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TABLE OF CONTENTS
PREFACE
p. XIII
CHAPTER ONE
CHARACTERISTICS OF THE STATE
Giuseppe Franco Ferrari
1. Nature and Categories of Legal Systems
2. Legal and Non-legal norms: Structure and Relationship
3. The State: Constitutive Elements and a Brief Historical Outline
4. Values and Principles
5. People
6. Citizenship
7. Territory
p. 1
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5
7
10
12
15
18
CHAPTER TWO
TRENDS IN THE DEVELOPMENT OF THE ITALIAN STATE
Giuseppe Franco Ferrari
1. Premise
2. Globalisation and Multi-level Constitutionalism
3. State and International Law: Alternative Solutions and the
Italian Option
4. The European Legal Order and its Historical Development
p. 21
» 24
» 26
» 28
CHAPTER THREE
FORMS OF STATE AND FORMS OF GOVERNMENT
Justin Orlando Frosini
1. Terminological Premise
p. 31
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2. Forms of State and Forms of Government: Historical Aspects and
Development
1. The Feudal Society – 2. The Absolute State – 3. The Liberal State – 4.
The Democratic Pluralistic State – 5. Alternatives to the Democratic
Pluralistic State – 5.1. Totalitarian and Authoritarian States – 5.2. The
Socialist State
p. 32
3. Unitary, Federal and Regional States
» 39
4. Forms of Government: a Synchronic Analysis
» 45
1. Allocation of Legislative Power – 2. Allocation of Judicial Power – 3.
Representation in the Upper House – 4. Constitutional Amendment Powers
– 5. Statutes of Autonomy or Constitutions? – 6. No Decentralisation
without Taxation?
1. Parliamentary Executive – 2. Presidential Executive – 3. Directorial
Executive – 4. Semi-presidential Executive – 5 Quintum Genus? The
Prime Ministerial Executive
CHAPTER FOUR
PARLIAMENT
Lorenzo Cuocolo
1. The Structure: “Perfect Bicameralism”
2. Distinguishing Features of the Chamber of Deputies and the Senate
3. Electoral Systems, Incompatibility, Inelectibility and Checks on
Powers
4. The Status of Members of Parliament
5. Parliament’s Autonomous Powers
6. Internal Organisation of the Chambers of Parliament
7. Joint Sessions of Parliament
8. The Functions of Parliament
p. 57
» 60
» 62
» 65
» 67
» 69
» 71
» 72
CHAPTER FIVE
THE GOVERNMENT
Antonello Tarzia
1. Definition and Historical Profile of Institutions
2. The Government in the Italian Constitution: Structure, Formation,
Organisational Principles and Functions
p. 75
3. Relationship with Parliament
4. Auxiliary Bodies
» 89
2.1. Formation Procedure – 2.2. Structures, Organisational Principles and
Functions – 2.3. Non-essential Government Bodies
» 77
» 92
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CHAPTER SIX
PUBLIC ADMINISTRATION
Antonello Tarzia
1. Administration and Administrative Function: Introduction
2. Constitutional Principles
3. Administrative Provisions and Administrative Measures
p.
4. Administrative Procedure
5. Flaws in Administrative Acts
» 108
6. Protection Against Invalid Administrative Acts
» 116
7. Transformation of Administration
» 119
1. Characteristics of Administrative Provisions – 2. Administrative
Measures – 3. Elements of Administrative Acts
1. Non-existence and Nullity of Administrative Acts – 2. Annulment – 3.
Irregularities – 4. Rectifying Invalid Acts and Self-Protection
1. Administrative Recourse – 2. Judicial Protection
1. Political and Administrative Pluralism After the Reform of Title V of the
Constitution – 2. Independent Authorities and Administrative Agencies –
3. Administrative Simplification
97
» 101
» 104
» 110
CHAPTER SEVEN
THE REGIONS
Lorenzo Cuocolo
1. Autonomous Territories in the Italian Constitution
2. Special Regions
3. Ordinary Regions and the Initial Development of Italian Regionalism
4. Waves of Constitutional Reform: The Reform of 1999
5. The Reform of 2001
6. Regional Financial Autonomy
7. Regional Organisation
8. Local Government
9. Requirements of Loyal Cooperation in the New Multi-centred System
p. 127
» 128
» 130
» 132
» 136
» 140
» 141
» 143
» 144
CHAPTER EIGHT
THE PRESIDENT OF THE REPUBLIC
Oreste Pollicino
1. The Role of the President in a Comparative Context
2. The Role of the President of the Republic under the Italian Constitution
3. Subjective Requirements, Election and Term of Office
p. 147
» 149
» 151
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4. Classification of the Key Constitutional Attributes of the President
of the Republic in relation to the Powers of the Italian State
5. The Tripartition of Presidential Acts
1. Formally Presidential Acts which are Substantially Governmental – 2.
Formally Presidential Acts which are also Substantially Presidential – 2.1.
Appointment of Five Constitutional Judges and Five Life Senators – 2.2.
The Granting of Pardons and the Commuting of Punishments – 2.3.
Request for a New Deliberation of a Law – 2.4. The Sending of Messages
to the Chambers and the Power to Express Opinions – 3. Substantially
Complex Acts – 3.1 Appointment of the President of the Council of
Ministers – 3.2. Early Dissolution of the Chambers
6. Irresponsibility of the President of the Republic: the Ministerial
Countersignature
7. Presidential Offences
p. 153
» 155
» 163
» 165
CHAPTER NINE
THE JUDICIARY
Oreste Pollicino
1. Autonomy of the Judiciary: Innovativeness of the Constitution
2. Principle of a Single Judiciary and its Exceptions: Special Judges
3. Principle of Functional Independence of the Judge
4. Institutional Independence of the Ordinary Judiciary: the Superior
Council of the Judiciary
p. 167
5. Constitutional Principles of Judicial Process
6. Organisation of the Ordinary Jurisdiction: Judging Magistrates and
Public Prosecutor
» 176
7. Liability of the Judiciary
8. Recent and Future Reforms of the Judiciary
» 180
1. Institutional Independence of the Special Judiciary
1. Public Prosecutor
» 168
» 171
» 173
» 177
» 181
CHAPTER TEN
CONSTITUTIONAL JUSTICE
Justin Orlando Frosini
1. Terminological Premise
2. Models of Constitutional Review
p. 183
» 184
3. Structure, Composition and Appointment of Constitutional or
Supreme Courts
» 187
1. The Genesis of Judicial Review: Dr Bonham’s Case – 2. The US Model
of Constitutional Review – 3. The Austrian Model of Constitutional Review
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4. The Salient Features of Constitutional Review
1. What Constitutional Body carries out Constitutional review? – 2. When
is Review carried out? – 3. How can a Constitutional Petition be lodged with
a Constitutional or Supreme Court? – 4. What Types of Decision can be
taken? – 5. What Effects do the Decisions of Constitutional or Supreme
Courts have? – 6. Other Functions of Constitutional or Supreme Courts
5. Composition, Functioning and Jurisdiction of the Italian
Constitutional Court
6. Constitutional Review in Italy
IX
p. 188
» 193
» 195
1. Justiciable Acts – 2. The Parameter of Judgment – 3. The Proceedings – 3.1.
The Incidenter Proceedings – 3.2. The Principaliter Proceedings – 3.3. A Third
Proceeding? Constitutional Review of the Statutes of the Ordinary Regions – 4.
The Types of Decision – 4.1. Decisions of Inadmissibility – 4.2. Judgments of
Acceptance and Dismissal – 4.3. Interpretative Judgments – 4.4. Manipulative
Judgments – 4.4.1. Judgments of Partial Acceptance – 4.4.2. Substitutive
Judgments – 4.4.3. Additive Judgments – 4.5. Exhortative Judgments
7. The Other Functions of the Italian Constitutional Court
» 206
1. Resolution of Jurisdictional Disputes – 1.1. Resolution of Jurisdictional
Disputes between Branches of Government – 1.2. Resolution of Jurisdictional
Disputes between the State and the Regions – 2. Impeachment of the President of
the Republic – 3. Judgment of Admissibility of Abrogative Referendums
CHAPTER ELEVEN
ITALIAN SOURCES OF LAW
Arianna Vedaschi
1. Sources of Law Deriving from Forms of Government and Forms
of State
p. 211
1. Sources Related to Production and Sources of Production – 2. Sources of Cognizance
– 3. Acts and Facts – 3.1. Facts – 3.2. Sources from Other Legal Systems
2. Interpretation
3. Conflict and Techniques of Resolution
1. Criterion of Chronology – 2. Criterion of Hierarchy – 3. Criterion of
Competence – 4. Criterion of Specialisation
» 214
» 215
4. Constitutional Statutory Limits
5. Types of National Sources
6. Constitutional Sources
» 216
7. Primary Sources
» 221
8. Secondary Sources
» 234
1. Constitution – 2. Constitutional Amendment Laws – 3. Procedure
1. Ordinary State Law – 1.1. Procedure – 1.1.1. Who Has Legislative
Initiative? – 1.1.2. Exercise of Legislative Initiative – 1.1.3. Deliberation –
1.1.4. Integration of Effectiveness – 2. Acts having Force of Law – 2.1.
Legislative Decrees – 2.2. Law Decrees – 3 Forms of Anomalous
Delegation 4. Abrogative Referendum – 4.1. Procedure – 5. Rules of
Constitutional Bodies – 5.1. Parliamentary Standing Orders – 5.2. Rules of
other Constitutional Bodies
1. Government Regulations
» 217
» 218
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CHAPTER TWELVE
REGIONAL AND LOCAL GOVERNMENT SOURCES OF LAW
Arianna Vedaschi
1. Regional Autonomy and the System of Legal Sources
1. Statutes of Regions with Special Forms of Autonomy and so-called
Statutory Laws – 2. Statutes of Regions with Ordinary Forms of Autonomy
– 2.1. Procedure – 2.2. Position in the System of Legal Sources
p. 237
2. Legislative Power: Regional Laws
» 240
3. Regional Regulatory Power
4. Local Autonomy and the System of Legal Sources
» 243
1. Procedure – 2. Legislative Power of Regions with Special Forms of Autonomy
1. Statutes – 2. Regulations
» 244
CHAPTER THIRTEEN
EUROPEAN SOURCES OF LAW AND THEIR RELATIONSHIP
WITH DOMESTIC SOURCES OF LAW
Arianna Vedaschi
1. Law of the European Union: Principle Distinctions
1. Primary and Secondary Sources of Law – 2. Principle of Attribution and
Principle of Subsidiarity
p. 247
2. Types of Sources of Law
» 249
3. Relationship between Community Law and Italian Law
» 251
1. Non-binding Acts: Recommendations and Opinions – 2. Binding Acts:
Regulations, Directives and Decisions – 3. Soft Law
1. Influence of Primary Sources of Community Law – 2. Influence of
Secondary Sources of Community Law: Directives – 3. Influence of
Secondary Source of Community Law: Regulations
CHAPTER FOURTEEN
FUNDAMENTAL RIGHTS AND FREEDOMS
Giuseppe Franco Ferrari
1. Historical Perspective: Rights and the Evolution of Constitutionalism
2. Generations of Rights
3. Individual Rights
1. Personal Freedom and Related Elements – 2. Personal Domicile – 3.
Freedom of Correspondence and Information – 4. Freedom of Movement,
Residence and Expatriation
p. 255
» 257
» 259
4. Rights of the Public Sphere
» 263
5. Social Rights
» 267
1. Freedom of Assembly – 2. Freedom of Association – 3. Freedom of
Religion and Creed – 4. Freedom of Expression
1. Education – 2. Healthcare – 3. Welfare – 4. Housing
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6. Economic Rights
1. Right to Property – 2. Freedom of Enterprise – 3. The Market and
Competition – 4. Trade Union Rights
7. Political Rights
8. Constitutional Duties
LIST OF CONTRIBUTOR
XI
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PREFACE
The syllabi of many Universities in Italy and abroad demonstrate, on one
hand, that the study of comparative and foreign law is rapidly growing and,
on the other, that there are more and more courses being taught in English
in countries that do not belong to the Anglo-American sphere.
Moreover, students are increasingly becoming aware of the fact that if
they decide to pursue an international career they need to be equipped with
the legal knowledge to be able to operate “across borders” and this is true
for the realms of both public law and private law.
At the same time, however, language is often still an unsurmountable
barrier in fully understanding the intricacies of a given legal system. This is
the very reason for our deciding to meet this challenge and provide students
with a comprehensive introduction to Italian public law in English.
This was a far from easy task considering the substantial differences
between Italy’s legal system and those of the countries in the Englishspeaking world: this explains why many of the chapters begin with a
terminological premise so as to avoid the misunderstanding of certain
fundamental concepts and notions. Furthermore, although this textbook is
devoted to Italian public law, ample references to comparative law are made
in all the chapters.
Fortunately, our work was made a little easier thanks to the several years
of experience in teaching a course of Italian and Comparative Public Law –
under the name of Introduction to the Legal System II – at the Bocconi
University, one of the first Italian higher education institutes to introduce
graduate and undergraduate courses taught entirely in English. Some
invaluable lessons have been learnt from students attending these courses
and we believe that this textbook goes to some length in overcoming the
many difficulties they have encountered in trying to fully grasp this subject;
it is thus to those students that we dedicate this textbook.
G.F.F.
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CHAPTER ONE
CHARACTERISTICS OF THE STATE
GIUSEPPE FRANCO FERRARI
SUMMARY: 1. Nature and Categories of Legal Systems – 2. Legal and Non-legal norms:
Structure and Relationship – 3. The State: Constitutive Elements and a Brief
Historical Outline – 4. Values and Principles – 5. People – 6. Citizenship – 7.
Territory.
1. Nature and Categories of Legal Systems
Throughout history law has been made through the birth and ongoing
development of legal systems. However, the individual person, enjoying
freedom and the ability to condition his own behaviour in order to satisfy
his needs, encounters, even when living far away from social communities,
limitations resulting from his external factual situation, as well as from selfimposed rules that must be followed. Nevertheless, whenever humans enter
into forms of cohabitation or coexistence with others, legal systems are
created. The fundamental trait of such systems is their social character, wellcaptured by the Roman legal maxim, ubi societas, ibi ius. In order to identify
the constituent elements of legal systems, one should consider the
following:
a. before all else, we need to have a certain number of subjects
(people), who make up a social group and are connected to each other by
one or more common goals or interests. We also need to have certain
criteria of evaluation, that can be applied to individual behaviour or acts, so
as to allow the group to categorise such acts as meeting licit needs (thus
legally permitted), against the law, forbidden, legally rightful or legally
necessary;
b. amongst the members of the group (beyond the relationships
between members and those holding power within the group) relationships
arise, which are qualified by norms which lead to the emergence of
favourable legal situations (i.e. rights, faculties, legitimate interests) or
unfavourable ones (such as obligations, burdens, etc.);
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c. titular power and authority is then assigned within the group. This
involves legitimising the use of force by different organs on the basis of the
complexity of the social group in question. Political power is one of the
forms that social power takes (others include economic and ideological
powers) and, according to Max Weber’s well-known classification, it may
take the form of traditional power (in which the basis of authority rests on
historical factors and on its suggestiveness), of charismatic power (in which
a heroic or sacred figure is central to the system) or of legal-rational power
(in which authority has substantial and procedural limits which develop with
the legal system’s historical evolution); and
d. finally, authority has means of coercion to ensure the legitimate
exercise of power, attaching either more or less favourable consequences to
group members’ behaviour. Sanctions or punishment are most typically used
in this sense, and their types and characteristics normally vary based on the
time period and geographic area where applied (and, of course depending
on the system’s complexity).
Throughout the Twentieth century, public law scholars have often
clashed over the true nature of legal systems. These debates formed the
basis of different classifications still in use today.
The theories of Hans Kelsen and the so-called Vienna School essentially
classified legal systems on the basis of the normative element, holding as
conclusive the use made by legal systems of different types of laws, which
are classifiable by structure, validity, effects and position in the hierarchy of
legal sources (the higher ranked sources having a superior force compared
to lower ranked normative provisions (so-called “normativistic” concept).
Another concept (known as “institutionalistic”) instead highlights
classifications which place value on sociological elements, such as the nature
and makeup of the group itself, the position of its component members or
even existing forms of authority. This concept was promoted by the Italian
jurist Santi Romano and the Frenchman, Maurice Hauriou.
Based on these interpretations, legal systems can be classified by
different degrees such as, for instance, the following:
a. relationship with the degree or the intensity of community ties or
relationships that form the basis of the group and bind together its
members. One can speak, on the one hand, of fluid, equal or
widespread/diffused legal systems, where authority has no or very weak
powers and the maintenance of community ties depends primarily on
agreements between the members and, on the other, of authoritarian or
concentrated legal systems, in which, to the contrary, a rather strong central
authority exists. International law represents a more typical example of legal
systems of the former type. For a long time in the international community,
no dominant authority existed and conflicts among or between members of
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CHARACTERISTICS OF THE STATE
3
the group were resolved with the most classical of instruments: war
(although this process was progressively rationalised with the observance of
certain preliminary rules);
b. nature of community or social ties. Voluntary legal systems can be
distinguished from others, in that cohabitation or coexistence of its
members is not forced. The others, “necessary” legal systems, have basic
affiliations which are coerced and which are not based on individual choices,
except within narrow limits (emigration to foreign countries, transfer of
residence, etc.);
c. relationship of members with the actual geographical territory. There
are territorial legal systems, in which birth in the territory or permanence on
it constitutes an inseparable tie of affiliation for members of the group, as
well as non-territorial legal systems, in which the territory constitutes more
of a limitation on the system’s jurisdiction, but is not the basic element of
the system itself;
d. common goals and ends pursued. We can identify general legal
systems (those aiming to cover all, or nearly all, members’ needs, therefore
assuming political value) and more limited legal systems which aim instead
to merely pursue only specific goals, such as a sports association, a cultural
association, or a trade union;
e. relationships established with other legal systems. We can contrast
sovereign or independent legal systems (historically arising on their own and
originated not from other prior legal systems) with legal systems derived
from other preexisting systems; and
f. type of authority exercised. A legal system is considered sovereign if
it de facto holds sovereign powers, or non-sovereign, when use of legitimate
force requires permission from an external or superior authority.
Under all the classifications outlined above, it is evident that the key
concepts in public law over the Nineteenth and Twentieth centuries are
connected to the political legal system known as the State. The State is, in
fact, a concentrated legal system, necessary, territorial in nature, focused on
general aims, independent and sovereign. It claims for itself strong
prerogatives and it historically has held sovereign powers, gained as such in
the Sixteenth and Seventeenth centuries during the period of the breakup of
medieval universalism and the overcoming of the two great pre-existing
political realities, the Catholic Church and the Holy Roman Empire. The
date conventionally assumed to indicate the advent of the European nation
state-based model of government is 1648, the year in which the European
powers, with the signing of the Peace of Westphalia, expressly put an end to
the Thirty Years’ War and together expressly recognised the passing of the
imperial dominion pretensions held over a large portion of Europe and the
overthrow of the feudal order. Sovereignty evidences two characteristics
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INTRODUCTION TO ITALIAN PUBLIC LAW
from the very beginning. Towards the outside world (or externally), it
involves the fact that ruling dynasties in European States stop recognising
the existence of any superior political authorities and begin to cultivate
relationships on an equal level with other governmental systems, practicing a
real ius excludendi alios (law excluding others) towards other subjects of
international law. Independence is not diminished by the voluntary
assumption of obligations toward third parties in the form of treaties.
Internally, sovereignty comes to mean that State power is not, at least
initially, limited, but is rather unconditional since it is sovereign. During the
following centuries, legal and political scholars formulated numerous
concepts which formed the basis and legitimisation of sovereign power. We
briefly summarise a few of these theories here:
basic theocratic theories, centering on the divine nature of authority
(in St Paul’s words: omnis potestas a Deo, “all power belongs to God”);
legitimisation theories, based on the historical roots of royal
institutions and dynasties, as well as on the customary stratification of
political power and its substantial and formal rules (for example the theories
of Burke);
contractualist theories, founded upon the idea of a voluntary
collective pact entered into to set up the State or political community (e.g.
the theories of Locke);
theories basing sovereignty upon the idea of the Nation (the French
Declaration of the Rights of Man and the Citizen, 1789, art. 3): the Nation is
identified as the subject of the entire political system, which expresses itself
through the voice of its representatives, whose supreme act of will is the law,
with its key aspects of generality, abstractness and rationality. This formula
subtends the primacy of the middle class, which is capable of becoming the key
historical actor and the exclusive interpreter of national interests;
theories that attribute sovereignty to the public legal personage of
the State (Hegel, Gerber, Laband, etc.), identified an abstract subject, but
endowed with the supreme attributes of political power, as well as the ability
to express national culture, with its essential characteristics, approached
from a culturally romanticist perspective; and
Nineteenth Century democratic constitutionalist theories, which
assign sovereignty to the people (e.g. the Italian Constitution of 1948, Art.
1): the State ceases to represent itself as supreme holder of political power,
which rather is held by the electorate and which as a whole exercises the
sovereign will (although in ways governed by the terms of the Constitution).
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2. Legal and Non-legal Norms: Structure and Relationship
Relationships among members of the same social group are regulated by
numerous norms, only some of which, nevertheless, can be properly defined
as juridical, or legal, in nature. The sole fact that a norm attempts to govern
relationships among members of society is not sufficient to define such a
norm as juridical or legal. Legal norms, in fact, are those that are produced
solely by a legal system. They deal with a requisite, typical of contemporary
liberal legal systems, pursuant to which the positive nature of the norm is
also defined (from Latin positus, “established”; instead, legal norms that exist
on their own, such as divine laws or the so-called “natural rights of man”
are not “positive”). Legal norms are therefore produced by the government
or state legal system, or rather from those sources that a given system
internally recognises, and which have the power of producing binding
effects on participants in (or subjects to) the system, as well as constantly
developing the system itself.
There are two distinctive characteristics that legal norms must necessarily
possess.
a. Effectiveness: this deals with an attribute that is associated both with
legal systems as a whole, as well as single norms within them. Regarding
systems as a whole, the concept of effectiveness describes the ability of a
legal system to impose binding rules or norms on its participants or
members. A legal system can be considered binding (and therefore effective)
even though occasional and limited violations of single norms may occur by
certain individuals. From the point of view of the general systems’
effectiveness, to the contrary, it is enough that the State or governmental
apparatus is able to maintain political power over both individuals and a
defined territory. The requirement of effectiveness is closely connected to
that of legitimacy, and in such a way it has relative importance to the legal
system’s individual norms. In Kelsen’s view the effectiveness of a legal
system is a necessary condition in order for a norm to be valid, or rather,
legitimately enacted. Legal norms remain valid only so long as the legal
system from which they derive remains effective.
b. Force and effectiveness: with the concept “force of law”, we refer to
a norm’s ability to innovate (or develop) the positive legal system.
Effectiveness means, instead, the ability of a norm to produce its own legal
effects, or rather to be imposed as a legal duty on participants in that
system. In Kelsenian theory the general validity of legal systems depend on
their effectiveness. The ability to abstractly innovate in a legal system must
necessarily be accompanied by a real observance or respect of it by the
individual participants in the system. Instead, law bases its validity on having
been legitimately produced by a valid legal system. The validity of the legal
system therefore results from its effectiveness, and at the same time, it is a
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INTRODUCTION TO ITALIAN PUBLIC LAW
necessary condition for the validity of legal norms comprising the system.
Instead, the ineffectiveness of a single legal norm does not jeopardise the
validity of the general legal system, which remains valid as a whole (provided
that it is, in fact, effective).
Therefore, it is necessary that a legal system identifies which sources
produce or have legal effect. This power resides, initially, in the
Constitution, which, not by chance, is at the top of the hierarchy of legal
sources (super-primary source of law).
The Constitution, in fact, is the basis of legality and validity of the
sources which are hierarchically subordinate to it. The Italian legal system
(as all those based on civil law principles) provides for a system of limited
and identified sources, in which some of the sources provided relate to the
production of law, or “sources of the sources of law”. These deal with those
legal norms which govern the issuance of other legal sources, identifying the
abstract types of permitted sources of law and setting rules governing the
relationships among such sources, in order to prevent conflicts and to
guarantee, as much as possible, the unity and coherence of the system as a
whole. The Constitution governs the sources of law immediately
subordinate to it (the so-called “primary sources”) and leaves “open” the
group of secondary sources, which then are themselves, in turn, based on
primary sources.
The identification of legal sources fundamentally meets a need of
formality, pursuant to which sources are considered legitimate if they
comply with the following requisites:
competent authority (having jurisdiction): the super-primary source
additionally identifies the organ or entity within the legal system that has
jurisdiction or power to make the laws (mainly, Parliament, see Art. 70, It.
Const.; in some cases, the Government, Arts. 76-77, It. Const. or the
regional legislatures for norms or regulations governing regional or local
entities, Arts 114 ff, It. Const.).
nomen iuris (the name of the law): sources of law constitute a closed
system, in the sense that the Constitution’s identification of them involves a
peremptory enumeration of which legal acts belong to the primary sources,
excluding all others; and
legislative procedures: the Constitution also governs the procedures
required to produce normative law; failure to respect such procedures is
listed as a cause of defect in the legitimacy of a law.
Classical legal doctrine identifies two further requisites for legal
norms, which are:
generality: the possibility that the legal norm applies, if not to all
participants or subjects of a legal system, then at least to an indefinite number
of them, as this is what distinguishes it from an ad personam order; and
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CHARACTERISTICS OF THE STATE
7
abstractness: this refers to the possibility of the legal norm applying
to an indefinite number of situations, repeatedly over time, rather than an
una tantum, or one-off, order.
3. The State: Constitutive Elements and Brief Historical Outline
The State legal system is founded to actively pursue general goals or
ends. This means that the State can be distinguished from other legal
systems since the range of State actions (and those of State entities) is not
limited to the attainment of specific preset objectives (such as would be
enumerated in the certificate or bye-laws of an association or corporation),
but rather can legitimately regulate any aspect of social human life it wishes
to in order to attain those objectives, using the apparatus of the State.
In addition, the State as an original or non-derived entity can be
distinguished from derivative entities. Whilst the latter, in fact, as the State
itself, pursue general goals or objectives, they nevertheless are characterised
by an hierarchical dependence for legitimacy on a higher legal system, of
which they form a part. The higher (superior) system establishes them and
makes their political power real. Examples of derivative legal systems
include State territorial sub-divisions such as regions and provinces. In
today’s world, we probably should also include as original or native entities
(besides the nation State) the international legal system, or rather the
community of sovereign states that, organised by way of international public
law and specific world organisations, aims to attain peace and development
of the world’s peoples.
From a historical perspective, the concept of a legal system’s general
ends goes back a long time. Already in the Fifth century B.C., in fact, the
Greek poleis were characterised as possessing the same generality of
objectives or goals that characterises the modern State. Instead, the size of
the community was greatly different, since the poleis had the reduced and
limited dimensions of a city-state. Likewise, we can also define the Roman
civitas and the res publica as general-purpose legal systems, the latter of which
already approaches the size of contemporary States, as well as the medieval
imperium (empire) and regnum (kingdom). In continental Europe, in particular
in the German-speaking world, the terms used to define the community of
law were Reich (which indicates a legal system based on the ruling power of
the sovereign) or Land (which recalls, instead, the territory in which the legal
community is located). The term “State” has, in turn, a very ancient
etymological origin, since it was already mentioned in Ancient Rome (status
rei publicae) and was also used to define the Communes of Renaissance Italy.
In all the examples just mentioned, it is possible to speak of the idea of
community, which is ruled by an effective legal system. Based on the
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generality of goals or ends such systems aimed to fulfil, they may be
considered as forerunners of the contemporary State model. Nevertheless,
the definitive evolutionary development into the contemporary State model
follows a long and complicated process of change which occurred between
the end of the Fourteenth and the Seventeenth centuries. In fact, in the
Middle Ages the organisation of the feudal system was characterised by a
high degree of power dispersion. The dominion of the Sovereign was
practiced on an indistinct number of feuds, each one ruled in turn by a
vassal. The relationship between feudal master and vassal (of a private
character, or proto-contractual in nature) meant that it was the title that
justified the exercise of power by the vassal over the subjects, the
inhabitants of the feud, and it legitimised the indirect power of the
Sovereign himself over all those living in the feud. The hierarchical structure
of holding ruling powers (or imperium) was quite complex and fragmented,
since the personal relationship between Sovereign and vassal was the same
one that legitimised a similar delegation of power between the vassal and the
valvasor (or vidame), and so on and so forth, in a command chain of
varying length. Another characteristic was the concurrent overlapping of
numerous legal systems governing certain participants in a given Medieval
legal system. These included the laws of the Sovereign himself, the merchant
common law, ecclesiastical or canon law, and others. All of this occurred
due to a particular social and class fragmentation, which was still marked by
deep divisions between groups and classes. This fragmentation did not
permit the Head of State to gain a monopoly over legitimate force, as
instead occurs with modern legal systems. Corresponding to the lack of
absolute political power was the alternative concept of the unity of the res
publica christiana under the aegis both of the Empire, and of the Church: At
the root of the Medieval system, therefore, was a different attitude towards
the individual, who was member of a territorially spread out moral
community, and who was not subject to the same laws as would be a
member of a community rooted in a politically united territory. As stated,
this situation disappeared around the Sixteenth century. At first, theories
arose regarding the characteristics that the State necessarily had to possess.
The Italian political philosopher, Niccolò Machiavelli spoke of the requisite
of territoriality and originality, discussing territorial and sovereign legal systems,
whilst the French jurist, Jean Bodin, for his part, identified sovereignty as
the distinctive element of the State.
Thus, the fundamental principles of this development are as follows:
the geographical position of the State, no longer within the abstract
confinements of religious or moral authority, but rather within the real
bound of an area in which the legal system itself is indeed complied with or
respected; and
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the legal system’s acquisition of such authority, that it is able to
become the monopolist holder and exerciser of the power of rule (imperium)
within that particular territory.
With these developments, the above-mentioned fragmented situation
decreases, and there is less coexistence of different legal systems, but rather
a different legal organisation prevails, under which each State has its own
territorial area of jurisdiction. The sole existence of a single political power
to which all in that territory are subject becomes the unifying element which
binds together the participants in a given legal system. A few years later, we
see the first positive law experiences concretely embodying the above
principles. With the Peace of Westphalia (1648), the first nation States
affirm their power, such as England, France and Navarre. What
distinguishes this period from the preceding ones is the formation of
bureaucratic apparatuses, mainly put in charge of the administration of
justice and finances. Here, we are dealing with organs which progressively
free themselves from the direct control of the Sovereign and which become
more autonomous organisations. Instead, in this period we still lack the idea
of a corpus, or body, of law that governs relationships between and among
participants (or subjects) and authority that is not merely private in nature.
«L’État c’est moi»: although the attribution of this motto to the King of
France, Louis XIV, is controversial, it is nevertheless a good reflection of
the particular understanding of social ties and organisation at that time.
Only with the progressive evolution of the forms of State in the centuries to
follow will we see, nearing the Nineteenth century, the definitive affirmation
of the current model of State organisation. A pithy and very effective
definition of the modern State is the well-known one stated by Costantino
Mortati according to which the State it is the “legal system having general
ends and objectives which exercises sovereign power over a specific
territory, to which the subjects or participants belonging to such system are
necessarily subject and subordinated”.
From this definition, three characterising elements of the State legal system
can be extracted (besides the generality of goals/objectives which we already
mentioned above):
Sovereignty, or rather the presence of an authority which is able to
exercise power and carry out political activities;
Territory, or rather, the exercise of sovereign power within a set and
well-defined geographic area; and
People, made up of all individuals belonging to a specific political
community.
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In the following paragraphs we will provide a few observations on these
three key characteristics.
4. Values and Principles
The contemporary State is therefore characterised by the prevalence of
legal norms (established by those entities capable of exercising legislative
powers) over other rules of behaviour that may be available to the
participants in a given system, and by the issuance of such legal norms by
choices freely made by the people.
In common parlance, the terms “value” and “principle” are often used
interchangeably, as if they were synonymous.
In reality, however, they refer to two similar, but different, concepts.
Principles refer to the fundamental choices of a society’s ethical or moral
orderings. They are the linchpins of the legal system and the elements which
govern the production of positive norms. Principles are therefore the
“points of departure”, from which the legal system moves to pursue its
preset goals, which are, in other words, the values that society wishes to
realise. The two concepts are not therefore analogous, but rather
complementary. Principles are the means which mark out the route to reach
a system’s goals or objectives, which are its values. For instance, the idea of
democracy in a legal system is a principle, and it is therefore the means to
achieve the values of peace and social equality (Art. 3.2, It. Const.).
Principles are also the means to reach goals, since, if they inform and
influence the legal system, society will not be able to make use of every
possible tool available to pursue social equality, but only those allowed by
the principles the system is based on. Therefore, in a democracy, we can
strive to obtain equality through periodic elections of governmental bodies,
which work to that end and the respect of fundamental rights, but not, for
instance, by assigning these duties to an “illuminated” Monarch.
One may therefore state that human society is born and founded upon
the sharing of principles for the attainment of common values. This whole
substratum, or body, which is common to all participants (or subjects) of a
given system, is what renders the legal system effective.
The specific principles which are largely shared by a legal system’s
participants influence the formation of the legal system and form the basis
of its Constitution. The free choice by a particular constituent assembly
regarding which principles should form the basis of the constitution
involves the relative importance of such principles. We thus can see that for
each of the numerous legal systems and States there corresponds a specific
nucleus of fundamental ideals, each one of which will provide the source for
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each constitution. Therefore, on the basis of the concept of legal positivism
constitutional values as relativistic in nature.
The changing of certain fundamental principles over time constitutes,
nevertheless, a delicate and controversial point. It is acceptable that ideals
and common feelings undergo certain changes with the passing of the years
and of generations, but for the text of a constitution, which must also
constitute a solid base governing daily life of society, even over time, one
requires resistance to passing legal fashions, such as that of a simple law.
The Constitution is the obvious central fulcrum or forum (even if not
necessarily the only one) in which principles are ordered hierarchically and
receive legal recognition. In this case, we can speak of express principles to
point out that they receive express recognition and formal super-ordination
(clear ordering) in an explicit source. Usually, the formulation of principles
in the text of a constitution is somewhat “elastic”, open to possible different
interpretations which allow different readings of the same text. This allows
changes in norms in response to social changes occurring later in time.
Distinguishing between principles and other norms present in the text of
a constitution is not easy. In general terms, one can say that the former can
be distinguished from the latter by their greater degree of generality.
Therefore, principles are legal norms “of a superior level” in comparison to
common legal norms, in that the latter represent the detailed illustration of
the content, application and reach of the former.
Not less important, constitutions also contain implicit principles which
are not identifiable in some express declaration, but rather can be inferred
by the general framework and design of the legal system itself. The
constitutional interpreter’s task, in these cases, is to infer by analogy those
principles that, whilst not specifically enumerated, must be considered
principles as such, due to their overall coherence with the legal system. Such
a task is ever sensitive, since the question of principles is notably fleeting
and difficult to pin down. The work of balancing among legal principles
should not follow techniques different from those used when considering
common conflicts of law. The systematic interpretation of the Constitution,
or rather the combined reading of numerous provisions (or clauses),
through which scholars deduce the “unifying threads” linking the specific
provisions as a coherent whole, should not lead the scholar to come to a
forced interpretation of the general constitutional context. Rather, he should
extrapolate understandings which are as coherent or in tune with the
Constitution as possible. In Italy, the Constitutional Court has numerous
times highlighted the existence of a fundamental nucleus of constitutional
principles that deserve recognised protection against any type of change or
modification, even if brought about pursuant to a validly approved
constitutional amendment law. This nucleus deals with the inviolable rights
of man, as expressed by Arts. 2 and 13, It. Const.
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5. People
In the historical evolution of different philosophico-political concepts,
the acceptance of the meaning of “the people” as the totality of the
“governed ones” / “those being governed” (or rather as the opposite social
category to the rulers), can be traced back to between the Fifteenth and the
Sixteenth centuries, when the first Nation States begin to affirm themselves,
with the ascent of the English, French and Spanish monarchies. It is then
that Bodin identifies the possession of political power as the element that
allows us to distinguish the people from the Sovereign. Whilst the Sovereign
is the holder of powers limited only by divine and natural laws, the people
can only be subject to the will of the Sovereign. Likewise, Machiavelli
attributes unconditional political power to the Sovereign and attributes to
the people the mere prerogative of belonging to a social organisation that
oversees the Prince in order to grant him total power to rule.
Instead, acceptance of the idea that the people are the true owners of
sovereignty begins to emerge in the Seventeenth century. The first to sustain
such a change in position were thinkers who were part of natural law (ius
naturale) and contractualist movements. For them, historically. social
evolution led humanity to abandon its natural state in order to embrace the
most mature form of social formation of the civil state, characterised by the
mutual accord of the participants, who choose to regulate their relationships
in order to allow peaceful coexistence. The “people”, as a social formation
and concept, was therefore born pursuant to a compact, a social contract, a
pactum unionis (whereby individual people decide to join together), together
with a pactum subiectionis (whereby individual participants accept subjugation
to the same rules, in order to guarantee pacific coexistence). In philosopher
Thomas Hobbes’s view, the pactum subiectionis fundamentally consisted of the
free choice of the people to submit to the absolute power of the Sovereign.
The idea of full popular sovereignty subsequently reaches its conclusion in
the thought of the liberal thinker, John Locke, who theorised that the
functions of the social compact is to guarantee the inviolable rights of man,
that those who govern or rule hold power on behalf of the people (a proxy),
in order to guarantee such rights, and that such delegation or proxy can be
revoked by the people when those governing or ruling no longer carry out
such functions. Such theories evidently previewed the political changes
which occurred in the period between the Eighteenth and Nineteenth
centuries, when the American and French Revolutions put an end to the
ancien régimes, allowing the taking root of, not only in political theory and
thought, but also in political reality, the principles of innate and inviolable
human rights and popular sovereignty. The Frenchman, Jean-Jacques
Rousseau, was already led, then, to outline an ideal model of direct
democracy, positing that the principle of legitimacy of political power had to
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be based on the “general will” (la volonté generale) of the people, which should
not even be delegated to the Sovereign.
French constitutionalism then gave a further impetus to the development of
the concepts of “the people” and “popular sovereignty”, investigating their
conceptual confines and their connection and relationships with two additional
notions, those of “population” and “Nation” (which whilst similar, do not
entirely overlap). The concept of population, in fact, legally identifies a
temporary or fleeting category of those people, identified as the sum of
individuals living in the territory of a State (even without necessarily possessing
such State’s citizenship) at a given time in history. Instead, the concept of
Nation has more undefined boundaries and is subject to the ebb and flow of
interpretations made over time in trying to define it. At first, French legal
doctrine interpreted the concept of Nation as corresponding to that of the
people, based on the revolutionary experiences in which the overlapping of the
Nation with the Third Estate was advocated. This position was held, among
others, by the sociologist and jurist, Léon Duguit who opined that there was a
substantial correspondence or overlap of the concept of people with that of
Nation. Analogous to such a position, but emptied of its original pragmatism
and enriched by more “spiritual” implications, was the view of the Nation as the
“daily plebiscite” (or daily general agreement). This adds, to the mere
correspondence with the concept of “population”, a further element: that of the
daily expression of the consent of a legal system’s participants to maintain in
existence the social ties that bind or unite them). This theory was proposed by
Ernest Renan. The matter of the identity or at least the concept of “Nation”
and the concept of the “people” has relative importance, at least as concerns
the Italian legal system. The concept of the “Nation”, in fact, does not appear
to find a place within the Italian constitutional framework, since the
Constitution provides in Art. 1, It. Const. that, «sovereignty belongs to the
people». More remarkable, as regards the Italian experience, is the doctrinal
debate that has led to the formulation of four separate theories regarding the
nature and content of the concept of the “people” itself:
a. The theory of the people as a constitutive element of the State: this deals with
the most notable, as well as most intuitive view, which identifies the
“people” as one of the three constitutive elements of the State, together
with the concepts of territory and sovereignty. Whilst it is evident that one
cannot provide for the possibility of a State that exists without the material
existence of people, nevertheless, such definition, however indisputable, is
insufficient to properly cover all the aspects of the concept we are
considering.
b. The theory of the people as the object of State sovereignty: this is the view of
which Kelsen was the noblest theorist. The concept of people would itself
be expressed subjectively within the area in which State sovereignty is
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actually applied. According to this view, the “people” are the entirety of
participants who are subject to the imperium (or power of rule) of State
authority and who are bound to respect norms imposed by it. This theory
has been criticised in Italy, among others, by Fausto Cuocolo, who
challenged it by arguing that aliens residing in the territory of a State are also
required to respect the legal system of such a State, especially criminal laws.
In reality, Kelsen himself also wanted to consider aliens within his concept
of “population”. At the heart of the Kelsenian position is, therefore, a broad
meaning of the concept of “people”. It is so broad as to also include those
individuals who lack the requisite of citizenship (see below). Therefore, a
consideration strictly based on legal terms necessarily leads us to sustain the
objections made against Kelsen’s position.
c. The theory of the people as subject of rights toward the State: in the thought of
Georg Jellinek, such view is evidenced by the formula “subjective public
rights”. The notion is closely connected with the historical evolution of the
concept of State itself and to the services or duties that the State necessarily
must guarantee to participants in the system. This change occurs at the
beginning of the Twentieth century with the achievement of the Welfare
State and the consequent change in citizens’ expectations vis-à-vis public
authorities. From the “minimalist” State, which was required to abstain
from undue interference in the spheres of individual personal liberty, there
is a transition to a more proactive State, which provides those services that
are necessary to satisfy individual’s essential needs, and guaranteeing to all a
share in the benefits produced by civil society. Alongside the guarantee of
negative liberties (or rather the right to be left alone and the State’s
abstaining from undue interference with individual personal liberty), typical
of the liberal State and connected with the status libertatis of its participants,
in this view we add an affirmation of the right to the status civitatis. This is
the right to positive action by the State which is expressed, finally, in the
social rights typical of the Welfare State. Whilst the classical Latin formula
status civitatis makes a connection between the right to such services or duties
and the possession of such by the citizen, the question is still open in the
contemporary debate as to whether, and to what extent, such positive rights
must be granted to non-citizen residents. From this point of view, therefore,
the identification of “people” pursuant to this category is today as
controversial as ever.
d. Theory of the people as creator of the State’s will: here, we are dealing with
the position taken by the Italian Constitution when, in the already-quoted
Art. 1, which proclaims that the people, in addition to possessing
citizenship, exercise such right in the ways and means legally provided for.
The popular exercise of sovereignty is expressed, most clearly, in the first
place, by the ability to participate in the political decision-making process,
particular as regards the election of representative bodies exercising
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legislative powers. Such bodies are only temporarily (the legislature has, in
fact, a limited and pre-set duration) and conditionally (through the
instruments of direct democracy) granted such powers. In outlining the
State-apparatus, therefore, attributing the formation of the will of the State
to the people does not mean going back to the conflictual relationship
between those governing and those governed, but rather, to the contrary, to
making the State apparatus an instrument or tool through which the people
expresses its will and manages the sovereign power belonging to it. The
participation in the determination of the will of the State is summarised by
the formula status activae civitatis. This refers to the idea that the citizen is not
a passive recipient of the political will and the commands issuing from it,
but rather is an active contributor to determining such will.
6. Citizenship
It is possible to provide a summary definition of the concept of
citizenship, identifying it with the condition of being bound to a given State,
from which the individual receives certain rights and to which he or she
owes certain obligations, and is forced to respect certain duties.
The concept was born and developed in the modern world, with the
French Revolution, which replaced the idea of the subject, typical of
absolute monarchies (which did not provide for possession of sovereignty
of the people, but, to the contrary, total subjection to the power of the
sovereign), with the idea of “the citizen”.
The possession of citizenship constitutes by law a positive element that
every independent State legal system regulates according to its own criteria.
Traditionally, two criteria are used as distinctive elements to differentiate
citizens from foreigners. We are dealing with the concepts of ius sanguinis
(the “law of blood”) and ius soli (the “law of the soil”). Under the first
concept, one indicates the case in which a legal system attributes citizenship
to individuals who are born of one or both parents who are already citizens
of that same State. Instead, the second applies where a State grants
citizenship to the children of foreigners who are actually born in the State
itself.
In the Italian legal system, ius sanguinis has always been in some measure
preferred by the legislature to the other theory. Instead, material rules
governing obtaining citizenship have been modified numerous times. The
concept entered the legal system after Italy’s unification, when it took on
board the position of the Kingdom of Piedmont and Sardinia, which had, in
turn, inherited it by way of the French constitutional tradition. The Statuto
Albertino devoted a Title to the “Rights and duties of citizens” and, in Art.
24, declared the full equality before the law of all “royal subjects”. More
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detailed, instead was the legal discipline governing citizenship found in the
1837 Italian Civil Code, which provided that an emigrant royal subject did
not lose his citizenship, and that he could also pass it down to his children
(Art. 19). If, instead, the emigrant had lost citizenship for one of various
reasons, his children would have been able to easily regain it, if, within a year
of reaching majority age, he expressed a wish to do so and he undertook to
return “home”, to repatriate (Art. 20). Also present were legal norms based
on the principles of ius conubii (“conjugal law”: the foreign wife of an Italian
citizen could obtain citizenship from her husband, see Art. 21) or of ius
domicilii (“domicile law”: resident foreigners could gain Italian citizenship by
specially petitioning the King, to whom loyalty had to be sworn, see Art.
26). Nevertheless, it is evident that the basis of the statutory foundations of
the period was ius sanguinis. There are numerous reasons for this choice. In
the first place, during the process of national unification, besides the
bureaucratic and legal normative apparatus, the newborn Italian State also
inherited from Piedmont an attention toward new political and social
problems, including sensitivity toward fellow citizens who had left the
country, as well as communities having strong ties to Italy, but which were
still legally ruled by different states (irredentist populations). A short while
later, the preference for ius sanguinis was strengthened by the explosion of
mass emigration. On the one hand, there was the wish to maintain strong
ties with the numerous citizens that went abroad in search of better fortune
and, on the other, the hope that, if success was actually obtained, to favour
their return to Italy. Thus, they guaranteed emigrants the most favourable
conditions in order not to lose citizenship and to make it easy to pass it on
to new family members abroad. This only tended to confirm and actually
strengthen the basic public policy choice for ius sanguinis.
Thus, as well, Art. 4 of the 1865 Italian Civil Code declares that “the
child of a citizen father is a citizen as well”. The goal of favouring the return
of citizen emigrants was, still, the objective of the first legal norm to govern
in a complete manner this subject matter, pursuant to the Law of 13 June
1912, no. 555. The favour shown to emigrants also inspired abolition of the
prohibition against dual citizenship for minor children, as well as that of the
complex bureaucratic procedures (replaced by an automatic procedure) to
reacquire lost citizenship.
Twenty years later, Law 555/1912 was replaced by Law Decree of 1
December 1934 no. 1997, produced in the high noon of the Fascist period,
when, besides, Italy was preoccupied with the African wars of colonial
conquest. The new political regime and the necessity to prevent
indiscriminate access to rights connected to having Italian citizenship to all
inhabitants of the colonies led to the introduction of a special sub-category
of citizen, as opposed to the so-called “metropolitan citizen”, prohibited for
inhabitants of the colonies, which are in fact recognised as holders of Italian
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citizenship, but without the right to exercise the political rights connected
with such citizenship. Also, sadly known is the provision which followed
shortly thereafter (Royal Decree Law of 7 September 1938, no. 1381), which
deprived Jewish Italians of their citizenship if they had acquired Italian
citizenship after 1919. With the advent of the Republican Constitution, a
notable change of route was made. The Constitution forbids the loss of
citizenship for political motives (Art. 22, It Const.) and, in general, based on
racial discrimination (Art. 3, It. Const.). Based on such principles, the
reform of family law (Law no. 151/1975) and the Law of 21 April 1983, no.
123, open the door to the possibility of mixed marriages, without forcing
the woman to give up her own original citizenship, thus permitting mothers
to pass along their own citizenship to their children. The Law of 5 February
1992, no. 91, subsequently completely and preemptively legislates the
subject, repealing all preceding sources of law still in effect. Pursuant to such
a comprehensive source of law, the institute of dual citizenship definitively
takes its place in the legal system.
The fundamental principle remains that of ius sanguinis, whilst this
concept regarding acquisition of citizenship is now accompanied also with
ius soli (if one is born in Italy as a child of stateless or of unknown parents)
and with ius conubii (if an alien marries an Italian citizen, and has already
legally resided in Italy for six months prior, or for three years from the
wedding). Furthermore, citizenship may also be obtained by law (following
the occurrence of certain conditions such as commencing public state
employment) or by naturalisation, pursuant to a decree of the President of
the Republic.
Recently, a new legal framework favouring Italians resident in foreign
countries has been issued (Law of 8 March 2006, no. 124), implementing the
conditions to exercise the right to vote in those foreign countries (in Italian
elections), a further sign of the enduring bonds between the community of
citizens living in Italy and those living abroad as expatriates.
Since 1994, the Italian State, as the other Member States of the
European Community, has recognised for all its nationals, the existence of
European citizenship, which does not replace national citizenship, but rather
completes it, guaranteeing enjoyment of certain civil and political rights
exercisable in all Member States. The Community has thus always pointed
out that the right to vote in local elections must be also guaranteed by
national authorities for resident aliens. Both developments demonstrate that,
in a time of globalisation and internationalisation of institutions, legal
systems as well do not cease evolving, adapting to meet the demands of
changing times.
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7. Territory
A further basic constitutive element of the State is “territory”. This
notion is at the same time extremely intuitive , yet subject to possible
speculation.
It is rather easy to furnish an initial definition of the concept of territory,
by identifying those elements that constitute the territory itself. Firstly, there
is dry land (the terra firma) or rather the land surface and the waters
materially included within the confines of the State. In relation to the Italian
Republic, these may be identified both by natural confines (by the
Tyrrhenian, Ionic and Adriatic Seas, to the west, south and east,
respectively), as well as borders established under international treaties (with
Austria, France and Slovenia, to the north and northeast; with the Vatican
City, which is a totally autonomous State entirely surrounded by Italian
territory) and, finally, by borders governed by legal custom, due to a lack of
special treaty instruments (with the Republic of San Marino, also entirely
within Italian territory).
The regime of natural borders marked by the seas is the object of a
special international convention signed at Montego Bay, Jamaica in 1982.
The Convention on the Law of the Sea states that territorial seas (the band
of maritime waters which, beginning from the coastline, continues to
constitute State territory) was extended from three to twelve miles, after
which begin the open seas. With this accord, the international community
hoped to put an end to an old unresolved matter, which had been the object
of significant conflicts between those countries having two facing coastlines
on the same sea. Before 1982, the usual criterion was that, more empirically,
of a maximum extension of three miles, which was the maximum range of a
gun battery positioned on shore (the principle being that State territory
extends only to the point where the State is able to defend it). Nevertheless,
international news reports have brought to our attention more than a few
cases of unresolved maritime conflicts, even after the signing of the
Convention, which evidently has not succeeded in firmly resolving the
matter once and for all. As concerns the Italian State, the limit of the
territorial seas was fixed under the Law of 14 August 1974, no. 359 at 12 sea
miles.
By the term “continental shelf” one means, instead, the sea floor
adjoining dry land, but which falls outside of territorial seas. It is often of
great importance for a given State’s economy, since it is exploitable such as
for commercial fishing activities or the extraction of raw materials. The
Geneva Convention of 1958 generally protects State sovereignty over the
shelf down to a depth of 200 metres, whilst, in the case of Italian maritime
borders, numerous international agreements govern the issue on a country
by country basis. Beyond the territorial seas begin the open seas (which
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extend until one reaches the territorial seas of another State). In these
maritime areas, it is possible to extract resources and carry out activities
such as commercial fishing. Nevertheless, no State is permitted to exercise
sovereignty. Whilst in the open seas, everyone is allowed to carry out forprofit activities (provided one does not harm the efforts of others), there
also exists another area, within which each State, whilst not able to exercise
its own sovereignty, holds a monopoly on the exploitation of resources
located there. Here, we are dealing with the so-called “exclusive economic
zones” that the Convention of Montego Bay identifies as the maritime area
extending out up to 200 miles from the coast, and within which the State
having such exploitation rights only has the obligation to guarantee other
States with navigation, flyover and other actions enumerated in the same
treaty. Besides dry land (or terra firma), national territory includes certain
airspace. Here, we are dealing with the aerial space that overhangs
(superjacent) both the ground surface, as well as territorial waters. Starting
from sea level, the recognised atmospheric zone goes up to a height of 70
km, after which is the buffer or intermediate zone, which goes from the end
of the atmospheric zone up to the limit of 500 km. Finally, beyond 500 km,
there is the atmospheric zone.
Finally, a further element comprising the territory of a State is the
subsoil. In this subject area, the customary principle under which
sovereignty over the subsoil extends to the point where the State has
material possibilities of actually exploiting resources is still considered to be
applicable.
If it has been possible for us to thus reconstruct the material extension
of “territory”, it is a more complex task to actually define the legal reach of
the expression. Understanding this, we may take note of the various
doctrinal developments over time:
first, it is possible to identify territory as the limit (final outpost) of
the validity of legal norms governing a given legal system, or rather, the
spatial extension within which the legal system is effective, whilst outside of
which it is ineffective. Here, we are dealing with a classical position which
was sustained, among others, by Fricker.
A second position, which in some ways takes into account and
develops the first one, can be ascribed to the noted Kelsen. His definition of
State territory is as a means of locating the validity of a given system’s legal
norms. It deals with a formulation of pure normativist inspiration, which
identifies the State legal system with the entire complex of legal norms that
it imposes on its participants or subjects. Therefore, the territory over which
a State exercises its sovereignty is nothing other than the area in which its
legal norms are applicable.
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A third position sees in territorial sovereignty the reflection of State
power over the people. The principal promoter of this theory was Jellinek
(the Generaltheorie). Such theory takes its cue, evidently, from classical
considerations of territorial sovereignty as law having a real character. The
historical origins of this theory go back to the period in which sovereignty
itself consisted of an exclusive relationship, of a private nature, between the
Sovereign and his subjects. Today, it is no longer possible to hold that
individuals are nothing other than subjects of State power. Nevertheless,
one may still recognise an echo of such formulation in the position being
considered. In fact, the theory of Jellinek brings back the idea of territorial
sovereignty to the spatial confines within which exercise of power is
legitimate over persons physically residing in that State.
