New Forms of Guarantee: The Unifying Role of Legal Principles and General Clauses

As regards the atypical guarantees, interpreters have to derive the discipline applicable to the particular case from the legal principles, the general clauses and the ‘trans-typical’ or ‘meta-typical’ rules. The unity of the (typical or atypical) guarantees in the existing legal system must be ensured in an axiological standpoint (ie in the prism of the ‘constitutional legality’) without however degrading the complexity and the peculiarities of the factual context. This factual context must be considered in order to identify the most proper rule to satisfy the interests to be protected by balancing the different normative values involved according to reasonableness.