Ripensando la disciplina sul favoreggiamento all’ingresso irregolare: le corti costituzionali alla ricerca di un difficile bilanciamento

Rethinking the law on aiding and abetting irregular immigration: constitutional courts in search of a difficult balance

Abstract

Rethinking the law on aiding and abetting irregular immigration: constitutional courts in search of a difficult balance - The goal of contrasting irregular immigration underlying both the Palermo Protocol and the EU’s “Facilitators Package” has been implemented differently in European states. In France, as in Italy, restrictive laws, exceedingly protective of national borders, have been passed. They have led, first the French Conseil constitutionnel, then the Italian Constitutional Court, to intervene in the sense of defining a curb on the discretionary power of the legislature, as a guarantee of fundamental constitutional parameters, such as the principle of fraternité in the French case or the principle of equality-reasonableness and the principle of proportionality in the Italian case. Such case law seems to lean toward a comprehensive rethinking of the subject matter and, in its argumentative appeal to fundamental and shared principles and values, could then impart a new direction in Europe.

Keywords: Balancing; Constitutional courts; Migration; Proportionality; Solidarity.