A fourth position was later expounded by Gerber, who held that a
State’s territory constituted the specific use of the power of rule (imperium)
applied to a given physical territory.
Finally, in the view of the Italian theorist, Donati, there is the
position which identifies territory as one of the constitutive elements of the
State, together with sovereignty and the people. From this would derive the
theory of an immutability of the territory itself (following various theories
regarding ceding lands, annexing others, and so on and so forth), subject to
threat of changing the make-up and configuration of the State itself.
The position described in the last case is to this day still considered by
the majority of legal experts as valid and current. However, it is
connected to the most immediate and intuitive idea that the term State can
refer to, or rather a territorial entity that is physically defined.
Nevertheless, also as events in modern history make clear, it is
permissible to speak of States, even if lacking a specific physically
identifiable territory as described herein. This is the case of nomadic
populations, or of those whose sovereignty over a territory is challenged
by another community. Also in these cases, if the community is both able
to guarantee the application of its legal system, which is respected by
participants or subjects there (when, in other words, at least two of the
other requisites are present: “sovereignty” and “people”), it is the opinion
of certain legal experts that the title of “State” can also be granted to such
social formations.
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CHAPTER TWO
TRENDS IN THE DEVELOPMENT OF THE
ITALIAN STATE
GIUSEPPE FRANCO FERRARI
SUMMARY: 1. Premise – 2. Globalisation and Multi-level Constitutionalism – 3. State and
International Law: Alternative Solutions and the Italian Option – 4. The European
Legal Order and its Historical Development.
1. Premise
The Italian State has relatively recent roots. In fact, up to the end of the
Eighteenth century, the territory that today makes up the Italian Republic
was divided into numerous different states, not all of which were sovereign,
since first Spain (in the south, or Mezzogiorno), and later Austria (in the
north) held sovereign power over large areas of the Italian peninsula.
At the end of the Eighteenth century, the troops of the French Emperor
Napoleon Bonaparte entered Italy, leading to a period of conquest which
changed both the geopolitical situation of the territory, as well as culture and
legal instruments, favouring the diffusion of civil and administrative French
law, as well as the models of human rights arising under the French
Revolution. With the 1797 signing of the Treaty of Campoformio, the
Venetian Republic surrendered to Austria and Piedmont did so to France.
There was also the birth of the Cisalpine Republic, composed of Lombardy,
Emilia Romagna and parts of Tuscany and Veneto, whilst in the first years
of the subsequent century, the Kingdom of Italy was founded in the north
of the peninsula and the Kingdom of Naples in the south.
With the end of the Napoleonic period, the Restoration changed the
situation significantly. Piedmont, Sardinia, Genoa and Nice then comprising
the State of Savoy; whilst Lombardy, Veneto, Istria and Dalmatia again
became Austrian territories. The Kingdom of Naples was returned to the
Bourbons, whilst the dukedoms in Parma and Modena and the Papal States
remained independent.
With the Eighteenth century, a period begins which is characterised by
strong appeals to independence and by patriotic ideals, culminating in three
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wars of independence and in uprisings orchestrated by secret patriotic
associations, a movement which was known as the “Carboneria”.
Italian reunification and independence gradually came about through the
progressive annexation of peninsular territories to the Piedmontese
Kingdom of the Savoy family, whose dynasty would continue to reign in
Italy until after defeat in the Second World War. The proclamation of the
Kingdom of Italy occurred in 1861, although still, in the years following the
annexation of other territories (including Rome the capital itself ), we would
eventually have the current territorial boundaries of the area that today
comprises the Italian State.
As its own fundamental charter, the newborn kingdom inherited the
Statuto Albertino (1848) from Savoy Piedmont. The Statuto was a granted
(from the Sovereign to the people) and flexible (modifiable through normal
legislative procedures) Constitution. In its wording, one already sees the
principles of the liberal State and the rule of law (especially in virtue of the
already well-rooted division of powers), but also the still notable powers of
the Crown to interfere with the functions of the other organs of power
(primarily Parliament). The Statuto Albertino developed and evolved in such a
way that there was eventually a different form of government from that
provided for by the text itself. In fact, the Statuto provided for a pure
constitutional monarchy. The bicameral Parliament had only one
representative organ, the Chamber of Deputies, since it was elective, whilst
the Senate was composed of royally appointed members. Thus, the King
was at the same time the Head of State and holder of the executive power,
and could freely name and revoke his own Ministers. Instead, the
progressive strengthening of the authority of parliament caused the
Albertine model to evolve (even without any formal changes to the Statuto)
towards a parliamentary form of government. Despite the fact that the text
did not provide for such, quickly the practice of the necessary relationship
of confidence arose between the Government and representative Chamber
of Deputies; as a result the King increasingly had to ensure that he named
ministers meeting their approval.
However, the progressive liberal and democratic evolution already
entered a crisis at the end of the Nineteenth century, when the African wars
of colonial conquest began, which were ill-fated to a quick and painful
failure, and problems of public finance emerged. These highlighted the
intrinsic weaknesses of the Italian liberal economy. In the first years of the
Twentieth century, with the rise to power of the Giolitti government,
significant reforms of the Italian economic and social structures were made.
The State became multi-class, with liberation of the economically weaker
groups and the progressive extension of the right to vote, the Italian tax
system became increasingly progressive. The State’s role was thus
understood differently and it was given the task of being more active in the
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23
economic life of the country. The Italian State went from being “liberal” to
becoming more of a socially “interventionist” State.
The role of public interventionism in the economy increased in the
period running from the 1920s up until the end of the Second World War,
when Italy underwent authoritarian rule. After a prior period which was
characterised by weak governments of short duration, in 1922 the King
bade the leader of the Fascist party to form a government, even though at
the time it did not hold a majority in Parliament and just before had led the
March on Rome (and for which various groups had petitioned the King to
sign a state of siege decree). The King refused to sign it, and instead asked
Benito Mussolini to form a government, thus paving the way for two
decades of Fascist rule.
In a first stage (the so-called “Fascist transitory period”), the Statuto
Albertino formally remained in force, whilst in reality numerous changes
were made to the system of which, some are notably important. The
electoral system was changed in order to guarantee 2/3 of the seats to the
party receiving the relative majority of no less than 25% of the votes (and as
such, guaranteeing the Fascist Party control of the Chamber of Deputies).
Conflicts with opposition forces were bitter and degenerated into outbreaks
of serious violence (including the murder of the socialist deputy, Giacomo
Matteotti) following the refusal of the opposition’s members of Parliament
to take part in the work of the Chamber.
In 1925, the true dictatorship begins. Mussolini openly challenges the
Chamber, putting an end to the form of parliamentary government by
establishing the irresponsibility of the executive to Parliament and the
supremacy of the Government over Parliament (whose agenda had to be
approved by the Head of Government). In 1928, the electoral law was
abolished and a plebiscite regime was established. In this regime, electors
could only approve a single list of four hundred names chosen by the Great
Council of Fascism. Civil liberties and free politics were suppressed.
Freedom of the press and freedom of association were heavily limited,
personal liberties were reduced, and the principle of equality was abandoned
(so much so that, in addition to the sadly noted racial and political
discrimination, other persons added to the list of the “unequal” included
unmarried persons, guilty of not contributing to growth in the national
population).
In 1939, the dictatorship reaches its peak, and the Chamber of Deputies
(although already significantly devoid of power and meaning, in light of the
plebiscite mechanism under which its members were elected) was
suppressed, replaced by the Chamber of the Fasces and of Corporations.
The Fascist experience nonetheless hurtled towards a ruinous finale,
following Mussolini’s unfortunate choice to participate in the Second World
War alongside Hitler’s Nazi Germany. Entry into the war occurred on 10
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INTRODUCTION TO ITALIAN PUBLIC LAW
June 1940, when Germany’s victory (whose troops had already conquered
Poland, Holland, Belgium and Luxemburg who were about to march on
Paris) appeared certain and Mussolini tricked himself into thinking he would
quickly be able to gain a seat on the winner’s side of the negotiation table.
To the contrary, the war turned into a defeat of massive proportions for
Italy, and in 1943 the King, encouraged by the Great Council of Fascism,
forced Mussolini to tender his resignation, arrested him and gave the task of
forming a new government to General Luigi Badoglio. In September of
1943, the armistice with the coalition made up of the United States, France
and Great Britain was signed.
A dramatic period for Italy follows the armistice. Large numbers of
German troops were already present in the country, having entered as allies
and then, following the armistice, becoming an occupation army, wasting no
time in overpowering the Italian soldiers, who were more or less abandoned
to their own fate and who lacked any kind of organised command. The
Germans freed Mussolini and installed him as head of a puppet government
at Salò, the so-called “Italian Social Republic”.
The country was broken in two: to the south, the Anglo-American
coalition forces helped Italian troops to free the territory, and to the north,
violent clashes broke out between Italian soldiers loyal to the Italian Social
Republic and the partisans, who dug in deep in the desperate struggle
against Nazi-Fascism. After the definitive liberation of Italy from the
German occupation forces in 1944, the Pact of Salerno was finally signed
and the King and anti-Fascist parties gave life to a government under the
condition that the King withdraw to private life and give the people a choice
of whether they preferred to continue with a monarchy, or instead become a
republic. On 2 June 1946, a referendum was held in which the Italian people
voted in favour of becoming a republic.
At the same time, the members of the Constituent Assembly (to draft
the Constitution) were also chosen, democratically and under universal
suffrage. In fact, for the first time, women also voted. Based on the election
results, the Assembly was composed of 207 deputies of the Christian
Democratic Party, 115 Socialists, 104 Communists, 44 deputies from the
National Democratic Union, 30 from the so-called “Anyman Front”, 23
from the Republican Party, 16 Liberals of the Right and 20 members from
various smaller parties.
On 1 January 1948, the current Constitution of the Italian Republic
entered into force.
2. Globalisation and Multi-level Constitutionalism
Classical constitutionalism focuses on the idea of the Nation State. All
considerations are in reference to the sovereign State, the study of the
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25
models and the forms with which the reality of such an entity is expressed
have historically been the main object of this area of legal studies.
Nowadays, however, such formula has changed radically.
New phenomena affecting contemporary international politics have led
to such changes. In the first place, there is the process of globalisation, or
rather the creation of a world marketplace, in which the means of
production, capital and people themselves easily move around at a speed
never seen before in the history of mankind, thanks above all to
technological progress and the development of a broad-based economy (and
increasingly dependent on immaterial or intangible, rather than
manufactured or raw, goods). In turn, globalisation has significantly
facilitated relationships among different States, leading to the reality that key
socio-economic decisions are made more on a supra-national basis (i.e. the
EU), than pursuant to decisions made by each single State alone. Certain
macroeconomic developments (the growth of the markets, their progressive
liberalisation, deregulation, de-nationalisation and privatisation of the means
of production) and certain economic and monetary goals (such as financial
stability and monetary equilibrium) are transversally shared now between
States, and as a result, the levels of discretion that national governments
enjoy are progressively decreasing. The choices and powers that single States
are able to make have been broadly reduced due to the great increase in
inter-governmental ties which every one of them is subject to. This greatly
increases the decisional powers of centres other than merely governmental
ones. Rather, supra-national organisations, having jurisdiction over different
areas, are able to coordinate the different national policies and impose the
objectives that national governments must pursue on them, as well as, often,
the means to achieve such objectives. A meaningful example is that of the
control of public expenses, of the public deficit/GNP ratio and of other
monetary policies imposed by the EU on its Member States. Beginning from
the second half of the last century, arrangements arose under which supranational legal systems were able to address and define (and bind) choices
made by national governments. It is clear that a single decisional level (that
of national powers) no longer exists, and that the supra-national level now
significantly affects the fundamental choices and policies that every State
intends to pursue. Beyond this national governmental level, at least another
level exists (and at times, even more than one) in which decisions made can
be imposed on the national government itself. Examples of such abound.
One just has to look at international organisations such as the United
Nations, NATO or the WTO, not to mention the European Union (EU).
This multiplication of certain levels of policy-making power centres (where
decisions are made) is traditionally referred to as “multi-level
constitutionalism”.
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Multi-level constitutionalism means, therefore, the progressive
emergence and development of organs, structures and procedures that
create legal norms and impose such norms on citizens of different national
States. This is what happens, in a very evident manner, with the
arrangements of the European Union, whose rules, directives (although they
are actually transposed into national legal systems), and jurisdictional
decisions are imposed on and required to be respected by EU citizens and
the Member States themselves. The most direct effect of this development
is the progressive erosion of each country’s sovereignty. The concept of
sovereignty must now, therefore, be reconsidered and, contrary to the
events of the first half of the Twentieth century, we must also accept the
idea that sovereignty does not pertain solely to the nation State alone, but
may be sub-divided among the different levels (both national and supranational) that are called upon to govern the political system itself.
The use of the term “multi-level constitutionalism” could, nevertheless,
appear improper. In fact, even the European Union does not, as of yet, have
a Constitution in the proper sense. The issuance of a valid European
Constitution would certainly represent a definitive recognition of the
development of European integration. Nevertheless, the lack of it does not
jeopardise the use of the term “multi-level constitutionalism”. In fact, the
international community is, in various ways, endowed with its own tools for
the recognition and guarantee of individual rights, both through listing of
these rights (i.e. the UN Declaration of the Rights of Man, the European
Convention of Human Rights and the European Union Charter of
Fundamental Rights) and through the founding of jurisdictional entities and
legal organs that monitor and supervise their application (such as the
European Court of Justice or the European Court of Human Rights). The
guardianship of a nucleus of fundamental rights shared by all countries
signatories to a number of international treaties, conventions or agreements
surely constitutes the means to provide a basic foundation of a body (corpus)
of supra-national constitutional rights.
3. State and International Law: Alternative Solutions and the
Italian Option
The issue of relationships between internal national legal systems and
international legal systems may be approached in two possible ways. One
can speak of a dualist approach, when the legal system, by accepting some
form of limitation of its national sovereignty, provides concurrent
recognition of the value of legal norms set out above national ones.
However, one tends to mark a distinction between internal norms and
external ones, which remain somewhat separate from those comprising the
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27
national body of laws. To the contrary, one can speak of the monistic
approach, whereby the internal legal system automatically accepts the entry
of the international norms into the national legal system, thus guaranteeing
the former are automatically recognised and have value. In substance, the
difference is among States, which recognise the existence of two separate
legal realities (both internal and international) and those only recognising a
single legal reality (the internal, national one, to which sources of law
produced by international organisations automatically “migrate”).
The dualistic approach traditionally prevailed with governments
throughout the first half of the last century. States accepted only partial
limitations of their sovereign powers under particular conditions, as
identified in their respective Constitutions. These were subject to conditions
of reciprocity with other States, and reserved to themselves, however, the
power to set certain limits on the hierarchy of external sources of law to
those originating internally.
In more recent years, other States, instead, have become much more
unconditionally open to international law, providing in their own
Constitutions systems for the automatic entry into force of international (or
Community) law instruments, conventions and treaty rights in their internal
legal systems. Such mechanisms are often implemented under the
Constitutions of recently-independent countries which have undergone
democratic transitions (such as many of the newly-democratic republics of
Central and Eastern Europe), who wish to show they possess the necessary
prerequisites to enter the EU or accede to the European Convention on
Human Rights. From its point of view, Italy is surely a country which is
open to the realities of laws coming from outside its own system. This is
demonstrated by the provisions contained in Arts 10 (“Italy’s legal system
shall conform to the generally recognized principles of international law”)
and 11, It. Const. (“Italy shall…agree on conditions of equality with other
states, to such limitations of sovereignty as may be necessary to allow a for a
legal system that will ensure peace and justice between nations; it shall
promote and encourage international organisations having such ends in
view”). Nevertheless, the position assumed by Italy puts it in the group of
countries that adopt a dualistic approach.
The proof is the evolution of relationships between the Italian legal
framework and the Community one. Initially, the Constitutional Court held
that Community legal norms were a simple demonstration of international
cooperation and it put the laws containing the implementation of
Community treaties on the same level as that of any other primary source of
Italian law (and therefore, theoretically, Italy’s participation in the European
Community could have been withdrawn by an abrogation of the
implementation laws by a simple law decree, or by a formal law of the
Parliament).
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Subsequently, from 1973 on, the Court opted for a less limited vision of
the Community’s legal framework, granting it the level of a sovereign legal
system. Therefore, the Community’s legal system and the Italian national
one are “autonomous and separate legal systems, although they are
coordinated together pursuant to the division of jurisdictional powers
established under and guaranteed by the Treaty”. The Court recognised
therefore, the direct effectiveness of Community rules in the Community’s
legal system, but it reserved to itself (rejecting the view that such decision
would instead have been up to the European Court of Justice) the
jurisdictional power to judge compliance of Community norms with the
Italian Constitution, in order to protect the fundamental principles of the
Italian legal system. The separation of jurisdictional powers has also been
confirmed by the European Court of Justice (ECJ), which ruled in turn that
ordinary courts are to automatically not enforce internal legal norms
conflicting with the Community’s legal system (without need to appeal to
the ECJ). Still, in 1989, the Constitutional Court expressly recognised the
immediate effectiveness of Community law in the internal national legal
system, also including case law. Thus, it subsequently sanctioned the
sovereignty of the European legal system.
4. The European Legal Order and its Historical Development
1951 is the year in which the founding treaty setting up the European
Coal and Steel Community was signed in Paris. With this, the first
international effort (although still very limited as regards the number of
acceding countries and its quite industry-specific nature and limited
objectives) at organisation is born, with which Europe begins its long road
to peace and international harmony, which had been brusquely interrupted
by the tragedy of the Second World War. The following step is made in
1957, when in Rome the European Economic Community Treaty is signed.
This founded the European Economic Community and the European
Atomic Energy Community. Whilst the latter is an entirely sector-focused
organisation similar to the Coal and Steel Community, the former is instead
the first real step taken in the long road towards true European integration.
Also, whilst initially made up of only six Member States, the EEC in fact
had a much more generalist vocation than the other organisations, even
though it was limited to economic matters. With the Treaty of Rome,
customs tariffs on the importation and export of commodities were
abolished, and quantitative restrictions and other measures having
equivalent effects were also forbidden. In addition, a common customs
tariff rate was introduced to regulate commercial relationships with third
countries. Likewise, the free circulation of people (in the matter at hand, the
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29
right of movement is freely guaranteed in the territory of the Member States
to employees, the right of establishment is granted to
autonomous/independent workers and professionals, as well as the free
circulation as regards the provision of services) and capital are guaranteed.
For the first time ever, the regulation of competition and anti-trust rules
were affirmed. The protection of free and open competition would then
become, in the years to follow, the principal objective of the EU legal
system.
The wish, in theory, to expand its own area of jurisdiction and expertise
to various matters, wider than anything in the past, led the EEC to institute
the necessary organisational structures to do so. In 1965, the executive
organs of the three above-mentioned organisations merged (increasing even
more the generalist vocation of the resulting organisation). In 1979, the
European Parliament was born, chosen by direct suffrage by voters from
the Member States.
In 1987, the Single European Act (“SEA”, the first major revision of the
Treaty of Rome) saw the light of day, under which new subject areas were
transferred to Community jurisdiction (social policies, the environment,
economic integration, etc.). This is the definitive step in reason of which the
European legal system would abandon, shortly thereafter, limits on
jurisdiction strictly over economic matters. From then on, it would be able
to issue regulations governing potentially every aspect of life.
In 1992 the Treaty of Maastricht was signed, giving birth to the
European Union, a new organisation that was superimposed on the
preexisting European Communities and which completes the long-term
European mission it had. The Union utilises certain pre-existent organs of
the three Communities, and these are therefore neither abolished nor
replaced. To the contrary, it is correct to say that they form one of the three
pillars on which the Union itself is built, whilst the other two pillars are the
common foreign and security policies, and police and judicial co-operation
in criminal matters. The Treaty on European Union has profoundly
modified the Community’s institutional order and continued the process of
political integration. In particular, decisional procedures have been modified,
widening the jurisdictional ambit (that now also includes education,
industry, health, culture, and consumer protection), but above all “European
citizenship” was instituted. This does not replace, but rather completes,
national citizenship from the various Member States. As well, the monetary
union was born, which, through gradual phases, led first to the birth of the
European Central Bank, then to Community power over monetary policy
and, finally, to the adoption of a single currency, the Euro, for all individual
Member States joining the monetary union (not all have done so to date).
In 1997 the Treaty of Amsterdam was issued, which instead
strengthened integration and cohesion policies with the common foreign
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INTRODUCTION TO ITALIAN PUBLIC LAW
and security policies and police and judicial co-operation in criminal matters.
Nevertheless, at the same time, it launched the idea of a “two speed”, or
“variable geometry” Europe, with the possibility that groups of States may
reach, in relation to determined subjects, increased levels of cohesion or
integration.
2001 was the year of the Treaty of Nice, which, beyond making further
institutional changes, modified the verification procedures for infringement
actions by Member States. As well, it extends the cases in which the
procedures of co-decision and majority qualified voting are to be applied.
Finally, and most importantly, a Charter of Fundamental Rights was
subsequently issued. Today, the latter constitutes, with the partial exception
of the European Convention on Human Rights (which is used, however, as
interpretative yardstick by the ECJ, even though it formally is outside the
Community legal framework), the enumeration of European Union
individual rights. The Treaty of Nice was to have become legally binding
once included in the European Constitution. However, in light of the failure
of the latter to be approved, the validity of the former has been affected,
and remains, to this day, an as interesting but little useful listing of rights
held by European citizens. The legal instrument whose adoption would have
allowed the Treaty of Nice to become binding is the Treaty on a
Constitution for Europe, which was drafted by the Convention on the
Future of Europe (composed of representatives of the European
Parliament, of the European Commission, and of the legislatures and
governments of Member States). It should have put into place a
Constitution, giving a greater level of democratic representation to EU
organs, greater transparency in EU procedures and a central role to the idea
of European Union citizenship. However, the procedure of ratification of
this legal instrument ran aground after the first failures experienced in the
Member Countries that had called national referenda to approve it. Whilst
later, over the last few decades, European integration was assisted by an
incessant process of evolution of Community institutions and the widening
of membership, thanks to the entry of new Member States (1), European
integration has now instead suffered a slowdown of significant proportions.
Thus, developments regarding European integration in the years to come
are still overcast by a cloud of uncertainty as demonstrated by the difficulties
in ratifying the Treaty of Lisbon (the so-called Reform Treaty) and the no
vote in the recent referendum in Ireland.
(1) The United Kingdom, Ireland and Denmark were added in 1972 to the six founding
members- Italy, France, Germany, Belgium, Holland and Luxemburg-; in 1979 Greece also
entered; Spain and Portugal entered in 1985; Austria, Finland and Sweden in 1994; whilst
Poland, Estonia, Latvia, Lithuania, the Czech Republic, Slovakia, Hungary, Slovenia, Cyprus
and Malta acceded in 2004; finally, Bulgaria and Romania entered in 2007.
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CHAPTER THREE
FORMS OF STATE AND FORMS OF
GOVERNMENT
JUSTIN ORLANDO FROSINI
SUMMARY: 1. Terminological Premise – 2. Forms of State and Forms of Government:
Historical Aspects and Development – 2.1. The Feudal Society – 2.2. The Absolute
State – 2.3. The Liberal State – 2.4. The Democratic Pluralistic State – 2.5.
Alternatives to the Democratic Pluralistic State – 2.5.1. Totalitarian and
Authoritarian States – 2.5.2. The Socialist State – 3. Unitary, Federal and Regional
States – 3.1. Allocation of Legislative Power – 3.2. Allocation of Judicial Power –
3.3. Representation in the Upper House – 3.4. Constitutional Amendment Powers –
3.5. Statutes of Autonomy or Constitutions? – 3.6. No Decentralisation without
Taxation? – 4. Forms of Government: a Synchronic Analysis – 4.1. Parliamentary
Executive – 4.2. Presidential Executive – 4.3. Directorial Executive – 4.4. Semipresidential Executive – 4.5 Quintum Genus? The Prime Ministerial Executive.
1. Terminological Premise
This chapter will deal with the “form of state” and the “form of
government”, i.e. two terms that correspond to the Italian terms “Forma di
Stato” and “Forma di Governo”. When we use the notion “form of state” we
are referring to the rules and principles that govern a state legal system. Put
in another way the form of state defines the relationship between the State
that can legitimately exercise coercive power, on one hand, and the citizens,
taken individually or as a community, on the other. The notion “form of
government” refers to the set of rules concerning the distribution of power
among the branches of government or, put in a different way, the
relationship between constitutional bodies i.e. those organs which are above
all the others and have the same level of sovereignty and independence. An
eminent scholar of Italian public law and member of the Constituent
Assembly, Costantino Mortati, aptly defined the form of state as “the
relationship between the holder of power and the subject of that power and
therefore the various aspects of the relationship between authority and
liberty”.
Two observations need to be made before examining the various forms
of state. First, in the context of this notion we will also include the rules and
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principles that govern the relationship between the central government and
sub-national entities. This choice may be disputed, given that not all
commentators agree on the fact that this relationship can be entirely
comprised in the concept of the form of state. In fact some scholars argue
that the relationship between the “centre and the periphery” comes under
the form of government, while others consider the territorial organisation of
a state to be something that effects both the relationship between the State
and its citizens as well as that between the constitutional bodies.
Second, in many respects the expressions “form of state” and “form of
government” are notions that specifically derive from Italian public law. In
fact, in the United States and in Britain these two terms are often treated as
synonyms with the term “form of government” used more frequently than
the expression “form of state”. This is explained by the fact that the term
“government” in English has a far wider meaning than the word “governo” in
Italian due to the fact that while the latter normally refers to the executive
power (more precisely the Council of Ministers), the former often refers to
the state has a whole, hence the use of the term “branch of government” to
define the legislative, executive and judicial powers. What in Italian are
classified as “forme di governo” are often referred to as “regime types” or
“systems of government” in English. We can find similar conceptual
linguistic difficulties in other countries too. The French use the expression
“régime politique” rather than “forme du governement” and although the Spanish
do employ the expressions “forma de estado” and “forma de gobierno” they also
use the term “forma politica” which in many respects is a combination of the
two notions: in fact Art. 1.3 of the Spanish Const. states that “La forma
política del Estado español es la Monarquía parlamentaria” (The political form of the
Spanish State is the Parliamentary Monarchy).
2. Forms of State and Forms of Government: Historical Aspects
and Development
If we go back to the first attempts to classify forms of political power
again we can see that no distinction was made between the form of state
and the form of government. The ancient Greek philosopher Aristotle, for
example, distinguished between a government run by one person
(Monarchy), a government by the few (Aristocracy) and government by the
many (Polity, πολιτεία). Aristotle considered these to be examples of
“good”
government that could however degenerate respectively into a tyranny,
oligarchy and …democracy (one must remember that Aristotle did not
regard democracy favourably because he feared that government by the
masses (demos, common people) could lead to disorder or lawlessness.
Even the classifications made by Machiavelli and Montesquieu did not
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distinguish between the form of state and the form of government. In his
best-known work, Il Principe, the Florentine philosopher distinguishes
between Principalities and Republics, while Montesquieu in L’esprit des lois
talks of Republic, Monarchy and Despotism.
The dichotomy between Monarchy and Republic has long been seen as a
crucial element in classifying forms of state and forms of government. The
Monarchy was characterised by a King that personified the State – just think
of the expression L’État, c’est moi disputedly attributed to the French King
Louis XIV – and who claimed to have a transcendent legitimacy and was
thus unrepresentative, while in a Republic the Head of State was considered
one of the constitutional bodies of the State, legitimised by popular vote and
therefore representative. For a long period of time the existence of a
Monarch as the Head of State characterised the nature of the form of state
(absolute monarchy) and the form of government (constitutional
monarchy), today however with the affirmation of the republican principles
and the transformation of the European monarchies into parliamentary
monarchies the distinction between Monarchy and Republic has become
more blurred. Today this dichotomy is incapable of distinguishing between
contemporary forms of state and government. Substantially the existence of
a monarchical or republican Head of State does not alter democratic forms
of state or parliamentary forms of government.
For reasons of brevity the concept of democracy will not be developed
further in this chapter given the fact that the democratic principles of the
Republic of Italy are addressed in Chapter One with regard to the
characteristics of the State and in Chapter Four with regard to voting rights
and electoral systems.
Turning now to the specific notion of form of state, using the diachronic
method we can distinguish five main types: the feudal society (or
patrimonial state), the absolute state, the liberal state, the totalitarian state
and the democratic pluralistic state. In truth one cannot really talk of a form
of state until we have the creation of the Nation States, which according to
most historians began during the second half of the Fourteenth Century.
However, others argue that the Peace of Westphalia in 1648 – i.e. the
signing of the Peace treaties of Osnabrück and Münster – is probably to be
considered the watershed event, which initiated a new order in Europe with
the affirmation of principles such as cuius regio, eius religio (the religion of the
ruler will be the religion of the people).
2.1. The Feudal Society
Having said this, in order to fully understand how the form of state has
developed we must briefly describe the so-called feudal society (sometimes
also defined patrimonial state), which existed in Europe from the Eighth
Century with the beginning of the Carolingian Empire up until the Twelfth
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Century (some authors argue that the precursor was the Merovingian
Empire that began in the Fifth Century after the fall of the Western Roman
Empire in 476).
We cannot really talk of a state stricto sensu because there was a total
identification of the feudal lord (or the King) with the property of the land
and the power he could exercise over the peasants. This is why the feudal
society is sometimes defined as patrimonial because the aim was not that of
fulfilling the general interests of the people, but simply that of meeting the
needs of the lord and his manor. Feudal societies were usually organised on
the basis of private agreements, contracts between individuals (the feudal
lords). The sole aim of the feudal society was that of protecting the land and
its related possessions (including the peasants) from external attacks.
Possession of land gave rise to a series of rights related to everything that
was to be found on it (including the peasants). The feudal lords also had the
right to administer justice and to collect taxes.
2.2. The Absolute State
Beginning in the Fourteenth Century we have the gradual passage from a
feudal system to an absolute state. This transformation was determined by
the progressive unification of certain territories under the power of a single
monarch as occurred in England, France and Spain (Italy and Germany on
the contrary will remain for several more centuries divided in Kingdoms and
Principalities) and the move towards a money society.
In other words, two power shifts play a key role in the move from
feudalism to an absolute state: first, the shift of power from the feudal lords
to the King (and thus the stabilisation of monarchical authority) and second
the shift of power from land to money. Land, the basis of power in the
medieval period, lost its importance. It took centuries for this process to
reach completion, but the seeds were sown with the birth of money.
On should emphasise, however, that these developments occurred in
different ways and to different degrees from country to country. The
economic development in England was such that many commentators and
historians claim that England never really went through a period of
absolutism, while the story is different when it comes to continental Europe
and in particular France where there was a strong institutional system
dominated by the noble classes or by the King himself
Under absolutism, the State became more interventist (e.g. through
economic protectionism) and to a limited extent it tried to fulfil the general
interests of the people and not just the needs of the lord of the manor as
occurred during feudalism. Again the extent to which individual liberty was
expanded depended a great deal on the individual Monarch that was in
power.
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With the risk of oversimplification, certainly one of the symbols of the
absolute state was Louis XIV who became King at the age of five, but did
not start ruling until 1661. During his reign, the power of the nobles was
weakened and he began to use the so-called intendants to enforce his will
over the provinces by giving them the power to collect taxes and administer
justice. France’s economy became stronger thanks to the King’s Minister of
Finance, Jean-Baptiste Colbert, a promoter of mercantilism who improved
France’s manufacturing, although many of his efforts were thwarted by
Louis XIV overspending on wars.
The strength of the absolute state could be seen in the large centralised
bureaucracy and the ability to maintain a large standing army to expand
policies at home and abroad. Moreover, the absolute state had a proper tax
system and uniform taxation throughout the territory.
There were also cases of so-called “Enlightened absolutism”, often
referred to in Italian public law as stati di polizia a term deriving from the
Greek word Polis (πόλις) meaning city. This was a form of state in which the
Monarch was positively influenced by the principles of Enlightenment. Just
like the rulers of “conventional” absolute states these Monarchs were
convinced that they had the right to govern by birth and therefore they were
reluctant to grant constitutions, but they did recognise certain individual
rights, such as freedom of speech and the right to property and they tended
to foster religious tolerance. In general, the Monarchs of Enlightened
absolute states ruled with the aim of improving the lives of their subjects:
the famous motto that summarises this concept is “Everything for the
people, nothing by the people.” Examples of Enlightened rulers were
Frederick II of Prussia, Maria Theresa and her eldest son Joseph II of
Austria, Leopold II Grand Duke of Tuscany.
2.3. The Liberal State
The reasons that brought about the crisis of the absolute state were
financial, socio-economic and political. The financial problems were caused
by the ever-growing bureaucratic and military machinery, while the socioeconomic changes resulted from the industrial revolution and the growing
hegemony of the middle classes that thus began to push for greater political
power in order to better protect their interests.
As we know this classification of the forms of state is the result of a
diachronic analysis, therefore it must be stressed that the passage from the
absolute to the liberal state varied significantly from country to country. In
England – where as emphasised in par. 2.1. according to many
commentators there was never fully-fledged absolutism – the liberal state
developed quite early on following the two victories that Parliament
obtained against the Stuarts. The first – the English Civil War – ended in
1649 with the beheading of Charles I, while the second – the Glorious
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Revolution – ended in 1688 with the overthrow of James II and his
replacement in 1689 with William of Orange who jointly acceded the throne
with Mary, his wife and daughter of James II. Though not without
bloodshed, the passage to the liberal state was quite gradual and without
great political and social traumas
In the United States the creation of the liberal state was the logical
consequence of the victorious War of Independence against Great Britain
and the approval of the Constitution in 1787. American society was
composed of free men and landowners who did not have to deal with a
noble class. The United States was (and still is) characterised by wide
recognition of individual rights (with particular regard for the right to
property) and their protection under a superior law, the Constitution.
Unlike England and the United States, the move towards a liberal state in
France was far more traumatic and violent. The bourgeoisie had to fight, on
one hand, against the privileges of the nobility and the clergy and, on the
other, against the despotic rule of the Ancien Régime. This of course resulted
in the French Revolution of 1789 during which there was an ideological
oscillation between liberalism and democratic-radicalism that were reflected
in the Constitutions of 1791 and 1793.
The development of the liberal state in Germany and Italy was different
from both England and the United States, on one hand, and France, on the
other. Due to a weak bourgeoisie and strong aristocratic landowners the
birth of the liberal state was the result of a compromise and a “top-down”
revolution that resulted from the expansion respectively of Prussia and the
Kingdom of Sardinia. For this reason, the liberal state in these two countries
was more centralised than elsewhere.
Bearing in mind these differences we can affirm that the liberal state was
characterised by a strong separation between the State and society, the
prevalence of individualism and the protection of rights and freedoms. In
fact, another important element is the fact that the liberal state is based on
the rule of law (i.e. government authority may only be legitimately exercised
in accordance with laws that are adopted through an established procedure).
Finally, while absolutism was characterised by strong state intervention, the
liberal state was a “minimum state” i.e. with a limited number of functions.
Furthermore, the legitimisation of power was completely different with
respect to the absolute state given the fact that it was based on popular or
national sovereignty as opposed to a legitimacy based on the divine
birthrights of the Monarch. As a result, the liberal state was founded upon
representative government and the principle of separation of powers.
However, although the concept of liberal state enshrined representative
government it was characterised a mono-class society because suffrage was
determined by census or by wealth and therefore large sectors of the
population did not have voting rights (including women) and the
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representatives in Parliament all came from the better-off classes. This
proved to be one of the factors that brought about the crisis of the liberal
state. In many cases this crisis led to the creation of the democratic
pluralistic state, but there were also some significant alternatives.
2.4. The Democratic Pluralistic State
The democratic pluralistic state is the result of the slow transformation
of the liberal state from a mono to multi-class society. In other words the
state is based on the recognition and protection of a plurality of groups,
interests, ideas and values that are allowed to coexist in society and are
represented in Parliament. This means that from a historical standpoint one
of the fundamental elements of this transformation was the extension of
voting rights, which of course culminated with the introduction of universal
suffrage.
There are three distinguishing features that need to be highlighted: 1) the
creation of mass parties, which see the involvement of millions of voters; 2)
elected bodies as the place of discussion and confrontation of diverging
interest groups; 3) the recognition not only of liberal first generation rights,
but also second generation social and economic rights.
Once again it should be underlined that historically the passage from the
liberal to democratic pluralistic state varied from country to country. In
countries such as Italy and Germany this was characterised by the tragic
parentheses of Fascism and Nazism, while in Great Britain and the United
States the transformation was more gradual.
Finally it is important to note that, especially after World War II, some
countries in Europe adopted a particular type of democratic pluralistic state
known as the welfare state. A typical example is Britain where,
notwithstanding the fact that the Prime Minister in office was the wartime
hero Winston Churchill, the Labour Party led by Clement Attlee won a
landslide victory in the 1945 General Election with a political manifesto
based on proposals made by the economist and social reformer William
Beveridge and contained in the Social Insurance and Allied Services Report
published in 1942. One of the guiding principles of that report was that
policies of social security “must be achieved by co-operation between the
State and the individual”, with the state securing the service and
contributions. The state would accompany its citizens from the “cradle to
grave” a motto that clearly illustrated the degree of intervention on the part
of the State. One of the symbols of the post-war welfare state was of course
Britain’s National Health Service (NHS), introduced by the then Health
Minister, Aneurin Bevan.
With the exception of the Scandinavian countries, many of the post-war
welfare states of Western Europe then evolved into what we can define
more precisely as liberal democratic states in which privatisation rather than
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nationalisation is the key word – especially in the context of a marketoriented European Union that most of these countries now belong to – and
where the guiding principle is subsidiarity.
2.5. Alternatives to the Democratic Pluralistic State
The crisis of the liberal state did not always result in the creation of a
democratic pluralistic state. Some countries evolved into totalitarian or
authoritarian states, while others – especially after the World War II –
transformed into socialist states.
2.5.1. Totalitarian and Authoritarian States
As a premise it should be underlined that there is disagreement even
among Italian scholars with regard to how totalitarian and authoritarian
states should be defined. Some commentators deny that there is a
substantial difference between the two, while others disagree on how certain
historical experiences should be classified. For reasons of brevity we will not
address this debate herein, but simply underline the fact that both
totalitarian and authoritarian states share total absence of checks and
balances with regard to the command structure of the state, executive
domination of the bureaucracy and the military, widespread use of force and
intimidating action and significant limitations of basic individual rights.
According to some commentators, a distinguishing feature between
totalitarian and authoritarian states can be found in the role of the political
parties. While in totalitarian states there is a strong, one-party system that is
ideologically-based, in authoritarian states the party system is extremely
weak. As a result, a totalitarian state has an official ideology, while an
authoritarian state is driven by the lust for power of the individual leader.
What should be underlined is that in Europe, the totalitarian and
authoritarian states were a reaction towards the crisis of the liberal state and
an attempt to solve the social conflict caused by the struggle between the
bourgeoisie and the working class. The solution in this case was to suffocate
political pluralism and concentrate power in the hands of specific
institutions: just think of the Grand Council of Fascism in Italy. In fact, an
example of a totalitarian state (though some authors considered it to be an
authoritarian state) was Fascist Italy between 1922 and 1943. The fascists
blamed the liberal state for being unable to defend national interests due to
the fragmentation of the political system. As a result the fascist state
concentrated power in the hands of the Head of the Government, who
exercised both executive and legislative powers. The National Fascist Party
was an integral part of the State. In one aspect, the state was undoubtedly
totalitarian due to the fact that the people were an integral part of the State
and therefore the latter could interfere with all aspects of one’s social and
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private life even through the suppression of many of the individual rights
that had characterised the liberal state.
Another example of a totalitarian state was of course Nazi Germany
under the rule of Adolf Hitler (1933-1945), while the regimes of Franco in
Spain (1936-1975) and Salazar in Portugal (1926-1974) are probably better
defined as authoritarian rather totalitarian, but again this is a matter of
debate.
2.5.2. The Socialist State
Another alternative to the democratic pluralistic state was of course the
socialist state, established first in Russia and then the Soviet Union after the
October Revolution in 1917. The theories at the basis of the socialist state
were of course those of Marx and Lenin. With adaptations, this model
spread to various parts of the world and in particular Eastern Europe, which
in fact became part of the so-called Soviet bloc after World War II.
In brief the origins of this form of state are to be found in the so-called
Proletarian Dictatorship, which had the aim of eliminating the bourgeoisie
and creating a society without classes and social conflict. The constitutional
model was thus based on the abolition of private property and the
monopoly of the state with regard to the means of production. A significant
difference with respect to the democratic pluralistic state was the fact that
the socialist state aimed to abolish the market economy in favour of a
collectivist economy.
Originally the Proletarian Dictatorship was supposed to be transitional,
but soon after the revolution it was evident that a state structure had to be
maintained alongside the party. The main reason for this was the external
threat of the “bourgeoisie states”. The socialist state was thus characterised
by strong central government as clearly emerged with the Stalinist
Constitution of 1936. Then the XXII Congress of the Communist Party of
the Soviet Union in 1961, declared that the dictatorship of the proletariat
had been succeeded by the “state of all the people”, subsequently
incorporated in the Soviet Constitution of 1977.
Although variants of this model can still be found in Cuba and some
Asian countries such as China, North Korea and Laos the socialist republics
in Europe dissolved after the fall of the Berlin Wall in 1989 and nearly all
the countries in Central and Eastern Europe have now moved towards a
market economy and ten of them have since joined the European Union.
3. Unitary, Federal and Regional States
Using the synchronic rather than the diachronic method, another way of
classifying forms of state is on the basis of territorial organisation i.e. the
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extent to which there is separation of powers between the central
government (central state, federal government) and what we will collectively
call “sub-state entities” (i.e. the “regioni” in Italy, the “Länder” in Germany,
the “comunidades autónomas” in Spain, the “cantons” in Switzerland, the
“provinces” in Canada, the “states” in the United States of America and so
forth). The sub-state institutional structures differ quite significantly from
country to country and in recent years the forms of decentralised or
devolved state have become quite variegated, thus any attempt to carry out a
classification runs the risk of being too detailed or oversimplified. Some
authors have identified four broad categories: unitary states (France), fully
federal states (Germany), regionalised unitary states (Spain) and devolving
unitary states (United Kingdom). Others talk of unitary decentralised states
(Denmark) and federal states (United States, Germany). There are authors
who distinguish between dual federalism (United States) and cooperative
federalism (Germany) or between decentralised federalism (Switzerland) and
unitary federalism (Germany) and we could go on.
Running the risk of oversimplification, in this paragraph we will briefly
distinguish between unitary and decentralised states and then in the context
of the latter between federal and regional states.
Before we start it should be noted, that Italy – in particular after the
reform of Title V, Part II of the Italian Constitution – is actually a country
that is difficult to classify in terms of its sub-state institutional structure and
the relationship between the State and the Regions.
The difference between unitary and decentralised states is quite
straightforward. In a unitary state legislative power is exercised solely by the
central government. This does not imply that in unitary states there is no
form of local government, but what it is does signify is that there are no
sub-state bodies that can legislate. For example, the Republic of France is a
unitary state in which the central government in Paris has total authority
over the sub-state entities, known as departments, which are subordinate
administrative components of the state (in recent years there has been a
heated debate in France with regard to devolution and France’s sub-state
institutional structure may undergo significant changes in the coming years).
On the contrary in decentralised states legislative power is exercised by both
the central government and the sub-state entities. From a certain standpoint,
decentralisation represents a vertical separation of powers between the state
and the territorial bodies.
In the context of decentralised states we can then distinguish between
federal and regional states on the basis of four elements 1) extent of the
legislative power exercised by the sub-state entities; 2) existence of a
separate branch of the Judiciary at sub-state level; 3) presence of a second
chamber of parliament that represents the sub-state entities; 4) involvement
of sub-state entities in constitutional amendment. Alongside these four
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distinguishing features we may also take into consideration other factors
such as the existence of sub-national constitutions and provisions
concerning financial and fiscal autonomy.
3.1. Allocation of Legislative Power
Let us analyse the first distinguishing feature: with some notable
exceptions a state will be defined as federal if the Constitution contains a
provision or clause listing the subject matters on which the central
government can legislate, thus leaving the so-called “residual” subject
matters (i.e. the ones that are not listed in the Constitution) to the sub-state
entities. On the contrary we will have a regional state if the Constitution
contains a list of the subject matters over which the sub-state entities can
exercise legislative power, thereby giving competence to the central
government with regard to all the other subject matters. One should stress
the fact that some Constitutions (such as that of Italy, see Art. 117.3 It.
Const.) also contain a list of so-called “concurrent subject matters” i.e.
subject matters over which both the central government and the sub-state
entities can exercise legislative power. In other words the state will approve
a framework law containing a series of guiding principles which the substate entities have to follow when they approve a detailed law on that
subject matter.
In any case, there are two countries in particular that represent an
exception to this rule on the allocation of legislative power between the
central government and the sub-state entities and they are Canada and
indeed Italy. Canada, which is undoubtedly a federal state, allocates the
residual subject matters to the federal government and not to the provinces.
In fact Art. 91 of the Constitution Act 1867 states that “…the exclusive
Legislative Authority of the Parliament of Canada extends to all matters
coming within the classes of subjects next hereinafter enumerated; that is to
say… such classes of subjects as are expressly excepted in the enumeration
of the classes of subjects by this Act assigned exclusively to the Legislatures
of the Provinces”. On the contrary, Art. 117.4 of the Italian Constitution
provides that “the Regions shall have sole legislative power with respect to
any matters not expressly reserved to State law”. Despite these exceptions to
the rule there is no doubt that Canada has a federal system, while Italy has a
highly devolved regional system.
3.2. Allocation of Judicial Power
The second element that can be taken into consideration in order to
distinguish between federal and regional states is the structure of the
Judiciary and the legal system as a whole. In fact, in federal systems the substate entities often have a separate court system and their own substantive
and procedural law, be it civil or criminal. In many respects this element
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may also be taken in order to measure the “degrees of federalism” that exist
in a federal state. In actual fact, within the context of federal states one can
distinguish between the “separated model” and the “integrated model”. For
example in the United States each state has its own criminal and civil codes;
this means that state judges in Los Angeles deciding a case of murder will
refer to Sections 187-199 of the California Penal Code while a judge in
Dallas will have to apply Section 19.02 of the Texas Penal Code. This is
what we could term as the “separated model”. In Canada, on the contrary,
only the federal government can pass criminal legislation, thus there is no
such thing as the “New Brunswick Criminal Code”, but only the “Criminal
Code of Canada”, however, the provinces can decide how they are going to
enforce the criminal code and the provinces appoint their own provincial
judges, crown attorneys and so on. This is what would be termed as an
“integrated model”.
It is interesting to observe that Art. 125 It. Const. states that “First
Instance Administrative Tribunals shall be set up in each Region. Sections
of these Tribunals may be located elsewhere with respect to the Capital City
of the Region”. This provision comes under Title V, Part II of the
Constitution, which deals with the “Regions, Provinces, Municipalities”.
Does this mean that Italy has a regional administrative judiciary system? The
answer is negative. The Tribunali amministrativi regionali (TAR) are nothing
more than first instance administrative courts, with the State Council in
Rome as the only court of appeal. Administrative procedural law is the same
throughout Italy.
3.3. Representation in the Upper House
The third element that we can refer to in distinguishing between federal and
regional states is related to the representation of the sub-state entities in the
second chamber of Parliament. A country will have a regional system if the
second chamber does not represent the sub-state entities. This is one of the
reasons why, despite the considerable autonomy that the Italian Regions enjoy,
Italy is considered a regional and not federal state. In fact, one should not be
drawn into error by Art. 57 It. Const., which states that “the Senate of the
Republic shall be elected on a regional basis…”, because Art. 67 then goes on
to clarify that “each Member of Parliament represents the Nation…”, therefore
the provision contained in Art. 57 merely indicates the procedure to be
followed in order to elect the Senate, but its members represent the Nation not
the Region they are elected in (see Chapter Four). On the contrary, in federal
states the second chamber represents the sub-state entities. In truth the way the
sub-state entities are represented in the second chamber may differ. For
example, the United States adopts “strict states” or “equal” representation. In
other words, all the states have identical representation regardless of their size
and population. In fact, there are fifty
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states and each one has two senators elected directly by the people. This
means Rhode Island and California are on a par in terms of representation
in the US Senate. On the contrary other federal states not only choose the
members with alternative mechanisms, but they often have a “weighted”
representation according to the size and population. For example the
members of the German Bundesrat are not elected directly, but are members
of the Länder executives, which appoint them and may remove them at any
time. Moreover, each Land has a weighted representation. BadenWürttemberg with a population of over 7 million has six members while
Saarland with a population of less than 2 million has three representatives.
In Austria the members of the Upper House are elected by the legislative
bodies of the nine Länder and, again, there is weighted and not equal
representation.
3.4. Constitutional Amendment Powers
The fourth element, considered by many as determinant in distinguishing
between federal and regional states, concerns the participation of sub-state
entities in constitutional amendment. In fact, in regional states the sub-state
entities do not take part in constitutional reform procedures, while the
member states in federal countries do have constituent power and take part
in amending the Constitution. Again, at first sight one might be drawn into
error by the Italian Constitution given the fact that, with regard to
constitutional amendment laws, Art. 138 It. Const. states that “such laws
shall be submitted to popular referendum when, within three months of
their publication, a request is made by one fifth of the members of either
Chamber or by 500,000 electors or by five regional Councils”. This provision
clearly indicates the fact that the Regions in Italy can ask for a referendum
to be held to decide whether an amendment to the Constitution is to be
approved or not. But does this really mean that the Regions have the power
to amend the Constitution? The answer can be found in Art. 138 It Const.
itself. First of all, the final paragraph states that “no referendum may be held
if the law has been approved by each Chamber, in the second vote, with a
majority of two thirds of its members”, in other words the Regions can only
call for a referendum if the amendment has been approved in the second
reading with an absolute majority, but not a majority of 2/3s. Second, is
holding a referendum to approve or disapprove a proposal that was debated
and voted in Parliament without the involvement of the Regions enough to
consider the Regions as one of the subjects that has the power to amend the
Constitution? The answer is clearly negative, because the Regions are
confronted with a take-it-or-leave-it situation and have no way of modifying
the proposal by presenting their own amendments.
On the contrary in federal systems the member states have a central role
in amending the Constitution. This is the case in the United States of
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America where the amendments to the Constitution have to be ratified by
3/4 of the Legislatures or Conventions of the States. Art. 79.2 of the
German Basic Law states that a law amending the latter “…requires the
affirmative vote of two thirds of the members of the Bundestag and twothirds of the votes of the Bundesrat”. In this case the participation of the
Länder in the amendment procedure is ensured by the fact that the Bundesrat,
the upper house where they are represented has to approve the changes. It
is interesting to note that there is an absolute limit to constitutional
amendment in Germany contained in Art. 79.3 which states that “an
amendment of this Basic Law affecting the division of the Federation into
Länder, the participation in principle of the Länder in legislation, or the basic
principles laid down in Articles 1 and 20, is inadmissible”. An interesting
comparison can be made with Italy where according to Art. 139 It. Const.,
“the Republican form of the State may not be changed by way of
constitutional amendment”.
3.5. Statutes of Autonomy or Constitutions?
Another element could be taken into consideration in distinguishing
between federal and regional states and that is the existence of sub-national
constitutions. In other words some commentators argue that if the member
states have their own Constitution then we are in the presence of a federal
state; if this is not the case then the form of state is regional. This theory is
undoubtedly well founded, but in many cases the fact that the member
states of a federal system have their own Constitution is due to what the
German jurist Carl Friedrich defined as a “federalising process”, the classic
example being the United States, which went from the Confederation of
1776 to the Federation introduced with the Constitution of 1787. The
evolution of this country’s form of state was dynamic and progressive in
nature and of course before the creation of the Federation all the states of
the Confederation had their own Constitution, which they kept. In any case
it should be underlined that in the United States the state constitutions are
subordinate to the US Constitution and the laws of the United States (i.e.
federal law) but they take precedence over state law. From a certain
standpoint this might also appear to be a problem of nomen iuris. In fact,
given their position in the system of legal sources is there really substantial
difference between the State Constitutions in the United States and the
Statutes of Autonomy of the Italian Regions? If the regional statutes were
renamed “constitutions” this would not in itself transform Italy into a
federal state (see Chapters Seven and Twelve)
3.6. No Decentralisation without Taxation?
Finally, there is an element which is important for both federal and
regional states that we should not ignore i.e. the financial arrangements that
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exist between the central government and the sub-state entities. On one
hand if the sub-state entities are deprived of financial resources then of
course it means that the autonomy they have is merely on paper, but in
practice they are prevented from exercising their powers. If the sub-state
entities do have financial resources made available then we should ask
ourselves a series of questions. For example which level has to pay for the
exercise of specific functions by the sub-state entities? Which level disposes
of which sources of income? Are there any transfers or grants from the
central government level to the sub-state entities? Is there a control of substate government borrowing?
The fiscal powers and financial resources of the Italian regions are dealt
with in detail elsewhere this textbook, therefore it suffices to underline that
in deciding the way tax-raising powers and financial resources should be
shared between the central government the following aims must be pursued:
efficient allocation of resources, equity, stabilisation, economic growth,
regional balance, national integrity and political stability.
4. Forms of Government: a Synchronic Analysis
In par. 2 we looked at the historical developments of the form of
government with particular reference to the absolute monarchy and the
constitutional monarchy. Let us now turn to the different forms of
government that exist today, bearing in mind that it makes sense to classify
forms of government if one is in the context of a democratic pluralistic
state, given that in an authoritarian or totalitarian state there is no real
separation of powers and a system of checks and balances (see par. 2.4.1.).
