Law & Economics in the Italian Constitutional Jurisprudence: The Case of the Windfall Profit Tax on Energy Companies

Abstract

In the judgment issued on 2 February 2015 the Italian Constitutional Court decided upon the constitutional legitimacy of the windfall profit tax imposed by the Italian government in 2008 on profitable energy companies. In his decision the Court disentangles the very economic foundations of such a tax and seeks to explain under its legal reasoning the market outcomes for the energy industry. The aim of this article is to assess the path-breaking law and economics methodology used, for the first time, by the Italian Court to scrutinize the very nature of the tax reform. In doing this, the authors discuss how the Court envisages both a micro and a macro-economic perspective in its analysis which, in turn, shall take into account the primary principles embedded in the Italian Constitution. The newly adopted methodology may entail a change of paradigm in the way the Constitutional Court carries out its own review of constitutionality with respect to domestic provisions with far-reaching economic and budgetary consequences.