The principle of separation of powers and auxiliary organs. The role of the Council of State and the Court of Auditors in the balance between powers

The inclusion of the Council of State and of the Court of Auditors among the auxiliary bodies of the Italian Government, as well as among the judiciary, and the attribution to them of consultative and control functions in addition to their jurisdictional roles, raise questions about the nature of the two institutions and on the outer boundaries of their functions, also and especially in relation to the other powers of the State. One question, in particular, pertains to whether the exercise of their functions and the performance of tasks auxiliary to functions of government violate the principle of separation of powers. To answer these questions, the work first analyses the functions of the Council of State and then those of the Court of Auditors. The analysis provides a picture that is substantially respectful of the principle of separation of powers, which, however, as the analysis itself highlights, can no longer be understood as a rigid separation of powers but should be rethought in terms of a ‘balance’ of powers (équilibre des pouvoirs).