One needs to be careful when classifying forms of government because
as Robert Elgie, Lecturer of Politics at the University of Limerick, observes
“most writers arrive at their preferred classification of regime types by
conflating two distinct types of properties… in order to avoid the charge of
conceptual ambiguities it is necessary to classify regimes on the basis of one
type of property or the other but not both”. From a strictly legal
perspective, in fact, the study of forms of government should be carried out
by referring solely to legal elements, i.e. one should simply examine the
formal legal rules concerning legitimisation, relationship between
institutional bodies, existence of a separation of powers and so forth. From
a politological perspective, on the contrary, the aim is not to examine the
realm of what should be (sollen), but the realm of what is (sein), regardless of
the constitutional and statutory provisions in force. Of course, a jurist that
merely describes the “law in the books” but not the “law in practice” will
render a poor service to his readers, but one has to concur with Elgie when
he asserts that in any case “it is better to classify regime types on the basis of
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their dispositional properties rather than their relational properties”. But
what are the dispositional properties? According to Elgie there are three:
first, whether there is both a head of state and a head of government or
whether just one institution is to be found; second whether or not the
incumbents of these institutions are popularly elected; third whether or not
the incumbents serve for a fixed term.
4.1. Parliamentary Executive
The origins of the parliamentary form of government are to be found in
Great Britain although the Office of the Prime Minister and the Cabinet has
evolved as a matter of political expediency and constitutional practice rather
than by law given that the country does not have a codified constitution.
While Robert Walpole is regarded as having been the first Prime Minister
(although he did not recognise the title) the resignation of Lord North – the
Prime Minister who lost America – in 1782 is considered an important
moment in the evolution from a constitutional to parliamentary monarchy.
Up until that moment the King had the power to appoint and to dismiss the
Prime Minister and the rest of the Cabinet. On the contrary in 1782 having
accepted the resignation of Lord North King George III realised he had no
choice but to appoint a Prime Minister he knew would have the majority in
Parliament, i.e. Charles Watson-Wentworth, the Marquess of Rockingham
who was the leader of the largest group in Parliament, the Whigs, and who
had already been Prime Minster in 1765. Although Rockingham died
suddenly and therefore remained in office for only fourteen weeks this was
the first time the majority in Parliament managed to emancipate itself from
the Monarch. Another crucial event occurred in 1832 soon after the
approval of the Reform Act when the struggle between Parliament and the
Monarch came to head. In 1834 King William IV, who was opposed to the
reforms that were being introduced by the Whig majority in Parliament,
decided to dismiss the then Prime Minister Lord Melbourne and replace
him with the Tory Robert Peel. Peel was however unable to obtain a
majority in Parliament in the subsequent elections of 1835 and the King was
forced to reappoint Lord Melbourne: this will be the last time a Monarch
will dismiss a Prime Minister of his own accord. In other words, de facto the
King lost what remained of his executive powers and the Prime Minister
and the Cabinet became an autonomous body.
Again the way the parliamentary executive came into being in other
countries, such as France, Germany and Italy, was of course different to that
of Great Britain given the fact that the latter does not have a codified
constitution and that most of the rules concerning the Prime Minister, the
Cabinet and Parliament are contained in constitutional conventions and not
acts of Parliament. However, it is true to say that the salient features of the
British parliamentary system can be found in other parliamentary executives.
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First of all the quintessential element of the parliamentary form of
government is the relationship of confidence between the Executive (i.e. the
Prime Minister and the Cabinet) and Parliament. Furthermore, bearing in
mind the dispositional properties indicated above, this form of government
has both a Head of State and a Head of Government.
Second, in a parliamentary monarchy such as Great Britain or Spain, the
Head of State will be determined on a hereditary basis, while in
parliamentary republics the president is elected by Parliament: in either case
the incumbent is not popularly elected. With regard to the Head of
Government, strictly speaking he is not elected directly, however many
commentators argue that in so-called majoritarian parliamentary forms of
government where the Executive has a stable parliamentary majority prevail
de facto the Head of Government is popularly elected. This of course will
depend on the electoral law and the political system that exist in a given
country. If we have a plurality/majority system or proportional
representation with a premium of seats (as is the case in Italy following the
approval of a new electoral law in 2005) that ensures a healthy majority and
two main parties or coalitions then the election of the Head of Government
is going to be very similar to a popular election because in practice the Head
of State will have no choice but to appoint the leader of the winning
party/coalition no matter what the Constitution establishes (see Art. 92.2 It.
Const., Art. 99.1 Spanish Const.). As a matter of interest, one should bear in
mind that in Great Britain, on the contrary, a constitutional convention
establishes that after an election the leader of the largest party will be invited
by the Queen to form a government and become Prime Minster. In all these
cases we have a popular election senso latu of the Head of Government. If,
on the other hand, one has proportional representation without a premium
in seats together with a multi-party political system then the appointment of
the Head of Government will depend on the number of members of
parliament obtained by each party/coalition: Belgium and Holland being
two good examples from this point of view.
With regard to the third dispositional property, the term of office of the
Head of State is of course for life if we are in the context of a parliamentary
monarchy or it will be for a fixed term if we are in the presence of a
parliamentary republic (Italy’s President remains in office for seven years,
the German Bundespräsident for five). On the contrary, the Head of
Government does not have a fixed term. If the Government has a strong
majority then it is highly likely that the Head of Government will remain in
office for the entire duration of the legislature, however, it is possible to
change the Head of Government without this automatically provoking the
dissolution of Parliament. This occurred quite recently in the United
Kingdom when the Labour Party (which has a solid majority in the House
of Commons) decided to replace Tony Blair with Gordon Brown, but it
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may also occur in Germany, one of the most stable parliamentary
democracies in the world (with just eight Chancellors since 1949), by using
an instrument known as the “constructive vote of no confidence”. While in
most parliamentary democracies a motion of no confidence approved by
Parliament against the Government would trigger the resignation of the
Executive (this is the case in Italy, see Art. 94.5 It. Const.), in Germany it is
not quite like that. According to Article 67, German Basic Law “(1) The
Bundestag can express its lack of confidence in the Federal Chancellor only by
electing a successor by the majority of its members and by requesting the
Federal President to dismiss the Federal Chancellor. The Federal President
must comply with the request and appoint the person elected. (2) Fortyeight hours must elapse between the motion and the election” (italics
added). Art. 68 goes on to state that “(1) If a motion of the Federal
Chancellor for a vote of no confidence is not assented to by the majority of
the members of the Bundestag, the Federal President may, upon the proposal
of the Federal Chancellor, dissolve the Bundestag within twenty-one days. The
right to dissolve lapses as soon as the Bundestag by the majority of its members elects
another Federal Chancellor. (2) Forty-eight hours must elapse between the
motion and the vote thereon (italics added). In other words, unless it is the
Chancellor himself/herself that asks for and loses a vote of no confidence
then the Federal President cannot dissolve the Bundestag. In other words if
the majority of members of the House have no confidence in the
Chancellor in office they must be capable of electing a successor in order to
replace the Chancellor in office.
Finally, a few words must be spent on the power of dissolution. Formally
this power is nearly always exercised by the Head of State, but substantially
this may not always be the case (an exception being Sweden where the
power of dissolution is exerted by the Government). If a Government with
a comfortable majority in Parliament is coming to the final year of the
legislature it may ask the Head of State to call elections because it is
performing well and is ahead in the opinion polls. In the United Kingdom
the parliamentary term may not last for more than five years, but it usually
lasts no more than four years. An exception was 1992-1997 under the Major
Government due to the fact that a deeply divided Conservative Party
constantly trailed in the polls and Major never had a favourable moment to
ask the Queen to dissolve Parliament. It thus came as no surprise when the
Labour Party led by Tony Blair obtain a landslide victory in the 1997
elections and the Conservatives were swept out of office. If, on the
contrary, we are in the context a parliamentary system where there are no
clear majorities in parliament and the government falls quite frequently then
the Head of State will have far more discretionary powers. Here the power
of dissolution he exercises is both formal and substantial (also see Chapters
Five and Eight).
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4.2. Presidential Executive
The prototype of the presidential form of government is of course the
United States and the system introduced with the Constitution of 1787. This
regime type has been imitated, in particular, by countries in Central and
South America, but also countries in Asia and Africa. Due to the different
social and political context, however, the system has often been adapted so
as to give the President powers that he would not have in the United States,
such as the power of dissolution of Parliament. This has often given rise to
extremely unstable governments and moves towards forms of authoritarian
presidentialism.
If compared to the parliamentary form of government the dispositional
properties of the presidential system are diametrically the opposite.
First, the Head of State and the Head of Government are combined into
one institution, the President. Furthermore, the latter is completely
separated from the legislature i.e. Congress (composed of the House of
Representatives and the Senate). In other words, there is no relationship of
confidence between the President and Congress. This does not mean that
the two institutions do not interact because, on one hand, the President has
the power to veto legislation enacted by Congress while, on the other,
Congress has the power to impeach the President. Under Art. II, Sect. 4 of
the US Constitution, Congress has the power to impeach the President for
“treason, bribery or other high crimes and misdemeanours”. The House of
Representatives acts as the prosecutor and must initiate any impeachment
proceedings, while the Senate is the jury, and must take a two-thirds vote to
remove a President (unlike other countries the US Supreme Court does not
take part in the impeachment procedure). It is interesting to note that
Alexander Hamilton – one of the United States founding fathers – in No.
65 of the Federalist Papers underlines that impeachment is based on English
parliamentary practice. Many historians believe that impeachment (i.e. a
judicial instrument) in England actually developed into the present day vote
of no confidence (i.e. a political instrument).
Second, the President is popularly elected. It is important to underline
that when referring to the United States one has to use the expression
“popularly elected” coined by the Dutch political scientist Arend Lijphart
and not “directly elected” because strictly speaking when US citizens vote in
the presidential elections on the second Tuesday in November every four
years they actually vote for the presidential electors who then meet in
January to elect the President. It is an indirect, but popular election because
if a presidential candidate obtains the majority in the electoral college then it
is a foregone conclusion that he will be elected President given the fact that
although in most states the presidential electors are not obliged by law to
vote for the candidate of their party, it is very rare that they do otherwise.
However, a demonstration of the fact that this is not a direct election Art. II,
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Sect. 2 US Const. states that if no presidential candidate has the absolute
majority then it will be the House of Representatives that will choose the
President.
Third, the President serves for a fixed term of four years and can be reelected once. As indicated above, Congress can only impeach the President,
but it cannot vote a motion of no confidence in order for him to resign. The
last President to end his term early was Richard Nixon in 1972 who resigned
following the famous Watergate scandal and the initiation of an
impeachment procedure, while John F. Kennedy’s promising presidency
was abruptly brought to an end when he was assassinated in Dallas in 1963.
4.3. Directorial Executive
This form of government is present in only one country in the world,
Switzerland, although some commentators argue that a directorial executive
also existed in Uruguay between 1951 and 1966 because, as is the case in the
Swiss system, there was a collegial Head of State, whereas others disagree
because the ministers were responsible towards Parliament and furthermore
Uruguay at the time was a democracy in transition.
Given that this Executive is an unicum in the context of comparative law
let us look very briefly at its characteristics again using the dispositional
properties indicated in par. 4 to distinguish it from the other forms of
government that we have examined so far.
Switzerland’s form of government is based on the one provided for in
the French Constitution established during the Thermidorian Reaction in
the French Revolution. Known as the Constitution of Year III in the
French Republican calendar, it was prepared by the Thermidorian
Convention. The Constitution of 1795 established a bicameral legislature
and a five-man Directory. This model was brought to Switzerland by the
French Army in 1798 when the Helvetian Republic was created. While
unsuccessful in France, this form of government proved to be perfectly
functional in Switzerland and, as a result, it was confirmed in the
Constitutions of 1848 and 1874 and was maintained even in the present
Swiss Constitution approved in 1999. It has to be said that this system can
only be fully understood if one takes into account the peculiar
characteristics of the country. It is common knowledge that Switzerland
comprises a plurality of ethnic, linguistic and religious communities that
have a centuries old tradition of autonomy at cantonal level. Switzerland is
therefore a nation not in an ethnic, but political sense. The various
communities favoured the creation of a collegial institution that like the
presidential system combines both the Head of State and the Head of
Government. The difference between the presidential system and the
directorial system being that the President of the United States is
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monocratic, while the Federal Council (Conseil fédéral, Bundesrat, Consiglio
federale) is collegial.
The Federal Council, composed of seven members, is not elected
directly but by the Federal Parliament (i.e. the House of Representatives and
the Senate), however there is no relationship of confidence between the
Council and the Parliament. In fact, the Council has a fixed term of four
years (again a similarity with the presidential system and a difference with
the parliamentary system). The Council is chaired by the President of the
Confederation who is elected among the seven members and remains in
office for one year. More precisely, according to Art. 175 Swiss Const. “The
Federal Parliament shall elect, for a term of one year, one of the members of
the Federal Council as President of the Confederation, and another as VicePresident of the Federal Government. These mandates may not be renewed
for the following year. The President of the Confederation shall not be
eligible to be Vice-President for the following year”. One should emphasise
that regardless of the existence of a President each member of the Council is
of equal rank and holds a cabinet portfolio assigned by common agreement
with his or her colleagues. Since 1959, the Swiss have used a so-called
“magic formula” according to which two members of the Council come
from each of the three large, centrist parties: the Social Democrats (SP), the
Free Democrats (FDP) and the Christian Democrats and one seat from the
rightist People’s Party (SVP), thus creating a unique system of government
by consensus. This “magic formula” changed in 2003, when the SVP
obtained more votes that the Free Democrats (FDP) and Social Democrats
(SP) to become the country’s largest party and was given a second seat, at
the expense of the waning Christian Democrats. The “magic formula” came
under threat again in the October 2007 elections when, once again, the
right-wing People’s Party (SVP) won the parliamentary elections and its fiery
leader Christoph Blocher, Justice Minister in the outgoing Federal Council,
demanded to be re-elected. This failed because the other three parties joined
forces and elected another more moderate member, Eveline WidmerSchlumpf, to the Federal Council. There can be no doubt, however, that the
last two parliamentary elections have put Switzerland’s traditional model of
consensual government under strain.
4.4. Semi-presidential Executive
On 8 January 1959 just seven months after the approval of the
Constitution of the French Fifth Republic, an article appeared in Le Monde
written by its founder Hubert Beuve-Méry. The title was De la dictature
temporaire au régime semi-présidentiel: for the first time the term “semipresidential” was used to describe the Executive that was introduced in
France in 1958 – a term that was then be adopted by the great French jurist
Maurice Duverger – which combines elements of both the presidential and
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the parliamentary forms of government. Although the French Fifth
Republic is considered the prototype of the semi-presidential system, this
form of government was actually adopted for the first time in the Weimar
Constitution of 1919 (according to some one of the causes of the rise of
Nazi-socialism) and already existed in Finland (1919), Austria (1929), Ireland
(1937) and Iceland (1944).
In France the semi-presidential form of government was adopted
following the institutional and political crisis of the Fourth Republic caused
by weak and unstable Governments, on one hand, and the War in Algeria,
on the other. Undoubtedly the then President of the Republic, Charles de
Gaulle, played an important role in bringing about the approval of the new
Constitution and was even more decisive in introducing the direct election
of the President of the Republic in 1962 with a presidential referendum,
which many, however, considered to be a breach of the 1958 Constitution.
Once again the three dispositional properties can be used to illustrate the
salient features of this form of government and the differences with respect
to the other systems examined in the previous paragraphs.
First of all, unlike the presidential and directorial systems, in the semipresidential form of government there is both a Head of State and a Head
of Government, although it should be noted that according to Art. 9 French
Const. “The President of the Republic shall preside over the Council of
Ministers” therefore, from a certain standpoint, he also exercises executive
powers. This is why some commentators define it as being a “bicephalous”
executive system.
Second, the President of the Republic is elected directly (since 1962).
Here, unlike the United States, the President is not just “popularly elected”,
but more precisely “directly elected” on the basis of a two-round voting
system. If no presidential candidate obtains the overall majority in the first
round there will be a run-off election two weeks later between the two
candidates that obtained the highest number of votes. The Head of the
Government on the contrary is appointed by the President of the Republic,
but as in a parliamentary executive he (and the Council of Ministers) must
have the confidence of the majority of members of the National Assembly,
the French lower house. The election of the President of the Republic and
the National Assembly do not take place at the same time; therefore one
may have “cohabitation” i.e. a President of one party and a parliamentary
majority of another. In this case the system will work more like a
parliamentary rather than presidential system given the fact that the
President will be forced to appoint as Prime Minister someone that has the
support of the majority in the National Assembly. In order to minimise the
risk of situations of cohabitation, in 2000, the term of the President of the
Republic was reduced from seven to five years (the same fixed term as the
National Assembly). As a result the last two Presidential and parliamentary
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elections took place in a close space (leading some to talk of a “four-round”
election) and ensured that the majority in National Assembly corresponded
to party of the President. Furthermore, in July 2008 a series of other
amendments were made to the French Constitution including the
introduction of a two mandate limit to the term of office of the President of
Republic.
Finally it should be noted that as in a parliamentary system, according to
Art. 12 French Const. “the President of the Republic may, after consulting
the Prime Minister and the Presidents of the assemblies, declare the
National Assembly dissolved”, however the President cannot exercise this
power of dissolution in the year following the election. It should also be
underlined that the President should exercise this power with prudence. In
1997 the then President Jacques Chirac decided to dissolve the National
Assembly and hold early elections with the aim of strengthening the centreright majority, but to his misfortune the move backfired and the socialists
won giving rise to the longest period of cohabitation in French history
(1997-2002).
Very briefly, one can actually sub-classify semi-presidential systems into
three categories: first, semi-presidential systems where the Prime Minister
prevails (this is the case of Austria and Ireland where although the President
of the Republic is elected directly the Executive is de facto parliamentary);
second, semi-presidential systems which are based on a diarchy or clear
separation of competences between the Prime Minster and his government,
on one hand, and the President of the Republic, on the other; this is the
case of Finland and Portugal (although recent constitutional amendments to
the Lusitanian Constitution have moved the latter closer to the systems
adopted in Austria and Ireland); finally there are semi-presidential systems
where the President plays a central role and this is the case of France (when
of course there is no cohabitation).
Finally, an interesting case is represented by Bulgaria: according to Art.
1.1. Bulgarian Const., “shall be a republic with a parliamentary form of
government”, but then Art. 93.1 goes on to state that “the President shall be
elected directly by voters for a period of five years by a procedure
established by law”. Many comparative scholars argue this is a classic
example of the paradoxes that may emerge from so-called “constitutional
self-qualifications”, while others – mainly political scientists – point out that
regardless of the theoretical-legal definition one can give of a certain form
of government, in practice Bulgaria works like a parliamentary and not a
semi-presidential system and therefore the fact that the President is elected
directly is unimportant.
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4.5. Quintum Genus? The Prime Ministerial Executive
Conventionally, most commentators consider there to be four forms of
government: parliamentary, presidential, directorial and semi-presidential.
These in turn may be sub-classified depending on whether the Head of
State, the Head of Government or the legislature play a leading role. Could
one however affirm that there is, in fact, a fifth form of government? Many
scholars argue that the regime-type that existed in Israel between 1992 and
2001 (used in the elections of 1996, 1999 and 2001) was an autonomous
form of government because – in line with theories developed in France by
jurists such as Maurice Duverger or in Italy by Serio Galeotti, Giovanni
Bognetti and Augusto Barbera, the Prime Minister was elected directly. In
Italy this debate is of particular interest because since the 1990s at all substate levels of government the Head of the Executive is also elected directly
with a one-round or two-round voting system and is generally considered to
work functionally. On the contrary, the direct-election of the Prime Minister
proved to be a failure and consequently the Israelis returned to a
conventional parliamentary system, which included the constructive vote of
no confidence adopted in Germany.
Many commentators point out three main reasons for this failure: first
the election of the Prime Minister took place at the same time as the
election of the Knesset, the Israeli Parliament, but voters were given two
separate ballot papers and many resorted to split voting i.e. they chose the
Labour or Likud candidate and then voted for another party for the Knesset.
Second, the winning candidate was not assured a majority in Parliament,
unlike the sub-state elections in Italy where the party lists connected to the
winning candidate are given a premium of seats thus ensuring that the Head
of the Executive has a comfortable majority in the assembly. Third and
probably most importantly, in the Israeli case there were no less than eight
cases of so-called “special elections” i.e. direct popular elections of the
Prime Minister without the dissolution of the Knesset and fresh parliamentary
elections. Again this is unlike the system adopted at sub-state level in Italy
where the resignation of the Head of the sub-state Executive or a vote of no
confidence provokes fresh elections of the latter, but also dissolution and
new elections of the assembly on the basis of a rule commonly know as aut
simul stabunt aut simul cadent (“we stand together, we fall together”, also see
Chapters Four and Five).
But can this system be considered an autonomous form of government
or is it merely a sub-type of the parliamentary or semi-presidential
executives. Once again Elgie’s dispositional properties can be used to give
an answer to this question, so let us apply them to the system that was
adopted in Israel.
First, is there both a Head of State and a Head of Government? Well if
we take the historical example of Israel (1996-2001) then undoubtedly there
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was both a Head of State and a Head of Government: this is something it
had (and still has) in common with all other parliamentary executives and it
is the distinguishing feature with respect to presidential and directorial
executives.
Second, are the Head of State and the Head of Government popularly
elected? The Head of State was (and still is) elected by the Knesset as in a
parliamentary form of government. Of course we already know that the
Head of Government was elected directly, but was this really a
distinguishing feature? In par. 4.2. we underlined that the President of the
United States is “popularly elected”, but strictu sensu he is not elected directly
by the voters, but by the electoral college. If this is the meaning to be given
to the second aspect when classifying on the basis of dispositional
properties then it is correct to state that this is not an element which
distinguishes the system that existed in Israel between 1996 and 2001 and
parliamentary regimes such as the United Kingdom, Germany and Spain.
In other words if we take the first two dispositional properties there
would appear to be no substantial difference between this supposed quintum
genus and the parliamentary form of government.
Let us turn to the third property: do the incumbents (the Head of State
and the Head of Government) serve for a fixed term. Again there is no
ambiguity with regard to the Head of State. Art. 3 of the Basic Law: the
President of the State (1964) establishes that the Head of State shall be
elected by the Knesset for seven years and will serve for one term only. As we
saw in par. 4.1. similar provisions can be found in all other parliamentary
republics and of course in parliamentary monarchies Heads of State have a
life term. What about the Head of Government? Here there could be a
significant difference with respect to the parliamentary form of government.
The question is whether the term of office has to be clearly stated (in the
constitution or in a statute law) or whether one can establish a fixed term
implicitly? Depending on the answer we give to this question, the aut simul
stabunt aut simul cadent rule can play a truly decisive role.
As we saw in par. 4.1. in parliamentary forms of government the Head of
Government has neither an explicit nor implicit fixed term of office.
He/she will often remain in office for the entire term of Parliament, which
is always codified. In Israel according to Art. 8 of the Basic Law: The
Knesset (1950), the term of office of the Knesset is four years, but the
directly-elected Prime Minister’s term in office was not implicitly four years
as the provisions on special elections clearly proved. Four years is also the
term of the Bundestag in Germany and the Congreso in Spain, while in Britain
the term of the House of Commons is five years. Usually the term of office
of the Bundeskanzler, Presidente del Gobierno and the Prime Minister will be the
same as their respective parliaments, but this is not always the case as we
saw earlier.
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But what happens if the term of office of one institution is strictly
related to that of another institution? Can this be considered a fixed term?
Once again the system adopted at regional and local level in Italy
demonstrates the argument. The term of office of the regional, provincial
and town councils are all five years. With a rigid application of the aut simul
stabunt aut simul cadent rule this means that implicitly Presidents of Regional
Executives, Presidents of the Provinces and Muncipal Mayors have the
same term of office as their respective councils. If the Chief Executive
resigns or loses a vote of confidence then there will be fresh elections of
both the latter and of the respective assembly. This does not necessarily
happen in a parliamentary system as we saw in the United Kingdom in 2007.
If one is to sustain the argument that there is a fifth form of government
then the aut simul stabunt aut simul cadent rule is clearly the distinguishing
feature with respect to other systems, in particular the parliamentary
executive, rather than direct election given that in many parliamentary
systems the Head of Government is the result of a popular election sensu
latu.
Finally, it should be underlined that those scholars that accept the
existence of a fifth form of government, do not agree on what it should be
called. Maurice Duverger defines it as “neo parliamentary”, the Spanish
constitutionalist Eduardo Virgala Foruria “semi-parliamentary” and the
Swiss jurist Bernard (Baruch) Susser’s “parliadential”. Herein we have opted
for the term “Prime Ministerial”.
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PARLIAMENT
LORENZO CUOCOLO
SUMMARY: 1. The Structure: “Perfect Bicameralism” – 2. Distinguishing Features of the
Chamber of Deputies and the Senate – 3. Electoral Systems, Incompatibility,
Inelectibility and Checks on Powers – 4. The Status of Members of Parliament – 5.
Parliament’s Autonomous Powers – 6. Internal Organisation of the Chambers of
Parliament – 7. Joint Sessions of Parliament – 8. The Functions of Parliament.
1. The Structure: “Perfect Bicameralism”
The Italian Constitution of 1948 endowed Parliament with a position of
primary importance, making meaningful changes compared to the system
under the Statuto Albertino.
First, it is necessary to consider for a moment the systematic framework
of the Constitution. The breakdown of the titles and enumerated matters
and the bodies of the State, in fact, give us an idea of the division of roles
and the different relative weight of each. The Constitution devotes Title I of
Part II to Parliament, placing it at the beginning of the frame of government
contained in the Constitution. The choice is meaningful, also when
considering that in the Statuto Albertino the sections governing Parliament
only came after a broad treatment of the powers of King and Crown, to
whom even the opening articles of that constitution were dedicated. As
regards the current Constitution, the symbolic value of locating Parliament
at the beginning of the first title of Part II is in line with the fundamental
principle, expressed in Art. 1, It. Const., pursuant to which sovereignty
belongs to the people, who must exercise it using the forms and means
provided for in the Constitution. And well it is, as the most direct
organisational connection with popular sovereignty is Parliament, which is
made up of representatives directly elected by the citizens. Therefore, in the
framework designed by the Constituent Assembly, it needed to be awarded
central importance in the organisation of state power. 28 articles of the
Italian Constitution are dedicated to Parliament, from numbers 55 to 82.
Whilst the quantity of articles dedicated to a body or matter is not decisive
in and of itself, it does reflect the weight that such a body was to assume in
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the original plans of the Constituent Assembly. In fact, one must not forget
that the Italian Constitution was prepared immediately after the end of the
Second World War and the consequent fall of the Fascist regime, which had
extended its rule for twenty years. Fascism had progressively eliminated the
democratic elements present in the Statuto Albertino of 1848, aiming to
replace the Chamber of Deputies with the Chamber of the Fasces and the
Corporations, thus eliminating any real democratic entities, in order to
favour an authoritarian form of state that concentrated power in the Head
of Government. The facts we have just recalled are the historical baggage
that participants in the Constituent Assembly carried (almost all were
representatives of the political forces which had opposed the Fascist regime)
when the drafting work began on a new constitution. The Constitution is
characterised by significant limitations on the executive power, all to the
advantage of Parliament. Among the first characteristics of Parliament that
emerges is its bicameral structure. The Chamber of Deputies and the Senate
of the Republic together comprise the Parliament of the Italian Republic.
The choice of a bicameral system was not taken for granted, and rather
in the Constituent Assembly alternative set-ups were also considered. Whilst
not pretending to be exhaustive, one should recall that in the different
historical State experiences there have been both bicameral parliaments (the
greatest part as far as numbers go) and unicameral parliaments (such as that
of the first plan of the French Constitution of the Fourth Republic), as well
as, in exceptional cases, tricameral, or even quadricameral, parliaments. The
origin of bicameralism takes us back to the English experience, where the
progressive polarisation between the aristocracy and democratic principles
led to the institution of the House of Lords and the House of Commons.
One then must highlight the fact that the bicameral system is generally
considered to be a necessary characteristic of federal systems of
government, where one chamber represents the interests of federal unity,
whilst the other represents the single states comprising the federation itself
(see the Chapter on Forms of State and Forms of Government). For
example, the United States Congress has been bicameral since the original
drafting of the Constitution of 1787. One can hold, however, that a precise
orientation or a theoretically preferable solution exists for each system, since
each historical experience has its own peculiar characteristics. Therefore the
possibility of transplanting models from one legal system to another must
be considered with notable prudence, if not outright suspicion. In an
attempt to enucleate the principal advantages of bicameral systems as
compared to unicameral ones, we may note, as regards the advantages of
bicameralism, that such (besides, as stated above, being substantially
essential in federal systems) allows greater prevention of possible abuses of a
single Chamber, and favours the making of more seriously thought-out or
considered decisions, as approval of both assemblies is required to comply
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with decision-making procedures. Finally, a bicameral system permits the
representation in Parliament of groups having common interests, as occurs
in the Irish Senate.
The principal advantages of the unicameral model may instead be
summarised by the notion of greater efficiency, directly proportional to the
streamlined nature of the parliamentary body. The promoters of
unicameralism highlight, in addition, the risks connected with a possible
disagreement between the two chambers, such to require either special
procedures of conciliation to break a logjam or having to put up with the
indefinite timing it may take to adopt laws. It has been said that the 1948
Italian Constitution provides for a bicameral system: a Parliament composed
of the Chamber of Deputies and the Senate of the Republic. However,
having considered all alternatives regarding the number of Assemblies a
system may have, we should make a distinction between “perfect” bicameral
systems and “imperfect” bicameral systems if we wish to understand which
of the two models actually characterises the Italian Parliament. The concept
of “perfection” or “imperfection” of certain bicameral systems is connected
to the degree of similarity existing between the two Assemblies. Such
similarity, as well, must be considered from at least two perspectives, both
structurally and functionally. For this reason, if the two Chambers are
“built”, or based, on the same criteria and if they exercise the same powers
or functions, we may speak of “perfect bicameralism”. If, to the contrary,
differences of composition or of powers and functions exist, such
bicameralism would be considered “imperfect”. Upon a closer look, we note
that cases of exactly identical bicameral parliaments have never occurred. It
is therefore more proper to speak of greater or lesser degrees of
“perfection” between two Chambers, whilst always keeping in mind that
some degree of difference, either in the structure or in the powers or
functions, will always be present. We can state, therefore, that the Italian
system is an example of “perfect bicameralism”, as the two Chambers have
strong similarities with each other, both structurally and functionally.
The choice of the 1948 Constituent Assembly was certainly original,
since the great majority of bicameral systems are characterised by a marked
“imperfection”, and thus evidence notable differences between the two
Chambers, either structurally (as in the British example, where the House of
Commons and the House of Lords have radically different structures and
bases) or functionally (as in the French example under the 1958
Constitution of the Fifth Republic, where the National Assembly was given
a privileged position both regarding legislative powers, as well as its
relationship with the Government, in comparison to those of the Senate).
The only system similar to the Italian one was that of the 1831 Belgian
Constitution, which was done away with under the 1993 constitutional
reform.
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2. Distinguishing Features of the Chamber of Deputies and the
Senate
The originality of the model was quite obvious to the participants in the
Constituent Assembly, as well as the related risks of an increase in
procedures and duplication of decisional processes. The demands to
introduce protective instruments of democracy, justified in light of the
particular situation Italy was going through at that time, mentioned supra,
nevertheless won the day, even though certain differences between the
Chamber of Deputies and Senate were kept, above all structurally and
organisationally. Based on the text of the Constitution, in fact, only the
Senate “shall be elected on a regional basis” (Art. 57.1, It. Const.). This
provision, nevertheless, does not involve a direct connection between
Senators and their regions of provenance, but to the contrary, refers only to
the drawing of Senate electoral districts, which are based on regional
boundaries. This is connected to the following provision, under which every
Region must have at least seven Senators, except for Molise, which has two,
and for the Valle d’Aosta, which has one (Art. 57.3, It. Const.). In addition,
the Constitution provides for notable differences between the Chamber and
Senate, both in reference to active and passive electorates, as well as in
reference to the number of members comprising the two Chambers.
By “active electorate” we mean the right to elect members of the
Assemblies. For the election of members of the Chamber of Deputies, the
Constitution does not contain special provisions, and therefore the general
principle stated in Art. 48, It. Const. is applied, pursuant to which all citizens
that have reached the age of majority (currently eighteen years, previously
twenty-one) are electors. Instead, to elect Senators, one must have reached
twenty-five years of age (see Art. 58.1, It. Const.). By “passive electorate”,
we refer to the possibility of actually being elected to one of the two
Assemblies. Differences exist between the two Chambers also as regards the
process of being elected. Deputies, to be elected, must have reached twentyfive years of age (see Art. 56.3, It. Const.), whilst to be elected as a Senator,
one must have reached the minimum age of forty years old (see Art. 58.2, It.
Const.). The differences that exist as regards both the active and passive
electorates bear witness to the will of the Constituent Assembly. The Senate
(from senex, which in Latin means elderly) was expected to be the more
“reflective” branch of Parliament, tasked with “cooling off” possible
exaggerations (or overreaching) of the “younger” lower Chamber. As
concerns the number of members of the two Assemblies, the Constitution
substantially provides for a 2 to 1 ratio of members between Chamber and
Senate. Deputies, in fact, total 630 members (Art. 56.1, It. Const.), whilst
there are 315 Senators (Art. 57.2, It. Const.). To this, we must add a further
particularity: to the elective Senators, in fact, additional Senators, those that
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are not elected by the people, must be added. Here, we are dealing with
“Senators for life” and “Senators for life by right”. The former (Art. 59.2, It.
Const.) total five members, named by the President of the Republic from
among citizens having particular merits of a social, scientific, artistic or
literary nature. It should be noted that it is not necessary to have Senators
for life, and therefore nominations are made at the discretion of the
President of the Republic. Over the past few years, there has been a dispute
as to whether the Senators for life had to total at most, five, or whether
every President of the Republic could actually name five, in addition to
those already serving. Currently, it appears that the first interpretation is
now favoured. That is, every President may name a number of Senators for
life to reach, together with Senators for life already in office, a maximum of
five. Currently (as of August 2008), the Senators for life are Giulio
Andreotti, Emilio Colombo, Rita Levi-Montalcini and Sergio Pininfarina.
Instead, Senators by law and for life (Art. 59.1, It. Const.) are the former
Presidents of the Republic that, upon stepping down from their presidential
position, automatically become Senators, unless they refuse to take office or
resign from the position. Currently (as of August 2008), the Senators for life
by right are Francesco Cossiga, Oscar Luigi Scalfaro and Carlo Azeglio
Ciampi (Italy’s last three Presidents).
Among the elements of “imperfection” of Italian bicameralism we
should finally recall the different terms of the two Chambers, originally
provided for by Art. 60, It. Const. It was in fact fixed that the Chamber of
Deputies would have a term of five years, as opposed to the six years of the
Senate. Such provision was nevertheless modified by Constitutional Law no.
2 of 1963, which standardised at five years the duration of both Assemblies.
Whilst there is no lack of differences between the Chamber and Senate, it is
nevertheless the case that with Italian bicameralism, the characteristics of
“perfection” clearly prevail. Even though such choice can easily be
understood, given the specific historical context in which the post-war
Italian Constitution was drafted, the current demands of greater procedural
streamlining and of a greater decisional responsiveness have shown the
necessity of a greater emphasis on the elements of “imperfection”, and the
avoidance of useless duplication between Chamber and Senate.
For this motive alone, all proposals on constitutional amendment over
the past years have aimed at increasing the structural and functional
differences between Chamber and Senate. However, none of the reform
plans have been successful. Changes leading to a new re-ordering of
Parliament therefore remain high on the agenda of necessary institutional
reforms, in order to provide greater efficiencies in the legislative process.
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3. Electoral Systems, Incompatibility, Inelectibility and Checks
on Powers
The formalities through which Members of Parliament (MPs) are elected
are called electoral systems. A comparative analysis shows how many
possible options exist to choose representatives of the people. Each
arrangement has its own system containing elements, which could hardly be
automatically replicated in other systems. It is nevertheless possible to
identify two principal “macro” categories, which reflect in a more or less
coherent way the various electoral systems which have specifically been
adopted. The first model is that of the proportional representation (PR).
Proportional systems involve the assignment of seats to electoral lists that
are presented for elections in proportion with votes actually obtained.
A second model, that of the majority systems, provides instead for the
assignment of the seat or seats being contested to the candidate or
candidates that have obtained the greatest number of votes in comparison
to the others. It is easy to understand that PR allows a more faithful
representation of the reality of the political forces in the field. However it
acts to the detriment of the stability of political majorities. The mechanisms
of PR, in fact, do not offer any incentives favouring the aggregation around
homogeneous “poles” of different political parties active in the country. On
the other hand, majority systems partially sacrifice the more direct political
party representation in favour of a clearly greater stability of the majority in
Parliament. Without going into further details, we should highlight the fact
that the theoretical models just mentioned are almost never applied or
enacted perfectly, leading to the creation of proportional models having
majoritarian influences, or of majoritarian models with proportional aspects.
We then experience convergent dynamics departing from theoretical purist
models, and reach ever more complicated forms of hybridisation, which
seek a perfect balance between representation and stability. In addition, a
decisive influence over the electoral system is held by the size of the
constituencies (electoral districts), or rather the portion of the territory
where candidates run for office and are concretely assigned seats. These can
be uninominal (if in the district a sole candidate is elected) or plurinominal
(if, to the contrary, in the district more candidates are elected). The
plurinominal districts can be small (having, for instance, 10 seats) or large
(30 seats). In fact, whilst generally (but there are exceptions to the principle)
uninominal districts are often connected with majoritarian systems,
plurinominal districts are usually linked with proportional mechanisms, a
proportional formula of this last type, applied to smaller electoral districts
has selective effects similar to those of the majoritarian systems.
This endless search for equilibrium has also marked the Italian system. In
Italy, in fact, the electoral system of Parliament is not provided for by the
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Constitution, but is governed by ordinary laws, since it was believed that it
would need rather frequent adjustments, incompatible with the demands of
stability consonant with the idea of constitutional norms. Few remember,
nevertheless, that the Constituent Assembly approved, on 23 September
1947, an agenda in which it declared that “the election of members of the
Chamber of Deputies must occur using proportional means”.
As for the system actually adopted, from 1948 to 1993, it was markedly
proportional. The most significant attempt to introduce majoritarian
reforms was in 1953, with Hon. Scelba’s proposal opposed most strongly by
the Communist opposition. A clear-cut reform of the electoral system was
made in 1993, following a direct popular referendum to repeal the norms of
the Unified Electoral Law that provided for proportional election of
Senators. The referendum was greatly successful, with elevated voter
participation, but this was above all due to unrelated reasons. In that period,
in fact, Italian public life was being shaken by a wave of continuous and farreaching judicial investigations, above all by the Prosecutor of the Republic’s
office in Milan, which had uncovered serious cases of political corruption.
This consequently led to a large number of MPs also being investigated for
quite serious crimes. The massive voter participation in the electoral
referendum and the consequent strong vote in favour of a majority system
was, it is believed, more a reaction to the unbearable political crisis
unfolding at the time, than a conscious and thought-out choice for a
majority electoral law. However, the referendum was approved with 77.1%
of voters participating, and with 82.7% voting in favour, leading to a
subsequent rapid amendment by Parliament of both the electoral law of the
Chamber and that of the Senate.
The result was the adoption of a new electoral system, with certain
differences between Chamber and Senate, but which was substantially cast
as a majority system, under which 75% of total seats were to be assigned.
The remaining 25% were instead to be assigned using PR.
The 1993 reform had substantial support in public opinion and
permitted a tacit change in the form of government, leading the Italian
model towards a form of parliamentarism where the Government prevailed.
This has been considered in detail in Chapter Three.
Despite the recent adoption of the majority system that had contributed
to the consolidation of a bipolar model (although not yet bipartisan in
nature, since the number of parties remained as numerous as before), under
Law no. 270 of 21 December 2005, Parliament carried out a subsequent new
reform of the electoral system, this time towards PR. The new law, heavily
criticised by Italian constitutionalists, provides for a proportional system
based on block lists, to be compiled by the leaders of the various parties.
This means that the elector can cast his or her vote only for a predetermined political list, without being able to choose a single candidate on
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that list. Among the characteristics of the new law, then, there are
majoritarian correctives as well, evidencing the process of hybridisation
mentioned above. Specifically, a premium of extra seats for the coalition
that obtains the greatest number of votes has been introduced in order to
strengthen the stability of the parliamentary majority. Without getting into
the details of the system of the Chamber and that of the Senate, it suffices
to say that the new law did not obtain positive results when first applied to
the 2006 general elections. The centre-left coalition that eventually won at
the ballot box, in fact, had a very narrow parliamentary majority and in 2008
was then defeated in a vote of no-confidence. The subsequent general
elections in 2008, however, saw the centre-right coalition led by Silvio
Berlusconi win a landslide victory both in the lower and upper Chambers. It
should be noted, however, that soon after the 2006 elections a referendum
was promoted to change this heavily criticised electoral law: unless
Parliament intervenes to make changes to the electoral system this
referendum will take place between April and June 2009 (in accordance with
the Constitution, the referendum was postponed for a year because of the
2008 general election).
Having clarified the cardinal principles governing the operation of the
current electoral system, we should state that the Italian Constitution refers
to ordinary legislation (except certain cases directly mentioned in the
Constitution) to govern cases of ineligibility and incompatibility. By
ineligibility, we refer to all situations, detailed under the law, which prevent
the election of a citizen as a deputy or a senator. By incompatibility, we are
instead referring to all situations, provided for by law, which force the
citizen elected as a deputy or senator to choose between the parliamentary
position and a previously accepted position or office.
Causes of ineligibility and incompatibility are governed by Unified Law
no. 361 of 30 March 1957. The most important causes of ineligibility include
holding the office of mayor in municipalities having more than 20,000
inhabitants, holding the position of prefect (head of a prefecture),
employment by foreign governments, or having particular economic
relationships with the State (for instance, being a concessionaire of a public
service). Much more numerous are the cases of incompatibility, some of
which are specifically enumerated in the Constitution. Among the most
important incompatibilities is that between being a deputy and senator, that
between being a Member of Parliament and President of the Republic, and
that between being MP and member of the Superior Council of the
Judiciary, as well as that between MP and the board of directors of a Statecontrolled corporation. Once declared elected by the Electoral Offices, MPs
assume their functions, but they are subjected to a further “check on their
powers”, as outlined in Art. 66, It. Const.
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Such a check, which has its historical origins in the validity check on the
powers of attorney given by represented parties to their representatives in
the first assemblies, is carried out by the Chambers themselves. Historically,
this is a sign of independence (originally from the King, and later from the
Executive). We should highlight the fact that each Chamber carries out this
check on powers on its own elected members, and therefore there is no
interference between the Chamber of Deputies and Senate, who follow their
own review procedures provided by their respective rules and standing
orders.
4. The Status of Members of Parliament
Each MP has certain special guarantees that put him or her in a
privileged position in comparison to other citizens. Such prerogatives,
nevertheless, are not to be understood as privileges of the individual elected
officials themselves, but rather, on the contrary, as instruments aimed at
protecting the proper operation of Parliament as a whole. The first
guarantee provided for MPs is the prohibition against imperative mandates,
enacted pursuant to Art. 67, It. Const. It states that “Each Member of
Parliament represents the Nation; members shall carry out their duties free
from imperative mandate.” The provision is evidently directed at avoiding
an excessively close bond between MPs and their electoral districts of origin.
In substance, the Constitution declares that representation in Parliament is
national and is not tied to geographical areas (despite Senate election “on a
regional basis”) or even more to local electoral constituencies.
The prohibition against imperative mandates serves therefore to separate
the political mandate from the private mandate, which instead involves the
existence of specific legal ties between the representative and the
represented.
This guarantee, product of historical legal heritage going back to the
French Constitutions of the Revolutionary period (for example, the
Constitution of 1791), takes on particular importance in uninominal
majority systems, where the elected official’s identification with the
electorate in that district is particularly evident. This cannot be said for the
current electoral system that even provides for a system of block lists as
mentioned above. Nevertheless, it should be noted that the tie of a mandate
can also be created between political parties and elected officials. This is
much more so in the current Italian system, where compilation of electoral
lists is substantially subject to the wishes and whims of the parties. The
provision in Art. 67, It. Const., also covers similar situations, and
consequently the relationship between the MP and his or her party of
affiliation cannot affect the legal status of the former. This means that in the
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event of a dispute between political party and MP, the former can only
impose limited penalties on the latter (for instance, he or she can be thrown
out of the party), but the will of the party can never interfere with the
representative relationship that the MP actually carries out in Parliament, at
least up until the following general elections.
The second and more important form of guarantee given to every
Member of Parliament is provided by Art. 68, It. Const. It deals with socalled “parliamentary immunity”, which was significantly modified by
Constitutional Law no. 3 of 29 October 1993. This change was made
necessary by the particular political situation of that period. As previously
mentioned, the Italian political class was at the centre of a maelstrom of
recurring judicial scandals and public opinion showed signs of increasing
impatience with the excessive forms of protection granted to MPs who were
under investigation. Upon a closer look, Art. 68, It. Const. provides, in its
first and second subsections, two quite different situations. The first
subsection grants criminal immunity for MPs. The second subsection, on
the other hand, provides for immunity against prosecution. We should
analyse the two provisions separately.
Art. 68.1, It. Const., states that MPs shall not be called to answer for
opinions expressed or votes cast in the exercise of their functions. This
means that Deputies and Senators cannot be held liable, either civilly or
criminally, or in any other way, as a consequence of their activities and
duties as representatives of the Nation. The legal rule, evidently, aims at
guaranteeing each Member of Parliament the widest freedoms of expression
and exercise of the obtained political mandate. Such guarantee is considered
not to be subject to time limits, and that continues in effect, protecting
those who subsequently are not re-elected as MPs for the activities carried
out whilst in office. We should note that the Constitution makes reference
to opinions and to votes made whilst in office. This presents us with two
interpretative problems. In the first place, one wonders if the concept of
“opinions” covers factual behaviour, such as, for instance, participation in
protests or demonstrations. Secondly, one wonders how widely the concept
of “exercise of functions” extends, and whether such immunity only covers
strictly parliamentary activities or all political activities. The practice
immediately following the 1993 constitutional reform clearly showed the
prevalence of the extensive interpretation, aimed at annulling the restrictive
effects which was considered in reality by the change in Art. 68, It. Const.,
which eliminated the necessity of obtaining prior authorisation to take
action against MPs. Such practices, nevertheless, have been buttressed by
certain decisions of the Constitutional Court which, especially beginning
with decisions nos. 10 and 11 of 2000, only permitted the extension of
immunity outside Parliament if the behaviour in question fully coincides
with that expressed within Parliament. In light of this imposition by the
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Constitutional Court then, one may hold that the operational margin of Art.
68.1, It. Const. has been significantly reduced.
The second paragraph, instead, prohibits subjecting MPs to personal or
house searches, to arrest or to other interference with personal liberty,
without prior authorisation from the Chamber they are member of. Similar
prior authorisation is required to arrest and detain MPs, unless the action is
taken in furtherance of an irreversible criminal sentence, or if they were
caught in the act of committing a crime for which arrest flagrante delicto is
mandatory. Finally, prior authorisation of the Chamber concerned is
required to submit MPs to wire-tapping or monitoring of any form, either of
conversations or communications, as well as for seizure of correspondence.
Without getting into the details of the individual provisions, one must
highlight the fact that, following the 1993 reform, the so-called
“authorisation to proceed” is no longer required (this was the authorisation
the judge had to request from the Chamber or the Senate to merely
commence investigations of a Member of Parliament). As we stated earlier,
the reform was made necessary by the overly-liberal use of the shield of the
requested prior authorisation to proceed that MPs often used to block
investigations not having any political implications. It is worth noting that in
the decade preceding the reform, only 20% of the authorisations requested
by the judiciary were granted. The final guarantee provided by the
Constitution for MPs is the allowance, mentioned in Art. 69, It. Const. In
reality, the Constitution merely limits itself to providing for the existence of
an allowance, approving the principle that the parliamentary mandate cannot
be fulfilled gratuitously, and thus affording all citizens the opportunity to
take elective office (unlike that which occurred in the Nineteenth-century
liberal experience: the Statuto Albertino expressly barred MPs from receiving
allowances).
5. Parliament’s Autonomous Powers
After outlining the prerogatives and guarantees every MP enjoys, we will
now consider the prerogatives of each Chamber taken together as a whole.
Before starting, we should specify that the two branches of Parliament are
theoretically autonomous and independent of each other, and there is no
(except in rare cases) interference between the functions of the Chamber
and Senate. Perfect bicameralism, therefore, also means independence of
each of the two Chambers, for instance, as regards the checks on power
procedures (internal to each Chamber), the adoption of parliamentary rules
(different for Chamber and Senate), and in general all organisational and
operational aspects. With this understood, we can summarise the
prerogatives of each Chamber under three fundamental principles:
regulatory autonomy, financial autonomy and self-rule.
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As provided in Art. 64.1, It. Const., every Chamber shall adopt its own
standing orders (rules of procedure) by majority vote of its members. There
are therefore separate rules of procedure for the Chamber of Deputies and
for the Senate of the Republic. Standing orders, being the most important
source governing the organisation and operation of the Chambers, must be
approved by an absolute majority, that is having a number of favourable
votes that at least presumably, goes beyond contingent political orientation.
For a long time, there have been arguments on the position of
parliamentary standing orders in the system of the sources of law. Without
considering the matter in greater detail, we must mention that if, on the one
hand, standing orders are internal to the Assembly which issues them, on
the other, they also have external effects. This is most evidently confirmed
in Art. 72, It. Const., which reserves to standing orders the discipline of
approval procedures for proposed laws. When considering the question of
the hierarchical position of these procedural rules in the Italian system of
sources of law, one should note how, whilst formally not being legal sources
of a legislative character (also since they have been adopted by only one
Chamber), they are nevertheless immediately subjected to the dictates of the
Constitution, in the sense that there are no other sources of law governing
standing orders other than the Constitution. This permits us to consider
them as reserved sources of a quasi-primary character.
The standing orders currently in force were both approved in 1971, and
subsequently underwent important changes in 1997 and then in 1999.
We should mention, for completeness, that along with the general
procedural rules of the Chamber of Deputies and the Senate special rules
governing internal organs also exist in both branches of Parliament (and
therefore, there are rules relating to the cabinet, to committees, etc.), as well
as regulations covering personnel, administration, accounting and still other
matters. These special rules, nevertheless, are made subordinate to the
general parliamentary standing orders.
The second prerogative mentioned above is financial autonomy
(independence). This means that each Chamber singly prepares and
approves its own budget, without interference by the other branch of
Parliament, nor, obviously, by the Government. In addition, the budgets of
the two Chambers are not subject to review by the Court of Accounts.
Finally, let us consider the concept of self-rule (autodichia - the Greek
origin of the word expresses the domestic jurisdiction which each Chamber
enjoys). This means that everything happening inside parliamentary
buildings is subject to the sole jurisdiction of the Chamber or the Senate.
These powers have the goal, as is understandable, of protecting Parliament
from undue interference by the Judiciary. They also involve sensitive issues,
especially when considering that such domestic jurisdiction also extends to
employment disputes concerning parliamentary employees, with the risk
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that fewer legal protections might be available for the latter in comparison
to those provided for other employees.
6. Internal Organisation of the Chambers of Parliament
While the internal organisation of the two Chambers is only minimally
governed by the Constitution, and mainly by each Chamber’s standing
orders, there are however certain meaningful differences between the
organisation of the Chamber of Deputies and that of the Senate.
Nevertheless, the unifying principles between the two are clear, so that we
are able to provide a valid description for both branches of Parliament. Art.
63, It. Const. provides that each Chamber elect from among its members a
Speaker and a Speaker’s Office, both of which are necessary bodies. The
constitutional provisions are supplemented by the parliamentary standing
orders. Without going into further details, both for the Chamber of
Deputies and the Senate, the Speaker must be elected by a qualified majority
(in order to have as extensive a representative basis as possible).
Rather, we should recall that actually up to the 1993 electoral reform,
normal practice provided that the Speaker of one of the two Assemblies was
to be named by the parliamentary opposition. The situation changed after
the 1994 general elections when the two Speakers were chosen by the
parliamentary majority, damaging the above-the-fray super partes image that
Speakers of the Italian parliamentary assemblies had traditionally enjoyed.
The Speaker of the Assembly plays a substantial role of great importance,
since he or she directs parliamentary work and, in addition, he or she carries
out an essential duty in the planning out of the calendar of parliamentary
tasks and workload. There are certain important differences between the
two Speakers. That of the Chamber of Deputies, in fact, must also preside
over Parliament in joint session of its members. Instead, the Speaker of the
Senate substitutes the President of the Republic if the latter is unable to
perform his duties. Both for the Chamber of Deputies and the Senate, the
offices of the Speaker are composed of the Speaker, four vice-speakers,
three quaestors and eight secretaries, chosen so as to give additional
representation to the parliamentary opposition.
Among the other parliamentary organs, we should especially note the
parliamentary groups as well as the commissions (commissioni) and
committees (giunte). Parliamentary groups are organisational structures that
bring together MPs based on their different political affiliations. In other
words, the groups constitute the representation of the parties inside the
Chambers. To form a group, one needs to have a minimum number of MPs
(20 deputies of 10 senators). It is nevertheless provided that those who do
not wish to join one of the established groups can enroll (or rather, must) in
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the so-called “mixed group”, which does not hold specific political views
and that, as noted, brings together deputies or senators that do not join one
of the other groups. The principal function of the groups is that to follow
and monitor the course of parliamentary work.
As regards enquiry commissions, for example, the rules provide that they
must be composed in a way that reflects the existing ratios among
parliamentary groups. The parliamentary commissions instead constitute the
most important organisational unit for the Chambers’ operations.
