silvani examines the judicial referral procedure (concrete judicial review) in Germany and Italy and its significance for the respective systems of constitutional adjudication. Central to the analysis is the question of what understanding of their role the Federal Constitutional Court and the Corte costituzionale derive from the way this procedure is structured. Although both courts follow the Kelsenian model of a centralized constitutional judiciary, they operate under different procedural conditions: in Germany, the constitutional complaint constitutes the primary instrument of constitutional review, whereas in Italy the judicial referral plays a key role due to the absence of an individual complaint. The author adopts a comparative approach, analysing the judicial referral within the context of each system's procedural architecture, and demonstrates that functions fulfilled through the judicial referral in Italy are largely performed by the constitutional complaint in Germany. Overall, the judicial referral emerges as a flexible instrument in which central structural questions of constitutional adjudication are brought together.