Constitutional tort and State Liability: Towards an Objective System?

In the absence of specific provisions in this regard, Italian civil and administrative law courts continue to deny the legislator s liability for the enactment of unconstitutional laws. This approach, however, besides being widely criticized by many legal scholars, is no longer justifiable in the light of the CJEU s case law on the liability of Member States for breaches of EU law. In fact, equitable treatment imposes an extension of the requirements for the legislator s liability to breaches of constitutional rules too. It is hoped that in the near future, the liability of the legislator will be recognized and build upon objective elements. More generally, the recogni- tion of such liability would be consistent with the process of objectification of liability that today regards all public powers. This process is indeed confirmed by the Italian case law and rules that, under the pressure of the European Union, have shaped the liability of public administrations and judges upon the basis of objective and non-culpable elements.