Comissions can be either permanent or temporary in nature. The most
important ones are obviously the first ones, and they are distinguished based
on the subject matter they deal with. In accordance with current rules, there
are 14 in the Chamber of Deputies and 13 in the Senate. For instance, there
is the constitutional affairs commission, the social affairs commission, the
agriculture commission, the budget commission and so on. Up until the
1990s, the commissions corresponded in large part to the Ministries making
up the Executive. Currently, following a cycle of administrative reforms in
the last few years (which has also impacted Government organisation), there
has been a substantial decoupling of the commission system from that of
the Ministries. The commissions, even those formed to mirror the
proportions among the various parliamentary groups, have various
functions, including one of primary importance. By express provision of the
Constitution (Art. 72.1, It. Const.), in fact, commissions must necessarily
participate in legislative proceedings, examining proposed laws (bills) before
consideration on the Assembly floor. Among the special temporary
parliamentary commissions, the most important are the enquiry
commissions that, according to Art. 82, It. Const., can be set up for reasons
of public interest. The particular importance of such special commissions
derives from the fact that they can act with the same powers and the same
limitations of the Judiciary, and going beyond, in certain situations, the
principle of separation of powers. There have also been discussions on the
possibilities of setting up bicameral enquiry commissions, not just
unicameral ones. Despite the silence of the Constitution on this point, such
a possibility has received much attention in actual practice. For instance, a
bicameral enquiry commission regarding organised crime was set up. We
should finally recall the parliamentary committees (giunte parlamentari), which
have to a certain point developed different functions in the Chamber of
Deputies and the Senate. The committees are named by the President of the
Assembly and are made up of deputies or senators. As well in this case, they
are appointed based on the criterion of proportionality (as compared to the
parliamentary groups). Of particular importance is the Committee on Rules
which is present in both Assemblies and has the task of interpreting
standing orders in the event. Also for the operation of the Chambers, the
norms are set partially in the Constitution and partially in standing orders.
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Convocation of the Chambers is up to their respective Speakers, who
have the power to set daily agendas. As for the validity of parliamentary
resolutions, the Constitution provides (see Art. 64.3, It. Const.) that the
decisions of each Chamber of Parliament shall not be valid unless a majority
of the members are present and a majority of those present are in favour.
Two considerations must be made at this point. First, the Constitution
requires a majority of MPs only for votes on resolutions, and therefore not
also for the floor discussions or related preliminary activities, which in fact
often occur in the presence of much less than half the MPs. Besides, in
actual practice, a majority of MPs does not always take part in the votes of
the Assemblies, since the existence of the quorum is assumed until proven
to the contrary. This means, nevertheless, that at any time the opposition
can demand (primarily for filibustering) the parliamentary quorum to be
verified.
Moving on to an analysis of voting systems, the rule is that of open
votes, almost always using the electronic voting system. Only in exceptional
cases is secret voting resorted to. In addition, there are cases in which the
Constitution itself requires an open vote (the most important examples of
these concern votes on a confidence or no-confidence motion against the
Executive).
7. Joint Sessions of Parliament
Art. 55, It. Const. provides that Parliament shall hold meetings of the
members of the Chamber of Deputies and the Senate only in those cases
provided for under the Constitution. Therefore, the rule is that the Chamber
of Deputies and the Senate meet separately in virtue of the already noted
principle of autonomy between the two Assemblies. There are exceptional
cases, instead, in which the two branches of Parliament meet in joint
session. When Parliament meets in joint session it is presided over by the
Speaker of the Chamber of Deputies and, by custom, it sits in Palazzo
Montecitorio, the home of the Chamber of Deputies. Also based on custom
is the application of the standing orders of the Chamber to any work
undertaken there, as is compatible with the powers that the organ has been
called upon to exercise. Parliament meets in joint session of its members to
exercise electoral powers, criminal procedure powers or powers of scrutiny.
The first category includes election of the President of the Republic (Art.
83, It. Const.: in this case, to Parliament in joint session are added the
regional representatives), the election of a third of the members of the
Superior Council of the Judiciary (Art. 104, It. Const.) and the election of
five (one-third) of the justices serving on the Constitutional Court (Art. 135,
It. Const.).
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The criminal procedure powers concern the resolution to formally
charge the President of the Republic, if accused of high treason or attempts
to overthrow the Constitution (Art. 90, It. Const.).
Finally, as regards powers of scrutiny, Parliament in joint session (no
longer with the participation of the regional representatives) is called upon
to accept the oath of loyalty of the President of the Republic (Art. 91, It.
Const.), which implicitly evidences the newly-elected President’s acceptance
of the position.
8. The Functions of Parliament
The first function of Parliament that normally comes to mind it is the
power to legislate. The importance of this power is undeniable, but it is not
the only one, nor was it historically the first power exercised by parliaments.
Particularly as regards the Italian Parliament, in addition to the power to
legislate, there are also decisional and monitoring/control powers. We
should also mention that, in a system where the legislative process is
dominated by the Government, the power to legislate is not perhaps the
most important power exercised by the Chambers.
To truly understand what this power of Parliament consists of, it is
necessary to have a clear idea of the forms of government outlined in the
preceding chapter. Italy has a parliamentary form of government and this
means that the Executive must have the express confidence of both
Chambers.
It is not enough that the relationship of confidence is only present when
the Government assumes power. On the contrary, it must continue to
maintain it throughout its term of office. A result of this is that the decisionmaking or directional activities carried out by the Chambers also do not end
with the initial motion of confidence, but are firmly present in institutional
activities, even though this takes on different forms. Among the examples
of maximum importance of the Chambers’ political decision-making
activities are the approval of budget and financial laws and resolutions,
through which Parliament directly participates in the political direction of
the State. One should note, in addition, that based on Art. 81, It. Const.,
proposed budgets must necessarily be introduced by the Government (here
we are dealing with a situation of reserved legislative initiative), and this
subsequently increases the value of political decision-making involved in the
approval of the relative draft laws (bills) by the Chambers.
Other particularly useful tools for expressing the Chambers’ political
decision-making role are motions and resolutions. The former aim at
promoting approval by the Assembly of a given matter. The latter aim at
evidencing positions or define potential decisions regarding specific matters.
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The activity of decision-making is closely linked to that of scrutiny or
control. One must, however, distinguish between cases in which powers of
scrutiny are applied to the work of the Government and cases in which
control activities are directed at getting factual or circumstantial information
outside of the normal exercise of governmental powers.
In the first group, an inseparable bond emerges between control and
decision-making, since the outcome of one affects the other, and vice versa.
The instruments available to the Chambers to exercise powers of political
control consist of questions, interpellations and enquiries.
Every MP can direct to the Government (in writing) a question to verify
the truthfulness of facts and the information in the possession of the
Government. Recently, parliamentary standing orders have introduced socalled “question time”, that relates to the ability to ask questions requiring
immediate answers to be held on a weekly basis, to which the Government
answers directly on the Assembly floor (obviously orally), with a three
minute time limit for answers.
Interpellations are instead inspectional questioning powers, since they
aim to uncover the motivations for specific actions of the Executive or the
intentions of Government policy as regards given facts or circumstances.
The last tool of scrutiny and control is that of parliamentary enquiries.
These can be carried out by an ad hoc commission, pursuant to the
provisions of Art. 82, It. Const. Whilst already dealt with earlier, it is worth
recalling the particular details of this last instrument, since parliamentary
enquiry commissions (both mono- or bicameral) act with the same powers
and limitations of the Judiciary, and are able, for instance, to hear witness
testimony, request the production of documents and carry out inspections.
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THE GOVERNMENT
ANTONELLO TARZIA
SUMMARY: 1. Definition and Historical Profile of Institutions – 2. The Government in
the Italian Constitution: Structure, Formation, Organisational Principles and
Functions – 2.1. Formation Procedure – 2.2. Structures, Organisational Principles
and Functions – 2.3. Non-essential Government Bodies – 3. Relationship with
Parliament – 4. Auxiliary Bodies.
1. Definition and Historical Profile of Institutions
In the Italian parliamentary system, the Government consists of bodies
that are distinct from Parliament and in part also distinct from Public
Administration; its function is to formulate and implement administrative
and political policies.
The importance of this definition derives from the use of the term,
“Government”, at times adopted to indicate the State organisation in its
entirety, or more specifically, that part where the State’s political direction is
centered, and at others to refer to all the bodies that carry out functions that
are neither legislative nor juridical, but fall under the term, “form of
government”, or “executive power” (also see the Chapter Three).
The ambiguity of the word is rooted in the historical evolution of the
institution that saw its founding and development in England. At the
beginning, the King chose and dismissed his Ministers and had a personal
relationship with them based on reciprocal trust. He gave them executive,
preparatory or just mere consultative powers. Following a long process
passing through the Civil War ending in 1649 and the Glorious Revolution
1688-89, the institutional development of Parliament culminated in its
transformation from High and Most Honourable Court into a modern
legislating body, the keystone of the constitutional monarchy. In drawing up
the Bill of Rights of 1689, the first act of constitutional rights in modern
times, the Lords and the Commons assembled in a full and free
representative of the Nation to reaffirm a titular monarchy which denied the
King the power to suspend the execution of laws or abolish them without
their consensus. The Act of Settlement of 1701 denied the principle of
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divine right rule by the monarchy and attributed vast powers to Parliament
regarding succession to the throne. Although it left the King his juridical
function (King in his Courts), it also affirmed two fundamental principles: 1)
Parliament could control the acts of Ministers by threatening to impeach
them, and 2) the irremovabilty of judges.
This Act affirmed the Supremacy of Parliament and reinforced the
formative statutes in the “open” system of sources by removing
autonomous legislative power from the King, the so-called King in
Parliament, and by concentrating in Parliament’s hands control over
government policy and the acts of the King’s Ministers who had to assume
responsibility for them. In the third decade of the 1700s, when Robert
Walpole, the leader of the political majority in the House of Commons,
became the “first among Ministers” or Prime Minister, the Cabinet began to
distance itself from the Crown to become Parliament’s “governing body”.
By the middle of the 1700s, the guidelines of a Cabinet Government were
firmly established: 1) the direct relationship between the Cabinet and the
House of Commons, 2) the relationship of confidence between the Prime
Minister and the electoral body, and 3) a form of parliamentary government
with a predominantly political executive body.
As for Italy, it unequivocally chose the form of parliamentary
government with the Constitution of the Republic. The previous document,
the Statuto Albertino of 1848, which with unification was extended to all of
Italy, was open to different legislative solutions so that either a
constitutional or a parliamentary monarchy would have been possible. Art.
65, Statuto Albertino proposed a purely constitutional government with a
single holder of executive power, the King, who was vested with the power
to appoint and dismiss his Ministers, which in the ambiguous terms of Art.
67, Statuto Albertino, were asked only to be “responsible”. In actuality a
hybrid solution developed in which a relationship of trust between
Government and Parliament developed alongside that between the King
and Government. The importance of such a relationship between
Government and Parliament became obvious to Cesare Balbo, the Prime
Minister under the Kingdom of Sardinia, who, upon the approval of the
Statuto, immediately turned to the Chamber of Deputies to get its consensus
of his policies. In the decades to follow, there were important exceptions to
this, i.e. when Italy entered into World War I without Parliament’s approval.
Decisions like this certainly contributed to the precarious nature of
Parliaments at that time, which in any case represented only a few tens of
thousand electors and had no rules to reinforce its relationship with the
Government.
The relationship between the Government and the King never
foundered and in times of crisis, took on the aspect of a “Government of
the King” as happened after the war of 1866 with the Menabrea
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Governments and in 1943 with the Badoglio Government. The relationship
of confidence with the King prevented the parliamentary form of
government from being fully affirmed as instead happened in Great Britain.
The figure of the President of the Council of Ministers gradually
assumed greater importance in an attempt to give unity and homogeneity to
a Government riddled at the base by “ministerialism”, that is by those
attempts to have “plural Government leadership” and put to one side its
collegiality. Various laws were passed in an attempt to overcome this
situation: the D’Azeglio Decree of 1850 vested the Council of Ministers
with the power to make certain decisions on government policy; Royal
Decree 3629/1867, (Ricasoli Decree), repealed after a short time, and
subsequently reintroduced in the legislation mentioned below, introduced
laws which established the functions of the President of the Council of
Ministers and gave him the power to coordinate the Government’s general
policy; Royal Decree 3289/1876, (Depretis Decree), attributed to the
President the power to maintain political and administrative uniformity;
Royal Decree 466/1901 (Zanardelli Decree, which remained substantially in
effect until 1988) gave greater importance to collegiality and limited the
autonomy of Ministers, and lastly, Law 2263/1925, abolished the vote of
parliamentary confidence and concentrated all decision making powers in
the Head of Government, thus arresting the development of the
relationship between Parliament and Government which would only be
taken up again when the Constitution of the Republic came into effect.
2. The Government in the Italian Constitution: Structure,
Formation, Organisational Principles and Functions
Art. 92.1, It. Const. defines the Government as a body “composed of
the President of the Council and of the Ministers, which jointly constitute
the Council of Ministers”. The “Government of the Republic”, has its own
constitutional autonomy with respect to the Head of State who is excluded
from any policy making but who may intervene in the formation of the
Government as a super partes body.
From the provisions of the Constitution, it clearly emerges that the
Government is a complex body formed by Ministries whose number is not
fixed by the Constitution. The provisions of the Constitution indicate the
essential bodies without which the Government could not exist which are
distinct from those non-essential bodies instituted as a result of a political
choice made by the President of the Council and the majority coalition,
within the limits provided for by ordinary law.
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2.1. Formation Procedure
Art. 92.2, It. Const. regulates the procedure for forming the
Government, according to which, “the President of the Republic appoints
the President of the Council of Ministers and, on his advice, the Ministers”
(also see Chapter Eight).
The provisions of the Constitution actually regard two distinct
procedures, the first culminating in the appointment of the President of the
Council of Ministers, and the second, in the appointment of Ministers upon
his advice. These rules only give a general indication of the procedure to be
followed, leaving the definition of the individual stages into which the
procedures are divided, up to custom and convention.
Procedures to form a new Government must be initiated when
Parliament’s term expires or with its anticipated dissolution, or when
Parliament is sitting and not dissolved, if a Government crisis makes a vote
of confidence necessary.
The transformation of the electoral system to one of majoritarian rule
during the 1990s, made it much easier to form a Government in the
aftermath of elections than was previously possible, because parties were
required to form their coalitions before elections were held. The majority
system enabled the electorate to clearly indicate the winning coalition and
parliamentary majority and the parties just as clearly to indicate the future
President of the Council of Ministers. This does not mean however, that the
Head of Government can be elected directly, given Italy’s form of
parliamentary government (see Chapter Three).
Some doubts have arisen whether the President of the Republic is
obliged to dissolve Parliament if there is a crisis of Government which
makes it impossible to re-form the political majority. This is a particularly
complex question, closely tied up to the incomplete evolution of the Italian
parliamentary system towards an integral form of majority rule.
A case in point is the 1995 crisis of the first Berlusconi Government
when the Northern League defected from the coalition that supported his
Government (with a political agreement limited to northern Italy from
which was excluded the National Alliance party, allied at the time with Forza
Italia and the Centre Christian Democratic party in the rest of Italy). The
President of the Republic at that time, Oscar Luigi Scalfaro refused to
dissolve Parliament because he felt his constitutional duty only required him
to take note of Parliament’s wishes and then determine whether a
Government capable of governing could be formed. The turning point of
1993 did not eliminate Government crises from the Italian political scene;
for examples, the 15th legislature only ended in 2008 after the President of
the Republic, Giorgio Napolitano, realised it would be impossible to obtain
a vote of confidence in Parliament for that Government.
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When a Government resigns, the Head of State holds formal
consultation talks in an attempt to resolve the crisis. This is a formation
stage not provided for by the Constitution but it has become a binding
constitutional custom and convention for the President of the Republic to
do so. To help him “interpret” the crisis, he consults essentially two
different groups: a) political leaders and presidents of parliamentary groups
charged with clarifying Parliament’s current political orientation, and b)
people who hold or who have held important positions in the Government
(former Presidents of the Republic, Speakers of the Chambers, former
Speakers of the Chambers, former Presidents of the Council of Ministers or
other people whose opinion is important to the Head of State because of
their position). It is much easier to carry out the consultation stage now than
it was before 1993 when political parties had to bargain with each other to
form a coalition agreement in the presence of the Head of State who was
called upon to designate the person most likely to transform the agreement
into a policy programme that would obtain a vote of confidence for the new
Government in Parliament (also see Chapter Eight).
Once he has concluded the consultations and has the information he needs
to resolve the crisis, the President of the Republic verbally charges a person to
form a Government that will be able to obtain a vote of confidence.
If doubts still persist the President may attempt an exploratory mission to
reduce any margin of uncertainty still present. Because of the position he
occupies, one of the Speakers of the Chambers is typically designated to carry
out the mission in Parliament to give the Head of State a better indication of
the direction he should take. However, the person entrusted with the
exploratory mission does not propose to constitute a Government himself. In
fact, the President will then ask someone else to form a Government.
The request to form a Government is generally accepted with “reserve”
that is dissolved only when the potential President of the Council of
Ministers ascertains whether or not the parties are willing to support the
Government. Once the reserve is dissolved, a Decree of the President of the
Republic nominates him President of the Council of Ministers.
The second stage in the formation of the Government opens with the
appointment of Ministers. Much has been written about the pressure political
parties put on the President of the Council of Ministers when it comes to
submitting the list of Ministers to the Head of State. Many feel that this is
unconstitutional since Art. 92.2, It. Const. provides for the President of the
Council alone to appoint the Ministers although this is an extremely formal
interpretation of the provisions in an attempt to separate the juridical moment
of the formation of the Government from the political moment behind it. What
sense would there be to prepare a list that all the parties did not agree upon
since the Government has to obtain a vote of confidence in Parliament?
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Once the list of Ministers is complete, the President of the Council of
Ministers proposes it to the Head of State who signs the official decrees
appointing them to office. According to the provisions of Art. 93, It. Const.,
“before assuming office, the President of the Council and the Ministers shall
swear an oath before the President of the Republic”, which is usually done
within 24 hours of their appointment.
With the swearing of the oath, the procedure to form the Government is
complete. It is followed by the first formal act of the President of the
Council of Ministers who countersigns the decrees appointing him and the
other Ministers to office. If elections result in a clear-cut majority, the time
required to complete the nomination process is brief with respect to that
required before 1993. For the present legislature, by means of four different
decrees dated 7 May 2008, the President of the Republic a) accepted the
resignation of the outgoing President of the Council of Ministers Romano
Prodi and his Ministers tendered on 24 January 2008; b) upon proposal of
the outgoing President of the Council of Ministers, accepted the
resignations tendered by the Under Secretary of State to the President of the
Council of Ministers and the other Under Secretaries of State; c) appointed
the Hon. Mr. Silvio Berlusconi President of the Council of Ministers, and d)
upon the proposal of Prime Minister Berlusconi, appointed 21 Ministers to
the new Government, of which 9 without portfolio. The next day the
Government gave its oath to the Head of State.
Once the Government gives its oath, it may exercise its functions while
awaiting its vote of confidence. Art. 94.3, It. Const. provides that “within 10
days of its appointment, the Government shall appear before each Chamber
in order to obtain its vote of confidence” by means of a motion the majority
coalition submits to each Chamber to be voted by roll-call.
Since there is a lapse of time between the oath and the vote, that is
period of time during which the Government holds office but does not have
confidence, many feel that the Government should not put its policy
programme into effect until it has Parliament’s vote of confidence and
should only take care of ordinary administration just like the resigning
Government does. The problem lies in defining the limits of ordinary
administration since non-urgent measures can easily wait for Parliament’s
vote. As the eminent Italian constitutionalist Livio Paladin pointed out, the
premise that the vote of confidence is the last stage in the procedure for
forming the Government is not acceptable because it would suppress
Government powers and obligations during the lapse of time in question to
a greater extent than necessary.
In fact, if the words, “ordinary administration” were to be interpreted as
meaning the prohibition of any political activity whatsoever, this would hold
true for the resigning Government as well as for the Government that is being
formed, with the consequence that Law Decrees that cannot be deferred,
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could not be adopted. On this point, the Constitution provides that when
the Government, under its own responsibility, adopts temporary acts having
the force of law in cases of necessity and urgency, it must submit them to
Parliament for conversion into law the same day. Even if Parliament has
been dissolved, it is expressly convened to meet within five days to convert
acts having force of law into law, so it is therefore constitutionally possible
to adopt a Law Decree as well. A constitutional body must always function;
hence a Government may adopt Law Decrees while it is waiting to obtain its
vote of confidence.
In the second place, when the Government presents itself to Parliament,
it has to have already adopted several acts, i.e. appointing Undersecretaries
who must be approved by Parliament when it gives its vote of confidence.
Whereas there are no constitutional limits to the activity of a
Government awaiting its vote of confidence, there are conventional ones.
As Leopoldo Elia points out, the only act the Government is barred from in
this stage is the countersigning of a Presidential Decree for the anticipated
dissolution of Parliament.
The Government does not depend on a vote of confidence to exercise full
powers but to the contrary, a vote of no confidence means the Government is
obliged to resign. In Italian law there exists no provision for dismissing
Ministers with the inverse procedure of that used for their appointment.
2.2. Structures, Organisational Principles and Functions
Art. 95, It. Const. outlines the organisational principles of the structures
provided for in Art. 92, It. Const., i.e., monocratic leadership, collegiality
and the political responsibility of individual Ministers.
a) The principle of monocratic leadership of the President of the Council of Ministers.
The first paragraph of Art. 95, It. Const. establishes “that the President of the
Council of Ministers shall conduct the general policy of the Government and
shall be responsible for it. He shall ensure the unity of general political and
administrative policies, promoting and coordinating the activities of the
Ministers”. This Article together with those on the procedure for forming a
Government, place the President of the Council of Ministers in a position of
supremacy which cannot be considered a mere primus inter pares with respect to
the Ministers. The provisions of the Constitution in fact must be interpreted in
the light of the dynamics of change in the form of government that enabled the
Executive branch to reinforce its position even in Parliament.
The first element to evaluate is the decision of the Constituent Assembly to
expressly provide for the figure of the President of the Council of Ministers in
the Constitution, whereas ordinary law regulates the Presidency and the number
of Ministers. Law no. 400, (“Regulation of Government Activities and the
Presidency of the Council of Ministers”), only approved in 1988, constituted a
fundamental step towards overcoming chromic weaknesses
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characterising the Presidency of the Council of Ministers due to the failure
to provide institutions to serve it. In fact it did not even have its own budget
and had to depend on funds from the Treasury Minister’s budget to operate.
The legislators of the 1988 law classified the powers of the President of the
Council of Ministers as follows:
i. Power to represent the entire Government. The President is vested with
this power vis-à-vis Parliament, a) when he presents his programme of
government during a debate on confidence or subsequently when he
requests a vote of confidence for certain government measures, b) in his
relationship with the Constitutional Court when after deliberation by the
Council of Ministers, the latters raises the question of constitutionality of a
regional law, or c) when the Government must judge the President of the
Council of Ministers because its attributes have been delegated to another
State power. His relationship with the Head of State is illustrated above
under the procedure for forming the Government. The law vests the
President of the Council of Ministers with the power/obligation to submit
to the President of the Republic: 1) laws to be promulgated, 2) drafts of bills
to present to Parliament, 3) texts of acts having force of law and regulations
to be issued and 4) other acts indicated by law. It is reasonable to think that
when the Head of State needs to be informed about the Government’s
general policy programme, his interlocutor could only be the President of
the Council of Ministers.
ii. Power to promote and coordinate the activities of the Government. The law
establishes that the President of the Council of Ministers shall: a) give Ministers
political and administrative directives so they can implement deliberations they
make on policy areas; b) coordinate and promote the activities of the Ministers
for decisions regarding the Government’s general political policy; c) suspend
the adoption of decisions proposed by competent Ministers on political and
administrative questions to bring them before the Council of Ministers at its
next meeting; d) draft together with the competent Ministers any public
statements above and beyond those of their normal ministerial responsibility,
which might involve the Government’s general policy; e) adopt directives to
ensure public administration’s impartiality, smooth functioning and efficiency; f)
promote the actions of Ministers to ensure public bodies carry out their activity
according to objectives set by law to define their autonomy in keeping with the
Government’s political and administrative orientation; g) exercise the attributes
granted him by law regarding security and secret of State; h) institute special
Ministerial committees to carry out a preliminary examination of questions of
common competence, express opinions on directives regarding the
Government’s activity and on problems of considerable relevance which must
be submitted to the Council of Ministers.
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b) The principle of collegiality. General domestic and international
Government policy, general administrative decisions that must be taken to
put this policy into effect and questions regarding the alignment of political
parties established with Parliament’s vote of confidence are all decided on
by the Council of Ministers.
Collegiality derives its central position, it is generally felt, from Art. 95, It.
Const. by which “the President of the Council of Ministers shall conduct the
general policy of the Government”, thus implicitly assigning the Council of
Ministers to determine how this will be implemented and gives them deliberative
competence on all Government activity. In the second place, it is to the Council
of Ministers that the Constitution makes implicit reference when it defines the
powers of the Government: legislative initiative (Art. 71.1; see also Art. 2.3,
letter b, Law no. 400/1988), the adoption of legislative decrees and law decrees
(Arts. 76 and 77, It. Const.; see also Art. 2.3, letter c, Law no. 400/1988),
presentation of the budgets and final balance to Parliament (Art. 81.1, It.
Const.); substitutive powers with which “the Government may act as a
substitute for Region, Metropolitan City, Province or Municipality authorities
whenever those should violate international rules or treaties or Community law,
whenever there is a serious danger for the public safety and security, and
whenever such substitution is required in order to safeguard the legal or
economic unity of the nation, and particularly in order to safeguard the basic
standards of welfare related to civil and social rights” (Art.120.2, It. Const., see
also Art. 8, Law no. 131, 5 June 2003) and raising the question of constitutional
legitimacy of regional laws before the Constitutional Court (Art. 127.1, It.
Const.; see also Arts. 2 and 3 letter d, Law no. 400/1988). The regulatory power
provided for by Art. 87.5, It. Const., refers to the regulations deliberated by the
Council of Ministers.
In conformity with the provisions of the Constitution, Law no. 400 specifies
the competence of the Council of Ministers to determine the general
Government policy and the administrative decisions to implement it. Within
this framework, the collegial body has competence to: a) resolve any conflict of
attribution between Ministers; b) approve the initiative of the President of the
Council of Ministers to submit a vote of confidence to Parliament; c) deliberate
decisions regarding Government policy and programme and questions to be
submitted to Parliament’s vote of confidence, directives for the Government
commissioner for exercising Regional administrative functions, motions raising
the question of conflict with other State bodies, Regions and Autonomous
Provinces, international and Community Government policy for treaties,
international agreements, laws regarding the relationship between the State, the
Catholic Church and other religions, motions to dissolve Regional Councils, and
to ensure legislative unity, the extraordinary annulment of administrative
provisions upon the advice of the Council of State or the annulment of
administrative provisions in Regions and
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Autonomous Provinces upon the advice of the Parliamentary Commission
for Regional Issues.
c) Principle of individual responsibility of Ministers for decisions of their own
Ministry. Leaving aside Ministers without portfolio for the time being, each
Minister is head of an administrative structure that carries out the functions and
oversees the policy area attributed to it by law, i.e. the Minister of Health, the
Minister of the Interior, the Minister of Justice etc. Starting in the 1990s the
principle of separation of policy and administration has gained favour. With this
principle, political bodies make decisions on objectives and programmes, that is,
they determine political and administrative policy. Administrative heads instead
are responsible for administrative and financial management and consequently
have been vested with power to adopt provisions, i.e. on the budget, outside the
Ministry’s competence. This does not change the principle of political
responsibility for Ministers who may be called in front of the Council of
Ministers and Parliament to answer for their actions and may even receive an
individual vote of no confidence as provided for by Constitutional Court
Decision no. 7/1996 when Parliament gave a vote of no confidence to the
Minister of Justice, Filippo Mancuso. If a Minister resigns there are two possible
outcomes: he is replaced or the President of the Council of Ministers or another
Minister replaces him ad interim, although for the President of the Council of
Ministers this hypothesis is not feasible because his resignation would lead to a
crisis of Government.
With regards the responsibility of Ministers for “offences committed in
the exercise of their functions”, until 1988, they were brought before the full
Constitutional Court for judgment. Constitutional Law no. 1 of 16 January
1989 instead amended Art. 96 of the Constitution which in its present form
provides that “the President of the Council of Ministers and the Ministers,
even if no longer in office, are subject to ordinary courts for offences
committed in the exercise of their functions, provided authorisation is
granted by the Chamber to which they belong, and if not a member of
Parliament, by the Senate of the Republic”. Punishments are those provided
for by the Criminal Code and may be increased by up to one-third for
extremely serious crimes.
2.3. Non-essential Government Bodies
Art. 92, It. Const. provides for the Government’s essential bodies, i.e.
those without which it could not exist, whereas Art. 95, It. Const. provides
for their organisational principles.
These provisions may be amended by both ordinary law and by
agreements between constitutional bodies involved in the Government
forming procedure to increase the number of Government Ministries. This
expression of the power constitutional bodies have to organise themselves
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and its recourse indicate that the Government is an open, flexible body,
within the respect of the principles of Art. 95, It. Const.
The following are non-essential bodies:
a) Vice Presidents of the Council of Ministers. Art. 8.1 of Law no. 400/1988
formalised the faculty established in the first 40 years of the Republic with
which the President of the Council of Ministers could propose to the Council
of Ministers that one or more Ministers be attributed with the functions of
Vice-President. The Head of State is not involved in this procedure whose
limits are established in respect of the principle of monocratic leadership as
provided for by Art. 95.1, It. Const. To create a balance among the parties of
the Government coalition, often the office of Vice Presidency is offered to
parties of minor importance in the coalition with respect to the President’s
majority party. For instance, the first Berlusconi Government had 2 Vice
Presidents who belonged to the second and third parties in order of importance
in the coalition. The present Government, Berlusconi IV, has not provided for
any Vice President so in accordance with the provisions of Art. 8.2, Law no.
400, should the President of the Council of Ministers be temporarily prevented
from acting and in the absence of any provision to the contrary he might make,
the oldest Minister in age will replace him. At a constitutional level, the figure of
the Vice President cannot be compared to that in a Presidential government
such as in the United States, where in case of the President’s permanent
impediment, resignation or impeachment, the Vice President replaces him with
full powers. In the Italian Government, this possibility is precluded by the first
paragraph of Art. 95, It. Const. which provides that “the President of the
Council of Ministers, appointed by the Head of State as illustrated above, shall
conduct the general policy of the Government” and shall not entrust it to other
bodies (as underlined by jurists such as Mortati and Paladin). In fact, a
restriction of his powers or attenuation of his responsibilities is incompatible
with the provisions of the Constitution. The President must conduct the
Government in such a way that should he be unable to preside over the Council
of Ministers, no decision may be adopted that goes against his directives or the
functioning of the collegial body. Since the Vice Presidency is a “flexible”
component of the Government body, the position may be legitimately revoked.
b) Ministers without portfolio. The traditional definition is “Ministers who
are not head of a Ministry” that is, of an administrative structure
corresponding to a sector of public administration. This is not an absolute
as events of recent decades have shown.
In this case as in the preceding one, it is the principle of self-organisation
that gives the President of the Council of Ministers, upon the advice of the
Council of Ministers, the faculty to single out homogeneous policy areas and
delegate them to Ministers without portfolio, who, to the contrary of Council
Vice Presidents, are nominated in the same way as Ministers with portfolio,
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that is, by the Head of State when the Government is constituted. The reasons
for nominating such Ministers have been and are still undeniably political
because they increase the number of positions to distribute. In many cases the
nomination of Ministers without portfolio has enabled persons of recognised
competence to become part of the Government, for example, Massimo Severo
Giannini, Minister of the Civil Service in the Cossiga I and II Governments.
Since then different homogeneous activity areas are considered so indispensable
that they have become institutionalised, i.e. “Civil Service” which in the present
Government is jointly assigned with “Innovation and Technology” to the
Minister without portfolio for “Public Administration and Innovation”. These
homogeneous activity areas are headed by the Presidency of the Council of
Ministers on which their relative Departments depend and from which they
receive funding, hence the expression “without portfolio”. Such
institutionalisation translates into permanent organisations, making the question
of whether or not Ministers without portfolio conform to the Constitution
superfluous. These Ministers should not be held “individually responsible for
the decisions of their own Ministries” since they do not have any Ministry to
serve them. The concept of the Government as an open and flexible body also
makes superfluous any discussion of Ministers without portfolio who existence
is justified on a purely political level with no administrative direction, i.e. the
Minister for Parliamentary Relations. A second change brought about by the
institutionalisation of these Ministers is a legislative one. Each time a law or
source of law assigns or delegates specific competences to a Minister without
portfolio, that is to specific offices or departments of the Presidency of the
Council of Ministers, the competences are automatically attributed to the
President of the Council of Ministers who may delegate them to a Minister or
an Undersecretary of State, as well as to the Presidency of the Council of
Ministers (Art. 9.2, Law no. 400). This is a mechanism similar to that utilised by
the President of the Council or another Minister to replace ad interim the head of
a Ministry if the position remains vacant.
It must be emphasised that in the Council of Ministers, Ministers without
portfolio and Ministers with portfolio work and vote in complete parity.
c) Extraordinary Government Commissioners. Originally named “high
commissioners”, and to the contrary of Ministers without portfolio, created as
bodies which headed administrative structures and not Ministries, for example,
the High Commissioner for Hygiene and Health between 1948 and 1958. The
successive creation of Ministries, for instance the Ministry of Health, caused the
commissioner position to be eliminated and consequently, the body was
transformed. In conformity with Art. 11 of Law no. 400, extraordinary
Government commissioners may be appointed to carry out special programmes
deliberated by Parliament or the Council of Ministers, or for a particular,
temporary need to coordinate activities between State
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administrations. The option to utilise this figure is justified by the need for
greater autonomy and operative agility in certain sectors or for matters
where the logic of Ministerial bureaucracy is not suitable. For this reason,
sectors of Government activity are detached from it and entrusted to
extraordinary Government commissioners.
For example, the extraordinary Commissioner for coordinating antiracket and anti-usury measures is appointed upon the proposal of the
Minister of the Interior and after deliberation by the Council of Ministers,
by means of a Decree of the President of the Republic according to the
procedure provided for by Art. 11.2, Law no. 400. His functions include
coordinating anti-racket and anti-usurer measures throughout Italy, and the
Presidency of the Committee for solidarity with the Victims of extortion
and usury instituted at the Ministry of the Interior. The Ministry examines
and deliberates requests for indemnity from the Solidarity Fund, thanks to
which people, who have suffered damage to their person or business
because they opposed extortionists’ requests, can receive as compensation a
donation with which they can rebuild their business.
To the contrary of Ministers without portfolio, extraordinary
Commissioners do not carry out any constitutional functions of a Minister
so they cannot countersign Presidential Decrees nor usually attend sittings
of the Council of Ministers (if they do, they cannot vote), they do not have
the immunity Ministers have and they are not politically responsible to
Parliament, but to the Government. For these reasons they are considered
upper-level bodies.
d) Undersecretaries of State. These bodies assist the Ministers or the
President of the Council of Ministers by carrying out tasks delegated to
them by a Decree of their respective body. They are appointed by a Decree
of the President of the Republic upon the proposal of both the President of
the Council of Ministers and the Minister the Undersecretary will assist,
having heard the opinion of the Council of Ministers. They are not part of
the Council of Ministers so they cannot take part in the formation of general
Government policy. After they are appointed they must take an oath in
front of the President of the Council. In some cases they are dismissed with
the same procedure used for their appointment.
Undersecretaries can deputise the Government in sittings of Parliament and
Commissions, intervene according to the directives of the Minister, answer
questions and interrogations. Of particular importance is the Undersecretary to the
Presidency of the Council of Ministers who is acting secretary for the Council of
Ministers and the closest collaborator of the President of the Council; the
Secretariat General of the Presidency of the Council of Ministers is the principle structure
providing political and legal advice to the President of the Council. The other
Undersecretaries at the Presidency of the Council of Ministers are distinct from
the Undersecretary to the Presidency and are equal
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to the undersecretaries that assist Ministers. In the present Government
(August 2008) there are, among others, Undersecretaries for Federal
Reforms, Legislative Simplification and Tourism.
e) Vice Ministers. Vice Ministers are Undersecretaries, not more than ten
in total, to whom competences have been delegated for one or more
Ministerial departments whereas the political responsibilities and power of
Ministers as provided for by Art. 95, It. Const. remain unchanged. The
delegation, conferred by the competent Minister, is approved by the Council
of Ministers upon the proposal of the President of the Council of Ministers
who may invite the Vice Ministers to attend Council sittings to report on
matters delegated to them, but without the right to vote (Art. 10, Law no.
400, as amended by Law no. 81, 26 March 2001).
f) Inter-ministerial Committees. These collegial bodies, constituted by
Ministers according to economic policy sector, have the same competences
as the Minister they are under and are obviously modelled after the Cabinet
Committees in Britain. There are two types of Committees: a) Interministerial Committees are instituted by law that determines their structure they are competent to deliberate particular subject matters and adopt acts
having external legal effect; b) Ministerial Committees, are instituted by a
Decree of the President of the Council of Ministers - they examine
questions of common competence, express opinions on directives regarding
the Government’s activities and on important problems to submit to the
Council of Ministers.
Among inter-ministerial committees operative today are CIPE, the InterMinisterial Committee for Economic Planning, CICR, the Inter-Ministerial
Committee for Credit and Savings and CIACE, the Inter-Ministerial
Committee for European Union Affairs. In particular, the CIPE establishes
the general outline for the economic-financial policy for Government
programmes, determines the policy for the various political sectors,
coordinating them on one hand with employment and development
objectives for depressed areas, and on the other, with conformity to
Community policy, approves investment plans and programmes and assigns
financing for their implementation, keeps account in its deliberations of
objectives met with respect to objectives programmed.
A sui generis committee is the Supreme Defense Council chaired by the Head
of State (Art. 87.9, It. Const.), and composed of the President of the Council,
by the Ministers of Foreign Affairs, Defence, Economics and Finance, Interior
and Productive Activities and by the Head of the General Defense Staff. This
committee was instituted by Law no. 624, 28 July 1950, and is competent to
examine general, political and technical problems of national defense and to
determine criteria and directives for organising and coordinating activities
within its area of competence. Law no. 25, 18 February 1997 extended its
competences so now the committee is responsible for
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examining fundamental decisions on national security and reinforcing the
liaison among the constitutional bodies responsible for formulating security
measures. Military and defense powers belong to the Government, which
must have Parliament’s approval to exercise these powers.
g) Cabinet Council. This body was first instituted in 1983 to coordinate
Government policy in coalition governments, and it has been instituted
many times since then. It filters and examines decisions that the Council of
Ministers must take. According to the provisions of Art. 6, Law no. 400, the
President of the Council of Ministers may be assisted in carrying out his
duties by a Committee that goes by the name of Cabinet Committee and is
composed of Ministers he appoints upon hearing the Council of Ministers,
as provided for by Art. 95, It. Const. The President of the Council may
invite other Ministers with specific competences to attend single sittings of
the Cabinet Council. The creation of a “little Cabinet” (or Inner Cabinet to
use the British term) with general political competences however, is not
compatible with the provisions of the Constitution; this possibility was
expressly rejected by the Constituent Assembly.
3. Relationship with Parliament
The Government’s political programme, that is the policy sectors where
it will operate, is determined by the Government-Parliament axis created
when confidence is obtained. This “dynamic” relationship is the core of
parliamentary government, even though recent transformations have tended
to reinforce the Executive branch.
Central to this analysis are the instruments the Government has available
to (co)determine its policy programme and put it into effect; a) power to
adopt law decrees and legislative decrees and to approve regulations and b)
power to direct State administration activities which influences how the
programme will be implemented. Just as important is the Government’s
capability of influencing parliamentary activity both in its planning stage and
in its actual legislative iter. In this aspect, the role played by parliamentary
standing orders is fundamental.
The first consideration centres round the elimination of the principle of
unanimity in setting Parliament’s agenda. Amendments to Senate standing
orders in 1988 and Chamber of Deputies standing orders in 1990 and then
again between 1997 and 1999, guarantee the Government a definitive period
of time in which to examine bills it proposes for carrying out its programme.
The parliamentary agenda is prepared on the basis of Government directives
and parliamentary group proposals. In the Chamber of Deputies, the agenda
is approved with the consensus of group presidents whose number is equal
to at least three quarters of its members; in the Senate instead, the agenda
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becomes final once it is communicated to Parliament if it is approved
unanimously. If the Conference of Parliamentary Group Leaders does not
reach an agreement, the Speaker, on the basis of indications from the
Conference, prepares an agenda for a one-week period. This agenda is
communicated to Parliament, and if there are no modifications, it becomes
final.
The second consideration, obviously connected to the first, revolves
around the Government’s decisional power in such sensitive sectors as
foreign, military, security, finance and EU policy.
Foreign policy refers to the Government’s relationship with other nations
and often means stipulating international treaties the Government negotiates.
Parliament’s role is outlined by Art. 80, It. Const.; “it shall authorise by law the
ratification of international treaties of a political nature, or which provide for
arbitration or judicial regulation, or imply modifications to the nation’s territory,
or financial burdens, or modifications to laws”. All other international
agreements are directly stipulated by the Government.
Military policy is regulated by Art. 78, It. Const. which establishes that
“Parliament shall resolve upon the state of war and confer the necessary
powers on the Government” and by Art. 87, It. Const., “the President shall
be the commander of the Armed forces; he shall be the chairman of the
Supreme Defense Council as constituted by law, and shall declare war when
it has been resolved upon by Parliament”. These are fundamental provisions
that in practice have operated ex post and in case of wartime emergency, the
Government first intervenes with a law decree providing for military
intervention and then Parliament subsequently ratifies the Government’s
provisions. This was the case when Italy intervened in Kuwait in 1990 after
the Iraqi aggression.
Intelligence and security policy consists of those acts necessary to protect
democratic institutions. Law no. 124, 3 August 2007 vests the President of the
Council of Ministers with “high supervision, overall political responsibility and
coordination of the national intelligence and security policy, the protection of
State secrets and the implementation of criteria for administrative bodies
entrusted with this task, the issuing and revoking of security nulla osta, the power
to appoint heads of security intelligence services and to determine the annual
amount of financial resources they receive”. The President of the Council of
Ministers also coordinates the gathering of security intelligence, issues directives
for implementing this, and upon hearing the Inter-ministerial Committee for
Intelligence and Security – of which he is the chairman and the Ministers of
Foreign Affairs, Defense, Justice and Economy and Finance are the committee
members – issues all directives necessary for the organisation and functioning
of the intelligence services for the nation’s security.
Economy and finance policy is undoubtedly one of the principle sources for
determining general Government policy. It regards financial measures, i.e.
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documents, budgets, financial forecasts, decree laws for annual and longterm budgets and final balances, financial law decrees and law decrees
connected to them, as well Financial System Stability Assessments sent to
appropriate Community bodies, all of which must first be submitted to
Parliament for approval. Parliamentary standing orders provide a
preferential track so the legislative procedure can be concluded by 31
December of the year before they go into effect.
EU policy regards relationships with the institutions of the European
Union and as for the economy and finance sector, the Government is the
principle body because it represents the Italian state in the Council of the
European Union.
The institutionalisation of the Presidency of the Council of Ministers, the
reform of parliamentary standing orders, the new electoral system and the
central position the Government occupies in Community decisions have
pushed the balance of power away from what was defined as “integral
Parliamentarism” (the central position of a weak Parliament and the absence
of any instruments enabling the Government to “guide” Parliament in
determining and implementing policy) and towards the Government. It is in
light of this rationalisation of parliamentary government that the
instruments to “verify” the relationship of confidence between Parliament
and the Government should be analysed:
a) vote of confidence. If the Government requests a vote of confidence for
one of its laws for political reasons, it does so because it is afraid it will not
be able to garner enough political consensus otherwise. In this way it forces
the political majority that supports it to take a clear stance. A Parliamentary
vote of no confidence means the Government must resign, but in light of
the paragraph on the formation of the Government, it also means a
probable dissolution of Parliament or at least a greater possibility of its
dissolution than before 1993;
b) motion of no confidence. One-tenth of the members of either Chamber
may present this motion; at least three days must pass before it can be
discussed in Parliament and if the motion passes, the Government is obliged
to resign giving rise to a crisis.
The modification of parliamentary standing orders has reinforced the
Government’s position. Questions of confidence now require open voting,
so each MP has to assume responsibility for his or her own vote. This was
not the case in the past when the vote was by secret ballot and often MPs of
the majority party voted against their “own” Government (these members
were referred as “snipers” because with the secrecy of the ballot box, they
voted against the indications of their own party or parliamentary group).
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4. Auxiliary Bodies
Improperly placed under Title III, The Government, the auxiliary bodies
provided for by Arts. 99 and 100, It. Const. are the National Council of
Economy and Labour (CNEL), the Council of State and the Court of
Accounts.
Auxiliary bodies are by common definition those institutions whose
functions require as a condition the primary functions of constitutional
bodies, in particular those of the Government and Parliament (as underlined
by Italian constitutionalist Giuseppe de Vergottini). It has been correctly
pointed out however that the functions are auxiliary, not the bodies and in
fact, the Constitutional Court clarified in Const. Court Decision 406/1989
that “auxiliarity means the Constitution directly attributes an auxiliary
institution to State bodies to help them carry out their functions in the most
efficient manner”. The words of the Constitutional Court deserve further
clarification.
Ever since the Constitution came into effect the choice to place
provisions on auxiliary institutions under the Title III dedicated to the
Government, has been the object of discussion. In the words of Meuccio
Ruini during the Constituent Assembly “these are institutions that belong to
the Republic more than to the Government…and their independence from
the Government should be guaranteed through a more direct relationship
with Parliament”. Legal scholarship has clarified that the functions are
auxiliary in nature and only regard advisory and preventative control
functions, and not those covered by the guarantees in Art. 108, It. Const.
Furthermore, in comparative law, where Parliament and the Government
jointly concur on political and financial policy, foreign institutions exercising
preventative control in the same way as the Italian Court of Accounts, assist
both of them (Art. 47, Fr. Const., Art. 114 GG).
These institutions have functions that are necessary for the functioning
of other bodies and can be categorised into legislative initiative, advisory and
preventative control.
The National Council of Economy and Labour (CNEL) “in accordance to
rules set by law, is composed of experts and representatives of several trades, in
such a manner that their quantitative and qualitative importance is properly
taken into consideration” (Art. 99.1, It. Const.). “It shall offer its advice to
Parliament and to the Government for such matters and such purposes as are
laid down by law” (Art. 99.2, It. Const.). “It shall have the right to initiate
legislation and may contribute to the drafting of economic and social laws,
according to the principles and within the limits laid down by law” (Art. 99.3, It.
Const.). The CNEL was instituted by Law no. 33, 5 January 1957. Instead, Law
no. 936, 30 December 1986, and Law no. 383, 7 December 2000, regulate its
composition and competences: a) the Council has a five-year term
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93
of office, b) its President is appointed from outside its members with a Decree
of the President of the Republic, c) its 121 councillors are chosen as follows:
twelve experts from economic, social and judicial sectors; forty eight
representatives of public and private trade; eighteen representatives of
independent professions; thirty seven representatives of industry and ten
representatives of social welfare and volunteer organisations. According to the
provisions of Art. 10, Law no. 936/1986, the CNEL: a) provides opinions on
economic and social subjects and evaluates the most important laws and acts
regarding Government policy, and its economic and social programmes with
reference also to Community policy; b) examines the financial report the
Minister of Economy and Finance is required to give Parliament according to
the provisions of Art. 15, Law no. 468, 5 August 1978; c) at the request of
Parliament or the Government periodically approves reports about the general,
sectorial and local trends of the labour market and on the legislative and
retributive aspects of collective bargaining; d) evaluates economic trends on a
bi-annual basis; e) examines Community policies and their implementation and
maintains contact with the corresponding institutions of the European
Community and its other Member States, on the basis of reports prepared by
the Government; f) drafts bills of an economic and social nature and expresses
opinions and carries out studies or surveys at the request of the Government,
Parliament, Regions or Autonomous Provinces; g) formulates opinions and
proposals on the above indicated matters on its own initiative; h) performs
studies and surveys on the above indicated matters on its own initiative; i) has
legislative initiative.
The Council of State is both a judicial-administrative advisory institution and
a judicial body with jurisdiction over all administrative authorities. It is
composed of seven sections (4 consultative, and three judicial). All its members
compose the General Assembly, which is also a consultative body, whereas the
President and 12 judges form the Plenary Assembly, which has judicial
functions. The exercise of the Council’s advisory functions comprises:
a) consultation to the body which must adopt particular types of provision; if
consultation is compulsory, the provision is unconstitutional unless consultation
is requested first, instead consultation is not compulsory for State administration
or when so provided by law. Consultation is compulsory for Government and
Ministerial regulations as provided for by Art. 17, Law no. 400/1988,
extraordinary petition to the President of the Republic and for general models
of contracts, agreements and conventions proposed by one or more Ministers.
Even when consultation is compulsory, it is not binding because the body
receiving it may disregard the Council’s advice. There is a partial exception for
consultation given in the case of an extraordinary petition to the President of
the Republic, which is binding unless the Council of Ministers decides otherwise
(in this case it is a partially binding consultation). An example of a non-binding
consultation is that requested by the
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INTRODUCTION TO ITALIAN PUBLIC LAW
Government for the draft of a bill. Other advisory activities include
formulating drafts of bills and regulations as requested by the Government.
The Court of Accounts, according to the provisions of Art. 100, It. Const.
“shall exercise both prior control on the legitimacy of Government measures
and subsequent control on the management of the State budget (which
concludes with the audits for the State and other bodies under it; this attests
that the results correspond to the budget) and the control of the financial
management of those bodies to which the State regularly contributes”.
The Court of Accounts exercises a priori review of acts of the Government,
which have not yet come into effect. If the Court finds no flaws, it attests to
their conformity to law. To the contrary, if there is a conflict with a law of a
higher level or with the budget, it sends them back to the Government
explaining the reasons why. Usually the Government adheres to the Court’s
findings but if it feels it must adopt the act anyway for political reasons, it
asks the Court to file it “with reserve”. The act filed “with reserve” acquires
full effectiveness but it may give rise to specific Government responsibility
because the Court periodically submits a list of such acts to Parliament. For
some acts regulated by Art. 25, Royal Decree no. 1214/1934, (payment of
expenses that exceed the amount allocated for in the budget, for instance)
the refusal to file the act is absolute and annuls it. The Court therefore
exercises an external or a neutral control carried out in absolute impartiality
with respect to any interests the Government or administration may pursue.
In addition to these functions provided for directly by the Constitution,
there are other ones introduced by ordinary law deriving from “the proper
and fair operation of public affairs” (Art. 97.1, It. Const.), “the final balance
submitted by the Government each year” (Art. 81.1, It. Const.) and “the
coordination of the public finances and the taxation system” (Art. 119.2, it.
Const.).
In particular, Law no. 20, 14 January 1994 radically reformed the audit
functions of the Court of Accounts by “reducing the number of acts subject
to the a priori control on legitimacy and introducing a new form of
subsequent control on the management of the budget and on the patrimony
of public administration as well as on extra-budgetary management and
Community funds, all based on parameters of efficiency and savings.
Additional laws have attributed the Court functions of control and report
on the financial backing for laws introducing new expenses (Art. 11 ter, Law
no. 468, 5 August 1978) and on regional and local finance”.
Just like the Council of State, the Court of Accounts also has judicial
responsibilities summed up as follows:
a) administrative responsibility. The Court of Accounts ascertains the
financial responsibility of public administrators or employees for damage
caused to public administration because of their conduct;
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THE GOVERNMENT
b) accounting responsibility. The Court ascertains the responsibility of
accountants who are handed over cash, goods or other public property for
various uses or who have had these goods made available to them, and who
have failed to return them;
c) pension matters. The Court handles ordinary civilian and military pensions,
State pensions for war veterans, or pension institutions under the umbrella
organisation, INPDAP (Pension for Professionals of Public Administration).
Controversies may arise over the right to a pension and its amount.
Republic of Italy, Legislatures and Governments
Legislature
I
II
III
IV
V
VI
from-to
Governments
from-to(1)
8/5/1948 -
De Gasperi V
De Gasperi VI
De Gasperi VII
23/5/1948 - 27/1/1950
27/1/1950 - 26/7/1951
26/7/1951 - 16/7/1953
De Gasperi VIII
Pella I
Fanfani I
Scelba I
Segni I
Zoli I
16/7/1953 - 17/8/1953
17/8/1953 - 18/1/1954
18/1/1954 - 10/2/1954
10/2/1954 - 6/7/1955
6/7/1955 - 19/5/1957
19/5/1957 - 1/7/1958
Fanfani II
Segni II
Tambroni
Fanfani III
Fanfani IV
1/7/1958 - 15/2/1959
15/2/1959 - 23/3/1960
25/3/1960 - 26/7/1960
26/7/1960 - 21/2/1962
21/2/1962 - 21/6/1963
Leone I
Moro I
Moro II
Moro III
21/6/1963 - 4/12/1963
4/12/1963 - 22/7/1964
22/7/1964 - 23/2/1966
23/2/1966 - 24/6/1968
Leone II
Rumor
Rumor II
Rumor III
Colombo I
Andreotti I
24/6/1968 - 12/12/1968
12/12/1968 - 5/ 8/1969
5/8/1969 - 27/3/1970
27/3/1970 - 6/8/1970
6/8/1970 - 17/2/1972
17/2/1972 - 26/6/1972
Andreotti II
Rumor IV
Rumor V
Moro IV
Moro V
26/6/1972 - 7/7/1973
7/7/1973 - 14/3/1974
14/3/1974 - 23/11/1974
23/11/1974 - 12/2/1976
12/2/1976 - 29/7/1976
24/6/1953
25/6/1953 11/6/1958
12/6/1958 15/5/1963
16/5/1963 4/6/1968
5/6/1968 24/5/1972
25/5/1972 4/7/1976
(1) Resignation accepted
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INTRODUCTION TO ITALIAN PUBLIC LAW
VII
5/7/1976 -
19/6/1979
Andreotti III
Andreotti IV
Andreotti V
29/7/1976 - 11/3/1978
11/3/1978 - 20/3/1979
20/3/1979 - 4/8/1979
Cossiga I
Cossiga II
Forlani
Spadolini I
Spadolini II
Fanfani V
4/8/1979 - 4/4/1980
4/4/1980 - 18/10/1980
18/10/1980 - 28/6/1981
28/6/1981 - 23/8/1982
23/8/1982 - 1/12/1982
1/12/1982 - 4/8/1983
Craxi I
Craxi II
Fanfani VI
4/8/1983 - 1/8/1986
1/8/1986 - 17/4/1987
17/4/1987 - 28/ 7/1987
2/7/1987 -
Goria I
De Mita I
Andreotti VI
Andreotti VII
28/7/1987 - 13/4/1988
13/4/1988 - 22/7/1989
22/7/1989 - 12/4/1991
12/4/1991 - 28/6/1992
XI
23/4/1992 -
Amato I
Ciampi
28/6/1992 - 28/4/1993
28/4/1993 - 10/5/1994
XII
15/4/1994 -
Berlusconi I
Dini
10/5/1994 - 17/1/1995
17/1/1995 - 17/5/1996
Prodi I
D’Alema I
D’Alema II
Amato II
17/5/1996 - 21/10/1998
21/10/1998 - 22/12/1999
22/12/1999 - 25/4/2000
25/4/2000 - 11/6/2001
Berlusconi II
Berlusconi III
11/6/2001 - 23/4/2005
23/4/2005 - 17/5/2006
28/4/2008
Prodi II
17/5/2006 - 7/5/2008
29/4/2008 -
Berlusconi IV
7/5/2008 -
VIII
IX
X
XIII
XIV
XV
XVI
20/6/1979 -
11/7/1983
12/7/1983 -
1/7/1987
22/4/1992
14/4/1994
8/5/1996
09/5/1996 -
29/5/2001
30/5/2001 -
27/4/2006
28/4/2006 -
Sources: www.camera.it, www.governo.it
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CHAPTER SIX
PUBLIC ADMINISTRATION
ANTONELLO TARZIA
SUMMARY: 1. Administration and Administrative Function: Introduction – 2.
