PRELIMINARY REMARKS

It is more than evident that the constitutional court – in the European system – has a considerable impact on the legislative process. The classic separation of powers, based on Montesquieu's model, cannot be considered sufficient to describe the reality or – more accurately – the infrastructure of the modern state of law. Owing to the channeled system of constitutional review, the constitutional court cannot be directly classified as one of the legislative or judicial organs, however broadly understood. Nonetheless, the Kelsenian conception of constitutional justice involves a distinct division between the legislative power and prerogatives of the constitutional court: in this perspective, the constitutional court does introduce some changes to the legislative system, but it acts only as a negative legislator. It is not the competence of the constitutional court to make laws or to bring into the legal order any normative elements, which have not been established before under an appropriate legislative procedure; therefore, the constitutional court may not replace the legislator in this process. Constitutional review is based on a coherent structure of a hierarchical legal system, and the constitutional court has to operate within that order, drawing its own competence from the constitutional legislator. Judgments passed by the constitutional court cannot contain anything that has not been already proclaimed by the supreme norm laid down in the Constitution, whereas the role of the constitutional review is always limited to the application of law – although placed at the highest level of the normative hierarchy – and cannot involve creation of norms.