Constitutional Principles – 3. Administrative Provisions and Administrative
Measures – 3.1. Characteristics of Administrative Provisions – 3.2. Administrative
Measures – 3.3. Elements of Administrative Acts – 4. Administrative Procedure – 5.
Flaws in Administrative Acts – 5.1. Non-existence and Nullity of Administrative
Acts – 5.2. Annulment – 5.3. Irregularities – 5.4. Rectifying Invalid Acts and SelfProtection – 6. Protection Against Invalid Administrative Acts – 6.1. Administrative
Recourse – 6.2. Judicial Protection – 7. Transformation of Administration – 7.1.
Political and Administrative Pluralism After the Reform of Title V of the
Constitution – 7.2. Independent Authorities and Administrative Agencies – 7.3.
Administrative Simplification
1. Administration and Administrative Function: Introduction
Public administration is a central theme of the Italian Constitution. The
Constituent Assembly dedicated only two articles to it under Title III, the
Government, but regulations that implicitly or explicitly regard public
administration are scattered throughout the entire text, and in fact permeate
the design of the Constitution.
From a historical viewpoint, its placement is indicative of the attempt to
differentiate public institutions which, following the introduction of the
separation of powers in the Eighteenth Century, led to the separation of
“organisational institutions”. One of these, public administration, came to be
identified with the Crown, the Government and auxiliary institutions (Giannini),
In time, such institutions took on the bureaucratic practices of administrative
institutions typical of legislative power, and were regulated by general and
abstract laws on organisation, competences and services of public offices.
The origins of modern public administration in continental Europe, was
marked by the spread of the Napoleonic model (uniform, centralised and
organised in a hierarchical manner); it was granted its own statute and separate
laws that came to be identified as administrative law. In Italy the creation of an
administrative institution as a separate element from the so-called
“Administrative State” (Cassese), only came about in the second half of the
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1800s when, after Italy’s unification, the administrative model for Ministers was
extended throughout the national territory. In that model however, no
provision was made for pre-existing organisations, which were suppressed, or
local administrative bodies that in any case were only ramifications of the State.
In the 1900s, public administration expanded and, alongside traditional
ministerial administrative structures, new ones were created because the State
assumed additional obligations in sectors such as public healthcare, social care
services, universal education and the economic development of depressed areas.
Traditionally, the separation of powers, laws and structures was justified
by the concept of administrative function, “the abstract prefiguration of
competence to supply a particular service” (Modugno). Consequently the
“objective purpose of the service and the body supplying it are more
important than the physical or juridical person the service is intended for, or
in other words, the means is more important than the ends so “the term
function takes on the meaning of deputatio ad finem” (Modugno, Giannini).
It was the Constituent Assembly’s intent to separate the activities and
function of public administration from the legislative and judiciary branches
through ordinary law. Public administration is instrumental in choosing
objectives for bodies that define public policy in areas of public interest, in
accordance with constitutional principles. Hence, the placement of
provisions on public administration under Title III, the Government, should
be seen as a reflection of the concept of public administration in the 1800s,
that is, as a body in the service of the Government. This is also reflected in
Art. 95.2, It. Const., “ministers shall be jointly responsible for the decisions
of the Council of Ministers and individually for those of their own
ministries” (see Chapter Five for more details).
It is not easy to answer the question, “What is public administration”?
Much has changed since its original organisation (many public bodies have
been privatised, the role of the State is secondary to that of Regions or
Provinces or even to society) and functions (many activities now come
under private law), but its classic model serves as a guideline to
understanding its transformations in recent years.
The functions of both the legislative and judiciary branches are also
predisposed to protect public interests but, according to long-held doctrine,
they have none of the traits that distinguish administrative function,
traditionally intended as “practical means the State makes immediately
available to safeguard those public interests that are naturally among its
objectives or that it assumes voluntarily” (Zanobini). This definition, as will
be seen later, should be examined in the light of political and administrative
pluralism, and the transformation of public administration in recent years,
even though its core concept, “concrete safeguard of public interests”,
contains elements that are still valid today. Traditionally, the legislative and
judiciary branches only look after public interests indirectly; the former by
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means of laws that prohibit and sanction certain behaviour, attribute rights
and assign public institutes competence to supply services; the latter by
ensuring observance of the laws.
Instead administrative function is characterised by:
concreteness: legislature produces general and abstract laws and determines,
for example, how public education will operate; public administration
instead produces concrete provisions composed of all the measures that
make it possible for citizens to access public education. The judiciary is also
characterised by concreteness when it provides for specific cases.
discretional power: the faculty to choose between alternate possibilities. The
choices made by legislature have a wide margin of self-determination and are
only limited by the Constitution, whereas discretional power is greatly
reduced but not eliminated for public administration, which has the faculty
to decide the most effective way to safeguard public interests. In fact,
administrative discretional power lies in that grey area between freedom to
choose the means and the binding effect of the results. The judiciary branch
instead has no discretional power and only the will of the law is admissible
in the exercise of its functions;
spontaneity: except in cases required by law or when requested by another
body or private citizen, public administration can act spontaneously to
satisfy public interest within the margins established by law. This
characteristic is provided for in far-reaching terms in the legislative branch,
but it is completely absent in the judiciary one because a judge cannot act
spontaneously on his own initiative but only the initiative of a private citizen
for civil law or the attorney general for criminal law (for spontaneity as a
distinctive element of public administration refer to Council of State, Special
Commission, opinion no. 988/97, 29-5-1998).
According to legal scholarship, the administrative function is traditionally
conceived as a service carried out in the exercise of authoritative powers by
the executive branch in a liberal State, within the framework of separation
of power. In the 1900s, the State started supplying services that were not
necessarily an expression of public power and since then, the concept of
public administration has taken on a broader meaning to include both public
power and all those services provided to protect public interests.
Healthcare, a fundamental right of the individual in the interest of the
population was a prototype of State public service provision in the 1970s. Art. 1,
Law no. 833, 23 December 1978, which put into effect the principles expressed
in Art. 32, It. Const., establishes that “the Republic shall protect the health as a
basic right of the individual and as an interest of the community by means of a
national health service…The national health service is constituted by those
functions, structures and services necessary to promote, maintain and recover
the physical and mental health of its population without distinction of individual
or social conditions and in such a way as to ensure equality of service to its
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citizens”. Art. 1 of the Decree of the President of the Republic no. 129, 28
March 2003, establishes that “to carry out its functions as a national health
service, and with the exception of competences belonging to Regions as
provided for by current laws, the Health Ministry…shall be divided into the
following departments: a) quality control, b) innovation, c) prevention and
communication, c-bis) public health, nutrition and food safety”.
The above example clarifies three fundamental points of public
administration: the law first determines public interests for which a service
must be offered and the objectives of the service and then assigns a public
institution, i.e. one regulated by public law such as State, Regions, local
bodies, or non-territorial public bodies, to achieve the objectives. Two
dimensions of administration emerge: one, objective, i.e. service provided by
material means and two, administrative, i.e. organisational structure. The
two dimensions do not always coincide however: there are administrative
services provided by private bodies, i.e. hospital services offered by private
clinics; services regulated by private law offered by public bodies, i.e. City
Hall may receive donations and stipulate contracts; or finally, services to
protect public interests through instruments of private law, i.e. the
introduction of negotiation modules in administrative procedure.
The main problem of the “two-dimensional” concept of public
administration is to determine which regulations should be applied to which
service since the separation between public and private is less distinct today
than before. On one hand there is the problem of deciding what part of public
law is applicable to private parties who carry out administrative services, and on
the other, the problematic juridical nature of bodies offering the service. Often
the question is left up to the interpreter of “public law”. In Decision no. 7341,
20-5-2002 Section I of the Court of Cassation clarified the uncertain nature of
independent authorities by classifying them as public administration bodies. In
fact, the ideal solution is that specifically provided for by law: Art. 1.2 of
Legislative Decree no. 165, 30 March 2001, established general regulations for
public administration officials: “by public administration it is meant all the
administrative institutions of the State including all institutes and schools
providing public education, agencies and administrative bodies of the State in
autonomous regime as well as Regions, Provinces, Metropolitan Cities,
Mountainous Community Consortiums and Associations, universities, low-rent
housing authorities, Chambers of Commerce, Industry, Artisan Products and
Agriculture and their associations, all national, regional and local non-profit
organisations, National Health Service administrations, agencies and
institutions”. Regulations of law can add new institutions or categories to the
above list; for instance in July of 2002, Law no. 145 classified the Agency for
Representation in Negotiations of the Public Administration and the agencies
mentioned under Legislative Decree no. 300/1999 (see above) as public
administration institutions.
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2. Constitutional Principles
The centralised, uniform ministerial model of administration, typical of a liberal
State, was surpassed with the advent of a pluralistic democratic State in which a
multitude of administrative structures with political, legislative, organisational and
financial autonomy were used to achieve political and social pluralism.
In the period immediately before the formation of the Republic, the
public administrative system conformed to the principle of institutional
monism and total dependence of territorial bodies on the State; at the same
time, local administration bodies, originally dependent on the central
administration and subject to its far-reaching control, were becoming
increasing more self-sufficient. This monist model for State and public
administration was replaced by institutional pluralism that the Constituent
Assembly inserted among the fundamental principles of the Constitution.
According to the provisions of Art. 5, It. Const., “the Republic is one and
indivisible, and recognises and promotes local autonomy; it shall apply the
fullest measure of administrative decentralisation in services dependent on the
State and adjust the principles and methods of its legislation to the requirements
of autonomy and decentralization”. The principle of autonomy enables nonState regional bodies representing local populations, to choose their own
political orientation within the framework of constitutional principles and
competences. Instead, in bureaucratic decentralisation, functions dependent on
the State usually assigned to centralised institutions are carried out by branches
at a local level, whereas in institutional decentralisation functions are carried out
by autonomous bodies such as Chambers of Commerce or Port Authorities.
The last paragraph of this chapter deals with the transformations of the public
administration system introduced by the Bassanini reform and the constitutional
amendment of 2001.
Returning to that part of constitutional law directed at regulating public
administration, Art. 97.1, It. Const. enumerates three basic principles: a) the
statutory limit in the organisation of public offices, b) the fair and proper
operation of public affairs and c) the impartiality of administration.
Art. 97, It. Const. provides that “public offices shall be organised according
to the provisions of law”. This is a relative statutory, which assigns the law to
determine general regulations on public offices and secondary sources of law,
the organisational details. Whereas some authors feel that Art. 97, It. Const. also
refers to a reserve of administration (Nigro), the prevalent opinion is that if for
practical reasons, a public office had to organise itself, the principle of
preference of law which ensures that primary law sources prevail over
secondary ones and that all policy areas are regulated (Cuocolo), would still be
applied since it is part of Italian consolidated law.
Although not directly provided for by the Constitution, the principle of
legality deriving from the principle of the separation of powers and various
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constitutional provisions (Arts. 23, 25.2, 101.2 and 113, It. Const.)
establishes that any public power must be founded on a law that attributes
competence to it; public administration in particular, can only do what the
law provides for and in the way it indicates. Administrative measures that
conflict with laws may be disapplied by an ordinary judge (principle of
preference of law) or declared null by an administrative judge (Art. 5, Law
no. 2248/1865, attachment E).
At the beginning of the chapter, it was pointed out that public
administration is extremely important to the entire Constitution even
though few regulations are directly dedicated to it. The principle of legality
as it is conceived, enables a system of constitutional justice to be set up
based on the principle of constitutionality of laws and acts having force of
law, monitored by the Constitutional Court. Constitutional conformity of
secondary law sources and administrative acts is also indirectly ensured by
the principle of legality.
In light of the above, it must be taken into account that public
administration still has some margin of choice in its decisions since it may
exercise so-called “administrative discretional powers”.
Sound governance of public administration is achieved by guaranteeing the
effectiveness, efficiency and cost-effectiveness of its services hence the
streamlining of administrative procedure in recent years. The provisions of Law
no. 20/1994 assigned the Court of Accounts to carry out the external audit of
public administration’s financial management whereas the provisions of Art.1.1,
Law no. 241/1990 governing administrative proceedings “ensure that public
administrative pursues the objectives determined by law following criteria of
cost-effectiveness, efficiency, full publicity and transparency”.
The impartiality of public administration, to the contrary of that of judges’
“third party” position, is defined on the basis of the position it assumes in
administrative actions because it is never extraneous to the interests at stake.
Carrying out public interest determined by law and pursued by public
administration can lead to the sacrifice of individual interests. In this sense,
impartiality also means 1) carefully pondering the interests to be sacrificed, 2)
prohibiting discrimination with no reasonable justification in the choice of
interests, 3) obliging the neutrality of public officials “which are at the sole
service of the Nation” (Art. 98.1, It. Const.) and 4) prohibiting administrators
and managers with vested interests from participating in the choice of interests
to be sacrificed. The term impartiality has been considered extremely
controversial by many legal scholars and at times has been considered
pleonastic and a part of sound governance (Giannini) and at others, distinct
from sound governance because it refers to a subjective element of the
administration (Cantucci) or because its application lies outside administrative
practices and efficiency (Allegretti, Mortati). For others, impartiality lies in the
respect of the principle of equality (Barile, and lastly, Bin-Pitruzella).
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Other constitutional principles governing public administration are:
“The principle of public competitions for appointment to public
administration unless otherwise provided for by law” (Art. 97.3, It. Const.),
obviously a pre-condition for sound governance and impartiality;
“The obligation of public officials to be at the sole service of the Nation”
(Art. 98.1, It. Const.) although “their right to register as members of political
parties may be limited by law in the case of members of the judiciary,
professional members of the Armed Forces on active duty, police officials and
officers, diplomatic and consular representatives abroad” (Art. 98.3, It. Const.);
“No promotion except by seniority if public officials are Members of
Parliament” (Art. 98.2, It. Const.);
The principle of the separation of politics and administration for which
“areas of competence, duties and responsibilities of public officials must be
laid down in regulations on public offices” (Art. 97.2, It. Const.). This last
provision supposes that once competences, duties and responsibilities are
determined, there are still public officials who may make their own choices
regarding the safeguard of public interests: the law establishes the objectives
and public administration, the most efficient means to achieve them. This is
not an independent decision because as Chapter Five points out, a minister
is individually responsible for the decisions of his own ministry implying he
has powers to direct its actions. The principle was explicitly introduced in
the regulations provided for by Law no. 142/1990 and Legislative Decree
no. 29/1993. In current law in effect, it is expressed in Art. 107, Legislative
Decree no. 267/2000, Unified Law on Local Governments:
“1. Public officials shall manage public administration offices and services
according to the criteria and provisions of its statutes and regulations. In so
doing, they shall adhere to the principle by which powers of political and
administrative control and direction are attributed to Government bodies and
the administrative, financial and technical management attributed to its officials
who have autonomous powers over expenditure and organisation of available
resources (human, instrumental and audit);
2. Public officers shall be competent to adopt all administrative
measures and regulations between public administration offices and outside
bodies not expressly provided for by law or statutes regulating the political
and administrative control of the office’s governing body…”
In similar terms, Art. 4, Legislative Decree no. 105/2001 establishes
general working regulations for public administration employees;
Art. 28, It. Const. provides for “the direct responsibility of officials and
employees of the State and other public bodies, under criminal, civil and
administrative laws, for actions committed in violation of rights. In such
cases, civil responsibility extends to the State and to other public bodies”.
This article mentions only responsibility for measures that violate rights, but
it does not exclude more far-reaching responsibilities;
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The guarantee of legitimate interests against measures of public
administration is provided for by Art. 24, It. Const., “all may bring a case
before a court of law in order to protect their rights under civil and
administrative law” and by Art. 113, It. Const., “it shall always be permitted
to bring a legal case against a decision taken by the public administration
before an ordinary or administrative court, in order to protect one’s own
rights under civil or administrative law. Such judicial protection shall not be
excluded or limited to special forms of action or to specific types of
decisions. The law shall establish which courts may annul decisions taken by
the public administration, in which cases and to which effect”. Regional
Administrative Tribunals (TAR) (Art. 125, It. Const.) have competence to
annul administrative measures in the first instance, and the Council of State
which “shall ensure justice in the operation of the public administration”, in
appeal (Art. 100.1, It. Const.). The provisions of Art. 103, It. Const. in fact,
specify that “the Council of State and other courts of administrative justice
shall have jurisdiction over legitimate interests under administrative law, and
also over civil-law claims against the public administration in specific
matters laid down by the law”. Instead, Art. 111.8 It. Const. provides that
“appeals to the Court of Cassation against decisions of the Council of State
and the Court of Accounts shall only be allowed for reasons of jurisdiction”.
3. Administrative Provisions and Administrative Measures
Carrying out public interest through special powers attributed to public
administration may mean individual interests are sacrificed. Hence the need
for the principle of legality according to which public power must be
founded on a prior law attributing competences to be carried out in
accordance with its provisions. Administrative provisions indicate the
wishes of public administration in the exercise of its administrative power.
3.1. Characteristics of Administrative Provisions
The public administration operates by means of administrative acts subject
to special regulations which may be: 1) internal measures part of the procedure
to adopt provisions; 2) administrative directives used by a political
administrative body to dictate the behaviour of other administrative bodies; 3)
administrative provisions that produce external effects affecting legitimate
interests of one or more subjects and creating new rights or obligations.
Administrative provisions have the following characteristics:
they are typical: an administrative measure may only be used to pursue an
interest determined by law. For example, land may only be expropriated for
reasons of public utility (the construction of a hospital) and not to punish the
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owner who evades paying taxes. Law determines the public interest and the
type of measure required to satisfy it (principle of registration);
they are authoritative and unilateral: the prevalence of public interest over private
interest gives authority to administrative provisions and competence to create,
amend or annul legitimate interests. Instead in the exercise of the power of rule,
the administration may unilaterally adopt an administrative act solely upon its
will to do so, without the subject’s consensus. In recent years to replace
provisions, administrative simplification has introduced agreements in which
the administration and private parties negotiate the final provision (Art. 11.1,
Law no. 241/1990). Decree of the President of the Republic no. 327/2001
provides that “until the public utility of the action is declared and until the date
on which the decree of expropriation is executed, the owner has the right to
stipulate an act of cessation of the property or of his part of the property with
the receiver of the expropriation”. A substitution procedure agreement is
differentiated from a simple contract of purchase anyone has the right to
stipulate, because it is part of a procedural iter presupposing the exercise of the
power of publicity i.e. a declaration of public utility. Civil law is only partially
applicable to this type of agreement, but it is entirely applicable to that part of
the agreement referring to the provision it substitutes. In this case, Art. 1448,
Civil Law Code, regulating the rescission of a contract by the injured party, and
Art. 1453, Civil Law Code, regulating the cancellation of a contract for nonfulfilment, are replaced by regulations governing the retrocession of
expropriated property, Art. 46 and subsequent articles, Decree of the President
of the Republic, no. 327/2001.
The effects of an administrative act may be unfavourable or favourable
to the receiver; if they are unfavourable, they have a negative effect on his
juridical situation because the exercise of a right has been extinguished,
amended or limited. The impounding of a car, the demolition of an unsafe
building and the urgent occupancy of a building are defined as ablative or
privative provisions and have unfavourable effects. Instead ampliative
provisions have favourable effects that enrich the receiver’s juridical
situation by removing an obstacle blocking a private person’s exercise of
power or activity i.e. the authorisation to exercise a given activity for which
the law provides administrative barriers, or the attribution of a new juridical
position such as the concession to use public resources such as beaches, public
services, etc.
Not all provisions directly refer to single legitimate interests; for instance,
general administrative provisions determining fees for public services,
regulatory building plans, etc, are closer to general abstract laws than to
administrative provisions.
Executive and executory properties. An administrative provision becomes
executive when it produces immediate effects characteristic of administration,
i.e. services to safeguard and satisfy public interest. In cases of expropriation
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for reasons of public utility for instance, the administration takes over
possession when the propriety is transferred; a judge does not have to act as
intermediary, as occurs with private parties. The term executory on the
other hand, means that it is compulsory for the administration that
produced the provision to execute it; for example, the administration
provides for the demolition of an unsafe building once the Mayor has
exercised his law-making power.
The above traits are characteristic of administrative provisions, although
public administration does not always operate in an authoritative manner.
The essential traits of substitution procedure agreements were illustrated
above. Undoubtedly they correspond to a new vision of the citizenadministration relationship characterised less by “supremacy” and more by
“collaboration”. Laws that ensure the participation of interested parties in
administrative proceedings are interpreted the same way since “any subject
whether of public, private or mixed interest or constituted in associations or
committees, whose interests may be prejudiced by the provision, may
intervene in the procedure” (Art. 9, Law no. 241/1990).
Like any juridical person, public administration may operate with the
instruments of ordinary law, i.e. accept donations and bequests and stipulate
contracts in accordance with the provisions of the Civil Code. In these cases it
is the substantial regulation of the activity that is subject to the provisions of
private law, i.e. the execution of contractual obligations, and not the modality by
which the decisions are made (a contract). All relative forms of control are
regulated by public law. In particular, European Community and national laws
oblige vast sectors of private person contracts to be made public knowledge, to
avoid situations in the pursuit of public interest where some subjects, maybe the
administrators’ friends, are favoured over others, in violation of the principle of
impartiality. Bids for public work contracts, services (the cleaning and
maintenance of city buildings) or supplies (the purchase of computers for public
administration offices) are all substitution procedure agreements.
3.2. Administrative Measures
In the exercise of administrative power not all measures adopted by the
administration are provisions. The prevalent theory today on characteristics
of administrative provisions suggests that it is hinged on “procedureproducing and function-producing activities of public administration”
(Caringella). According to this theory, all internal measures of a procedure
leading up to the final provision are not provisions themselves. When an act
has no characteristics typical of provisions as illustrated in the above
paragraph, it is classified as a measure to serve, to act as an instrument to
and prepare the way for the final “external” provision that modifies the
juridical position of third parties.
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Measures may be classified as manifestations of science, knowledge or
judgment: 1) manifestations of science are certifications the administration
uses to guarantee the certainty of a juridical or other type of situation; 2)
manifestations of knowledge are acts of verification and reports of public
officials in the exercise of their office functions i.e. traffic violation reports;
3) manifestations of judgment are technical opinions issued by city technical
offices to verify, for instance, the suitability of land for construction, 4)
technical-juridical manifestations are opinions of the Superior Council on
Public Works on the most important public works and 5) juridicaladministrative manifestations are issued by the Council of State or other
consultant bodies.
The distinction between administrative provisions and “measures” takes
on exceptional importance in court because only provisions can be directly
challenged. Measures may only be challenged once the final provision is
issued because only provisions have an effect on third parties.
3.3. Elements of Administrative Acts
A problem common to all sectors is identifying acts or facts that produce
juridical effects. Even administrative measures must be identified so they
can exist and produce typical juridical effects.
An administrative provision is composed of essential and non-essential
elements. If an essential element is missing, the act is declared null/nonexistent according to the terms of Art. 21-septies, Law no. 241/1990 whereas
a missing non-essential element only leads to invalidity (see the following
paragraphs for more information).
Essential elements are the subject, the object, the contents, the cause
and, at times, the form.
The subject is usually the public administration body competent to adopt
the act. It may be either a collegial body such as a Metropolitan City Council
or a monocratic body such as a City Mayor. Additional administrative
regulations are applied to the functions of collegial bodies regarding for
example, its convocation or structural and deliberative quorum. Failure to
respect them may cause the act to be declared invalid and in some cases,
non-existent.
The object is the passive receiver of the administrative act (expropriated
goods, an impounded car, a physical person appointed general manager of a
public body).
The contents are what the act provides for i.e. a provision hiring a public
employee or a measure providing a certification.
The cause is identified with the act’s institutional function (Sandulli) or
purpose (Bodda, Gasparri) and represents the relationship between the public
interest, whose safeguard has been abstractly entrusted to the administration
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by law, and the public interest that the administration pursues in a concrete
manner.
The form is an essential element in an administrative act since is
expresses the wishes of the administration. Usually a written form is
requested, and it is regular procedure in administrative provisions so as to
protect its receiver, but an oral form (a verbal order), a mechanical one
(pointing out that a stoplight does not work) or of another type are
admitted. A written act generally has an address indicating the body issuing
it, a pre-amble listing the facts, presuppositions of rights and reasons why
the administration decided to adopt it, the contents of the act, the date,
place of issue and the signature of the official in charge.
Non-essential elements of an administrative act are the term, the
conditions and the means.
The term means the moment the act enters into effect (opening date) or
when its effectiveness ceases (closing date). The Administration may
exercise discretionary powers only when the law does not directly determine
these terms.
The condition is the future and uncertain event to which the opening
date (suspensive condition) and the closing date (resolutive condition) of the
act’s effectiveness are subordinate.
The means indicate particular responsibilities the receiver of the act may
be subject to so its effects can be produced (a particular means of
construction indicated in the building permit, for instance). The
administration may exercise its discretionary power to indicate these
responsibilities as long as they are not against the law, i.e. it fills the gaps in
law with its own choices.
4. Administrative Procedure
Given the characteristic traits of administrative provisions and their
effects on legitimate interests, it is obvious that provisions must be adopted
following a fixed procedure to ensure due deliberation of public interest so
the sacrifice of individual positions is not left up to arbitrary decisions.
Administrative procedure may be defined as a sequence of phases leading up
to the adoption of the final provision. In each phase a multitude of coordinated
measures are adopted towards one final purpose. A procedure is typically
required in the exercise of legislative and juridical public functions, and in fact,
administrative procedure is modelled on court procedure.
The institutionalisation of procedure guarantees that administrative action is
1) impartial, 2) public 3) coordinated among the different bodies that work
together to safeguard a particular public interest. It also guarantees verification,
examination and full evaluation of the provision in question, so
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there is a fair balance of public and private interests in administrative
activities. Administrative procedure was regulated for the first time in Italy
by Law no. 241, August 7, 1990. Prior to that date, procedure was regulated
by case law and administrative custom with the significant contribution of
legal scholarship.
Law no. 241, August 7, 1990 is the general law dictating procedural
principles valid for all public administration bodies. There are essentially two
principles inspiring the law:
The principle of transparency: administrative action must be transparent, so
citizens know how public interest is safeguarded, and open so interested
parties can participate. This principle has inspired Law no. 241 which
introduced the obligation to: render public the fixed term for ending
procedures (Art. 2); determine the organisational unit responsible for
opening the investigative phase and adopting the final provision for all
procedures (Art. 4); identify the official in charge of the procedure (Art. 5);
guarantee access of interested parties to administrative documents and state
the reasons for all administrative provisions including those on organisation,
public bids and personnel (Art. 22) and state the reasons for administrative
decisions based on results of the investigative phase (Art. 3).
The principle of efficiency: “the activities of public powers shall be inspired by
the principle of sound governance” (Art. 97.1, It. Const.) which translates
into cost-effectiveness, efficiency of administrative activity and publicity.
Cost-effectiveness means that public interest determined by law is carried
out with as little expenditure of organisational and financial resources as
possible. The parameter of efficiency implies evaluations on the relationship
between performance and results.
Law no. 241 was amended in 2005 (Law no. 15, 11 February 2005 and Law
no. 80, 14 May 2005) to introduce the general principle that administrations
may have recourse to the modules of civil law claims in adopting nonauthoritative acts, unless otherwise ruled by law (Art. 1bis). Hence, the clause
allowing the administration to have recourse to substitution procedure
agreements “only in cases provided for by law” was eliminated from Art. 11.
Another important innovation was the reference in Art. 1 to the general
principles of European Community law that can be summed up as: duty to
provide reason for the provision, transparency, accessibility, impartiality,
safeguard of legitimate confidence and proportionality.
The phases of administrative procedure are as follows:
The initiative phase: the procedure opens with a measure, measures or actions
which oblige the administration to close it with a provision except in cases when
the law confers provisional effects to administrative inertia in the form of tacit
assent (Art. 20,) tacit refusal (see for example, Art. 21, Decree of the President
of the Republic no. 380, 6 June 2001) or tacit rejection (in case of negative
recourse to a superior body for an administrative act not passed
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within 90 days, Art. 6, Decree of the President of the Republic no. 1199, 24
November 1971). The proceedings may be opened upon request of one of
the parties (for example a private person requesting a building permit), or
upon the initiative of the administration itself. In this case a distinction must
be made between compulsory or official initiative (the administration is
obliged by law to provide for a health emergency), or optional (the
administration wants to build a new sports center). Administrations must
provide a deadline for adopting the final provisions through issue of an
internal regulation; if it or the law fails to do so, a term of ninety days fills
the gap (Art. 2);
Investigative phase: in this phase the administration examines the elements
of fact and law on which it must base its decision to adopt a provision. All
of the above-defined measures are adopted and serve to inform the
administration of the interests involved and guarantee the participation of
interested parties, laws in effect and relevant facts by means of opinions,
controls, inspections and so on. In respect of the principles of publicity and
transparency, Art. 1 of Law no. 241 prohibits public administration from
aggravating procedure by imposing additional requirements or particular
burdens on the citizen unless for extraordinary motivated needs as required
by the results of the investigative phase;
Constitutive phase: in this phase either the monocratic or collegial organ
adopts the provision;
Integrative phase of effectiveness: in many cases even though the provision is
perfect, additional requirements must be met so it can legitimately produce
its effects. These range from control by another authority (for example a
Court of Accounts audit), a particular means of making the knowledge
public (publication on the Municipal Notice Board), to the obligation to
communicate and/or notify the provision to the interested parties (for
example the order to demolish an abusively built structure). Such
requirements may not always be necessary, i.e. once the Mayor signs a
building permit it immediately goes into effect.
5. Flaws in Administrative Acts
An administrative act is invalid when it does not conform to the law that
regulates it. This is an extremely complex matter because administrative
action is regulated by procedure and subject to binding laws, on one hand,
and the principles of sound governance on the other.
The first most important difference is invalidity affects a greater number of
acts in administrative law than it does in private law. Private law for the most
part is dispositive, which means the parties may come to an agreement that
deviates from civil law except where prohibited. In administrative law, the
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exact opposite is true: it is the binding nature of the law that clearly prevails.
In private law most of the preparatory activity to the act has no juridical
relevance, whereas in administrative law, all preparatory activity to the act is
extremely important and has become part of procedure.
The second most important difference is in the relationship between the
principle of sound administrative governance and the administrative power
of discretion that gives the administration a relative freedom of choice in
respect of the fixed term for ending procedures and the criteria of
reasonableness, in areas not regulated by law.
Administrative acts deformed by binding laws give rise to a flaw of
legitimacy, whereas administrative acts deformed by regulations of sound
governance give rise to a flaw of merit or opportunity only when the law
permits the administration to evaluate whether or not the provision is
appropriate. An act with flaw of merit may be declared null by the judge, or
rarely, by law or by the administration in a contentious attempt to protect
itself (see above) or it may be revoked by the administration in exercise of
power to re-examine its own acts.
An act that is deformed is, in any case, illegitimate; the sanction
following its illegitimacy is generally annulment.
Until 2005, only three “classic” flaws of legitimacy were codified, excess of
power, violation of the law and incompetence; no provisions were made for
nullity, non-existence or irregularity, all categories well established in the general
theory on the invalidity of juridical acts that case law developed. When Law no.
15/2005 amended Law no. 214/1990, it codified various types of invalidity,
previously the object of fragmented regulation, and provided for new rules. In
particular, it included references to 1) the nullity of administrative acts provided
for by Art. 21-septies, Law no. 241/1990, to better guarantee the privacy of
private parties and 2) so-called non-invalidating flaws regarding formal or
procedural illegitimacy which do not necessarily lead to the act’s annulment
provided for by Art. 21-octies, Law no. 241/1990, for the sake of efficiency and
speed of administrative action (Caringella).
5.1. Non-existence and Nullity of Administrative Acts
According to prevalent legal scholarship, the introduction of
administrative act nullity enables a null act to be distinguished from a nonexistent one.
The non-existence of an act is such a serious flaw that it cannot be
qualified and identified by law, aside from other considerations on its
juridical effects since the act cannot produce any material effect whatsoever.
A null act instead can still produce material effects for third parties whose
duty it is to have recourse to a judge so he declares the act null even though it
is “apparently suitable” to produce juridical effects (Caringella).
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Art. 21-septies of Law no. 241/1990 in fact provides that “an
administrative provision is declared null if it lacks essential elements, if is
flawed by an absolute defect of attribution, if it has been adopted in
violation or exclusion of final judgment and in other cases expressly
provided for by law”. The first part of the article lists the absolute defect of
attribution and the lack of essential elements (previously classified by
doctrine as cause of non-existence) as causes of nullity.
The first effect of the new law was to circumscribe the area of nonexistence to those cases in which “the juridical non-qualification of the act is
evident - a usurper of public functions (Art. 347, Criminal Code) or a ioci or
docendi causa act” (Chieppa). In any case a non-existent act may not be
revoked by the administration in self-protection, or rectified in any way
whatsoever because otherwise it would be a completely new act.
Much more complex is the problem of nullity. The “autonomistic” thesis of
administrative law with respect to civil law prevailed in legal scholarship and
case law before Law no. 15/2005 came into effect. It even denied that an
administrative act could be null and admitted annullability as the only admissible
form of invalidity. The promoters of the “law claim” theory instead supported
the transposition of the general systematic plan of civil law invalidity into public
law as regards both determining causes and their correlated regulations: the
indefeasibility of action, official transferability, legitimisation by any interested
party and extension of partial nullity. There are three types of nullity: textual
nullity - violations of laws that expressly contain the sanction of nullity; structural
nullity - defects, impossibility or illegality of one of the essential requisites of the
claim and virtual nullity - violation of laws on the power of command not
accompanied by specific sanctions which lead back to the consequences of
textual nullity. The entire transposition of this structure into administrative law
would have led to the instability of administrative action as almost all the laws
regulating it are binding. Virtual nullity would have constituted a residual
category that would have included all violations of law not falling under textual
nullity (which exists in administrative law, Art. 11.2, Law no. 241/1990) or
structural nullity, (admitted for serious defects in a provision), with the
perennial risk of administration having to justify its actions (Chieppa,
Caringella).
The new Art. 21-septies confirmed some of these tendencies in law, especially
those the Council of State dealt with in plenary session no. 6, 19 March 1984,
when it declared the nullity of a provision with no final judgment for lack of
power, and in sessions no. 1 and 2, 29 February 1992, and nos. 5 and 6, 5
March 1992, when it clarified that the hypotheses of nullity provided for by
public law are to be considered true cases of nullity in civil law.
The new law brought about the following complications: if, on one hand, in
case study non-existence is clearly distinguished from nullity - the terms have
often been used as hendiadys, see for example, TAR no. 11, Abruzzo,
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Pescara, 10 January 1984 - on the other it is more difficult to distinguish
between nullity and annullability for incompetence.
The law speaks of “absolute defect of attribution” as cause of nullity.
According to many legal scholars, absolute incompetence occurs when an
act is adopted by an administration that not only is incompetent to adopt the
provision but also has no competence whatsoever in the sector the
provision belongs to. In other cases there is the hypothesis for nullity for
relative incompetence when the body adopting the act is inserted into the
same organisational network as the body competent to adopt it. In this way,
attention is moved “from the individual act to its sector of activity”
(Caringella) with the consequent reduction in the number of cases of nullity
for absolute incompetence and increase in those for relative incompetence
just subject to annullability.
Some examples:
a) a deliberation by the City Council which should have been carried out
by the City Cabinet is annullable for incompetence;
b) a decree issued by the Minister of Infrastructures to expropriate funds
for the construction of a hospital is null for absolute incompetence;
c) a decree issued by the President of the Italian Soccer Association,
expropriating funds for the construction of a new stadium, is null or nonexistent? This is clearly an absolute defect of competence, but it is difficult
to imagine that a similar act could create any “apparent situation” capable of
producing juridical effects. The act is non-existent.
A case to bear in mind is that of “acting” official i.e. a person who
adopts acts referable to public administration but has not been officially
appointed to the position. This may be due to original invalidity or invalidity
that is declared after the official appointment takes place. In the first case,
the act is invalid because it was adopted before the appointment was made,
in the second case, the act is valid either because the term expires or because
the requisites to keep the office no longer exist (for example a criminal
sentence that includes interdiction from pubic office). If the adopted acts are
not invalid for other reasons, they have to be attributed to the
administration to safeguard third parties who acted in good faith and
because in any case, the acts the official adopted are still acts of his office.
However, when an official spontaneously assumes public functions in cases
of necessity and urgency, for instance for natural calamities or isolation of
territories due to a state of war, there is no usurpation of public functions. It
is the psychological element of an obvious state of need which forces an
official out of public not personal interest, to assume functions protecting
general interests that otherwise would not be protected.
For nullity caused by the lack of essential elements due to difference of
subject (in the above-mentioned terms) and content (without which the act
would not be identifiable), and considering that no law has established what
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the essential elements are (compare Council of State, Section VI no. 948, 147-1999) it is obvious that an act is declared null when the object (for
example, funds are expropriated or a non-existent physical person is
promoted) or the essential form of the act (a promotion that is given
verbally) is lacking. The lack of elements or illegality of cause falls under the
category of excess of power, one of the causes of annullability (Caringella).
The provisions of Art. 21-septies and 21-octies leave no space for “virtual”
nullity. If the conditions expressly provided to declare the act’s nullity do
not exist, the hypothesis of annullability is opted for and it remains the
general sanction for invalidity of a provision.
Annullability for relative incompetence is useful where there are
concurrent competences between different territorial levels of Government.
After the Bassanini and constitutional reforms in 2001 (see the concluding
paragraph), a vast area of administrative function became object of
cooperation and joint intervention of State, Regions and local authorities
with a tremendous increase in the uncertainty over how competences should
be distributed, as the explosion of constitutional contentions attests to. In
this prospective, absolute incompetence conceived as something extraneous
to the entire sector interested in the provision lends stability to
administrative action and since the action of nullity is not subject to terms
of expiry, it can proceed with certainty.
Nullity is distinguished from annullability for other important reasons as
well:
the juridical seat for protecting subjective rights from damaging acts is
ordinary law, unless provided for differently by law. Exclusive jurisdiction
and nullity of acts for lack of final judgment are imperfections that usually
cannot be rectified, whereas in principle, annullability can be rectified; the
declaration of nullity is not subject to terms of expiry or prescription; it can
be requested by any interested party or officially by the judge in court.
5.2. Annullability
Traditionally the annullability of an act is declared for three reasons:
1) incompetence as illustrated above;
2) violation of the law occurs each time an act conflicts with a law of
national or European Community origin. Typical violations of the laws on
procedure are: failure to acquire obligatory opinions, failure to communicate
to a private person that proceedings are being opened against him, and so
on. Since incompetence and use of excessive power are violations of law,
this category assumes a residual nature to include all the acts not regarding
questions of competence or administrative power of discretion;
3) use of excessive power can occur only when administrative power of discretion
exists, according to consolidated juridical practice. This type of flaw cannot
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exist where administrative action is binding and the contents of the acts predetermined. The “symptoms” of use of excessive power are:
- deviation of power: the administration utilises its power of discretion for
another purpose other than what it was intended for (a building is declared of
“historical value” to save it from demolition by the city building regulation plan)
or when the administration pursues a public interest utilising power that was
provided to it to pursue other interests (the unwelcome transfer of an employee
to a branch office conceived as a punishment but made to look like an
organisational measure and not a disciplinary one:
- alteration of facts: the administrative act is based on an erroneous
reconstruction of circumstances, (a disciplinary measure is taken against an
employee thought to be unjustifiably absent from the office when instead he
was legitimately ill);
- internal contradictions or illogical evidence: a disciplinary measure is
adopted even after learning that the employee was not responsible for the
fact;
- inequity of treatment: two officials are guilty of the same behaviour,
and one is punished and the other is not. This is a violation of the principle
of equality;
- lack of motivation: leads to cases of insufficient or incongruous
motivation since it is obligatory to state the reason for an administrative act
(its absence constitutes a violation of law);
- grave and manifest injustice: a “violation of considerable proportion in
the choice of interests according to the correlation between them expressed
by primary laws” (Council of State, Section VI, no 463, 23 April 1990). This
differs from inequity of treatment that derives from the violation of equality
and impartiality, because it constitutes a violation of the principle of equality
and proportionality against only one subject so there is no comparison with
the position of other subjects;
The development in case law of these “symptoms” is justified by the
need to ensure forms of protection against the abuse of administrative
power of discretion for all those decisions not subject to control of merit.
5.3. Irregularities
Art. 21-octies introduced non-invalidating flaws whereby provisions are not
annullable, given their binding nature, even if they are adopted in violation of
regulations on procedure or form, when it is clear that the contents of the
provisions could not have been different from those actually adopted. An
administrative provision is not annullable for failure to communicate the
opening of proceedings if the administration demonstrates in court that the
contents of the provision could not have been different than those adopted.
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Such provisions introduce a new, extremely important element, i.e. that
not all violations of law necessarily lead to nullity of administrative acts.
5.4. Rectification of Invalid Acts and Self-Protection
Even though invalid, an administrative act may still produces effects and
gives rise to an abnormality, which, if due to a flaw of legitimacy, can be
overridden by a decision of the judge who annuls the act. For other
abnormalities the administration has recourse to several “special” instruments
to either conserve the act or eliminate effects contrary to public interest, as long
as it is a question of annullability and not nullity/non-existence.
If the act is flawed due to incompetence, it can be rectified if the
competent body adopts a provision making the act its own, with ex tunc
effectiveness (ratification).
If the provision is flawed because an obligatory opinion is missing in the
examination phase, it may be rectified with ex tunc effectiveness when the
opinion is provided later (convalidation).
If one act is flawed because it lacks essential elements to produce certain
effects, but produces other effects instead because it has all the characteristics
that identify it and determine the other effects, then the administration may
decide for the conversion of the first act into the second one.
Not all flaws are rectifiable, hence the administration may have recourse
to its “special” powers under certain conditions. If the administration sees
there is a specific public interest in having an act removed, it can proceed to
officially declare it null by utilising its so-called power of self-protection. To
do so, the specific public interest must really exist because if the act has
begun to produce effects, it may already have generated legitimate
expectations in private parties. Once this requisite is satisfied, either the
body that adopted the act, or a superior body, either officially or upon
request of interested parties may declare it annulled.
Art. 2.3 letter p, Law no. 400/1988 attributes extraordinary power of
annulment to the Government, “to safeguard unity of law, illegitimate
administrative acts, upon opinion of the Council of State”; in fact the
Constitutional Court has established that Regions are immune to the power
of annulment (Decision no. 229/1989).
6. Protection Against Invalid Administrative Acts
If an invalid administrative act has violated legitimate interests that
should be protected, it can be impugned and declared null or annulled either
by administrative or civil law, in accordance with Art. 24.1, It. Const.
There are four types of administrative petitions:
Proper hierarchical petition is a general remedy that is always utilisable
unless explicitly excluded by law. A private person petitions a body in a
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superior position in the hierarchy of legal sources than the one who issued the
act, to have the act annulled or reviewed for reasons of legitimacy or merit to
protect both legitimate rights and legitimate interests. This petition must be
filed within 30 days from the act’s notification (or from the date when the
private person became aware of it) and should be considered rejected if within
90 days of the filing date, the administration does not reply (tacit-refusal);
Improper hierarchical petition is an exceptional remedy that is utilisable
only if provided for by law. This petition is directed to a body other than the
hierarchically superior one, which might not even exist: these are petitions
for motives of legitimacy or merit against provisions of collegial bodies. An
example of a petition against a monocratic body directed to a collegial body
is one proposed to the supply teacher commission against permanent
assignment and designation of supply teachers to schools;
Petition to change the act is an exceptional petition to the body that adopted the
act in an attempt to get it to change its mind. It is different from a simple
complaint because it obliges the administration to answer (with the mechanism
of tacit-rejection) and suspend the expiry term for recourse to law;
Extraordinary petition to the Head of State is a general remedy that may be filed
within 120 days of notification or knowledge of the act. It is an alternative to
recourse to law because the decision only formally belongs to the Head of State
and the most part it depends on the opinion of the Council of State, i.e. the
same administrative law body that presumably would be asked to give its
opinion in case of recourse to law. Its filing term is only 60 days, and it is
utilisable if there are no other remedies available or if all the others
have been rejected.
6.2. Protection by Law
A characteristic trait of Italian law is the existence of special judges, the
Regional Administrative Tribunals (TAR) and the Council of State, all of
which may annul an administrative act. The total number of instruments the
citizen has to safeguard his legitimate interests (in the terms which will be
explained later) and legitimate interests in conformity to Art. 24, It. Const.
gives origin to the system of administrative justice.
Administrative judges are judges specialised in administrative matters
who work alongside ordinary judges and other special judges (the Court of
Accounts). The main problem is distributing jurisdiction because
administrative justice is not competent to settle all legitimate interests.
An element that renders Italian administrative law unique in the Western
world is the distinction between lawful rights and legitimate interests in an
individual’s legitimate interest against the exercise of administrative power.
The right to property, dating back to Roman law, is a perfect example of a
lawful right, and is the full expression of law on those material things it must
guarantee maximum protection. In carrying out public interest, (building of a
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hospital), the private person’s right to property for that particular piece of
land must be sacrificed. The competent administration will proceed to
expropriate the land for reasons of public utility, guaranteeing fair indemnity
to the owner and giving rise to compensation for his lawful rights that were
damaged. The private person may not remain without protection; the law
ensures his interests will be guaranteed so that in case of expropriation,
administrative action is carried out in complete respect of the law and not
flawed by use of excessive power. Interest in the legitimacy of the
administrative action is a legitimate interest.
Obviously there exist legitimate interests without compensation awarded for
pre-existing lawful rights. For example, a candidate participating in a public
competition has a legitimate interest that the evaluations of the examining
commission are not flawed by inequity of treatment, illogicality or alteration of
facts, but he does not have a lawful right to win the competition.
The most important problem is understanding when a lawful right may
not be admitted against the exercise of administrative power. This operation
is fundamental to the distribution of jurisdiction since traditionally an
ordinary judge has competence over lawful rights, and the administrative
judge, legitimate interests. This has considerable implications because
whereas the administrative judge is competent to annul or declare the nullity
of an administrative provision, an ordinary judge is competent to determine
the damages awarded, which until recently, were only awarded in case a
lawful right was violated. As a consequence this leads to obvious difficulties
for the citizen.
The distribution of jurisdiction as described above constitutes a unicum in
comparative law. There are monist systems like those in the United States,
Great Britain or Belgium where the protection of the individual against the
administration is generally carried out by an ordinary judge, and dualist
systems like in France, Germany and Austria where all legitimate interests
against the administration are competence of the administrative judge.
The topic is extremely complex and around it has evolved Italian
administrative law. Here only a few salient points will be considered: 1) an
ordinary judge is competent when the administration has acted without any
power whatsoever (nullity of the provision); 2) an administrative judge is
competent when the administration is entitled to act but the provision is flawed;
3) the system of administrative justice has conserved its basic structure as
described above but it has been profoundly transformed in correlation with the
progressive enlargement of the area of so-called “exclusive jurisdiction”
introduced in Italian law back in 1923 with Royal Decree no. 2840.
Exclusive jurisdiction is carried out when law extends the judge’s
competence of knowledge to include all facts involving lawful rights, obviously
in conformity to the provisions of Art. 103, It. Const. Other than intending to
“simplify” a citizen’s access to justice, the extension of exclusive
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jurisdiction is a consequence of the difficulty deciding whether an individual
claim is a lawful right or a legitimate interest for numerous subject matters;
The provisions of Arts. 33 and 34, Legislative Decree no. 80, 31 March
1998, for instance, give the administrative judge competence for all
controversies regarding public services including those safeguarding credit,
insurance, real estate, pharmacies, public transportation, telecommunications
and services regarding public utility, construction and urban planning;
Art. 35, Legislative Decree no. 80/1998, amended by Law no. 205/200,
stated definitively that compensation for legitimate interests is to be
awarded directly by the administrative judge for subject matters under
exclusive jurisdiction (prior to that some limited provisions were part of
Law no. 142/1992) thus making procedure of the Court of Cassation and
Constitutional Court available to administration.
7. Transformations of the Administrative System
In recent decades various reforms have profoundly transformed Italy’s
administrative system. Although it is not possible to list them all,
nevertheless it is useful to give a general idea of the complications brought
by the new distribution of administrative competences between State and
other territorial bodies after the reforms, as well as explain the phenomenon
of independent authorities, whose creation was made necessary by the
liberalisation of various sectors of the economy and lastly outline the
essential traits of administrative simplification.
7.1. Political and Administrative Pluralism and Decentralisation after the Reform of
Title V of the Constitution
Decentralisation as proposed by Art. 5, It, Const., “the Republic shall apply
the fullest measure of administrative decentralisation in services dependent on
the State and adjust the principles and methods of its legislation to the
requirements of autonomy and decentralisation”, has been rather slow.
Ordinary Regions were only instituted at the beginning of the 1970s; whereas
the turning point for valorising local autonomy coincided with the approval of
Law no. 142 in 1990 so that from 1990 onwards, local bodies were the
institutions most affected by the reform. In 1997, the Bassanini reform, carried
out by means of primary sources, chose the City Council as the body with
general administrative competence, although according to the principle of
subsidiarity, some of its functions may be allocated to superior bodies. In 2001
the reform of Title V of the Constitution redefined the distribution of legislative
competences between State and Regions listing subject matters for exclusive
competence of the State and those with concurrent competence, leaving the rest
of the competences to the Regions, at least in theory. In
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actuality, the Constitutional Court circumscribed regional legislative powers
by adding the following points to the new Title V:
Non-equality between State and other territorial bodies: moving in the direction
of decentralisation as provided for by Art. 5, It. Const., the new Art. 114.1
and 2, It. Const. affirms “that the Republic is constituted by Municipalities,
Provinces, Metropolitan Cities, Regions and the State. And that
Municipalities, Provinces, Metropolitan Cities and Regions are autonomous
entities with their own Statutes, power and functions according to the
principles laid down in the Constitution”. The Constitutional Court clarified
that this does not mean parity for these entities, all of which have
profoundly different powers, whereas the State still maintains its special
position as can be inferred not only from the proclamation of the principle
provided for by Art. 5, It. Const. but also by the repeated evocation of unity
as provided for by the Constitution, by limits imposed on legislative power
by Community law and international obligations (Art. 117.1, It. Const.) and
by recognition of the need to “safeguard the legal and economic unity of the
nation” (Art. 210.2, It. Const. and Decision no. 274/2003);
Non-automatic nature of the residual clause and possible concurrent competence: if a
subject matter is not expressly listed among those for which the State has
exclusive legislative power, nor among those subject to concurrent
legislation, this does not mean it automatically falls under residual Regional
competence (Decisions nos. 303, 359, 362 and 370/2003); the complexity of
the social system to be regulated means that frequently legislative provisions
cannot be attributed as a whole to one subject matter because they regard
non-homogeneous positions distributed among different subject matters of
legislative competence (matters of exclusive State competence, matters of
residual Regional competence, matters of concurrent competence). Given
the intertwining provisions that characterise concurrent competence, the
Court has applied the criterion of prevalence of one matter over another
and the principle of fair cooperation (Decision no. 231/2005; see also
Decisions nos. 370/2003 and 50/2005);
Existence of “transversal” competences: the so-called “transversal”
competences, (compare Decisions nos. 14 and 345/2004) are certain
matters and functions (the protection of competition for instance) reserved
to the exclusive competence of the State, that do not have a rigorously
circumscribed and determined extension since they are inextricably crossed
with a myriad of other interests (some which fall under Regional concurrent
or residual competence) connected to the economic and productive
development of the nation. In such cases, the criterion of proportionality
and suitability determines what body is competent to protect legitimate
competition, and whether or not legislative intervention by the State is
necessary (Decisions nos. 407/2002, 14 and 272/2004).
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The above illustrated reforms deeply involved the central administration
because they brought about a massive transfer of functions and resources in
favour of Regional and local administrations.
At the same time the central administration has simplified and
rationalised its functions: while on one hand, reorganisation of the ministries
through Legislative Decree no. 300/1999 reduced their number and unified
competences previously duplicated in several structures, on the other,
massive privatisation of public economic bodies led to a proliferation of
independent authorities and administrative agencies.
7.2. Independent Authorities and Administrative Agencies
Independent authorities are public bodies with a high level of technical
competence to safeguard public and private interests of a constitutional
nature. They are not dependent on a Ministry and are free from political
influence in Parliament and from control by these bodies. This justifies the
institution of independent authorities because removing certain choices
from the Parliament - Government axis ensures that sectors under their
tutelage remain impartial and neutral when various interests are deliberated.
On the basis of the functions assigned to them, they can be classified as
follows:
Authorities with power to guarantee interests relating to general law and law directly
deriving from the Constitution: in this category are the Bank of Italy, Consob
(Official Body for Regulating and Supervising Companies and the Stock
Exchange) and AGCM (Italian Antitrust Authority). Against these
authorities the Government has no power of direction.
AGCM is commonly considered the prototype of independent authorities
because of its para-jurisdictional powers. Art. 41, It. Const. recognises freedom
of enterprise; from this derives AGCM’s competence to ensure general
economic conditions giving enterprises access to the market so they can
compete with equal opportunity. On this basis, the AGCM has competence to
control free competition in the market which would otherwise be limited in case
of agreements restricting freedom of competition, abuse of dominant position
and concentrations which would constitute or reinforce a dominant position
and eliminate or reduce competition in substance and duration; the Authority is
also empowered to “verify that holders of government office, in the exercise of
their functions, shall devote themselves exclusively to promoting the public
interest and shall abstain from taking actions and participating in collegial
decisions when they are exposed to a conflict of interest”. The Authority also
has powers to impose sanctions: in case of abuse and restrictive agreements, it
may impose a financial sanction up to ten percent of proceeds for enterprises
involved in restricting competition, according to the seriousness of the
violation. The authority also has administrative powers and it may authorise for
a limited period, agreements or
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categories of prohibited agreements which have the effect of improving the
conditions of supply in the market, leading to substantial benefits for
consumers. Such improvements shall be identified taking also into account
the need to guarantee the undertakings the necessary level of international
competitiveness and shall be related, in particular, with increases of
production, improvements in the quality of production or distribution, or
with technical and technological progress.
Within the category of Authorities for the guarantee of constitutional rights, are
found the Personal Data Protection Agency and the Authority regulating
strikes in essential public services such as healthcare, electric energy and gas,
justice, public order, etc.
Authorities with regulatory and economic functions: these authorities guide the
process of liberalisation and privatisation of economic sectors in conformity to
Community regulations on competition. Many of them in fact, such as AEEG,
the Electric and Gas Authority, AGCOM, the Communications Authority and
ISVAP, the Institute for Regulating and Supervision of Insurance Companies,
were instituted on the basis of Community regulations. AGCOM for instance,
has the twofold competence of “ensuring fair market competition and
protecting fundamental rights through strict control on quality and distribution
of services and products, including advertising, resolution of disputes between
operators and consumers, regulating universal service, safeguarding socially
vulnerable categories and fostering social, political and economic pluralism in
broadcasting”.
Agencies, many of which were created by the same Legislative Decree no.
300/1999, are organisms or authorities that carry out specific technical
operations activities. They have technical and organisational autonomy but are
subject to the policies and vigilance of ministries. Agencies may be a public
service body (ENEA, National Agency for New Technologies, Energy and the
Environment), a body that is a juridical person (the Italian Tax Agency under
the Ministry of Economy and Finance) or a body that is not a juridical person
such as APAT, the National Agency for Environmental Protection and
Technical Services, which carries out activities of a technical and scientific
nature of national interest to protect the environment, water resources and soil
under the Ministry of the Environment, Land and Sea of Italy.
The examples given here show the critical side of the transformation of
the administrative system. Independent authorities break away from the
principle of separation of powers since they often have legislative,
administrative and para-jurisdictional powers at the same time, with no
provision for this ever having been made in the Constitution.
Consob for instance, which is the official body for regulating and
supervising investors as well as the efficiency, transparency and development of
the stock market, has a significant regulatory power through which it imposes
obligations on its members accredited to operate in the stock market
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in order to guarantee transparency by 1) establishing criteria to adopt for
publishing information on public offerings, 2) carrying out research on
investments, 3) ensuring orderly conduct of behaviour and 4) determining
inter alia, the obligation to obtain information by clients or potential clients
to evaluate the appropriateness of operations or services supplied (compare
Art. 6, Legislative Decree no. 58, 24 February 1998, Unified Law on the
regulations of financial intermediation).
An analysis of the political mechanism used to appoint authority officials,
often Government ministers (the appointment of the Governor of the Bank of
Italy after the reform of Law no. 262/2005), or Parliament members (for
example, the nine Commissioners of the authority regulating strikes in essential
public services are appointed with a Decree of the President of the Republic
upon indications of the Presidents of the Chambers), shows how necessary it is
to impose forms of control on the activities of independent authorities to
counterbalance the absence of direct democratic legitimacy and constitutional
guarantees that are given judiciary bodies.
A first solution is to revive collegial bodies, which provide greater
guarantees than monocratic bodies in decision-making processes. A second
useful mechanism is to prohibit authority officials from working at private
enterprises or as consultants in the sector they regulate for a specific
number of years (regulations call for a prohibition of 4 years in the sector of
public utility services). A third instrument is the “endo-procedural” control
carried out by interested parties guaranteeing them the right to participate in
the procedure and allowing their contradictory opinions to be heard. In
general, access to information and the obligation of public information need
to be guaranteed. These are all forms of ex ante control.
For ex post forms of monitoring instead, a first control mechanism is to
oblige independent authorities to periodically report their activities to
Parliament. A second form of control is a jurisdictional one because
recourse is always admitted in front of the administrative judge or even the
exclusive jurisdiction judge against the decisions of the authorities.
Authorities utilising public resources are obviously subject to the control of
the Court of Accounts.
Legislative powers are best controlled by guaranteeing the principles of
legality and preference of law.
7.3. Administrative Simplification
Administrative simplification was introduced in Italy with Law no.
241/1990 to regulate administrative procedure founded on a citizenadministration relationship and based on the principle of efficiency, rapidity
of decision and with the introduction of negotiation modules to limit the
traditional administrative supremacy.
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Subsequently, Law. No. 537/1993 extended simplification externally,
reducing the number of collegial bodies in administrative organisation and
changing the system of legal sources with the introduction of so-called
delegislation. Delegislation is translated into the adoption of regulations
(Art. 17.2, Law no. 400/1988), which substitute a law in the absence of an
absolute constitutional statutory limit (riserva assoluta di legge), giving it an
apparent abrogative effect on primary laws. In reality the mechanism is as
follows: the law authorises the Government to exercise regulatory power to
determine general provisions regulating the subject matter and to abrogate
the current law once the regulation enters into effect. This should provide
greater flexibility and faster adaptability to the real situation (see Chapter
Eleven, par. 8.1).
Law no. 59, 15 March 1997 introduced an Annual Simplification Law to
be adopted upon initiative of the Government for the delegislation of law
on administrative procedure for central, local or autonomous
administrations, and indicate the criteria used in exercise of its regulatory
power as well as the procedures being regulated. Attached to the bill must
be a progress report on the simplification procedures adopted by previous
administrations. To date, only four Annual Simplification Laws have been
approved (Laws nos. 50/1999, 340/2000, 229/2003 and 247/2005) even
though laws not expressly qualified as “annual simplification law for the year
have introduced numerous measures …” (Law no. 127/1997, for example is
entitled, “Urgent Measures to Simplify Administrative Activity and
Decision-Making and Monitoring Procedures”). What is important is that
simplification has become a real and operative political institution.
In the words of Roberto Scarciglia, the following actions can be taken to
simplify procedure:
- eliminate administrative action, i.e. do away with an authorisation
needed to carry out a particular profession or activity;
- eliminate unnecessary bureaucracy in the examination procedure to
speed up adoption of provisions;
- reduce the number of subjects that participate in the procedure,
eliminating useless collegial bodies;
- merge competences scattered throughout various administrations and
reduce terms for adopting intermediate acts such as opinions;
- eliminate bureaucracy for the citizen and let him self-certify personal
conditions and civil status (birth certificates, residency, citizenship, enjoyment
of civil and political rights, legal existence, military service, education, etc) and
attest facts, conditions and personal information that the interested party has
direct knowledge of, with substitutive declarations. On an abstract level, this
means the administration is forced to “trust” citizens, and on a practical level, it
means it issues several million less certificates a year;
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- rationalise decisional procedures. Under this heading fall the services
conference, programme agreements, tacit-assent and giving notice of start of
activities. Many administrative procedures are divided into several subprocedures among the different administrations competent to safeguard
diversified interests, all aimed towards adopting the final provision. The
services conference is an organisation module where all individual
administrations involved are invited to examine, even by means of IT
technology if required, the various interests in the procedure to guarantee
speed and decisional capacity without instituting permanent collegial bodies.
In fact, Art. 14 of Law no. 241 establishes the following: when it is
necessary to examine the various interests in the administrative provision,
the administrative body competent to adopt the final provision calls a
services conference; it always calls a services conference when it needs to
obtain agreements, nulla osta or assent from other public administration
bodies and has not received them within 30 days of its request to the
competent body; it usually calls a services conference even upon the request of
the interested party when his activity is subordinate to a consensus of
competence from different administrative bodies.
The above-illustrated regulations describe the simplification process and
how it has adapted to the interests of private persons who may request the
administration to call a services conference. After various important
innovations introduced by Law no. 340/2000, the conclusive part of the
conference procedure is carried out as follows: a) at the end of ninety days
(maximum time limit for concluding the procedure) the administrative body
responsible for the procedure, that is the administration which has been
given competence to adopt the final provision, on the basis of the majority of
the positions expressed, assumes the so-called conclusive determination; b)
if any participating administrations fail to present a an opinion at the
services conference, they have 30 days from its closing date to present a late
opinion. In case of silence exceeding the 30-day term, tacit assent is applied.
If an administration with competence to defend the environment, soil or
historical-artistic heritage or protect healthcare and public security expresses
a motivated dissent, the decision must be sent back within 10 days to the
administrative body responsible for the procedure: for dissent between State
administrations to the Council of Ministers, for dissent between a State,
Regions and one or more local bodies to the Permanent Conference of the
State, Regions and the Autonomous Provinces of Trento and Bolzano (socalled State-Region Conference).
If the motivated dissent is expressed by a Region or an Autonomous
Province in one of the subject matters of its competence, the substitutive
determination is sent back within 10 days to the administrative body responsible
for the procedure for resolution: for dissent between a State administration and
a regional one or between regional administrations, to the
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State Regional Conference or for dissent between a region or autonomous
province and a local body, to the Unified Conference. The utilisation of this
organisational module as emphasised by the Constitutional Court in its
Decision no. 37/1991 is definitively inspired by the need for simplification
and streamlining of administrative activity. In case of complications, it may
be necessary to find a compromise between the different administrations to
foster coordination and cooperation between bodies at various levels of
Government. According to this logic, in addition to the hypotheses
provided for by Art. 14, public administrations may also conclude
cooperation agreements among themselves to regulate activities of common
interest (so-called programme agreements).
In this chapter the essential traits of tacit assent have been illustrated,
however, there is one analogous institution remaining that is strictly connected
to the liberalisation of economic sectors, the institution of the declaration of the
start of an activity. If the activity of a private person (i.e. registration in
professional orders, exercise of entrepreneurial, commercial or artisan activity)
is subordinate to acts such as authorisations, licenses, non-constitutive
concessions, permissions or nulla osta, whose issue depends exclusively on the
verification of requisites and presuppositions of law or general administrative
acts, with no limit, provision or specific instruments of sectorial programming
to issue the acts (absence of power of discretion), a declaration by the interested
party, self-certification and attestations normally requested, are sufficient to
open the activity, The competent administration may request information or
certification of other information if it is not found in documents the
administration already has in its possession, or if it cannot be directly acquired
from other public administrations. The private person communicates to the
administration that he intends to start a particular activity without waiting for a
specific act of authorisation. The administration reserves the right to verify the
existence of the requisites and, if necessary, block the private person’s activity ex
post. This instrument is not applicable to acts issued by the administration for
national defence, public security, immigration, administration of justice,
administration of finances, to safeguard health, public security, culture, land
conservation and the environment as well all acts imposed by Community laws.
By means of administrative simplification, new meaning is given to the
principle of sound administrative governance, eliminating legislative rigidity
and administrative barriers, and aimed towards economy of procedure and
less hierarchical concepts of the citizen-administration relationship, at the
same time emphasising the values of participation and common consensus.
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CHAPTER SEVEN
THE REGIONS
LORENZO CUOCOLO
SUMMARY: 1. Autonomous Territories in the Italian Constitution – 2. Special Regions –
3. Ordinary Regions and the Initial Development of Italian Regionalism – 4. Waves
of Constitutional Reform: The Reform of 1999 – 5. The Reform of 2001 – 6.
Regional Financial Autonomy – 7. Regional Organisation – 8. Local Government –
9. Requirements of Loyal Cooperation in the New Multi-centred System.
1. Autonomous Territories in the Italian Constitution
The Italian Constitution provides for a unitary State, which is
unequivocally confirmed in Art. 5, It. Const. which defines the Republic as
“one and indivisible”. This consideration is necessarily our point of
departure as we look at the framework governing the autonomous areas,
given that any study of possible territorial-based differences must be
measured by the fundamental yardsticks of unity and indivisibility.
Nonetheless, the unitary character of the State has not stopped the
development of a rather complex four-level system of autonomous
territorial areas: Municipalities, Provinces, Regions and the State (as ordered
by the new Art. 114, It. Const.). As a matter of fact, if one continues with a
reading of Art. 5, It. Const., which, as stated, begins with a statement of the
fundamentally unitary character of the Republic, we discover that it is the
Constitution itself which requires a complex territorial sharing of powers,
which favours the autonomous territories. Actually, it affirms that the Italian
Republic “recognises and promotes local autonomous territories”.
It is interesting to note the Constitution’s choice of words by using the
verb “to recognise”. This leads one to an understanding that local
autonomous territories are a pre-existing reality to the new legal order,
which the Constitution thus acknowledges. Far from merely stylistic value,
the word choice additionally reinforces the important role autonomous
territorial units play in the Italian legal system. Without reviewing the
extensive history of Italy, it is, nonetheless, worth recalling that already, in
the Middle Ages, Italy had a flowering municipalism. This was centred on
the Communes, which often were true city-states, endowed with immense
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riches and wide-ranging powers of self-government. The most notable
examples probably were those of the four Maritime Republics (Venice,
Genoa, Pisa and Amalfi) which, between the Tenth and Thirteenth
centuries, were the main military and economic powers of their time, also in
virtue of the high levels of political autonomy they enjoyed. In light of this
illustrious past, it is quite easy to understand how the Republican
Constitution could not ignore the notable experiences of autonomy, so
intimately linked to Italian history.
Nonetheless, we should highlight the fact that the Constituent Assembly
found itself in a position of reaffirming forms of autonomy that, to the
contrary, the just-ended Fascist experience had suppressed. Under the
Fascists, opportunities for territorial differentiation were discouraged, and
the tools of government were centralised in the hands of the national
executive. Already in 1926, in fact, Fascism did away with administrative
elections, substituting the municipal and regional councils (which had free
and popular elections) with the podestas (“podestà” at the municipal level)
and the praesidia (“prèsidi” in the provinces). The latter two were closely
linked to the authoritarian government. Putting off a more detailed
examination of the individual entities until later, the picture that emerges
from the Constitution of 1948 provides for a complex system of
autonomous territories based on Municipalities and Provinces, as in the
past. To these levels of government, though, another level was added: the
Region, which was destined to take on a leading role in the recent history of
Italian autonomous territorialism. This is because the Constitution grants
Regions (and not Municipalities or Provinces) legislative powers, which, as
we shall see, have increased in the last few years.
2. Special Regions
Italian regionalism has a few peculiarities which are absent from the
majority of similar legal systems and certain forms of asymmetry due to
specific historical events which have impacted areas of the country.
Not all Regions are equal: there are Ordinary Regions (as the majority
are) and Special Regions (the remaining five, with the peculiar example of
Trentino-Alto Adige, which is further broken down into the two
Autonomous Provinces of Trento and Bolzano). The classification as
Regions for both types depends on the adoption procedures used for the
individual regional Statutes, and therefore of their hierarchical position as a
source of law. Only the Special Statutes, in fact, are adopted pursuant to
constitutional laws of the Republic, and thus are placed on a par with the
Constitution. In other words, Special Statutes may contain (and actually do
contain) provisions differing from those generally contained in the
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Constitution. We are dealing with special legal frameworks justified due to
the special histories of the territories which benefit from such Statutes.
Nevertheless, we encounter a substantive paradox. If Special Regions
actually were set up to provide certain territories higher levels of autonomy,
as compared to the ordinary regional legal order, it is still worth noting that
the most important acts of regional autonomy, the Special Statutes, have
been adopted pursuant to a centralised process, finalised with the passing of
constitutional laws of the Republic. Thus, the special Regions have specific
forms of autonomy, but they are not the “masters” of such, in that, to
modify their own Statutes, they must ask the Parliament in Rome to do so.
The Special Regions are Sicily, Sardinia, Valle d’Aosta/Vallée d’Aoste,
Trentino-Alto Adige/Südtirol and Friuli-Venezia Giulia. Here, we are
dealing with the two largest islands (characterised, at the end of the
authoritarian experience, by a notable economic and social backwardness)
and the border Regions, subject to specific disputes and sensitive questions
relating to ethnic and linguistic minorities.
Sicily gained a particular form of autonomy right from 1946, when a
specially constituted Regional Council prepared a draft Statute, which was
approved whilst awaiting coordination with the text of the planned
Constitution then being drafted by the Constituent Assembly. The Statute,
which for the first time in the history of Italy granted wide-ranging
legislative powers to the Region itself, was passed in February 1948 as a
constitutional law by the Constituent Assembly. Even in Sardinia, from
1944 on, a special council was set up in order to adopt an autonomous
Statute. Nonetheless, in this Region the statutory process was not as speedy
as that in Sicily. The Sardinians did not want to follow the Sicilian model,
and preferred instead to draft a completely new Statute. The result was that
the Special Statute for Sardinia was approved at the end of January 1948,
just after the entrance into force of the new republican Constitution. As was
mentioned above, special autonomous powers were also granted to border
Regions. Among these, we should first recall the Valle d’Aosta, which is
characterised by a well-rooted bilingualism (Italian and French), and which
has enjoyed a notable degree of administrative autonomy since 1945 and,
since 1948, a Special Statute. More important still is the experience of the
Trentino-Alto Adige/Südtirol. Here, constitutional issues dovetail with
questions of international law. Relations between the Italian and Austrian
communities were at first governed by the De Gaspari-Gruber Accord of
1945. This document definitively recognised the borders between Italy and
Austria, and specific guarantees for linguistic minorities were provided,
ensuring the use of both Italian and German in the schools and in public
administration. The most important characteristic of the legal systems of
this Special Region is the existence of two Autonomous Provinces, Trento
and Bolzano. These Provinces, especially after the significant statutory
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reform of 1971, have eroded regional powers to a large degree. In other
words, almost all “special” authority is no longer exercised by the Region,
but rather, separately, by the Autonomous Provinces of Trento and
Bolzano. Finally, as regards Friuli-Venezia Giulia, a rather more complicated
route was followed due to problems of international law. The Peace
Conference held just after the end of the Second World War set up the
“Free Territory of Trieste” without, however, resolving Italo-Yugoslav
border disputes. These questions, as well as that of the status of Trieste
(which would later become the capital of the Region), were only resolved in
1961, and the Special Statute was approved only in 1963.
3. Ordinary Regions and the Initial Development of Italian
Regionalism
Whilst Municipalities and Provinces were well-known and consolidated
levels of government in the Italian system, Regions were contemplated for
the first time only in the Constitution of 1948, even though there had been
various projects and a few attempts to introduce regionalist reforms from
the end of the Nineteenth century onwards. In particular, we should recall
the attempt, carried out in 1860 by Farini and Minghetti (ministers of the
Cavour government) to set up a regional system. The project, drawn up and
formally presented to Parliament, was nevertheless soon abandoned when,
under the subsequent Ricasoli government, they opted for the
administrative unification of the nascent Kingdom of Italy (with the
consequent extension of the Savoy ministerial model throughout the
country). Even the Popular Party, founded in 1919 by Don Luigi Sturzo,
quickly showed itself to be aware of and interested in the possible
introduction of regions. This was seen as a way to streamline the centralised
public administration. However, the various projects drawn up at the
beginning of the 1920s were soon shelved due to the rise of Fascism which,
as mentioned earlier, was not only not open to any new forms of autonomy,
but rather, focused on eliminating already existing autonomy, rooted in
Italian social and institutional realities. The Ordinary Regions, therefore, for
the first time were provided for under the Constitution of 1948. However,
this did not solve the problems of regionalism, which suffered a slow and
accident-filled implementation process. In fact, the Ordinary Regions were
only concretely instituted in 1970, the year in which the first Regional
Councils were elected. For over twenty years, therefore, the innovative
prescriptions of the Constitution remained dead letter. Disputes and
controversies arose among the various constitutional constituencies. Giving
a brief overview, one could say that at first the Christian Democrats
governing the country intended to implement the constitutional provisions.
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However, they had to give up these plans due to Communist Party
opposition, which then, as always, opposed complex forms of
decentralisation. Subsequently, though, the enthusiasm of the centre’s
political forces mitigated this and turned against those in the leftist parties,
who believed they could obtain easy political successes in the regional
competitions. After suffering various vetoes and other failed attempts which
never took off, in 1968 the regional electoral law was passed, followed two
years later by the so-called regional finance law. All was ready, then, to elect
the first Regional Councils, which happened in June 1970. However, not
even the election of the Regional Councils resolved the complex problems
affecting regionalism itself. In fact, in order to fully implement the
constitutional plan, it was necessary for the State to grant the newly-minted
regional entities a portion both of its resources and its powers. Otherwise,
how could the Regions operate at full capacity without the proper financial,
human and structural resources and powers that, to that time, had
exclusively been in the hands of the Italian State? The 1970s therefore were
the years of “transferral” from the State to the Regions. In particular, there
were two waves of reform. The first was in 1972, and a second, more
important one, was carried out pursuant to Presidential Decree no. 616 of
1977, characterised by the transfer of organised areas of authority. The
Regions, in fact, received entire “blocks” of specialised powers from the
State regarding the areas identified as theirs under the Constitution.
Only at the end of the 1970s, then, did the ordinary Regions become
fully operational. However, after only a decade of relative calm, from the
1990s on the load road to regionalism would again meet up with obstacles.
Actually, peculiar economic circumstances brought about by the public
finances crisis, the crisis in the Italian political system, the ever more
frequent and detailed investigations by the ordinary judiciary of the not
always transparent dealings of important national political leaders, as well as
the birth of new secessionist political movements (in the North of the
country), led to profound reconsideration of the regional system provided
for by the Constitution.
One began to speak, mainly in the press, about the need for federalism.
In any event, it appeared that a wider grant by the Government of territorial
autonomy was the only way to defeat more radical plans being hatched by
political forces such as the Northern League. The latter, at least in certain
fractions, had taken actions and made statements which were completely
incompatible with the unitary and indivisible principles of the Italian
Republic, as solemnly sanctioned by Art. 5, It. Const. Thus, by the second
half of the 1990s, one saw the advent of an ambitious plan to
simultaneously move forward with reform of Part II of the Constitution and
of ordinary legislation governing autonomy matters. The constitutional
reform was supposed to be carried out pursuant to special procedures, laid
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out in Constitutional Law no. 1 of 1997. All attention was focused on the
work of a bicameral Commission, chaired by the Hon. Massimo D’Alema,
which was responsible for preparing the new text of Part II of the
Constitution. The reform of ordinary legislation, on the other hand, was in
large part assigned to then Minister of Public Functions, Franco Bassanini.
In fact, we speak informally of the “Bassanini Reforms”. The two reforms,
both ordinary and constitutional, were supposed to proceed along parallel
lines, with the hoped-for results of having, within a certain amount of time,
a new Constitution which would be “harmoniously” accompanied by a new
body of ordinary legislation. Things, however, did not go as planned. The
constitutional reform failed (or rather, was shelved). Instead, it was not
foreseen, however, that the ordinary reform would be successfully
completed, leading to a paradoxical situation whereby the country had a
more advanced body of legislation which had outpaced the old text of the
Constitution (which remain that of 1948). Thus, one spoke of “unreformedConstitutional federalism” to give a noble-sounding name and a positive
spin to a situation, which, in fact, had got out of hand. Actually, in many
ways the new “Bassanini Laws” conflicted with the Constitution. One key
example was that of administrative operations. Whilst Art. 118, It. Const.
states that Regions have authority over the same administrative roles for
areas in which it has power to legislate (the so-called parallel principle
between legislative and administrative duties), Law no. 59 of 1997 and the
subsequent delegated legislative decrees introduced the principle of
subsidiarity. This meant maintaining State (national) primacy only over those
matters expressly identified by law. In other words, a doubtless more
modern legal framework, but nonetheless, one lacking any constitutional
support, overturned the traditional legal order.
4. Waves of Constitutional Reform: the Reform of 1999
The institutional embarrassment following the failure of the bicameral
Commission and the contemporaneous success of the Bassanini reforms led
to a quick study of new possibilities to reform the Constitution.
Correctly, one thought that it would be safer to take small steps and
amend individual articles in the Constitution rather than rewrite the entire
Part II, redesigning both the form of state and the form of government. In
effect, it was easier to gather the special majorities provided for under Art.
138, It. Const. for focused and limited constitutional reforms (even though
of great importance), but which dealt with similar issues together. Thus, a
new season of reform began, with the first results appearing under
Constitutional Law No. 1 of 1999.
There were two main points to the 1999 reform. First, there was the
change to the regional form of government, and second, the change in the
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statutory powers held by the Ordinary Regions. As regards reform of the
regional form of government, the original text of the Constitution provided
for, on the one hand, a parliamentary model, whereby the Regional Council
chose (among its members) the Cabinet and its President (see Art. 122,
subsection 5, It. Const.). The latter is connected to the former by a
relationship of confidence similar to that existing at national level between
Parliament and the Government. On the other hand, the electoral system
needed to comply with the laws of the State, and thus would be the same
for all Regions (see Art. 122, subsection 1, It. Const.). The electoral law
passed in 1968 was proportional in nature. Nonetheless, it was radically
amended in 1995 in order to introduce (again based on the particular crisis
then affecting the Italian political establishment) a majority system, with the
substantial direct election of the President of the Region (even though
formally it was not like that, since, as mentioned, the Constitution provided
that the President was to be elected by the Regional Council and not by the
people). In this way, the aim was to create a stronger link between
representatives and those they represented, and thus a greater level of
personalisation leading to greater responsibility on the part of those elected.
The new electoral law of 1995 was substantially confirmed by the
constitutional amendment of 1999. The latter, among other things,
formalised the direct election of the President of the Regional Cabinet, thus
overturning the original provision of Art. 122, It. Const. The new form of
regional government taken from Constitutional Law no. 1 of 1999 provides
for the direct election of the Regional President and a toned-down fiduciary
relationship between the Regional Council and the executive. Compared to
the past, in fact, there was no longer a requirement for an initial vote of
confidence. In addition, the relationship only ran between the President of
the Cabinet and the Regional Council, and did not involve the Regional
Cabinet members themselves. These thus took on the role of mere
fiduciaries of the President, who was free to appoint and dismiss them at
will. The Council could still revoke its confidence, but it would have to do
so necessarily whilst having an absolute majority. Nevertheless, if the no
confidence motion were approved, the consequences would be devastating.
In fact, the constitutional reform introduced the so-called “aut simul stabunt
aut simul cadent” clause (“together they stand, together they fall”, see the Chapter
Three). This foresaw that an eventual vote of no confidence in the President
(as his stepping down or in yet other situations) would lead to, in addition to
his stepping down, the contemporaneous dissolution of the regional Council
and the calling of new elections. The new form of government provided for
in the 1999 constitutional law was, however, only “transitory”. In effect, it
foresaw that, from then on, each Region could (or rather, must) provide for
its own form of government, which was to be included in the new
governing Statutes under the same reform. In other words, the form of
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government outlined above was only applicable up until the adoption of the
new Statutes and related regional electoral laws, which also required each
Region to decide for itself. Upon a first look, it would appear that we could
have 15 different types of regional governments, with 15 diverse electoral
models. However, things have not worked out this way, since (until now, at
least) the Ordinary Regions having adopted new Statutes and new electoral
laws have substantially confirmed the notion of direct election for the
President of the Cabinet. Thus, even the “aut simul stabunt aut simul cadent”
clause that the Constitution consequently imposes for direct election of the
Regional Presidents applies (see Art. 126, subsection 3, It. Const.).
The second important innovation introduced by the 1999 reform deals
with the Statutes of Ordinary Regions. In effect, Art. 123, It. Const. was
completely rewritten. The modifications relate to both adoption procedures
and the terms of the Statutes themselves. As far as the adoption procedures
are concerned, the original version in Art. 123, It. Const. provided that the
proposed Statute be approved by an absolute majority of the Regional
Council, and then implemented by a State law. This meant that the Ordinary
Statutes took on the formal cloak of a State (national) source of law, and not
a regional one. This paradoxical sign of rather limited autonomy was
overturned by the new text of Art. 123, It. Const. Now, instead, Statute
approval procedures are entirely within the regional sphere. In fact, two
resolutions by the Regional Council are now required, with at least two
months passing between the first and the second votes. The requirement of
an absolute majority was kept as regards majorities. The described
procedures, now completely within the purview of the Region, closely recall
those provided by Art. 138, It. Const. for the adoption of constitutional
amendment laws. This confirms, and at least resembles, the increased role of
the Ordinary Statute as a founding charter of regional autonomy. The
similarities with the procedures for constitutional amendments also appear
in the so-called “facultative” stage. It is actually possible (but not a
mandatory step) that if a fiftieth of the regional electors or a fifth of the
Regional Council members demand so, the Statute becomes subject to a
referendum within three months of the giving of initial notice. It is worth
noting that even with the ambiguity of the constitutional text, the Statute is
subject to two official notifications. The first starts the running of the threemonth period in which the referendum may be requested, and the second
completes the Statute’s entering into force, to be carried out either after a
successful referendum or after the running of the term if the referendum
was never requested in the first place. In the event the referendum is
requested, it is sufficient that the votes in favour of the Statute are greater
than those cast against it. No quorum is required, as is, for example for an
abrogative referendum pursuant to Art. 75, It. Const. The only action the
central government can make in the Statute adoption procedures regards
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constitutional review. In effect, within 30 days of notice being given, it is
possible for the Government to challenge the Statute before the
Constitutional Court if it contains potentially unconstitutional provisions.
As we just stated, Art. 123, It. Const. sets the term for challenging the
Statute, running from the date of notice. However, it is not altogether clear
to which notice provision it refers: The initial notice or the notice
concerning final entry into force? In decision no. 304 of 2002, the
Constitutional Court specified that it refers to the initial notice publication,
the same one, therefore, which starts the clock running for the potential
referendum. Art. 9 of Law no. 131 of 2003 (the so-called “La Loggia Law”,
the name of the then Minister of Regional Affairs), subsequently confirmed
this understanding. Among other things, this means that the constitutional
review requested by the Government is preventative in nature (see the
Chapter Ten), and thus may happen before the regional act takes effect.
However, this is not the case for challenges to regional laws. The new Art.
127, It. Const., in fact, provides that potential challenges by the
Government must occur after the entry into force of the law itself. As
regards content of the Regional Statutes, Art. 123, It. Const. states that the
Ordinary Statute governs the Region’s form of government, as well as the
fundamental principles of regional organisation and functioning. The Statute
must also regulate the regional legislative process, the referendum regarding
regional legislation and administrative rules, as well as publication of notice
of regional laws and regulations.
All terms of the Statute must be “in harmony with the Constitution”.
There has been quite a bit of discussion as to the meaning of those words.
Ultimately, it means that “harmony with the Constitution” not only does
not permit violating constitutional provisions in any way, but also that the
Statute itself must respect the spirit and founding principles of the
Constitution. In other words, “harmony” does not mean anything less than
full compliance with, but may actually mean something more. The original
version of Art. 123, It. Const. also provided for necessary “harmony” with
the laws of the Republic. This term was removed in order to confirm
reinforced autonomy at regional level. Returning to the question of content,
without doubt the most important term regards the form of government.
We have already said, in fact, that the Constitution and the State’s laws first
outlined this, and that Regions could not freely set the requirements. The
important change in perspectives has, until now, led to less significant
practical changes than some experts expected. This is because all Regional
Statutes approved until now have confirmed the direct election of the
President, along with the potential consequence of a “destructive” no
confidence vote by the Council, and subsequent application of the abovementioned “simul stabunt aut simul cadent” clause (again also see the Chapter
Three).
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5. The Reform of 2001
Constitutional Law no. 3 of 2001, the most important reform (at least in
quantitative terms), was approved with a razor-thin majority. A referendum
was later requested for this law (for the first time in the history of the
Republic), pursuant to Art. 138, It. Const. and Italian voters approved the
version confirmed earlier by Parliament. Although it did not modify Part II
of the Constitution in its entirety, the 2001 reform did have a decidedly
greater reach than the 1999 reform, as it rewrote all of Title V of Part II (the
part dealing with territorial governments other than the State). In light of
the two waves of reform, the constitutional framework, even though it did
not become federalist in nature, has certainly witnessed accelerated
decentralisation and the growing weight of the autonomous territorial
entities. What primarily emerges from the new wording in Art. 114, It.
Const. is the fact that, whilst the original states “the Republic is constituted
by Regions, Provinces and Municipalities”, the new version affirms “the
Republic is constituted by Municipalities, Provinces, Metropolitan Cities and
the State”. Two considerations appear from a reading of the new text. First,
the order has been inverted. No longer are the territorial entities listed in
descending order according to size, but we begin with the entity that is
actually closest to the citizens, ascending to the others. Second, even the
State is included in the listing of territorial entities constituting the Republic,
as it is no longer possible to state the maxim “State = Republic”, which in
some way was suggested by Art. 114’s prior wording. The article we just
considered is foundational for the new principle of institutional pluralism
and recognition. This signifies that in the new system all territorial
governmental entities enjoy equal institutional dignity, and therefore (at least
theoretically) equal “rights” and equal “responsibilities”.
This principle does not however remain as a simple theoretical possibility,
but rather, as we will see, it concretely takes form in the subsequent articles
rewritten in the constitutional reform of 2001. Among the more important
points of the Title V reform is the complete rewriting of the allocation of
legislative powers between the State and the Regions. The original text of the
Constitution provided for the general legislative power of the State, reserving to
the Regions the possibility of passing laws only in the areas expressly listed
under Art. 117, It. Const. In addition, legislative power for the Regions was
concurrent with that of the State. In other words, even for those areas
specifically listed as regional, the State had the power to legislate related
fundamental principles, whilst the Regions could only approve the legislative
details. In practice, then, there were numerous cases where the State “occupied”
the entire area, dictating both legislative principles and the details. The new Art.
117, It. Const., to the contrary, specifies that the legislative power is to be
exercised both by the State and
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by the Regions, with substantial qualitative mutual recognition of the two
sources of law. As regards the allocation of powers, the Constitution
provides for three different means of division. Art. 117, subsection 2, It.
Const. enumerates the areas exclusively the purview of the State, whilst
subsection 3 of the same article sets out those subject to concurrent
State/regional jurisdiction. Finally, subsection 4 of Art. 117, It. Const.
contains a residual clause in favour of the Regions. Going into greater detail,
the second subsection sets out a long list of particularly important strategic
or national unity matters which may only be governed by the State. Going
through the 17 items on the list, we find, in any event, certain particular
powers. These deal with “transversal” powers, such as the regulation of
competition (anti-trust), protection of the environment or basic aspects
regarding protection of civil and social rights that must be guaranteed
throughout the country (also see Chapters Six and Twelve). Why
transversal? Upon a closer look, they do not deal with actual subject matters.
If, for example, we consider “competition”, it is clear that this is not a
subject matter in and of itself, but rather something that might involve any
subject matter. For example, a law favouring competition could deal with
the distribution of energy (a concurrent State-Region power), as well as local
public services (falling under the residual powers of the Regions). In light of
the above, when the State makes use of a transversal power, it can cut
through areas of concurrent or shared power, or even the residual powers of
the Regions. This provides a flexible limitation on regional legislative
actions. Nevertheless, it is clear that the choice made by the State is always
subject to review by the Constitutional Court. The third subsection of Art.
117, It. Const. contains the enumeration of matters subject to concurrent
State and regional powers. Thus, this type of rulemaking, which was already
present in the preceding constitutional text, has been confirmed. The new
wording, nonetheless, joined with basic considerations of mutual
recognition and institutional pluralism (discussed above), appears to
reinforce the role of the Regions. It specifies that they hold the entire
legislative power, “except for” the determination of fundamental principles,
which remains the purview of State legislation. Theoretically, at least,
detailed State rules should no longer be admissible, unless they are merely
transitory, and thus “yield” whenever applicable regional legislation is later
passed.
Of great importance is the fourth subsection which, as we said, contains
a general residual clause in favour of the regional legislative powers.
Actually, it affirms that the Regions have full legislative powers in all matters
not reserved to the State. In other words, the State can adopt laws only
regarding those matters specifically enumerated within its exclusive
jurisdiction, or (limited to fundamental principles) those appearing on the
list of concurrent, or shared, powers. In all other cases, (that is why it is
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called “residual”, as it indicates those remaining) legislative powers will be in
the hands of the Regions. It is evident that the legal order we just described
leads to a “Copernican Revolution” when compared to that envisioned
under the original text of the Constitution. The subject called upon generally
to make the laws, in fact, is no longer the State but rather the Regions. Such
a declaration, which is a direct consequence of a reading of the new Art.
117, It. Const., must still be tempered by an analysis of procedures that have
developed from 2001 to date. For various reasons, the areas of regional
dominance, in fact, have not increased as much as one could have expected.
In the first place, because all material areas of law are already “occupied” by
primary laws and the majority of these are State laws. The consideration is
not moot, but it is easily comprehensible that the Regions will have greater
freedom to exercise their own legislative powers in areas that are still
relatively “empty” of other legislative efforts. This is since it would be quite
difficult to introduce new laws in areas already governed by applicable State
laws, especially if it is necessary to distinguish the details from the
fundamental principles of such areas of legislation. In the second, we must
again remember that the State has significant transversal powers that
nonetheless give it noticeable power over regional powers, even in areas of
the law that are concurrent or residual in nature. All this has been confirmed
by the case law of the Constitutional Court, which, notwithstanding certain
turns to one side or the other, has favoured a rather prudent
implementation of the new Title V. Also worthy of mention is the allocation
of regulatory powers, disciplined by Art. 117, subsection 6, It. Const (also
see the Chapters Six and Twelve). Pursuant to the new version, in fact, the
State preserves it regulatory powers only over the matters for which it has
exclusive jurisdiction, as long as it does not delegate exercise of regulatory
power to the Regions. However, in both concurrent matters and the matters
not enumerated in any list (and thus falling under the residual powers of the
Regions), the regulatory power is regional in nature. We should note that the
new Title V does not specify which regional organ has the power to adopt
regulations. In the previous version of Art. 121, It. Const., there was a rather
original provision that regulations were to be approved by the Regional
Council (thus, the same organ holding the legislative power) and issued by
the President of the Regional Cabinet. The disappearance of the explicit
reference has led some commentators to state that, following the centralised
model, where regulatory powers are assigned to the Government,
regulations need to be adopted by the Regional Cabinet. The Constitutional
Court however, has specified that the silence of the Constitution in this
regard does not have significance in and of itself, and therefore, to identify
the proper organ having the power to adopt regional regulations, it is
necessary to refer to the Regional Statute (also see Chapter Twelve).
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One of the most innovative aspects of the constitutional reform of 2001
concerned administrative functions (also see Chapter Six). As we have stated
previously, the original version of Art. 118, It. Const. provided for so-called
“parallelism” between the legislative and administrative functions.
Therefore, Regions had the power to regulate the administration sphere only
as regards matters enumerated in Art. 117, It. Const. The new wording of
Art. 118, It. Const., however, jettisons the principle of parallelism in favour
of the more modern principle of subsidiarity. This choice was also meant to
give constitutional validity to the “Bassanini Reforms” we looked at above.
Subsidiarity should be understood both in a vertical sense as well as in a
horizontal one. Vertical subsidiarity means that the administrative functions
must be assigned to the governmental level closest to citizens. Thus, at least
at first, the Municipality must carry out the function. Only if it is not capable
of carrying it out, or it can be shown that it is not the best means to provide
the service, administration of the function moves to the next level up and,
therefore to the Province, the Region and, finally, to the State. Therefore,
we can understand the significance of Art. 118, subsection 1, It. Const.,
which opens by confirming in an apparently peremptory way that “all
administrative functions shall be assigned to the Municipalities”. Continuing
on, in fact, we discover how this overall choice may be modified, when, in
order to guarantee a uniform exercise of functions, it is necessary to identify
another level of government, to observe the principles of differentiation and
adequacy.
Summing up, the 2001 reform aimed at assigning functions to the level
closest to the citizens, but at the same time, it specifies that the highest level
of differentiation possible must be balanced with the adequacy of the level
the function is assigned to. Upon a first reading of the new Art. 118, It.
Const., certain commentators held that based on this constitutional norm,
all administrative functions were thus transferred to the Municipalities.
Taking a closer look at this reading, we cannot share that interpretation,
since certain administrative functions, in line with Art 97, It. Const. must
have legislative legitimacy. Therefore, it would be necessary to have a law of
the State or of the Regions, depending on the power involved, which
identifies the most suitable level of government to carry out the particular
administrative function. However, it would obviously try to favour, if
possible, the municipal level, since, as mentioned, this is the one closest to
the people.
Alongside vertical subsidiarity, there is also the principle of horizontal
subsidiarity, which can be gleaned from Art. 118.4, It. Const. This means
that, wherever possible, public authorities must generally (based on the
“vertical” level of government involved) take a step back, and support
autonomous initiatives promoted by private citizens, in individual or
associated form. This substantially innovative constitutional principle
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requires the local level government authority in question to favour – as
much as possible – the activities of private citizens and of so-called “civil
society”.
6. Regional Financial Autonomy
The new wording of Art. 119, It. Const. grants financial autonomy to tax
and spend to both the Regions and all other local levels of government. The
importance of this provision is evident, especially as regards the Regions.
The empowering of the various forms of autonomy and newly expanded
powers, in fact, would remain dead letter if theoretical grants were not
followed up with the financial means to independently manage such powers
(also see the Chapter Three). Based on the new Art. 119, regional financing
comprises four types of revenue. Above all, there are revenues earned on
each Region’s assets, which are attributed following general principles set
out under the State’s laws.
Next, there are taxes which the Regions can impose, as long as such are
in harmony with the Constitution and in accordance with the principles of
coordination of public finances and the State taxation system. As well, the
Regions are to receive a share of the State’s proceeds from taxes related to
their territory. Finally, the State will establish an equalisation fund to the
benefit of areas where fiscal capacity per inhabitant is reduced. The abovelisted revenues are those which the Regions have at their disposal to cover
their ordinary activities and functions. There is also another important
provision worth noting. The fifth subsection of Art. 119 declares that the
State can set aside additional funds in order to promote economic
development, social cohesion and solidarity, to remove economic and social
inequalities, to foster the actual exercise of human rights, to pursue ends
other than those pertaining to the exercise of their ordinary functions.
Even when the reform will be completely implemented, then, an
important financial lever will remain in the hands of the State. It will be able
to decide, at its discretion, which areas need greater investment of State
funds in order to progressively reduce the imbalances existing between the
various areas of the country. Notwithstanding the detailed provisions in the
new Art. 119, It. Const., it should be said that, until now, the financial
autonomy of the Regions has been quite limited. The Constitutional Court,
in fact, has blocked any attempts to move forward, especially as regards
efforts to impose new regional taxes. In particular, the judges of the Court
have affirmed that the new Art. 119, It. Const. cannot be implemented until
a new State law sets out a precise framework for such, as well as a clear
method of coordinating national finances and those of local and
autonomous regional governments.
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7. Regional Organisation
Art. 121, It. Const. states that the regional organs shall be made up of
the Regional Council, the Regional Cabinet and its President. Obviously,
these are not the only organs of the Regions. They are, however, the
necessary institutions which cannot be absent. To these, we must also add
the Council of Local Government Authorities as a necessary institution,
which the new Art. 123, It. Const. indicates as the consultation forum
between the Region and local government, and which is to be regulated by
the new Regional Statutes. The specifics contained in the text of the
Constitution concerning the composition and functioning of the regional
organs are extremely limited. This should not surprise us, as actually it is in
line with the concept of reserving to the Regions significant room for
autonomy. For this reason, the missing detailed information is primarily to
be found in the Statutes of the individual Regions, as well as in the internal
regulations of regional entities. The Regional Council is to be elected
directly by citizens appearing on the electoral rolls for Chamber of Deputies
elections, in the Municipality of the Region concerned. As regards election
procedures, the new Art. 122, It. Const. grants the powers to decide such to
the individual Regions, so long as they fall within the limits of the
fundamental principles determined by a State law which shall also determine
the terms of office of the elected organs.
Regional Councils currently have five-year terms, set pursuant to Law
no. 108 of 17 February 1968. In addition, regional councillors enjoy similar
prerogatives as those granted to Members of Parliament. Thus, Art. 122, It.
Const. provides that councillors cannot “be called upon to answer for
opinions expressed or votes cast in the exercise of their duties”. In addition,
it is implicit that for regional councillors as well, the prohibition against
specific mandates applies, and therefore that each councillor represents the
entire region as a whole, and not only the district in which he was elected
(prohibition confirmed by Art. 1 of Law no. 108 of 1968). Finally,
councillors are to be paid a salary, which must now be set under regional
law. Art. 122, It. Const. specifies that the Regional Council must elect a
President from its own members and a President’s Office for the conduct of
its proceedings. The essential framework of the Council is therefore already
outlined in the Constitution. Other provisions are added to these, and are
contained in both the Regional Statutes and the internal rules of each
Regional Council. In general terms, the organisation of the Councils follows
that of the Chambers of Parliament, and thus provide for, in addition to the
President and a President’s Office, council groups, the conference of the
heads of these groups and council commissions. The latter are entrusted
with the initial review of proposed regional laws. In reference to the
functions carried out, the Constitution states “the Regional Council
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exercises legislative powers granted to the Regions and the other functions
assigned it by the Constitution and by law. It can propose bills to the
Chambers”.
For this reason, the Council is the most important decision-making body
of the Regions, since it has been exclusively granted legislative powers.
Among the most important powers exercised by the Council is the exercise
of general powers pursuant to the Statute, the drafting of regional laws and
regulations (to the extent recognised under the Statute), the adoption of
general policies regarding regional activities, the ability to propose bills to
the Chambers of the National Parliament, the election of regional
representatives to join Parliament in joint session in relation to the election
of the President of the Republic, and the making of requests for the holding
of abrogative or constitutional referendums. The Regional Cabinet is made
up of the President and the other members. As we already had a chance to
observe, the transitory form of government included in Constitutional
Amendment Law no. 1 of 1999 and substantially followed by the new
Regional Statutes provided for a relationship of confidence only between
the Regional Council and the President of the Cabinet. The members of the
Regional Cabinet, therefore, do not answer to the Council, but only to the
President of the Cabinet, who may freely appoint and dismiss them. In
addition, we should remember that in the new legal order, it is no longer
necessary that the Cabinet members be chosen from among the members of
the Regional Council, and in fact, quite frequently the President’s “team” is
chosen outside of this group. The President of the Cabinet represents the
Region, directs the general policy of the Regional Cabinet and is responsible
for it to the Regional Council. Furthermore, he promulgates regional laws
and regulations. The Cabinet is the executive organ of the Region. It
proposes regional laws and other normative acts, which must be approved
by the Council. It can also decide to petition the Constitutional Court to
challenge State or other regional laws or acts having the force of law or
lodge a claim concerning jurisdictional disputes (also see Chapter Ten).
Instead, the Cabinet cannot take on duties which ordinarily would be the
purview of the Regional Council. Specifically, the Cabinet cannot exercise
emergency legislative powers (i.e., regional law decrees) or those based on a
Council law purporting to delegate such powers (i.e., regional legislative
decrees). Provisions permitting these practices, which have been included in
some of the new Regional Statutes, have been declared unconstitutional by
the Constitutional Court based on settled case law which interprets such
powers restrictively.
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8. Local Government
As we have already stated, Art. 114, It. Const. affirms the new principle
of institutional pluralism and mutual recognition. This means that in the
new system, all territorial levels of government enjoy the same dignity and
regard under the Constitution. This new principle is initially confirmed in
the way in which Art. 114, It. Const. was drafted. The Municipalities and
Provinces, in fact, are placed before the other levels of government and,
most importantly, before the Regions and the State. It is therefore necessary
to try to provide an overview of local government below the regional level,
meaning Provinces and Municipalities. We should note that the
Metropolitan Cities, whilst provided for under the new constitutional
framework, have not yet been recognised under ordinary State law (except
for the provisions of Law no. 142 of 2000 – which still has not been
implemented – identifying Turin, Milan, Venice, Genoa, Bologna, Florence,
Rome, Bari and Naples as Metropolitan Cities). The Municipality is the most
prominent governmental territorial unit. The municipal tradition actually has
been well-rooted in the Italian Peninsula since mediaeval times. Currently,
the main legislative source of rules governing Municipalities (and Provinces)
is found in the Unified Act on Local Entities, passed pursuant to Legislative
Decree no. 267 of 2000. This act, together with the Constitution and the
Statute of each local entity, provides a complete organisational framework
for the duties carried out by such entities. The organs of the Municipality
are the Mayor, the Cabinet and the Municipal Council. In Municipalities
having more than 15,000 inhabitants, in addition, there is also the Speaker
of the Municipal Council, who is chosen from among its members. The
term of the Municipal Council’s mandate and that of the Mayor is five years.
We note that Law no. 81 of 1993 provided for direct mayoral elections. This
model was substantially copied in 1995 for the election of the President of
the Region and some propose adopting it for the election of the President
of the Council of Ministers (also see Chapter Three).
As regards the sharing out of powers between the Mayor and the
Council, we note that recently adopted rules have stripped the Council of a
large part of the powers that it previously exercised, granting such powers
instead to the popularly elected Mayor. Nevertheless, the Council still holds
the power to pass basic acts concerning municipal administration. The
Mayor, differently, represents the Municipality, is responsible for its
administration, the convening and chairing of the Cabinet, and the
supervision of the duties of municipal offices and the carrying out of
municipal acts.
The Mayor also has the right to name the directors of the various
municipal offices and define such management positions. Finally, the Mayor
acts as “Government official” in matters concerning civil status, public
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health and hygiene and the judicial police. In this regard, he has the power
to issue orders in case of extraordinary need or emergencies. The Cabinet,
which is made up of municipal councillors who enjoy the confidence of the
Mayor, works with the Mayor to manage the Municipality.
Finally, the Province: this level of government covers a territory
incorporating various Municipalities, all within a single Region. It occupies
an intermediate level between the former and the latter. As regards its
functions and powers, nonetheless, it has a rather marginal role, so much so
that lately (as part of the movement to limit “the costs of government”)
some have called for it to be done away with. This was actually done in
certain Regions which adopted a Special Statute, such as Valle d’Aosta,
currently, or Sicily, at least until 1986. The organisation of the Province
tracks that of the Municipality. Therefore, there is a President of the
Province, along with a Cabinet and a Provincial Council. For the election of
these entities, Law no. 81 of 1993 provides rules similar to those we just
considered for Municipalities. Therefore, the President of the Province is
directly elected by the people at the same time the Provincial Council is
elected. The Cabinet, instead, is made up of members enjoying the
confidence of the President. Their number may not be greater than a fifth
of the total number of provincial councillors. The Province has duties
covering administrative functions related to vast inter-municipal areas and
principally has authority over environmental matters and protection of the
territory, defense of water and energy resources, road and transport matters,
hunting and fishing, rubbish removal, education and professional education
and training.
9. Requirements of Loyal Cooperation in the New Multi-centred
System
In conclusion to the considerations we have made until now, it becomes
clear that after the 1999 and 2001 constitutional reforms the Italian model of
State, whilst still unitary due to the specific provision in Art. 5, It. Const., is
experiencing a notable increase in the level of territorial decentralisation and
forms of autonomy, when compared to the original model outlined in the
Constitution of 1948. All this, as we have said, was gained by way of specific
and limited amendments to the Constitution or through the reform of ordinary
legislation, although it was never possible to carry out a reform of Part II of the
Constitution in its entirety. This presents a few key considerations, and in
particular, one might say that there has been a lack of overall vision in the
implementation of the reforms of the last several years. This is clearly
confirmed by the absence of instruments permitting coordination between the
various levels of government, which would lead to
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the most “harmonious” use of the different powers and functions held by
the various entities. This would help to avoid jurisdictional disputes between
the State and the Regions, as well as between the Regions and the various
lower levels of government. The concrete relapse has been that of a striking
increase in the last few years of litigation between the State and the Regions
before the Constitutional Court. This consideration, however, does not
involve the lower levels of government since, among the other limitations of
the recent reforms, we must highlight the inability of Municipalities and
Provinces to directly lodge claims in the Constitutional Court. From various
corners, many have said that the solution to a good portion of these
problems would be the formation of a “Chamber of Local Authorities”. In
other words, it would be necessary to transform Italian bicameralism into an
“imperfect” bicameralism, making the Senate the representative of the
Regions and other lower level governmental entities (see Chapter Four). In
all probability, such a reform would help in the dialogue between the centre
and the periphery. However, it also needs to be said that not all motives
behind such disputes could be resolved a priori, especially in a system such as
in Italy, where division of powers between levels of government is so
complex, and, therefore, so uncertain. For this reason the Constitutional
Court, especially after the entry into force of the 2001 reform, has much
more frequently made recourse to the principle of “loyal co-operation”
between the various levels of government. This demands forms of dialogue
and concerted action between and among all entities involved in a given
decision, even where such involvement is not required under applicable laws
or regulations.
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CHAPTER EIGHT
THE PRESIDENT OF THE REPUBLIC
ORESTE POLLICINO
SUMMARY: 1. The Role of the President in a Comparative Context – 2. The Role of the
President of the Republic under the Italian Constitution – 3. Subjective
Requirements, Election and Term of Office – 4. Classification of the Key
Constitutional Attributes of the President of the Republic in relation to the Powers
of the Italian State – 5. The Tripartition of Presidential Acts – 5.1. Formally
Presidential Acts which are Substantially Governmental – 5.2. Formally Presidential
Acts which are also Substantially Presidential – 5.2.1. Appointment of Five
Constitutional Judges and Five Life Senators – 5.2.2. The Granting of Pardons and
the Commuting of Punishments – 5.2.3. Request for a New Deliberation of a Law –
5.2.4. The Sending of Messages to the Chambers and the Power to Express
Opinions – 5.3. Substantially Complex Acts – 5.3.1 Appointment of the President of
the Council of Ministers – 5.3.2. Early Dissolution of the Chambers – 6.
Irresponsibility of the President of the Republic: the Ministerial Countersignature –
7. Presidential Offences.
1. The Role of the President in a Comparative Context
The position which the Head of State presently occupies, and has
occupied, in the constitutional frameworks of different legal systems
evidences a commonly-held basis in that, in almost all contemporary legal
systems, he represents national unity, both externally, in relations with other
States, as well as within the State’s internal constitutional system. The
position of the Head of State significantly differs, however, pursuant to two
principle variables: whether the given legal system is a republic or a
monarchy (in relation to the form of state), and the characteristics of its
form of government (see Chapter Three)
As regards the first distinction, the key breakdown is between those
systems having a President of the Republic and those having a Monarch.
The former is found in approximately two-thirds of contemporary legal
systems where the Head of State, holding elective office, is one of the
constitutional organs which – together with Parliament, the Government
and the Constitutional Court – pursues the interests of the State, as an
expression of the principle of popular sovereignty.
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The principle of monarchy, instead, indicates those legal systems (in
Europe, this includes Belgium, Great Britain, Luxembourg, Norway, The
Netherlands, Spain and Sweden) in which the Head of State is a ruling
sovereign. In most cases (and in all those regarding Europe), we are dealing
with democratic systems which are characterised by the principle of the
division of powers, and not one in which monarchical power is applied as it
was in the absolute state in which the King was considered one and the
same with the State, and held all powers based on a presumed divine right.
The removal from the monarch of his divine legitimisation goes back to the
Act of Settlement in 1701, pursuant to which the power of the English
Parliament to set the rules of succession in the event the ruler had no
descendants was affirmed. On the Continent, as often occurs in the history
of comparative constitutional law, the same developments occur much later,
in 1789, with the French Revolution. On the contrary, contemporary legal
systems which are monarchical, the King still holds his position due to a
hereditary right (and in virtue of a legitimist principle), but they are
characterised by one of the variants of parliamentary government, which
represents the evolution of the constitutional monarchy and the Orleanist
monarchy. As regards the second variable relating to the various forms that
the model of government can take, the position and the powers of the Head
of State vary appreciably, based on whether one is dealing with a
presidential, semi-presidential or parliamentary form of government (Also
see Chapters Three, Four and Five)
In the first case – where the United States is generally agreed to be the
prototype – the Head of State is also the Head of the Executive, and thus holds
wide political powers. In the second (the model of the French Fifth Republic),
the situation is generally the same, except for the fact that the two positions
(President of the Republic and Head of the Government) are separate. In
substance, though, with the exception of the possibility of “cohabitation” (see
Chapter Three for more information), the Head of the Executive, when he is
from the same political party as the President of the Republic, is his longa manus,
an extension of his power. In countries with a presidential or semi-presidential
form of government, the legitimisation of the President to exercise the political
power is based on his popular election. In such systems, the President of the
Republic is elected either directly by the people (as in France since 1962) or by
second-degree elections involving a presidential electoral college (as in the
United States, or in France up until 1962).
In countries that have a parliamentary form of government, the
President of the Republic – as is the case in Italy – is generally excluded
from the political power circuit running between Parliament and the
Government, and holds powers which, while far from being merely
representative, are related to his role as guardian of the Constitution and as
an arbiter between the political forces.
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In these cases, the President of the Republic is normally elected by a
representative college that varies in composition from country to country: in
Italy, the President is elected by Parliament in joint session of its members;
in Germany, by the Federal Assembly which is composed of the members
of the Bundestag and by an equal number of delegates chosen by
parliamentary members of the 16 Länder, even though there are cases where
the people directly elect the President (as in Austria, see Chapter on Forms
of Government for more details).
Finally, the Head of State is usually a monocratic body. However, there
have been past cases where it has been a collegial body, such as the
Praesidium of the Supreme Soviet in the now defunct USSR and, even today,
the Federal Council in Switzerland may be considered the Head of State of
the Swiss Confederation (again see Chapter Three).
2. The Role of the President of the Republic under the Italian
Constitution
The Italian Constitution, in the second part concerning the framework
of government, dedicates Title II to the President of the Republic,
immediately following Title I concerning Parliament. The fact that unlike in
the Statuto Albertino, the Head of State is not the first constitutional organ to
be dealt with is emblematic of the intentions that the members of the
Constituent Assembly had with regard to the form or government (also see
Chapter Four). These intentions emerged clearly with the famous Perassi
order of the day, approved on 5 September 1946, pursuant to which “the
Second Sub-commission has decided that neither the presidential, nor the
directorial form of government would respond to the needs of Italian
society, and is in favour of the parliamentary system”.
The proclamation of the Republic, following the referendum of 2 June
1946, required the adoption of all necessary changes to the previous laws so
that the new Constitution would be based on the democratic principle of
popular sovereignty. Almost immediately, the conviction became clear that
in order to respect this principle it would be fundamental to, contrary to
that provided for under the Statuto Albertino (in which “the King holds the
executive power”), provide for a Head of State which would fall outside of
the legislative and judicial powers, and which remained outside the political
power circuit, which, in the parliamentary form of government which was
then taking form, found its privileged expression in the relationship between
Parliament and the Government. However, this did not mean that out of
the Constituent Assembly an idle fainèant Head of State figure based on the
French Third Republic was emerging, as feared by Vittorio Emanuele
Orlando. From the same Perassi order of the day, in fact, the requirement of
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adopting a parliamentary system endowed with “adequate constitutional
devices to protect the needs of stability for government action and to avoid
the degeneration of parliamentarism” was promulgated. One of such
devices consists of the fact that certain very important powers are
constitutionally allocated to the President of the Republic, such as early
dissolution of Parliament, as well as the appointment of the President of the
Council of Ministers (see par. 4 and also Chapter Five). However, beyond
the sometimes excessively rhetorical tones which characterised the debate in
the Constituent Assembly regarding the roles that the Head of State would
play as the “great regulator of the constitutional game” (Tosato), the
“balancer of the powers of State” (Ruini), or also the “neutral fourth power
of State”, the constitutional position of the President of the Republic does
not clearly emerge from a reading of the pertinent constitutional norms.
This lack of clarity has had three significant consequences.
The first is, as we will now see, in addition to constitutional norms (as
regards a few significant areas of involvement of the President of the
Republic), certain constitutional practices and habits have developed. The
second consequence is that the flexibility, if not the vagueness, of the
Constitution’s text has led to the fact that the President of the Republic’s
position, as developed throughout the history of the Republic, has been
heavily influenced by the interpretation given to the role (to the point one
may speak of a “personalisation” of the office) by the eleven Presidents of
the Republic (including the Hon. De Nicola, the provisional Head of State
during the Constituent period) who have held office in the Quirinale (the
seat of the Presidency of the Republic). The third consequence is the
diversity of opinions that are found in Italian legal scholarship as regards the
position of the Head of State in the Italian constitutional framework.
A first thesis (that of Galeotti) identifies the President of the Republic as
the guardian of the Constitution, as well as the holder of certain powers to
regulate or govern, at least in the constitutional framework, the politically
active organs. This concept of the presidential role (understood as the
exercise of a power of control which is neither political nor discretional, but
rather juridical, impartial and linked to maintaining the unity of the Republic
and defending the fundamental values underlying the Italian legal system)
has become the prevailing one, not only in the panorama of Italian legal
scholarship, but also for the interpretation that the Presidents of the
Republic themselves have given to their role as such.
Other concepts which have developed, along with this initial one, have
viewed the President of the Republic as the upholder of the State in
moments of crisis (as posited by Rescigno), or as the holder of a
constitutionally political role, with the function of preventively determining
the goals directly or indirectly deriving from the Constitution, to determine
their hierarchy of value and to distribute such over time (as proposed by
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Barile), or, finally as an intermediary and arbiter between the various
political parties (as stated by Mezzanotte).
3. Subjective Requirements, Election and Term of Office
As regards the subjective requirements necessary to hold the office of
President of the Republic, Art. 84, It. Const. provides that candidates be at
least 50 years old and enjoy full political and civil rights, as well as,
obviously, have Italian citizenship. For the last few years, at least, even a
member or descendent of the House of Savoy can become the Head of
State. Pursuant to Constitutional Amendment Law no. 1 of 2002, the
constitutional prohibition (provided under subsection 1 of the XIII
transitory provision) against members and descendents of the House of
Savoy having electoral rights and the bar against holding elective or public
office was eliminated. As mentioned earlier, the President of the Republic,
in the various forms of parliamentary government, is generally elected by a
representative college chosen in various ways (see Chapter Three). In Italy,
pursuant to Art. 83, It. Const., he is chosen by a joint session of Parliament.
In the Constituent Assembly this option was preferred to the alternative
of popular election, based on the consideration that the latter would
inherently have carried “the seeds of a dangerous dualism” (Crisafulli) to the
point of there being a danger of the constitutional order mutating into a
presidential republic.
In the election of the President of the Republic, three delegates for each
Region take part, except for the Valle d’Aosta, which has only one delegate.
The Constitution prohibits reserving to the Council majority the election of
all the delegates. At the heart of such additions to the composition of
Parliament in joint session for the election of the President of the Republic
there is, as well, an attempt to reinforce the super partes position of the
candidate, extending, even if only symbolically, his basis of legitimacy, as
well as highlighting the fact that he represents national unity. In addition, it
represents an attempt to enhance the value of the role of the Regions in the
constitutional framework.
The vote is secret, as is the rule in the Italian Constitution for all votes
concerning single individuals.
In order to avoid, as much as possible, a situation where the President of
the Republic merely reflects the expression of the then-current
parliamentary majority’s will, the Constitution provides for a rather high
deliberative quorum which, at least in theory, should guarantee a necessary
level of agreement between the political majority and opposition forces. In
the first three ballots cast, a vote of two-thirds of the electors (totalling
1003, plus life senators), or 675 votes, is required, whilst from the fourth
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ballot onwards a simple majority is sufficient, approximately 505 votes. As
concerns electoral procedures, Art. 85, section 2, It. Const. provides that
“30 days before the end of the presidential term of office, the Speaker of the
Chamber of Deputies will convene a joint session of Parliament and the
regional delegates in order to elect the new President of the Republic”. Such
a rule, which is evidently aimed at guaranteeing continuity between the
outgoing President of the Republic and the incoming one, is limited by the
third subsection of Art. 85, which states “if the Chambers have been
dissolved or are to be dissolved within three months, the election shall be
held within 15 days of the meeting of the new Chambers”. The reasoning
behind such a rule is evident: a dissolved Parliament, or one near the end of
the legislative term, does not provide the democratic legitimacy and
representativeness necessary to carry out, in a joint session, a presidential
election. In these cases, it is much more opportune to await the formation
of new Chambers after elections before holding the presidential vote. The
office of the President of the Republic is incompatible with any other
position. The President takes office only after having sworn allegiance to the
Republic and to abide by the Constitution before Parliament in joint session,
in this case without the regional councillors present. In these cases, it is
normal procedure for the newly sworn-in President to follow the swearingin with a brief speech before the joint-session of Parliament, in which he
outlines his planned program of action for his seven-year term.
No constitutional norm prohibits the renewal of the presidential
mandate, even more than once. In practice, a President has never been reelected for a second seven-year term. The fact that the Constituent
Assembly failed to include a prohibition on re-election has led to
perplexities concerning whether it should be included or not. There have
been presidential messages (from Gronchi and Segni) and constitutional
amendment plans in order to eliminate this lacuna, but none have led to the
desired result. Even recently, in 2006, there was pressure on President
Ciampi to accept a second term in the presidential office. This offer was, in
our view, opportunely refused, in that such a long period (fourteen years of
presidency) would have risked altering the role of guardian of the
Constitution, external to the political power circuit, which the Constitution
has allocated to the President of the Republic. Upon the completion of his
term of office, the President of the Republic becomes, save waiver of such
right, a life senator (see Chapter Four). In addition to the natural end of the
seven-year term of office, other causes for termination of the mandate are
death, resignation, permanent impediment (in the event the President
becomes incapacitated and cannot carry out his duties) and the loss of the
mandate (after, for example, loss of Italian citizenship, or of civil or political
rights, or after being convicted of high treason or overthrowing the
Constitution).
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The Constitution provides, in the first subsection of Art. 86, that if the
President of the Republic is unable to carry out his duties, such duties be
fulfilled by the Speaker of the Senate and, in the second subsection, that in the
event the impediment becomes permanent, as was already recalled (the same as
that is provided for cases of death or resignation), within 15 days the Speaker of
the Chamber of Deputies should call for the election of the new President of
the Republic. However, a longer period may be provided for if the Chambers
have been dissolved or because their term is to end within three months (see
above). In this regard, if few doubts exist that the permanent impediment is due
to serious health reasons which lead one to believe that the illness will continue
irreversibly, the vagueness of the applicable constitutional language does not
clarify (1) what qualifies as a “temporary” impediment, (2) which entities have
the power to judge the existence of such impediments (if the President himself
lacks the lucidity necessary for a self-certification), and (3) what procedures are
to be followed by the Speaker of the Senate to take over presidential duties. As
regards the first problem, falling within the category of temporary impediments
are illnesses involving the presumption that recovery will occur within a
reasonably brief period of time, trips abroad and a suspension of the President’s
position by the Constitutional Court whilst judgements on accusations of high
treason or overthrowing the Constitution are pending.
Concerning the second problem, one cannot but refer to normal
procedures. In the only case to occur to date (that of the illness of President
Segni, which led to his stepping down), it became clear that a key role was
played by the Council of Ministers, which certified the temporary
impediment pursuant to the notice given to the Speaker of the Senate who,
in turn, based on a prior agreement with the Speaker of the Chamber of
Deputies and the Council of Ministers, ad interim took on the duties of the
Head of State. As regards the third issue, the dominant scholarly view holds
that the substitute position of the Senate is marked by immediate
effectiveness, in that it is in the Constitution itself that justification for the
substitution is found.
4. Classification of the Key Constitutional Attributes of the President
of the Republic in Relation to the Powers of the Italian State
The constitutional functions of the President of the Republic can be
broken down into three macro areas, based on whether they deal with the
legislative, executive or judicial powers. It is useful, at this point, to now list
the numerous presidential functions, paying special attention immediately
thereafter to those which are most important from a constitutional
standpoint. Later, in Section 5, we will detail the tripartitioning of the Head
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of State’s acts between those that are formally and substantially presidential
in nature, those which are formally presidential but substantially
governmental, and those acts which are complex in nature.
The President of the Republic has the following powers listed below.
Our analysis begins with his legislative power and the areas in which the
President of the Republic has significant freedom of action and substantial
discretion, which are the powers in items 1, 2, 3, 4 and 5. Afterwards, we
will deal with those acts in which the extent of his discretion is severely
limited (items 6, 7 and 8), dealing mainly with substantially required acts:
1) appoint five life senators (Art. 59, It. Const.);
2) send messages to the Chambers (Art. 87, It. Const.);
3) before promulgating a law, request, pursuant to a message sent to the
Chambers stating the reasons for such a request, a new deliberation
regarding such law (Art. 74, It. Const.);
4) dissolve in advance the Chambers, having consulted with their
Speakers, or dissolve even just one of them. However, he cannot exercise
such power in the last six months of his term of office, unless those six
months coincide entirely or in part with the last six months of the term of
office of either Chamber, or both of them (Art. 88, It. Const.);
5) convene each Chamber for a special session (Art. 62, It. Const.);
6) call the elections of the two Chambers and fix the date of their first
meeting (Art. 87, It. Const.);
7) call referendums in such cases as are laid down by the Constitution
(Art. 87, It. Const.); and
8) promulgate the laws (Art. 87, It. Const.).
As regards executive powers, the President of the Republic does the
following:
1) appoints higher State officials in such cases as are laid down by law
(Art. 87, It. Const.)
2) shall be the commander of the Armed forces and shall be the
chairman of the Supreme Defence Council (Art. 87, It. Const.);
3) shall declare war when it has been resolved upon by Parliament (Art.
87, It. Const.);
4) ratify international treaties, provided they are authorised by Parliament
whenever such authorisation is needed (Art. 87, It. Const.)
5) shall accredit and receive diplomatic representatives (Art. 87, It.
Const.);
6) issue decrees having the value of law, and governmental regulations
(Art. 87, It. Const.);
7) shall authorise the submission to Parliament of bills proposed by the
Government; and
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8) shall confer the honours of the Republic (Art. 87, It. Const.).
Concerning judicial powers, the President of the Republic:
1) shall chair the Superior Council of the Judiciary (Art. 104, It. Const.);
2) may grant pardons and commute punishments (Art. 87, It. Const.);
and
3) as well, appoint five judges to the Constitutional Court (Art. 135, It.
Const.).
5. The Tripartition of Presidential Acts
Once we have taken a look at the panorama of constitutional functions
of the President of the Republic, we need to distinguish which of these
powers is substantially exercised at the discretion of the Head of State and
which, instead, are actually in the hands of other State actors, and the
Government in particular. Regarding this point, one normally makes a
three-part distinction between formally presidential, but substantively
governmental acts, acts which are both formally and substantively
presidential, and formally presidential, but substantively complex acts.
5.1. Formally Presidential Acts which are Substantively Governmental.
In the first category includes acts having the force of law and governmental
regulations which actually take the form of a decree of the President of the
Republic. The issuance of such legal instruments is separate from their
preparation and approval process, which are exclusively the Government’s
ambit. By way of such acts, the President of the Republic merely gives formal
assent to legislative decisions, permitting them in this way to enjoy full validity.
The fact that acts in which the Head of State has not had any discretional input
are formally attributed to him is explained by his role as representative of
national unity, requiring that important acts outside the Government itself be
formally attributed to the person acting as guardian of the Constitution. This
category also includes appointment of high-level State officials and presidential
authorisation for proposed governmental laws to the Chambers. As regards the
latter, this is actually a recycling of the power that the King had under the
Statuto Albertino, in article 10, to “present the laws to Parliament”. It is evident
that while in the past, it made sense to give the King, which the Statuto listed as
the “holder of the executive power”, incisive control over the merits of
Government proposed law, this power obviously cannot still be attributed to
the President of the Republic under Art. 87, subsection 4, It. Const. due to the
position he occupies in the constitutional system. Today, this requirement has a
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different purpose that of ensuring the President is aware of the contents of
Government-proposed laws. However, it is not possible, save for cases of
irregular law proposals, which clearly violate fundamental principles of the
Constitution, for the President to refuse or deny his authorisation, since no
discretion is provided him regarding the act once he receives it.
5.2. Formally Presidential Acts which are also Substantially Presidential
As concerns acts which are both formally and substantively presidential
in nature, these are characterised as acts truly of the President of the
Republic, in that the act’s allocation to the purview of the Head of State also
includes providing him with a significant discretion.
5.2.1. Appointment of Five Constitutional Judges and Five Life Senators
Among the most important actions included in this category are, first,
the naming of five judges to the Constitutional Court and, second, the
naming of five life senators, to be chosen from among citizens who have
brought honour to the nation for their recognised excellence in the fields of
science, the humanities, the arts and literature.
The first is a typically presidential act, over which the Constitutional
Court itself exercises control as regards the subjective admission
requirements (to be a judge), whilst the President of the Council exercises
merely a legitimacy check, through the use of the countersignature (see Par.
6). Even the second act is a discretionary power of the President of the
Republic. However, in this case, in addition to the governmental legitimacy
check involving the countersignature, there is the Senate itself, which
imposes certain admission requirements.
It should be noted that in relation to the numbers of life senators, it is
commonly understood that there should be a maximum of five at one time,
and not that each President of the Republic, regardless of the total number
of life senators already in office, has the power to name five such senators
(see Chapter Four). This limitation exists because we are dealing with an
exception to the electoral principle of universal and direct suffrage to elect
senators, and such exception should be interpreted restrictively. In
constitutional practice, almost all Presidents holding office in the Quirinale
until now have followed this interpretation, except for Presidents Pertini
and Cossiga, in whose respective seven-year terms there were seven and
nine life senators. From President Scalfaro on, office holders went back to
the prior practice of five.
5.2.2. The Granting of Pardons and the Commuting of Punishments
Another type of act that, in light of quite recent constitutional case law,
can be included under those powers which are substantially presidential in
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nature, is the granting of presidential pardons. As is known, this deals with a
provision of individual clemency which, different from amnesties or other
general pardons, which are granted to set classes of respective crimes or
criminals, focuses instead on a single individual. Notwithstanding the fact
that the Constitution assigns this pardoning power to the President of the
Republic (“The President of the Republic can give pardons”, Art. 87, It.
Const.), for a long time a number of constitutional scholars held that it
referred to a power which in reality was subject to the actual discretion of
the Minister of Justice. Predominant scholarship was of the view that it was
a power requiring such a close level of cooperation between the President of
the Republic and the Minister of Justice, and that it would be hard to state,
legally at least, whose will prevailed.
Recently, pursuant to a decision made on 18 May, 2006, the
Constitutional Court had occasion to clarify the fact that the granting of
pardons must necessarily fall within the category of substantially presidential
acts. At the heart of this holding was the consideration of the Court that the
reason or understanding for the granting of pardons was both
“humanitarian and equitable”, carried out with the intention of “mitigating
application of the criminal law in all those cases conflicting with the highest
notions of substantial justice”. From this very particular understanding of
the power to grant pardons, which lies beyond the purview of any
considerations of a political nature, flows the natural assignment of this
power to the Head of State, as the representative of national unity, as well as
the super partes guardian of the Constitution.
5.2.3. Request for a New Deliberation of a Law
Another power in the hands of the President of the Republic which falls
within the category of substantially presidential actions is that governing
situations where the Head of State decides, under Art. 74, It. Const., not to
promulgate a law (see Chapter Eleven), but rather to send it back to the
Chambers for a new deliberation. In these cases, the President must provide
his reasons for not promulgating the law. The Chambers are not required to
receive the President’s instructions, even if in practice this happens. This
means that if Parliament again approves the law, even with no amendments
made thereto, the President of the Republic must promulgate it. It may
happen that (and this is a typical grammar school hypothetical) the law itself
aims at attacking or undermining the Constitution, attempting for example
to suppress a constitutionally guaranteed fundamental right. The majority of
constitutional scholars hold that in this case, the President of the Republic,
in his role as guardian of the Constitution, could refuse for a second time to
promulgate the law. The power to request a new deliberation is the only tool
available to the President of the Republic, as he is excluded from the
legislative proposal and approval process, to intervene in the process and
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exercise a check on the legislature. The effect of a request for a new
deliberation is substantially that of reopening the legislative process, and for
this reason, its substantial value (in the view of certain scholars) approaches
that of a legislative initiative, or the proposal of a bill for consideration. One
could view both Chambers’ parliamentary standing orders as a confirmation
of such an approach, as both consider the law sent back as a bill (or draft of
a proposed law). Questions have arisen as to the reasons for requesting a
new deliberation. While no doubts exist regarding the admissibility of such a
request on a formal level (when the law’s passage has not followed
constitutional rules), or on a substantial level (substantial conflict between a
law and one or more articles of the Constitution), this is not the case when
dealing with new deliberation requests based on the merits of the law itself.
For example, this could be the case if the request questioned the political
opportuneness of such a law. In that event, a number of constitutional
scholars have noted, not without reason, that interventions of this type by
the President of the Republic run the risk of being excessively invasive of
the legislature’s constitutionally guaranteed autonomy and discretion. To
better consider such issues, we should look at developed practices relating
to the varying reasons underlying presidential requests for new deliberations
made to date. As regards new deliberation requests for reasons of
constitutional legitimacy, the majority of such (36 to be exact) was due to a
lack of financial cover for the law, which violates Art. 81, subsection 4, It.
Const., requiring that “each law involving new or increased expenses must
indicate the means to cover such”. There have also been new deliberation
requests (eight) due to violations of other constitutional norms. In this
regard, there have also been requests primarily motivated by alleged
violations by the law, not of superprimary norms, but rather of settled
constitutional case law. Under this category, one might recall the refusal of
President Scalfaro to promulgate Law Decree 1994 n. 401, relating to
organisation of local healthcare offices, or that of President Ciampi
regarding the so-called Gasparri Law on the re-organisation of the
broadcasting system. Notwithstanding the scholarly doubts mentioned
above, there have been no lack of so-called “merit-based” requests, resulting
from alleged violations of constitutional norms and required by mere
reasons of “opportuneness”, “reasonableness of the norms” or of
consistency with previous legislation. Most of these requests (13) were made
by President Cossiga within a two-year period only (1990-1992), because he
was not convinced of the merits of such laws.
5.2.4. The Sending of Messages to the Chambers and the Power to Express Opinions
Another power one can classify as strictly presidential in nature is that of
sending messages to the Chambers, pursuant to Art. 87, It. Const. Such a
function should be considered one of the widest powers awarded to the
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Head of State under the Constitution in relation to the politically active
powers (Government and Parliament), to political parties and even to public
opinion (according to Baldassarre). This influence is solidified both through
typical expressions of opinion regarding constitutional matters, as is the case
with sending messages to the Chambers, as well as through more atypical
communications, such as, for example, the messages to students at the
opening of the academic year, the end of the year televised address,
celebratory messages for specific events or solemnities, public speeches or
those made on particular holidays. In an initial period of republican history,
Presidents made very parsimonious use of this speaking power, limiting
themselves with rigorous self-restraint, whereby they expressed their
opinions in a reserved manner and without making public statements.
However, a new era emerged when, beginning in 1978 with President
Pertini’s seven-year term, Presidents began to make greater use of the power
of public expression. This led to acquiring greater visibility and activism in
public political discourse. The problem arose as to whether it would be
opportune to set certain limitations with regard to the content of
presidential speeches, because, as we will see in more detail later on, the
President is politically irresponsible. For this reason, certain constitutional
law scholars have held that in his messages to the Chambers and in his
atypical speeches, the President cannot express opinions on internal or
international political matters without having received permission from the
Government. To the contrary, others have noted that such limitations on
the President’s freedom of expression run the risk of conflicting with the
free speech guarantees provided under Art. 21, It. Const., which the
Constitution grants to all citizens, including the Head of State. A middle-ofthe-road thesis that appears preferable has been proposed by those
supporting a less invasive limitation on the activities of the President, which
should not touch upon majority politically oriented questions and in relation
to which, as we mentioned at the beginning, the President of the Republic is
constitutionally bound to distance himself.
5.3. Substantially Complex Acts
Acts of the President of the Republic which are categorised as
substantially complex, as mentioned earlier, are carried out through a
meeting of the wills, that of the President on the one hand, and that of the
Government on the other. Generally, the power to name the Prime Minister
(President of the Council of Ministers, provided under Art. 92, It. Const.,
see Chapter Five) and the power to dissolve Parliament (under Art. 87, It.
Const.) fall within this category. In both cases, the constitutional language is
quite vague, but it is the starting point for trying to understand how the two
powers must work together.
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5.3.1. Appointment of the President of the Council of Ministers
As regards the power to name the President of the Council, the
constitutional text is quite meagre. Art. 92, It. Const. provides that the
President of the Republic appoint the President of the Council of Ministers
and, on his advice, the Ministers.
However, this power is limited by at least three elements which diminish
the President of the Republic’s discretion and thus do not permit us to
speak of a substantially presidential act in the true sense.
First, the decree comes at the end of a process which begins with
consultations, in which the President of the Republic meets with the various
constitutional actors and political party representatives in order to identify
the candidate capable of obtaining the vote of confidence from the
Chambers. It is evident, therefore, that if the final decision lies with the
President of the Republic, he must however give maximum consideration to
the results of the consultation process, in order to avoid granting the duty to
form the Government to someone lacking the support of the majority in
Parliament (see Chapter Five).
Second, and pursuant to constitutional practice, after the consultation
process, the President of the Republic orally grants the duty to form a
Government to a person who he believes would obtain a vote of confidence
from the Chambers. The person so named accepts with reservation, and
such reservation is removed only once the nominee has readied a list of
Ministers and a programme of government. It is clear that, at the moment
the reservation is removed, the nominee concurs with the nomination, thus
accepting the original proposal made by the President of the Republic. Such
wilful concurrence appears again at the time of the actual nomination
decree, which must receive the countersignature of the incoming President
of the Council of Ministers (again also see Chapter Five).
Third, the Head of State’s discretion regarding the naming of the
President of the Council of Ministers has been significantly reduced with the
change from what once was a true multiparty system. In that system, no
party designated a candidate for the Presidency of the Council of Ministers
before elections were held and the Government could only be formed after
long and difficult post-election negotiations focused at reaching a fragile
equilibrium. This was eventually replaced by a system characterised by
coalitions of parties which congregated around two main poles, and which
designated, before the elections, their candidate for “premier”. Naturally,
this presidential power increases in the event that the winning coalition,
having obtained a majority in Parliament, falls apart at some time during the
legislative term. In that case, the President of the Republic has greater
discretionary powers, being able, on the one hand, to influence the
formation of a new majority (different than the one winning the previous
elections), thus favouring the formation of an “Institutional Government”
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(or a “Presidential Government”) and, on the other, to decide for early
dissolution of the Chambers (also see Chapters Three and Five)
5.3.2. Early Dissolution of the Chambers
As regards the early dissolution of the Chambers, the key constitutional
norm (Art. 88, It. Const.) tells us the following: 1) the dissolution of the
Chambers is conditioned upon consultation, mandatory but not binding, of
the Speakers of the Chamber of Deputies and Senate; 2) the President of the
Republic cannot exercise this power during the last six months of his term
of office, unless such six months coincide with the last six months of the
legislative term (the so-called “white semester”).
From this norm, certain constitutional scholars have drawn the
conclusion that the Constituent Assembly envisioned a power in the hands
of the President himself. How else, they ask, could one explain the temporal
limitations on the exercise of the power of dissolution due to the individual
situation of the Head of State pursuant to Art. 88, subsection 2, It. Const.?
It is true that the vagueness of the Constitution requires dealing with this
power of dissolution in very general terms, which take into account i) the
reasoning underlying the grant of such power by the Constituent Assembly,
ii) the different types of dissolution and iii) cases of dissolution which have
actually took place, as well as the political and electoral situations they
occurred in. As regards the first point, there are few doubts that this
presidential function arose to meet logical considerations of streamlining the
functionality of parliamentary government, in an attempt to provide a check
on the power of the Chambers and to make the Government’s remaining in
power conditional upon a fiduciary relationship with the President.
As regards the second point, it is common to distinguish (even though
the Constitution does not) between two significantly different dissolution
scenarios. The first hypothesis is that of dissolution in connection with the
natural ending of the Chambers’ term, while the second is that of early
dissolution before the end of the parliamentary term. It is clear that the first
case deals with the functioning of institutional mechanisms, and as such, is
really a duty of the President of the Republic, one which he has no
discretion to alter. Instead, in the second case, we are dealing with a
parliamentary crisis which implies the President of the Republic making a
politically sensitive decision. It is only in the case of the latter (i.e. early
dissolution) that a problem in qualifying the nature of the presidential act
arises. Within the category of early dissolutions of Parliament, one must
distinguish between situations in which there is a conflict between
Parliament and the Government (due to the passing of a vote no confidence
towards the Government or the rejection of a vote of confidence presented
by the Government) and those which are due to an extra-parliamentary
crisis. In the first case, dissolution is the only means mandated if the
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Government refuses to hand in its resignation. As regards cases falling into
the second category (those in which the crisis is centred outside Parliament),
legitimate causes for such early dissolution could be a conflict between the
Chambers and general public opinion, for example, after negative results for
the Government in important regional or local elections, inertia by
Parliament in carrying out its constitutional duties, a conflict between the
two Chambers of Parliament or a fundamental conflict between the political
parties that composed the Government majority. More generally, dissolution
could occur in a situation of political instability in Parliament, which renders
the formation of a majority in the Chambers impossible (or at least
extremely difficult). It is true in theory that, due to the institutional crises
which arises, the role of the President of the Republic is to carry out the
delicate appraisal of whether to dissolve the Chambers as a last resort, after
exhausting all possible alternatives to resolve the crisis. However, in practice
the history of the Republic has shown that with early dissolutions the power
of the President of the Republic has been shared among other bodies. Such
power has been shared not only with members of the Government, but also
with those in the party system and, more generally, with public opinion.
With the exception of the first two dissolutions in 1953 and 1958, which
occurred due to technicalities (to permit the holding of election for both
Chambers at the same time), our attention must be focused on the
dissolutions of 1972, 1976, 1979, 1983 and 1996. In this last case,
dissolution was due to the nearly unanimous judgement by the entire
political establishment, and with the substantive assent of the ruling
Government. Therefore, the President of the Republic was limited to taking
note of such and then decreed the dissolution. A different approach by the
President of the Republic, even if theoretically possible, would be in practice
unrealistic, in that his unwillingness to dissolve the Chambers would have
had serious repercussions on the political and institutional system. Different
considerations should be made for the early dissolution in 1994, which had a
more “presidential” flavour compared to the others. In this case, there was
neither a crisis of government, nor a harsh parliamentary conflict. Rather, it
was due to the passage of a new electoral law, involving a move from a
proportional system to a majority-rule system (following the referendum
approved in 1993). This radical change to the electoral system led President
Scalfaro to decide for early dissolution, justifying it with the consideration
that the results of the referendum, in a climate characterised by a grave crisis
in the legitimacy of the party system, “expressed the demands of the Italian
people to have, not only a reform of the electoral system, but also a new
Parliament”.
In regards thereto, one may note how the evolution towards majority
rule of the two Chambers and the formation of political coalitions facing off
against each other, each having their own leaders as candidates for the
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Presidency of the Council of Ministers, has led to the challenging situation
in which (if the majority falls apart), one must start down the path towards
early dissolution or, as an alternative, formation of technical governments
(the so-called Governments of the President) capable of receiving a vote of
confidence from the Chambers. In practice, it seems that the latter has
emerged as the favoured option, regarding early dissolution as an extreme
measure (again also see Chapters Three and Five).
6. Irresponsibility of the President of the Republic: the
Ministerial Countersignature
One of the prerogatives of the President of the Republic, inherited from
the Statuto Albertino (Art. 8) is his lack of responsibility (irresponsibility),
sanctioned by Art. 90, It. Const., for acts carried out in furtherance of his
office, except for cases of so-called “presidential crimes” (see par. 7). This
irresponsibility is realised by requiring the ministerial countersignature.
Under Art. 89, It. Const., “No act of the President shall be valid unless it is
countersigned by the Ministers who have submitted it and who assume
responsibility for it. Acts having the value of law and such other acts as are
laid down by law shall be further countersigned by the President of the
Council of Ministers”.
The only way to properly understand the current significance of the
countersignature is to look at its development through the centuries. The
birth of the countersignature goes back to the times of the English
monarchy, where the ministers (or rather, the counsellors or curia regis) of
the King attached a seal to the royal act substantially implying their
assumption of responsibility. At the heart of this assumption was the sacred
and infallible character of the Sovereign himself (“the King can do no wrong”
and it was necessary to identify a responsible party in the event that a royal
act completed the commission of crime. The countersignature of the King’s
ministers met this requirement. With the change over to a constitutional
monarchy, initially, the royal ministers (or counsellors) were responsible,
under the countersignature, to Parliament, not only for their own acts, but
also for those of the Sovereign who, by definition, could not act alone (“the
King cannot act alone”). During a subsequent stage, in which the power of the
Government began to eclipse that of the Sovereign, the countersignature
was used to substantially attribute sovereign powers to the ministers who
signed such acts, and consequently, only those acts of the Monarch issued
on the initiative, or with the prior consent, of the Government were signed.
In this development over time, the different meanings given to the
countersignature is evidence of the passage from a constitutional monarchy
to a parliamentary system, in which the levers of political power remain
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exclusively with the Government and Parliament, whilst the Monarch carries
out a merely formal representative role regarding decisions made by others,
even if made formally in his name. The countersignature has been adopted
by the present Italian Constitution, which clearly applies the penalty of
invalidity to acts of the President of the Republic that have not been
countersigned.
Notwithstanding, the wording of Art. 89, It. Const., which speaks of the
countersignature by the “submitting Minister”, the idea that acts not
needing ministerial “proposal” do not actually need to be countersigned
should be dismissed. Most scholars have, in fact, interpreted the literal
reference to “submitting Minister” as “competent Minister”, which would
apply even to presidential acts lacking a ministerial submission, and thus the
countersignature is necessary as a condition of validity. With the
countersignature, the Minister assumes not only full legal responsibility
(criminal, civil and administrative) for the act, but also the politicoinstitutional responsibility, which includes responsibility towards Parliament,
pursuant to the rules governing the relationship of confidence. It is
therefore based on this greater level of responsibility that Ministers, and the
President of the Council of Ministers, may refuse to countersign presidential
acts that constitute a criminal action, significantly exceed presidential powers
or constitute an attempt to overthrow the Constitution or high treason
against the State. However, the countersignature takes on a different value
depending on the type of act. It is clear, in fact, that the countersignature
takes on a substantial significance when the act submitted to the Head of
State is governmental in nature and, therefore, an expression of the
Executive’s powers. In this case, the countersignature signifies certification
of the effective authorship of the act and the connected assumption of
political responsibility for such. This is true as the Head of State is limited to
a simple power of review regarding the legitimacy of the act. Instead, the
countersignature only has formal value when the act in question is made
pursuant to the President of the Republic’s own powers, such as the sending
of messages to the Chambers of Parliament, and the naming of life senators
or judges to the Constitutional Court. In these acts, the ministerial
countersignature is merely a formality rather like that of a notary. Finally, as
regards substantially complex acts, the countersignature takes on a different
meaning, depending on the act under consideration. For example, if it
concerns the presidential decree appointing a new President of the Council
of Ministers, it certifies the latter’s own acceptance of the nomination to
office. In the case of an early dissolution of Parliament, it gives witness to
the non-opposition of the President of the Council of Ministers (in the
name of the Government) to the dissolution itself.
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7. Presidential Offences
The legal rules governing presidential crimes are to be found in Art. 90,
It. Const., pursuant to which the President is not liable for actions carried
out in the exercise of his office, except for two types of specified acts: high
treason and attempting to overthrow the Constitution.
The vague language used to describe these prohibited actions has led to
disagreements among scholars as to their exact definition. However,
scholarship appears to essentially support one of two positions. On the one
hand are those who make a cross reference between the crimes mentioned
in Art. 90, It. Const and other criminal legislation, whilst on the other there
are those who support the idea that the crimes provided for in Art. 90 exist
independently. The first position tries to find a way to meet the requirement
that applicable criminal law must be sufficiently specified and defined. Thus,
the article of the Constitution would cross reference Art. 77 of the
Peacetime Military Criminal Code (which deals with high treason), and Art.
283 of the Criminal Code, which defines attempts to overthrow the
Constitution. Nevertheless, this thesis runs up against two problems. In
relation to Art. 77 of the Peacetime Military Criminal Code, the President is
not a member of the military, and as regards Art. 283 of the Criminal Code,
the rule punishes direct action to change the State Constitution or the form
of Government “using means not permitted by the State’s constitutional
framework”. This is only one of the types of action covered by Art. 90, It.
Const., which itself would appear to cover many other types of behaviour.
Due to these problems, and other objections, the position that
presidential crimes exist independently prevails. In short, by high treason,
one means any intentional acts or behaviour, carried out in collaboration
with other States and aimed at subverting the constitutional order or
damaging the interests of the Republic. By “attempts to overthrow the
Constitution”, one means intentional behaviour aimed at violating
constitutional norms in such a grievous way as to fundamentally endanger
them. The rules governing presidential crimes are found in Const. Law
1/1953, Const. Law 1/1989, Law 219/1989 and in the 1989 parliamentary
rules regarding indictments. The presidential impeachment procedure is
illustrated in detail in Chapter 10, par. 7.2.
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THE JUDICIARY
ORESTE POLLICINO
SUMMARY: 1. Autonomy of the Judiciary: Innovativeness of the Constitution – 2.
Principle of a Single Judiciary and its Exceptions: Special Judges – 3. Principle of
Functional Independence of the Judge – 4. Institutional Independence of the
Ordinary Judiciary: the Superior Council of the Judiciary – 4.1. Institutional
Independence of the Special Judiciary – 5. Constitutional Principles of Judicial
Process – 6. Organisation of the Ordinary Jurisdiction: Judging Magistrates and
Public Prosecutor – 6.1. Public Prosecutor – 7. Liability of the Judiciary – 8. Recent
and Future Reforms of the Judiciary.
1. Autonomy of the Judiciary: Innovativeness of the Constitution
The provisions regarding the Judiciary are established by Articles 101110 of Title IV of Part II of the Italian Constitution that deals with the
organisation of the Republic. Its very placement within Part II illustrates
how the Constituent Assembly intended to make the Judiciary, “an
autonomous and independent branch of government not subject to any
other” as is expressly indicated in Art. 104, It. Const. Among the members
of the Constituent Assembly there was the conviction that the Judiciary
should free itself from the influence of the executive power that had marked
both the experience of the Statuto Albertino, and to a greater extent, the laws
of the Fascist period.
The Statuto Albertino adapted the Napoleonic concept of organisational
model of the Judiciary, wherein the Judiciary was placed within the structure
headed by the Minister of Justice and in fact Art. 68 provided that “justice
emanates from the King and is administered by the magistrates whom he
appoints”.
The Fascist regime simply reinforced the model that already existed in
the liberal period, by subjecting the Judiciary to the executive power and
obliging judges to wear a uniform and to adopt the Fascist salute.
The Constitution has had a significant innovative consequence with respect
to laws in force under the previous regime. Art. 104.1, It. Const., by sanctioning
the principle of institutional independence for the Judiciary in accordance with
the principle of separation of powers, devised two centuries
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earlier by Charles De Secondat, Baron of Montesquieu (also see Chapter
Three).
Institutional independence of the Judiciary is guaranteed also thanks to
the institution of a self-governing body within the Judiciary, the Superior
Council of the Judiciary, which will be discussed at greater length in par. 4.
To further guarantee the complete efficacy of the principle of institutional
independence, the Constituent Assembly introduced an absolute
constitutional statutory limit in Art. 108.1, It. Const., by which “the rules on
the organisation of the Judiciary and each judicial authority shall be
established by law”. This measure ensures that reforms of the Judiciary
system are carried out exclusively by Parliament and avoids having any
interference by the executive power constitute an attempt on the
independence of the Judiciary.
Art. 101 also calls for justice to be administered in the name of the
people. In this way the Constitution distanced itself from the Statuto
Albertino in which the ultimate dispenser of justice was the Sovereign, and in
accordance with the provisions of Art. 1, It. Const., placed the autonomy of
the Judiciary in direct contact with those to whom sovereignty belongs.
2. Principle of a Single Judiciary and its Exceptions: Special
Judges
The choice of the Constituent Assembly was oriented towards assigning
judicial powers only to ordinary judges, who would act both as judges and
public prosecutors. This is known as the “single judiciary” principle.
Diffidence towards any policy aimed at increasing the number of judges, led
the assembly members to prefer the option expressively provided for in Art.
102.2, It. Const., that “only specialised sections for specific matters may be
established within the ordinary courts; qualified citizens who are not
members of the Judiciary may take part”.
Among these specialised sections are included those instituted in the
lower courts and Courts of Appeal to settle controversy regarding agrarian
policy, as well as the Juvenile Courts in the Courts of Appeal.
The “single judiciary” principle has been object of many compromises.
Among the members of the Constituent Assembly in fact, the prevailing
thesis was that the “single judiciary” principle should not mean only
ordinary magistrates should be part of the the Judiciary. The principle
limiting the Judiciary only prohibits the establishment of new special courts.
This is evident in Art. 103, It. Const. which recognises the indispensability
of the Council of State, the Court of Accounts and the Military Tribunals,
that is those special courts which already existed when the Constitution
came into force.
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The Council of State today consists of seven sections, four of which
carry out a consultative function, and three a jurisdictional one. Officially
instituted by the Royal Edict of 18 August 1931, for more than half a
century it only had consultative powers. In fact, it was not until 31 March
1989 with Law no. 5992 that Section I (Title IV) became part of the
Constitution and powers concerning the protection of citizens against
decisions made by the public administration were assigned to the Council of
State, whereas previously this power had been assigned to the ordinary
Judiciary (also see Chapter Five).
Today the Council of State acts as second instance judge within the
administrative justice system. Since the Regional Administrative Tribunals
were instituted by Constitutional Law no. 1034/1971, the Council of State
has acted as an appeals court against judgments delivered by said tribunals.
These two judiciary bodies have jurisdiction on controversies arising
between citizens and the public administration as far as the protection of the
claimant’s legitimate interests are concerned, but not on the protection of
subjective rights which come under the jurisdiction of the ordinary courts.
However, in special cases dictated by the law (the so-called exclusive
jurisdiction), the Constitution gives the administrative courts the
competence to rule on cases regarding subjective rights as well. The number
of special cases has increased in recent years because those regarding public
services and urban development (Law Decree no. 80/1998 and Law no.
205/2000) have also been assigned to the exclusive jurisdiction of the
administrative courts. This has led to a much vaster range of action than
that originally envisioned by the Constituent Assembly.
Furthermore Law no. 205/2000 added to the powers of administrative
judges and, alongside the “classic” power enabling them to invalidate
illegitimate acts taken by the public administration, it also enabled
administrative tribunals to award damages, a power previously the exclusive
prerogative of the ordinary courts. This means that the administrative judge
can award payment of unfair damages even through compensation in a
specific form.
In spite of such regulatory openness, the Constitutional Court has of late
demonstrated a more rigorous recourse to the “single judiciary” principle
(Judgment 202/2004) when it declared Law no. 205/2000 to be
unconstitutional. The provisions of this Law delegating cases regarding
public services and urban development to administrative tribunals were too
generic and vague and the Court felt that this could have allowed the
tribunals to unreasonably expand their powers so these cases would come
under their exclusive jurisdiction.
The following special courts are expressly provided for by Art. 103, It.
Const.: paragraph 2 gives the Court of Accounts jurisdiction over public
accounts and pensions as well as over claims of its own personnel regarding
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their work relationship; paragraph 3 gives Military Tribunals the right to
exercise their jurisdiction in time of war according to the provisions of law,
and in time of peace, only for military offences committed by members of
the Armed Forces and paragraph 3 divides Tax Tribunals into Provincial
and Regional Tax Commissions, with jurisdiction over matters regarding
taxes and duties arising between the State financial administration and the
citizens.
To guarantee the “single judiciary” principle, Art. VI of the Transitory
Provisions of the Constitution, provided for a review of the special Judiciary
bodies existing at that time, with the exception of the Council of State, the
Court of Accounts and the Military Tribunals, that should have been held
within five years from the date the Constitution came into force. Due to the
inertia of Parliament, and its failure to hold a review, the Constitutional
Court intervened and declared many existing special Judiciary bodies
unconstitutional. The significance of this constitutional case law cannot be
emphasised enough because it established that constitutional regulations on
the impartiality and independence of judges be immediately applicable to
existing special judiciaries, overriding existing legislation on constitutional
review as underlined by a prominent Italian constitutionalist, Sergio Bartole.
The Constitutional Court’s guiding criterion in such cases is to ascertain
whether a judicial body possesses sufficient independence to ensure an
impartial judgment. The value ascribed to the indispensable relationship
between independence and impartiality clearly emerges from Constitutional
Court Judgment no. 93/1975, which declared juridical powers given to
provincial and city councils regarding elections to be constitutionally
illegitimate. As the Court pointed out, this “affects the personal interest of
council members that make up the electoral constituency; the interest of a
small group of candidates if their election is contested; of a majority of
electors if the majority list is suspect; and of everyone if irregularities in the
electoral process that could compromise the entire result of the elections,
are denounced”.
The Constitution obviously grants the power of jurisdiction to ordinary
judges but it also grants it to other bodies, as well as to the special courts
listed in Art. 103, It. Const.; in fact, the Constitutional Court has jurisdiction
over constitutional cases and also criminal cases if the President of the
Republic is accused of treason or attempts to overthrow the Constitution
(Art. 134, It. Const.) and each Chamber has jurisdiction “as to the
qualifications for admission of its own members and as to supervening
reasons of eligibility and incompatibility” (Art. 66, It. Const.).
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3. Principle of Functional Independence of the Judge
In addition to the principle of institutional independence of the Judiciary,
the Italian Constitution provides for the principle of functional
independence for individual magistrates; in fact Art. 101, It. Const. states
that “judges shall be subject only to the law”. That they cannot be subject to
other powers, serves to guarantee their decisional autonomy, which must
not be conditioned by direct or indirect interference from other government
branches or from any other sources whatsoever (Constitutional Court
Judgment no. 284/1986). This position is made clear in two judgments, one
guaranteeing the super partes position of judges during a trial and the other,
their position of absolute extraneousness with respect to the res iudicanda
(Constitutional Court Judgment no. 123/1970 and no. 18/1989).
The need for the Constitution to guarantee autonomous and
independent decisions on the part of the judges is expressed in the
Fundamental Principles regarding the Judiciary.
The first of the principles is stated in Art. 107.3, It. Const., “judges shall
be distinguished by function only”. With this article, the Constituent
Assembly members wanted to avoid creating a hierarchy in the Judiciary that
might prejudice the serenity of its decisions, a fundamental hypothesis for
its autonomous and independent functioning. For this same reason the
Judiciary does not have a pyramidal organisational structure. Constitutional
case law confirms this when it states that the Bench – in this case, the
Courts of Milan and Turin – can also legitimately “settle conflicts arising
over the allocation of powers” (Art. 134, It. Const.), because by “carrying
out its Judiciary functions under absolute independence as guaranteed by the
Constitution”, it is competent to express the will of the power to which it
belongs (Constitutional Court, Order no. 228-229/1975).
The constitutionally sanctioned distinction of the judges “by function
only” does not exclude subjective differences between individual judges, nor
the existence of administrative functions. The Constitutional Court further
clarified Art. 107.3, It. Const. with Judgments no. 80/1970 and no.
143/1973 by which “the absolute parity between judges is recognised only
so far as the exercise of their jurisdictional functions and the acts to which
they are connected are concerned, but not for those positions they assume
in the Judiciary outside the aforesaid functions”.
A second functional principle that guarantees the autonomy and
independence of the Judiciary is expressed in Art. 106.1, It. Const.,
“members of the Judiciary are appointed on the basis of public competitive
state examinations”. This provision is grounded in the conviction that
criterion for selecting members of the Judiciary based exclusively on legal
expertise, is an effective antidote against attempts to influence the
magistrates and undermine their impartiality and independence. The
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constitutional model drawn up by the Constituent Assembly in fact,
confirms the need for judges to be extraneous to political parties and for
them to acquire their democratic legitimacy through the impartiality and
independence guaranteed by selection based on legal expertise alone.
In this case as well, it is the Italian Constitution itself in Title IV, that
provides for exceptions to the principle it proclaims. On one hand it states
in Art. 106.2, It. Const., that “the Judiciary may provide for the appointment
of honorary magistrates”, and on the other, in Art. 106.3, It. Const., it says
that “on the proposal of the Superior Council of the Judiciary, full
professors of law and lawyers of at least fifteen years standing and registered
in the special rolls entitling them to practice in the higher courts, may be
appointed to the Court of Cassation for exceptional merits”. Although in
both cases the persons are appointed to the Judiciary without having passed
an ad hoc competitive state examination, the rationale of the two exceptions
varies considerably. In the first case, behind the exception to the principle of
admission to the Judiciary through a competitive state examination, there is
the need to lighten the Judiciary’s caseload by eliminating minor
controversies. For this reason, Law no. 374/1991 instituted Justices of
Peace who have jurisdictional functions in civil and criminal cases as well as
conciliatory functions in civil cases.
In the second case however, the objective was to improve professional
expertise in the higher courts so they could benefit from the experience of a
jurist of exceptional merit who was not a career judge.
The third principle at the basis of the Judiciary’s independence is that
expressed in Art. 107.1, It. Const.: “members of the Judiciary may not be
removed from office. They may not be dismissed or suspended from their
duties nor assigned to different offices to other jurisdictions of functions,
save by a decision of the Superior Council of the Judiciary taken for reasons
and with guarantees for their defence laid down by the laws on the
organisation of the Judiciary, or with their own consent”. Behind this lies
the intent to protect the Judiciary’s security of tenure without this becoming
an unjustified privilege in its favour but at the same time without loss of
tenure constituting a threat to the magistrate’s independence. Furthermore,
in the aforesaid Art. 107.1, the members of the Constituent Assembly
provided an additional guarantee to protect magistrates vis-à-vis the
Superior Council of the Judiciary and placed the Judiciary’s need of internal
independence from its own self-governing body, alongside its need for
external independence. In fact, Art. 105, It. Const. imposes a statutory limit
on all decisions regarding the status of ordinary magistrates, in favour of the
Superior Council of the Judiciary, the self-governing body of the Judiciary.
If functional independence of the ordinary Judiciary is accompanied by
the series of constitutional guarantees illustrated above, the same cannot be
said for the special judges whose independence is, instead, only protected by
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the law in accordance with the provisions of Art. 108.2, It. Const. The
vagueness of the provision obliged the Constitutional Court to clarify the
notion of independence that is applied to the special Judiciary. A perusal of
the Constitution in fact, demonstrates a certain indifference of the
Constitutional Court towards the formation of special judiciary bodies. In
fact, at times it even allows them to be nominated by political parties when
this does not undermine the fundamental requisite of their impartiality.
Other times instead, when there exists substantial relationship of
dependence between the judges and other powers from which they should
remain independent, the Constitutional Court has not hesitated to intervene
with temporary measures. Examples are the decisions by which provincial
administrative councils (Judgment no. 30/1967) and prefecture councils
(Judgment no. 55/1966) were declared unconstitutional because in the
Constitutional Court’s eyes there was an evident situation of fiduciary
dependence by the members of these courts with regard to the executive
power.
4. Institutional Independence of the Ordinary Judiciary: the
Superior Council of the Judiciary
To administer the activities affecting the professional career of ordinary
judges and to further protect the autonomy and independence of the
ordinary Judiciary from other powers of the State, especially the executive
power, the members of the Constituent Assembly, which had originally
intended the ordinary judges to have been the only Judiciary body, created
an ad hoc organ within the Judiciary, i.e. the Superior Council of the
Judiciary. This is why the Superior Council of the Judiciary is considered to
be the ordinary Judiciary’s self-governing body. Actually, the Superior
Council of the Judiciary is prior the Italian Constitution. Instituted by Law
no. 511/1907, it was adopted at the initiative of the then Minister of Justice,
Vittorio Emanuele Orlando who created the first Superior Council
composed in part by the high court judges appointed by the Court of
Cassation and in part by members elected by the government. Several years
later, due to the pressure exerted by the General Association of Italian
Magistrates founded in 1909, the Superior Council was transformed into a
wholly elected body, composed of judges from the Court of Cassation
elected by all its members and of four professors of law from Sapienza
University in Rome. As can be well imagined, during the years of the Fascist
regime these reforms – intended to enhance the independence of the
Superior Council with respect to the executive power – were put aside and
replaced by rules that completely subjected it to the Government. Given the
unfortunate fate that the Council had met during the Fascist years, therefore
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the Constituent Assembly members decided to provide for far-reaching
constitutional disciplinary measures to protect the Superior Council of the
Judiciary and place it beyond the influence of any subversive threats from
the ordinary Judiciary. It thus became a so-called body of “constitutional
importance”, which is endowed with a special guarantee deriving from the
constitutional provisions that called for its institution and assigned it certain
functions. The fact that the President of the Republic chairs the Superior
Council of the Judiciary is an indication of its constitutional importance.
Since the Constitution enables the ordinary Judiciary to determine the
composition of the Council, this means the criterion already exists for
dividing the members into those appointed by Parliament, (“lay members”)
and those elected by magistrates, (“gowned members”). In fact, Art. 104, It.
Const. provides that one third - “lay members” - be appointed by
Parliament in joint session from among full professors of law and lawyers of
at least fifteen years standing, and that two-thirds - “gowned members” - be
elected by and among the ordinary judges. Members of the Council who are
ordinary judges are part of the Council alongside career judges because the
Constituent Assembly strongly desired to create a link between the Superior
Council of the Judiciary and Parliament, and in this way avoid setting up a
“caste” of judges completely isolated from other constitutional bodies. The
same rationale, sanctioned by the Constitution, gave the vice-chairman
position to a “lay” member elected by Parliament to balance the majority of
“gowned” members.
The first laws implementing the provisions of the Constitution only
came into force in 1958 with Law no. 195. Since then there have been
numerous others (Law nos. 1998/1997, 695/1975, 1/1981, 655/1985 and
75/1990), and the last, Law no. 44/2002, which contrary to the previous
ones, reduced to 27 the number of the Superior Council.
Art. 104.2, It. Const. provides for three ex officio members to the Superior
Council of the Judiciary: the President of the Republic, who presides, the
first President and the Advocate General of the Court of Cassation of the
Court of Cassation. In addition to the ex officio members, there are sixteen
“gowned” members of which two are duly elected judicial review judges
(one at the Court of Cassation and one at the Advocate General’s office in
the Court of Cassation); ten are appointed for exceptional merit and act as
defence judges whereas four are appointed for exceptional merit and act as
prosecutors. The remaining eight are “lay” members.
The principle difference introduced in Law no. 44/2002 (other than
reducing the number of the Superior Council of the Judiciary members), is
the modification of the electoral system. The election takes place in 3
national constituencies; one for the two judicial review judges at the Court
of Cassation and Advocate General’s office; one for the four magistrates
who are defence judges and one for the ten magistrates who act as
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prosecutors. Each judge receives one ballot and one vote for each national
constituency. In each constituency those judges who have received the most
votes are elected until the quota assigned to each constituency has been
reached.
The “lay” members instead are appointed by Parliament in a jointsession by means of a secret ballot. For the first two ballots, a majority of
3/5 of the members of Parliament must be reached, whereas in successive
ballots, only the favourable vote of 3/5 of those members present in
Parliament is required. The term of office for all members, “the elected
Council members shall hold office for four years and that they may not be
re-elected immediately”, is fixed by Art. 104.6, It. Const. Finally, to
guarantee the impartiality and independence of Council members, Art.
104.7, It. Const. states that “while they are in office they may not be
registered as member of the legal profession, nor of Parliament or of a
Regional council”.
Art. 105, It. Const. assigns to the Superior Council of the Judiciary a
series of competencies previously delegated to the Minister of Justice. In
particular, it establishes that the Superior Council of the Judiciary “has the
sole right to appoint, assign, move and promote members of the Judiciary,
and to take disciplinary action against them” as well as to rule on the career
and juridical state of judges to guarantee their institutional independence.
Given the particular importance of the above competence, a special
disciplinary section composed of six members was created within the
Superior Council of the Judiciary itself. Ex officio member is the vice
chairman of the Superior Council of the Judiciary whereas of the other five
one is elected by Parliament and the other four from among career judges.
The activity of the disciplinary section is of a juridical nature, and judges
may have recourse to the Court of Cassation against the disciplinary
judgments it adopts. Instead judges may have recourse in the first instance
to the Administrative Tribunal of Lazio, or in the second instance, to the
Council of State, against other judgments adopted by the Superior Council
of the Judiciary regarding appointments, assignments, transfers and
promotions, which in general are administrative procedures.
Whereas the final judgment is the exclusive prerogative of the Superior
Council of the Judiciary, in order to counterbalance the risk of prevarication
on the part of the Judiciary, with Law no. 195/1958, the Constitution
assigned the competency to “initiate disciplinary action” to both the
Minister of Justice and the Public Prosecutor attached to the Court of
Cassation. For the same reason, the Minister of Justice is also assigned
competencies to rule over the organisation and functioning of those services
regarding the Judiciary (everything that concerns the bureaucracy serving the
administration of justice).
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As can be well imagined, the relationship between the Superior Council
of the Judiciary and the Minister of Justice has not always been ideal, and
controversies over which of the two is entitled to a given competence are
not infrequent. Take for example, Art. 3.1, Law 3-1-1981, no. 1, by which a
decree regarding the assignment of the administrative offices was drawn up
by the Superior Council of the Judiciary in agreement with the Minister of
Justice. This led to a conflict of attribution between the two bodies over
whether or not this agreement was binding, which was resolved only in 1992
by Judgment no. 379 of the Constitutional Court. In its rational for the
norm, the Court stated that it was the duty of the two conflicting powers to
constructively reach an agreement over the decree regarding the assignment
of administrative offices.
4.1. Institutional Independence of the Special Judiciary
Art. 108.2, It. Const. requires the law “to protect the independence of
the judges of special courts, the public prosecutors attached to them and of
all those, not belonging to the Judiciary who may take part in the
administration of justice”, and to do so, the Constitution establishes special
collegial bodies, the Councils of the Presidency of the Administrative
Judiciary, the Court of Accounts and the Tax Judiciary as well as the
President of the Military Judiciary.
The Council of the Presidency of the Administrative Judiciary is
composed of the President of the Council of State who presides over the
council, plus ten elected “gowned” magistrates and four “lay” members, two
of which are elected from the Senate and two from the Chamber of
Deputies.
The Council of the Presidency of the Court of Accounts is composed of
the President of the Court, who presides, the Advocate General, the
assisting President (or in case of his absence, the oldest Section President),
plus ten “gowned” members and four “lay” members chosen in agreement
between the President of the Chamber of Deputies and the President of the
Senate.
The Council of the Presidency of the Tax Judiciary is made up of eleven
judges elected from members of all the commissions and four members
elected by Parliament.
The Council of the Military Judiciary is composed of the first President
of the Court of Cassation, the military Advocate General, five “gowned”
members and two “lay” ones.
5. Constitutional Principles of Judicial Process
Together with the constitutional principles of institutional and functional
independence of the Judiciary and the “single judiciary” principle the
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Constitution has also established a series of guarantees regarding the judicial
process itself.
In the first place, Art. 102, It. Const. states that “no extraordinary or
special judge shall be established”, which means no Judiciary body can be
created to rule exclusively on a certain controversy. It also prevents
competencies being assigned ex post to the commission studying the facts
that led to the trial in the first place. This, together with the principle
expressed in Art. 25, It. Const., “no one’s case may be removed from the
court that must hear it, as pre-ordained by law”, serves to guarantee that a
judge’s competence to rule on a certain case is determined on the basis of
general criteria established antecedent to the fact, and not res iudicanda.
Other important principles are to be found in Art. 111.6, It. Const.,
according to which “reasons shall be stated for all judicial decisions” and in
Art. 24.2, It. Const “defence is an inviolable right at every stage and instance
of legal proceedings”.
In 1999 Constitutional Amendment Law no. 2 introduced the “fair trial
clause” in Art. 111, It. Const. The Law’s provisions were, for the most part,
inspired by the same principles as those provided for by Art. 6 of the 1950
European Convention on Human Rights and Fundamental Liberties
(ECHR) ratified by Italy under Constitutional Law no. 848/1955.
Art. 111.1, It. Const. now sanctions the principle of the impartial third
party status of the judge, whereas Art. 111.2, establishes the principle that
“each trial shall be based upon the equal confrontation between the parties”
and the principle of the “reasonable duration of the trial”. Particular
attention should be given to paragraph 2 which was inserted expressly into
Article 111 due to the fact that Italy has been condemned numerous times
by the European Court of Human Rights for the excessive duration of trials
i.e. for violations to the right to a fair trial contained in Art. 6 ECHR. Other
principles sanctioned by the constitutional amendment of 1999 specifically
refer to criminal trials and make up the most significant portion of the
reform and are found under Art. 111.3, It. Const. With respect to Art. 111
prior to the constitutional amendment of 1999, the major innovation lies is
the principle of confrontation, that is, the basis for establishing proof in
criminal trials. In fact, this was the rationale behind Art. 111.4, which states
that “no defendant may not be proven guilty on the basis of witness given
by anybody who, by free choice, has always purposely avoided to be crossexamined by the defendants and their defence”.
6. Organisation of the Ordinary Jurisdiction: Judging
Magistrates and Public Prosecutor
Aside from the exceptions to the “single judiciary” principle provided for in
Art. 102, It. Const, the Constitution differentiates the jurisdiction it gives
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to the ordinary judges according to whether they act as judging magistrates
or public prosecutors. The ordinary Judiciary has jurisdiction over both civil
and criminal cases.
The defence judges for assessing the merits of civil cases are the Justices
of Peace, the single-judge courts, collegial courts and the Courts of Appeal,
whereas the civil law sections of the Court of Cassation determine the
legitimacy of a case.
Justices of Peace are always first instance judges while the single-judge
and collegial courts are usually also first instance judges according to the
criteria of competency established by the Civil Procedure Code, although
they can also act as second instance judges against decision of Justices of
Peace. The Court of Appeal acts as a second instance judge with regard to
decisions delivered by the single-judge and collegial courts.
The judgments pronounced in appeal or in the first instance, excluding
those of the Justice of Peace, can be challenged in front of the Court of
Cassation exclusively for a flaw in the proceedings and may be annulled as
provided for by Art. 360, Criminal Code.
On the basis of the allocation of competencies established by the
Criminal Procedure Code, the first instance judges for criminal cases are the
Justices of Peace, the single-judge and collegial courts, the Juvenile Court
and the Court of Assizes. In the second instance, judgments of Justices of
Peace can be challenged in Court; judgments of the the single-judge and
collegial courts can be challenged in the Court of Appeal; judgments of the
Juvenile Court can be challenged in the juvenile section the Court of Appeal
and the judgments of the Court of Assizes can be challenged at the Court of
Assizes of Appeal. Even in this case, however, the Court of Cassation is the
sole judge of the legitimacy of the proceedings.
Laws nos. 352/1982 and 398/1984, introduced the so-called Court of
Freedom so as to re-examine judgments limiting personal freedom. These
courts have been instituted in all the Provincial capitals. Furthermore to
protect the inviolable right of personal freedom, Art. 111.7, It. Const.
emphasises that “appeals to the Court of Cassation shall always be allowed
against judgments and measures concerning personal freedom delivered by
the ordinary or special courts”. An exception to the rule is found under Art.
111.8, It. Const. according to which “appeals to the Court of Cassation
against decisions of the Council of State and the Court of Accounts shall
only be allowed for reasons of jurisdiction”.
The role occupied by the Court of Cassation within the Italian Judiciary
system deserves to be addressed separately. In addition to the competency it
has to rule on conflicts of allocation and competencies among judges, in
accordance with the provisions of Art. 65 of the Law on the Judiciary, the
Court of Cassation is also called upon to ensure “the exact adherence and
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uniform interpretation of the law, the unity of national law and the respect
of the limits of the different jurisdictions”.
6.1. Public Prosecutor
According to the case law of the Constitutional Court, institutional
independence is a prerogative of the ordinary Judiciary not only when it is
sitting as judge but also when it is acting as a public prosecutor. While, to
protect the former, the Constituent Assembly, provided for a series
safeguards that have been illustrated in the paragraphs above, with regard to
the latter, it simply provided that the public prosecutor “shall enjoy the
guarantees laid down by the laws on the organisation of the Judiciary”.
Furthermore, contrary to the guarantee of independence for individual
judges provided for by Art. 101, It. Const., according to a consolidated
principle, the guarantees regarding the public prosecutor are not a
prerogative of the individual members of the Judiciary, but of the public
prosecutor’s office as a whole.
Furthermore, Art. 112, It. Const., expressly dedicated to the public
prosecutor, and stating that “he shall have the duty to initiate proceedings”,
has a twofold meaning. In the first place, it guarantees the public
prosecutor’s functional independence from other branches of government,
in particular the executive branch. In the second place, it excludes any
discretionality on the part of the public prosecutor when he institutes
criminal proceedings if there is sufficient evidence to prove the alleged
offence. On more than one occasion the Constitutional Court has had to
specify that the public prosecutor cannot be one of the parties to the case
since he should not pursue individual interests but protect public interest
and to make sure that, in the pursuit of justice, the law is observed. This
principle is confirmed by the fact that the public prosecutor is obliged to
request that a case be set aside when, during the course of preliminary
investigations, insufficient evidence emerges.
Law Decree 106/2006, one of the decrees the so-called “Castelli
Reform” (from the name of the then Minister of Justice), reorganised the
activity of the public prosecutor’s office along hierarchical lines and
enhanced the role and functions of the Public Prosecutor. Art. 106.2 (in the
original text of this Law Decree) gave him the exclusive right to initiate
criminal proceedings although he had the possibility of delegating specific
cases to assisting prosecutors. Art. 106.5 (in the original text) gave him
organisational and managerial powers over the functioning of his office. Art.
106.5 (in the original text) gave him exclusive competence to deal with the
press, whereas with the provisions of Art. 106.3 (in the original text) he was
able to give written assent to all requests for cautionary measures.
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Law no. 269/2006, suspended or abrogated several provisions of the
“Castelli Reform” (see paragraph 8 for some brief considerations on recent
reforms of the Judiciary).
According to Legislative Decree no. 160/2006 (still in effect) the public
prosecutor can now “assign” a judge to institute criminal proceedings in his
place. The other provisions of Law Decree no. 106/2006 remain unvaried.
7. Liability of the Judiciary
Judges may be exposed to criminal, civil or disciplinary liability. Criminal
liability implies that judges are accountable for offences committed in their
capacity as public officials. The provisions of Law no. 117/1988 on civil
liability instead call for a special regime to be set up for the following
branches of the Judiciary: ordinary, special, Court of Accounts and Military
Tribunals. In particular, this law regulates the compensation of damages to
the injured party who has been deprived of his personal freedom following
the denial of justice or as a result of wilful misconduct or gross negligence.
The injured party can request compensation of damages from the State,
which will in turn claim compensation from the judge responsible for the
wrongdoing up to a maximum of one-third of his yearly salary at the time
the proceeding opened. There is, however, no limit in the case of wilful
misconduct.
A judge will be exposed to disciplinary liability if he fails to comply with
the duties inherent to the exercise of Judiciary functions. Judges are
responsible for any misconduct that could jeopardise the prestige of the
Judiciary regardless of whether this occurred while exercising Judiciary
functions. It is important to note that there exists no definition of breach of
discipline, and guidelines for such cases are generic; therefore, no code of
conduct exists for judges. This led the promoters of the “Castelli Reform”
to appoint the Government to draw up a precise definition of misconduct
that should lead to disciplinary action.
When a judge has failed to comply with his duties of office, he is brought
before the Superior Council of the Judiciary. If misconduct is ascertained,
then disciplinary action will be taken that may consist in 1) a decreased or
frozen salary, 2) a transfer or, in less serious, cases 3) a simple reprimand.
The Superior Council of the Judiciary, through the Minister of Justice or
the Advocate General of the Court of Cassation, has the right to commence
the disciplinary proceedings. The decision is taken first by the disciplinary
division of the Superior Council of the Judiciary and then by a plenary
session of the whole Council. An appeal may be lodged with the Combined
Sections of the Court of Cassation against these disciplinary decisions.
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8. Recent and Future Reforms of the Judiciary
In the previous two legislatures, the Judiciary was the object of more
than one attempt at reform. During the XIV legislature, Law no. 150/2005,
the so-called “Castelli Reform” introduced numerous innovations to the
Judiciary thus amending the provisions of Royal Decree no. 12/1941. This
law delegated to the Government the power to issue 14 legislative decrees,
but also introduced a series of directly applicable provisions. Crucial aspects
of the Judiciary were the object of reform: the recruitment and training of
judges, the assessment of the professional abilities of judges during their
career, the role of the Court of Cassation, the office of the Attorney General
and the ever controversial topic of the relationship between judging
magistrates and public prosecutors (which journalists call “the separation of
careers”).
However, during the course of the XIV legislature, only 10 of the 14
decrees called for by the reform were actually issued, with the result that the
reform, complex as it was - never came into effect during the legislature in
question. After the general elections of 2006 and the consequent change of
majority in Parliament, the entire reform was reconsidered with the approval
of Law no. 269/2006, which modified several decrees that had already come
into effect and suspended the efficacy of some measures contained in
above-mentioned Legislative Decree no. 160/2006, undoubtedly one of the
most important parts of the entire reform since it dictated, among other
things, new provisions for admission to the Judiciary as well as career
advancement and salary increases. Other Legislative Decrees affected by the
amendments to Law no. 269/2006 dealt with the organisation of the Public
Prosecutor’s office (Legislative Decree no. 106/2006) and disciplinary
measures against judges for misconduct (Legislative Decree no. 109/2006).
The last in a long series of amendments that have affected the Judiciary
in the last two years, are those provided for by Law no. 111/2007,
“Modifications to the Provisions concerning the Judiciary”. Although it is
not possible to go into a detailed study of them herein, several innovations
introduced by the aforesaid law are addressed below.
Significant modifications have been made to the provisions of Legislative
Decree no. 160/2006 mentioned above regarding the public examinations
for the Judiciary (which by law are now held on a yearly basis) and the
functions of judges. The innovations concerning career advancement and
salary increase call for the following measures: a) evaluation of a judge’s
professional capabilities every four years for a total of seven evaluations
(evaluation of capability, willingness to work hard, diligence and
commitment to the Judiciary; b) a salary increase no longer linked to
seniority but to evaluations of professional capabilities; c) the obligation for
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a judge to pass an exam for executive and quasi-executive functions and d)
the possibility of freezing the salary of judges who fail in their duties.
Several provisions of Legislative Decree no. 26/2006 which instituted
post-graduate schools for the Superior Council of the Judiciary and
regulated how judges were to be professionally trained have also been
modified, while changes have also been made to Legislative Decree no.
25/2006 regulating the Court of Cassation’s directive council and the
judicial councils attached to each Court of Appeal.
Finally, Law no. 111/2007, Art. 7 delegates the Government to issue
within two years one or more Legislative Decrees to a) coordinate all
provisions concerning the Judiciary and b) to explicitly repeal all provisions
no longer in effect.
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CONSTITUTIONAL JUSTICE
JUSTIN ORLANDO FROSINI
SUMMARY: 1. Terminological Premise – 2. Models of Constitutional Review – 2.1. The Genesis of
Judicial Review: Dr Bonham’s Case – 2.2. The US Model of Constitutional Review – 2.3. The
Austrian Model of Constitutional Review – 3. Structure, Composition and Appointment of
Constitutional or Supreme Courts – 4. The Salient Features of Constitutional Review – 4.1.
What Constitutional Body carries out Constitutional review? – 4.2. When is Review carried
out? – 4.3. How can a Constitutional Petition be lodged with a Constitutional or Supreme
Court? – 4.4. What Types of Decision can be taken? – 4.5. What Effects do the Decisions of
Constitutional or Supreme Courts have? – 4.6. Other Functions of Constitutional or Supreme
Courts – 5. Composition, Functioning and Jurisdiction of the Italian Constitutional Court – 6.
Constitutional Review in Italy – 6.1. Justiciable Acts – 6.2. The Parameter of Judgment – 6.3.
The Proceedings – 6.3.1. The Incidenter Proceedings – 6.3.2. The Principaliter Proceedings –
6.3.3. A Third Proceeding? Constitutional Review of the Statutes of the Ordinary Regions –
6.4. The Types of Decision – 6.4.1. Decisions of Inadmissibility – 6.4.2. Judgments of
Acceptance and Dismissal – 6.4.3. Interpretative Judgments – 6.4.4. Manipulative Judgments –
6.4.4.1. Judgments of Partial Acceptance – 6.4.4.2. Substitutive Judgments – 6.4.4.3. Additive
Judgments – 6.4.5. Exhortative Judgments – 7. The Other Functions of the Italian
Constitutional Court – 7.1. Resolution of Jurisdictional Disputes – 7.1.1. Resolution of
Jurisdictional Disputes between Branches of Government – 7.1.2. Resolution of Jurisdictional
Disputes between the State and the Regions – 7.2. Impeachment of the President of the
Republic – 7.3. Judgment of Admissibility of Abrogative Referendums.
1. Terminological Premise
This chapter will be divided into two parts. The first will deal with
Constitutional and Supreme Courts in a comparative perspective looking at
the main models of constitutional review and the way judges are selected. In
particular, with regard to constitutional review we will examine 1) what
constitutional body actually carries out constitutional review; 2) when review
is carried out; 3) how a constitutional petition can be lodged with a
Constitutional or Supreme Court; 4) the types of decision that can be taken;
5) what effects these decisions have. Finally we will look at the other
functions that can be assigned to Constitutional or Supreme Courts. The
second part will then address the same topics looking specifically at the role
of the Italian Constitutional Court.
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Before we begin, however, we need to define some of the expressions,
which are normally employed when dealing with Constitutional or Supreme
Courts i.e. “constitutional justice”, “constitutional adjudication” and
“constitutional review”. The term constitutional justice can be seen as a general
term used to define all the functions that are carried out by a Constitutional or
Supreme Court (but also by lower courts depending on the model that is
adopted) in ensuring pursuance of the Constitution and protection of
fundamental and basic rights. In many respects the expression “constitutional
adjudication” has a similar meaning, while the expression “constitutional
review” has a more restricted meaning. The latter is in fact related to one
specific function that can be exercised by a Constitutional or Supreme Court i.e.
comparing the Constitution (rigid and codified) with a source of law, which is
subordinate to the Constitution and – in case of contrast – declaring it
unconstitutional. In the United States this would be defined as “judicial review”,
while in the United Kingdom judicial review is considered review of
administrative action. More precisely, in the United States one has “judicial
review of legislation” (or if one prefers “judicial review of constitutionality”),
while in the United Kingdom one has “judicial review of administrative action”.
So as to avoid confusion, in recent years, many comparative scholars prefer the
term “constitutional review” when referring to judicial review of
constitutionality and this is the term that will be used in this chapter.
Finally, one must ask the question why does a legal system need a
Constitutional or Supreme Court? By simplifying to a maximum, one can
give three answers to this question: first of all to ensure legal certainty and
equality; second to ensure the rule of law and third to resolve conflicts
between central and decentralised government (if one is in the context of a
federal or devolved system of government).
2. Models of Constitutional Review
In a comparative perspective one should note the fact that countries having a
rigid and codified constitution do not all adopt the same system of review.
Conventionally, comparative scholars make two distinctions with regard to models
of constitutional review: first they distinguish between political and judicial review
and then they distinguish between decentralised (diffused) or centralised
(concentrated) review. While the first distinction still exists today (although some
authors argue that political review is not really an example of constitutional review
at all), the dichotomy between decentralised and centralised constitutional review is
no longer an adequate way to classify all the systems of constitutional review that
now exist around the world. As we will see in more detail in the following
paragraphs, some writers even consider Italy’s system of constitutional review as
being a so-called tertium genus i.e. a system that belongs neither to the decentralised
nor to the centralised model of constitutional review.
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2.1. The Genesis of Judicial Review: Dr Bonham’s Case
To fully understand the models of constitutional review one has to look at
their historical evolution. Although certain studies show that a form of judicial
review existed in some Scandinavian countries as far back as the Thirteenth
Century, most commentators consider the famous Dr Bonham’s case of 1610
as a precursor of judicial review of legislation. This may appear to be a paradox
given the fact that Great Britain did not (rectius does not) have a rigid, codified
constitution, but this case is undoubtedly part of the constitutional heritage of
the United States Supreme Court as we will see in par. 2.2.
Very briefly the case concerned a physician, Dr Bonham, who was accused
of illegally practicing medicine and subsequently punished with a fine and
imprisonment by the Royal College of Physicians. Bonham took the case to the
Court of Common Pleas presided by the esteemed judge and jurist Lord
Edward Coke suing for false imprisonment. In its defence the College made
reference to its statute of incorporation, underlining the fact that the latter
authorised it to regulate all physicians and when necessary punish them with a
fine or imprisonment. However, the statute in question also provided that one
half of the fines should go to the College itself and according to Coke this made
the College not only judge, but also party, to the case. To put this in more
simple terms, the College had applied the statute in the correct manner, but the
statute itself was unreasonable. This led Lord Coke to make a famous
statement: “[It] appears in our books that in many cases the common law will
controul acts of Parliament and sometimes adjudge them to be utterly void; for
when an act of Parliament is against common right or reason, or repugnant or
impossible to be performed, the common law will controul it and adjudge such
act to be void”. What Chief Justice Coke affirmed in this decision was the
supremacy of the common law and, as a result, the fact that the prerogatives of
Parliament were derived from and circumscribed by precedent. It is common
knowledge that this principle did not prevail in the British legal system where
the Sovereignty/Supremacy of Parliament later became one of the pillars of the
British Constitution. As an after note, it is worth remembering that two years
earlier Edward Coke had provoked the wrath of King James I by again arguing
in favour of the common law and the fact that only Courts of Justice – and not
the King – could adjudge cases. Coke did this by recalling the words of the
great English jurist of the Thirteenth Century Henry of Bracton Quod Rex non
debet esse sub homine sed sub Deo et lege (the King should not be under man, but
under God and law).
2.2. The US Model of Constitutional Review
The words of Edward Coke in Dr Bonham ring familiar in the famous
Marbury v. Madison case delivered by the United States Supreme Court in 1803,
presided by Chief Justice John Marshall. The case was politically explosive
because it involved John Marshall himself and a decision taken by President
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Adams under whom he had served as Secretary of State. Two days before his
term ended, Adams had appointed a series of circuit judges and justices of the
peace. One of these appointees, infamously called the “Midnight Judges”, was
William Marbury. Following approval by the Senate, the commissions had to be
delivered to all those who had been appointed, however, it proved impossible
to deliver them all before Adams ended his term in office. As soon as Thomas
Jefferson, the new President, was sworn in he gave the order that the remaining
commissions should not be delivered. Without the commissions, the appointees
were unable to assume the offices and duties to which they had been appointed.
Marbury and two other appointees went to the Supreme Court and, on the basis
of par.13 of the Judiciary Act of 1789, they filed a writ of mandamus i.e. they
asked the Supreme Court to order the new Secretary of State to deliver their
commissions and allow them to take office as judges. In brief, the Supreme
Court concluded that the applicants did have a vested right and that the
appointment was not revocable. Having come to this conclusion, on the basis
of the above-mentioned Judiciary Act, the Court should have issued the
mandamus, instead it held that the provision of the Judiciary Act 1789 that gave
the Supreme Court the power to issue writs of mandamus violated Art. 3 of the
Constitution, which regulates the judicial power of the United States. From a
political standpoint this allowed the Chief Justice, John Marshall, to avoid
delivering a decision against the President and Secretary of State in office and in
favour of the previous Administration he had been part of. From a
constitutional standpoint, for the first time, the Court explicitly clarified the fact
that it has the power to carry out judicial review of legislation. These are the
words pronounced by John Marshall: “…in declaring in what shall be the
supreme law of the land, the Constitution itself is first mentioned; and not the
laws of the United States generally but those only which shall be made in
pursuance of the Constitution have that rank. The particular phraseology of the
Constitution of the United States confirms and strengthens the principle,
supposed to be essential to all written constitutions that a law repugnant to the
constitution is void”. While Coke had affirmed that any act repugnant to the
common law would be void, Marshall talks of any law repugnant to the Constitution.
In Marbury v. Madison the parameter for review is of course the US Constitution.
What are the salient features that emerge from this landmark decision and that
are at the basis of what is often defined as the American model of constitutional
review?
First of all review is a posteriori (or repressive) i.e. the law is reviewed after
it has come into force.
Second, constitutional review is anchored to an actual controversy
among real adversaries. In other words judicial review takes place during
regular court proceedings therefore review is concrete and incidental (one
must remember that Marbury did not go to the Supreme Court because he
wanted judicial review of the Judiciary Act 1789, on the contrary he wanted
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the Supreme Court to resolve his controversy with the Secretary of State
John Madison). Finally review is carried out by all ordinary courts and not
just the Supreme Court, therefore review is decentralised (or diffused).
To summarise: in the US model constitutional review is a posteriori,
concrete, incidental and decentralised.
2.3. The Austrian Model of Constitutional Review
The other main model of constitutional review is the so-called Austrian
Model first introduced with the Austrian Constitution of 1920, based on a
heuristic model devised by the great Prague-born jurist and philosopher Hans
Kelsen. Some authors variably refer to it as the Kelsenian, European,
Centralised or Concentrated model of constitutional review. This is a model
whereunder constitutional review is carried out by an ad hoc Constitutional
Court, with exclusive jurisdiction over constitutional rulings, and not by the
ordinary courts and whereby review is abstract because it is not linked to an
actual controversy, but is the result of a so-called special or principaliter
proceeding. Often, in countries that have a centralised system of constitutional
review, there is both a Constitutional Court and a Supreme Court. While the
latter sits at the top of the judiciary system, the former sits outside it.
Kelsen’s ideas were based on his famous Stufenbau i.e. a hierarchical
structure of the legal system on the basis of which the Constitution was to
be considered the “law of laws”. In this sense there is a similarity with John
Marshall’s idea of the Constitution being the supreme law of the land. In
both cases the legal system is based on a hierarchy of legal sources. Where
Kelsen’s ideas differ from the US model of constitutional review is in the
fact that the guardian should be a “Court-like” body that is not, however,
part of the judiciary system. Moreover, Kelsen points out that review should
not be a priori (preventative) but a posteriori (repressive), which in practice is
another similarity that the two models have. In other words, review should
be carried out after the law has come into effect and not beforehand. If a
law is in contrast with the Constitution the Constitutional Court should
strike it down. In the original Austrian model (i.e. the system that existed
before the constitutional amendments of 1929 and 1975) complaints could
only be lodged by constitutional bodies.
Again to summarise, in the Austrian model constitutional review is a
posteriori, the result of so-called principaliter proceedings, abstract and centralised.
3. Structure, Composition and Appointment of Constitutional or
Supreme Courts
The number of judges sitting on Constitutional and Supreme Courts and
the way they are appointed differs significantly from country to country.
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Their term in office also varies. For example, there are nine judges sitting on
the US Supreme Court who serve for life, although they are subject to
impeachment. In the case of the Canadian Supreme Court and the
Australian High Court there are respectively nine and seven judges and there
is mandatory retirement at the ages of 75 and 70. In other countries judges
serve for a limited term and may or may not be re-elected. For example, the
sixteen judges sitting on the Bundesverfassungsgericht, the German Federal
Constitutional Court, have a term of twelve years that cannot be renewed.
Moreover they have to retire at the age of 68.
The renewal of Constitutional Courts and the frequency of appointment
of constitutional judges do not always coincide, in fact in some countries
such as Spain and, as we will see (par.5), Italy the term of office of
constitutional judges expires successively which results in partial renewal of
the Constitutional Court.
The influence of the executive power on the appointment or election of
constitutional judges also differs from case to case. In some countries (for
example Japan and Sweden) judges are appointed exclusively by the
government. This system is sometimes defined as an Appointment-based
System.
In other countries Parliament exercises a much greater influence in the
selection of constitutional judges especially with respect to regular court
judges. In countries such as Germany, Belgium and Poland, for example,
constitutional judges are appointed exclusively by the legislative body. This
is what would be called an Election-based System. In other cases we have
courts with some judges that are appointed (by the executive or by the head
of state) and some that are elected (by Parliament or by senior judges). This
is often referred to as a Mixed System.
Finally, in countries where constitutional review is carried out by a
Supreme Court or a High Court that is at the top of the judiciary system,
then the composition may be predetermined and neither Parliament nor the
Government exert a direct influence on the appointment (this is known as a
Predetermined Composition).
4. The Salient Features of Constitutional Review
4.1. What Constitutional Body carries out Constitutional Review?
In examining the two conventional models of constitutional review i.e.
the US model and the Austrian model we saw that one of the main
differences between the two systems is to be found in the body that actually
carries out review. In fact, as we know, in the US system all judges have the
power to declare a law unconstitutional not just the Supreme Court.
Furthermore, the judges that have this power are all part of the regular or
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ordinary judiciary system. When constitutional review is carried out in this
way it is defined as decentralised (or diffused) review.
If, on the other hand, constitutional review is carried out by an ad hoc,
“court-like” body (usually called Constitutional Court) as is the case in the
Austrian model then review is defined as centralised (or concentrated).
While this dichotomy made sense up until the 1980s today these two models
appear incapable of comprising all the systems of constitutional review that
can be found throughout the world especially after the democratic
transitions in Latin America and in Central and Eastern Europe. In
particular nearly all Latin American countries have hybrid systems that
combine both centralised and decentralised review.
4.2. When is Review carried out?
Both the US and Austrian models of constitutional review are characterised
by the fact that review is carried out after the law under scrutiny has come into
effect. In other words we have so-called a posteriori (or repressive) review. If, on
the other hand, review is carried out before the law comes into effect then we
will have a priori (or preventative) review. What should, however, be underlined
is the fact that if one has decentralised constitutional review, as is the case in the
United States, then review will always be repressive because it is anchored to an
actual controversy among real adversaries and therefore takes places during
regular court proceedings. On the contrary, in a centralised system of
constitutional review we may have both repressive and preventative
constitutional review, as we will see this is the case in Italy. There are also
countries that only have preventative review. This is the peculiarity of France,
which has a system of constitutional review based neither on the US nor the
Kelsenian model. There are historical reasons for this that can be defined as the
so-called “French deviation” to use the term coined by John Merryman. After
the French Revolution of 1789 the aim of many influential theorists of the time
was to make law “judge-proof”. In other words judges had to be the “bouche de la
loi” and merely apply the law. This was a way of upholding a fundamental
principle developed by Charles-Louis de Secondat, Baron de La Brède et de
Montesquieu or quite simply… Montesquieu i.e. the separation of powers (or
trias politica as he defined it). In particular, the judiciary power had to be limited
so that it did not interfere with the legislative powers exercised by the National
Assembly, the expression of popular will. As a result the idea that regular judges
or even an ad hoc Court could have the power to strike down legislation was
considered to be utterly unacceptable.
There was, however, an unsurmountable contradiction in this way of
reasoning: the separation of powers and the protection of rights are
contained in the Constitution therefore one has to ask the Kelsenian
question “Who is the Guardian of the Constitution?”. The Constitutions of
1799 and 1852 gave the Senate the power to carry out preventative
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constitutional review i.e. political review. It was only with the Constitution
of the Fourth Republic in 1946 that France finally set up an ad hoc body, the
Comité constitutionnel for constitutional review. However, its jurisdiction was
very limited and it only carried out preventative review. Today, under the
Constitution of the Fifth Republic, France has a Conseil constitutionnel, which
still only carries out preventative review, but that uses the Preamble – and
therefore the Declaration of the Rights of Man and the Citizen of 1789 and
the Preamble of the 1946 Constitution, which are both mentioned therein –
as a parameter (bloc de constititionnalité) for constitutional review (following a
judgment taken in 1971). Moreover, the introduction in 1974 of the socalled saisine parlementaire i.e. a constitutional petition that can be lodged by a
parliamentary minority has undoubtedly changed French Constitutional Law
and in particular the role played by the Constitutional Council.
4.3. How can a Constitutional Petition be lodged with a Constitutional or Supreme
Court?
Depending on the proceeding that is followed to file a claim in a
Constitutional or Supreme Court one can distinguish between principaliter
and incidenter proceedings. We will have principaliter proceedings if the claim
can be lodged independently from a specific case. In other words, the
question of unconstitutionality is not anchored to a specific case or
controversy and therefore the review carried out by the Constitutional Court
is abstract. Depending on the country taken into consideration with regard
to principaliter proceedings, the locus standi to challenge the constitutionality of
laws will vary. The claim may be filed directly in the Constitutional Court by
different constitutional bodies or branches of government (the President of
the Republic, Parliament, Members of Parliament) or by regional or local
government authorities. Just as a matter of curiosity, in Brazil, for example,
action can be brought before the Court by the Bar Association, the
confederation of trade unions or a professional association of a nationwide
nature. (see article 103, Brazilian Constitution). Moreover, in many countries
individual citizens (or a group of citizens) can lodge a claim directly with the
Constitutional Court when a statute violates one of their constitutional
rights. This is the case in Germany – with the so-called Verfassungsbeschwerde
and in Spain and in many countries of Latin America – with the recurso de
amparo.
On the contrary we will have incidenter proceedings when the question of
unconstitutionality is raised during a regular court case. Regardless of
whether the issue of unconstitutionality is then referred to the
Constitutional Court or decided by the sitting judge, constitutional review
will be concrete because the law under scrutiny has to be applied in the
specific case or controversy.
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4.4. What Types of Decision can be Taken?
Bearing in mind that one may have a combination of more than one type
of decision, in a comparative perspective the judgments delivered by
Constitutional and Supreme Courts can be divided into four main
categories: 1) cassation decisions; 2) declaratory decisions; 3) appellate
decisions; 4) interpretative decisions.
We will have a cassation decision when the Constitutional or Supreme
Court strikes down the statute law under scrutiny by declaring it
unconstitutional. Depending on the temporal effects, cassation decisions
may imply annulment or abrogation. In the first case the decision is
retrospective and therefore it is as if the unconstitutional statute law never
existed. In the second case the statute law judged to be unconstitutional will
cease to have effect from the moment the decision is delivered by the
Constitutional or Supreme Court.
When a Constitutional or Supreme Court delivers a declaratory decision
then it merely “declares” that the statute law is unconstitutional, however, in
practice, this does not have any concrete legal consequences i.e. there is no
annulment or abrogation. In such cases what then usually happens is that
the legislature that approved the unconstitutional law will have to remedy
the established unconstitutionality within a period of time determined by the
Constitutional or Supreme Court itself.
With appellate decisions, the Constitutional or Supreme Court appeals to
the Legislature (explicitly or implicitly and with or without a time limit) to
make changes to legislation it deems to be in violation of the Constitution.
This sort of “judicial activism” can be seen in a restricted sense in countries
such as Germany, Austria and Poland, while it is more intense in countries
such as Portugal, Hungary and Italy.
Finally, one has interpretative decisions when the Constitutional or
Supreme Court uses its discretionary powers of interpretation to determine
whether a statute is in pursuance or not of the Constitution. Again this is
the case of Italy, as we will see in par. 6.4.3. What should be noted is the fact
that, in particular, appellate and interpretative decisions influence the
relationship between the Constitutional or Supreme Court and the other
branches of government. In fact appellate decisions are sometimes seen as a
form of interference of the Constitutional or Supreme Court with the
activities of the Legislature, while interpretative decisions have a significant
effect on the relationship between the Constitutional Court and the ordinary
courts, especially in the context of a centralised model of constitutional
review with an ad hoc Constitutional Court which stands alongside the
ordinary judiciary. In fact with interpretative decisions the Constitutional
Court tries to secure with its own interpretation that future implementation
of the statute complies with the Constitution.
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4.5. What Effects do the Decisions of Constitutional or Supreme Courts have?
First of all, it is important to note that the effects of the judgments
delivered by Constitutional or Supreme Courts will often differ depending
on whether the Court declares the statute law under scrutiny to be
unconstitutional or not. Moreover, we must make a further distinction
between the subjective and the temporal effects.
The subjective effects are related to the binding nature of the judgment
and can be divided into two types: erga omnes and inter partes. A decision will
have an erga omnes effect when it is generally binding, while it will have inter
partes effects when it only binds the parties to the controversy.
The temporal effects are related to the moment in time when the statute
law that has been declared unconstitutional ceases to have effect. If the
judgment has a so-called ex tunc effect then this implies that it will be
binding from the moment the disputed provision took effect. On the
contrary, if we have a so-called ex nunc effect then we will have a binding
effect only from the moment the decision was taken by the Court. If we
consider the cassation decisions examined in par. 4.4., the temporal effects
allow us to distinguish between annulment and abrogation.
4.6. Other Functions of Constitutional or Supreme Courts
So far, in a comparative perspective, we have examined Constitutional
and Supreme Courts in terms of their exercise of the power to carry out
constitutional review i.e. scrutinise legislation in order to determine whether
it is in pursuance with the Constitution. Although this is undoubtedly the
most important function that comes under the jurisdiction of Constitutional
or Supreme Courts, it is not the only one.
Another function that these courts are often assigned is that of resolving
jurisdictional disputes. These may consist of conflicts between branches of
government or between the state and regional and/or local government
authorities. Constitutional or Supreme Courts may also act as arbiters in
disputes between different regional or local authorities or between the
ordinary courts and other branches of government.
In some countries (notably Germany), they can take decisions
concerning political parties. Art. 21.2 of the German Basic Law of 1949
states “Parties that, by reason of their aims or the behaviour of their
adherents, seek to undermine or abolish the free democratic basic order or
to endanger the existence of the Federal Republic of Germany shall be
unconstitutional. The Federal Constitutional Court shall rule on the
question of unconstitutionality”. In much a similar manner, Art. 82.7 of the
Chilean Constitution of 1980 establishes that the Constitutional Court can
“declare the unconstitutionality of organizations, movements or political
parties…”.
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In various countries, the Constitutional or Supreme Court has the power
to decide on the conformity of referendums with the Constitution,
furthermore they are often given jurisdiction with regard to electoral
disputes (the Bush v. Gore case in the United States being the most famous),
the confirmation of elected members and the capacity for office of the
President of the Republic or of other State representatives.
Constitutional or Supreme Courts can often exercise the power of
impeachment of the Head of State, the Prime Minister or of other ministers
or State representatives.
Finally other functions assigned to Constitutional or Supreme Courts
may include decisions concerning: the violation of international treaties, the
appointment of the constitutional justices and their immunity, the
declaration of martial law, the implementation of decisions taken by
international courts and the amendment of the Constitution. Some Courts
even have consultative functions.
5. Composition, Functioning and Jurisdiction of the Italian
Constitutional Court
Let us now turn more specifically to Italy. A Constitutional Court was
foreseen for the first time in Italy by the Constituent Assembly that was
elected on June 2, 1946 the same day the country chose to become a
Republic. The Corte costituzionale is regulated by Articles 134 to 137 of the
Italian Constitution, which came into effect on 1 January 1948 as well as by
Constitutional Laws 1/1948, 1/1953 and 2/1967 and Statute Law 87/1953.
It should be noted that the Court did not actually start operating until 1956
so for the first eight years constitutional adjudication was carried out by the
Corte di Cassazione, Italy’s Supreme Court. In a comparative context, the
model of constitutional review adopted in Italy can be considered
centralised as opposed to the decentralised or diffused model adopted in
most common law systems although some authors (Pegoraro) argue that
Italy actually has a hybrid system of constitutional review because, as we will
see (pars 6.3.1. and 6.3.2.), constitutional review may be carried out by the
Constitutional Court on the basis of both principaliter and incidenter
proceedings. Strictly speaking Italy’s Constitutional Court is not part of the
judiciary, but is an ad hoc body with four specific functions.
In fact, the Constitutional Court has exclusive jurisdiction to decide on:
the constitutional review of laws and acts having force of law (legislative
decrees and law decrees); jurisdictional disputes between branches of
government within the State and jurisdictional disputes over the allocation
of powers between the State and sub-national entities (Regions). Moreover,
the Court also delivers judgments concerning accusations against the
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President of the Republic for high treason and attempting to overthrow the
Constitution. Finally, the Court has the power to decide on the admissibility
of referendum as provided for by art. 75 of the Italian Constitution.
As we will see below, two amendments to the Constitution
(Constitutional Law 1/1999 and 3/2001) have since modified the principaliter
proceeding for constitutional review of State and regional laws and
introduced a new procedure for the review of the Statutes of the so-called
ordinary regions (see Chapters Seven and Twelve).
The Constitutional Court is composed of 15 judges and a mixed system
(see par. 3) is used to select them. In fact, five are appointed by the
Parliament in joint session, five by the President of the Republic and five by
the Supreme Courts (more precisely three by the Court of Cassation one by
the State Council and one by the Court of Accounts, see Chapter Nine).
This ensures that it is independent from all other State powers. Judges sit on
the Court for nine years and cannot be re-elected (before Constitutional
Law 2/1967 the term in office was twelve years). The Chief Justice or
President is elected among the members of the Court. According to an
unwritten convention the Court always elects the most senior judge so the
President has to be elected quite frequently. Candidates are chosen among
lawyers with at least twenty years of legal practice, Full Professors of Law
and judges, even if retired, of the Supreme Civil, Criminal and
Administrative Courts. To be elected by Parliament in joint session, a
candidate to the Constitutional Court needs a majority of 2/3 in the first
three ballots and then 3/5. This means that the parliamentary minority has a
kind of veto power. This was clearly seen a few years ago when the then
Berlusconi Government proposed a former minister Filippo Mancuso who
had previously appealed to the Constitutional Court after been dismissed
from the Dini Government (the Court resolved the dispute by deciding in
favour of the Government, see par. 7.1.1.). In fact the centre-left opposition
adamantly refused to vote in his favour and after months of deadlock,
Berlusconi was forced to give up and propose a more moderate candidate. It
should be noted that for all judicial decisions taken by the Court at least
eleven judges should be present (for non-judicial decisions only nine are
required), however, there is another important rule established by Art. 16.3
of Law 87/1953 and that is that the decisions of the Court have to be taken
by “judges that took part in all the hearings of a specific case”. The number
of judges that take part in a given proceeding may decrease (due to the fact
that a judge has terminated his mandate), but single judges cannot be
substituted.
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6. Constitutional Review in Italy
6.1. Justiciable Acts
According to Art. 134.1 “The Constitutional Court shall decide on
disputes concerning the constitutional legitimacy of laws and acts having the
force of law, adopted by the State and the Regions”. This provision is not as
clear as it might seem and it has actually posed various problems from an
interpretative standpoint. First of all one has to clarify what the term “law”
(or rather legge) refers to. Does it only include primary legislation or also
constitutional amendment laws? The Constitutional Court has resolved this
issue by stating that constitutional amendment laws can also be the object of
constitutional review. As a result the Constitutional Court can review state
and regional statute laws, state – but not regional – acts having force of law
(i.e. law decrees and legislative decrees) and constitutional amendment laws.
It should also be noted that even legislation that was in force prior to the
coming into effect of the Italian Constitution of 1948 can be the object of
constitutional review.
On the contrary, secondary sources of law, such as government
regulations cannot come under review. European law and parliamentary
standing orders (rules and regulations) are also excluded.
6.2. The parameter of Judgment
When one talks of the parameter of judgment one is referring to act that
the law under review is compared with. Obviously the provisions of the
Constitution and of constitutional laws are the first thing that comes to
mind when one thinks of the parameters (bloc de constititionnalité or bloque de
constitucionalidad) to be used in constitutional review, however, the
Constitution itself indicates other sub-constitutional parameters. For
example, legislative decrees have to be pursuant with the provisions
contained in the delegation act (see Chapter Eleven). Regional laws
concerning concurrent subject-matters have to respect the fundamental
principles contained in the State framework laws (Art. 117.3). Furthermore,
one should bear in mind the fact that all Italian statute laws must conform
with international customary law, with European directives and with the
Concordate between Italy and the Holy See. These are all examples of
parameters that are “interposed” between the act under scrutiny and the
Constitution (so-called norme interposte, literally “interposed” rules). In
practice, if a legislative decree violates the principles and criteria of guidance
contained in the delegation act then indirectly it is violating Art. 76 It.
Const. In much a similar manner if an Italian statute law is in contrast with a
provision of international customary law, a European directive or the
Concordate then there will be an indirect violation of Arts 10.1., 11 or 7.2 It.
Const.
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6.3. The Proceedings
Two proceedings can be followed in order to file a claim before the
Court: principaliter proceedings and incidenter proceedings, the latter being the
most common of the two. The principaliter proceedings refer to claims
lodged directly before the Court by the Central Government or the Regions.
The incidenter proceedings, on the contrary, consist of a claim filed by an
ordinary court judge and are carried out during a regular trial. Although only
the Constitutional Court actually carries out constitutional review (i.e. review
is centralised, par. 4.1.), as mentioned above, the fact that there are two
proceedings for lodging a constitutional claim has led some authors, such as
Lucio Pegoraro, to talk of a tertium genus i.e. a hybrid model with respect to
the US and Austrian models (par. 5). The same can be said about the
systems that exist in Germany and Spain which are very similar to Italy’s.
This theory is not unfounded, but there can be no doubt that the Italian
system of constitutional review is much closer to the Austrian model than it
is to the US model. Furthermore, a careful reading of Kelsen’s work shows
that he did not rule out the possibility of constitutional claims being lodged
with the Constitutional Court during a regular court case. Given that it is the
most common of the two let us begin by describing the incidenter
proceedings.
6.3.1. The Incidenter Proceedings
One will have an incidenter proceeding when the question of
unconstitutionality is raised “during the course of a court case” (see Art. 1,
Const. Law 1/1948). In other words there has to be a pending court case
concerning a concrete controversy. The question of unconstitutionality
therefore represents a procedural incident with respect to this controversy.
In practice there will be two proceedings: the main proceedings to which the
original controversy is anchored and the incidenter proceedings related to the
question of unconstitutionality. The judge sitting on the ordinary court is
known as the judge a quo whereas the Constitutional Court to which the
constitutional claim is referred to is known as the judge a quem.
Having said this one has to be clear about the two requirements that
need to be satisfied in order for a question of unconstitutionality to be
referred to the Constitutional Court. First there is a subjective requirement
i.e. one has to be in the presence of a judge that is part of the ordinary or
administrative judiciary system, second there has to be a pending court case
during the course of which judicial power is exercised. It has actually been
the case law of the Constitutional Court itself that has clarified whether
these requirements have been fulfilled or not. Just to mention a few, the
following organs have been considered to have the locus standi to refer a
question of unconstitutionality to the Constitutional Court: the disciplinary
benches of the National Bar Association (Judgment 114/1970 and the
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Superior Council of the Judiciary (Judgment 12/1971); the Appellate
Committee of the Italian Patents and Trademarks Office (Judgment
37/1957 and Judgment 236/1996), Tax Commissions (Judgment 287/1974)
and, more recently, Arbitration Tribunals (Judgment 376/2001). In
exercising one of its other three functions, even the Constitutional Court
itself can be a judge a quo. This was the case during impeachment
procedures (Judgment 125/1977) and when resolving a dispute between
branches of government (Judgment 68/1978). The Constitutional Court
even raised a question of unconstitutionality during the selection of the
additional members of the Court (i.e. the sixteen extra judges that sit on the
Court during impeachment procedures, par. 7.2.).
According to Art. 23, Law 87/1953 the question of unconstitutionality
may be raised by one of the two parties (including the public prosecutor) or
ex officio by the judge a quo. When doing this the parties or the judge a quo
must clearly indicate the thema decidendum i.e. the provisions of the law or the
act having force of law that are considered to be unconstitutional (the object
of review) and the provisions of the Constitution or other constitutional
laws that are presumed to have been violated (the parameter of review). What
should be underlined is the fact that the parties cannot file their claim directly
with the Constitutional Court. In fact, in this stage of the proceeding the
judge a quo plays an important role given that – as provided for by Art. 23.4,
Law 87/1953 – he/she has to verify that two conditions are met before
suspending the case and referring the issue to the Constitutional Court: 1)
the question of unconstitutionality is relevant to the case; 2) the question of
unconstitutionality is not clearly unfounded.
The fact that the question has to be relevant to the case is symptomatic
of the fact that this is an incidenter proceeding, in other words a procedural
incident with respect to the case a quo. The question will be relevant if the
provisions that are the object of the claim are essential for the judge to
deliver a decision in the concrete case. If the case can be decided by the
judge a quo without applying the disputed provisions then the question
unconstitutionality has to be considered irrelevant. It should be underlined
that this does not imply that the provisions are in pursuance of the
Constitution – on the contrary they may be in gross violation of the latter –
however they cannot be the object of an incidenter proceeding related to that
particular case. The second condition is actually used by some authors to
argue that Italy has a hybrid model of constitutional review. The reason for
this is the fact that the judge a quo carries out a kind of preliminary review of
the provisions to verify whether the question of unconstitutionality is not
clearly unfounded. If the judge has no doubt whatsoever that the provisions
conform with the Constitution then he will neither suspend the case nor
refer the question to the Constitutional Court. If, on the contrary, he has the
slightest doubt as to whether the provisions are in pursuance of the
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Constitution then this means that the question is not “clearly unfounded”
and therefore he is obliged to suspend the case and refer the question of
unconstitutionality to the Constitutional Court.
It is important to point out that if, on one hand, there can be no doubt
that the judge a quo does carry out a form of preliminary constitutional
review – thus giving the Italian system a characteristic that is similar to the
US model – it should also be underlined that the judge does not have to be
convinced that the law is unconstitutional, he merely has to have a doubt.
Moreover, it should be pointed out that the judge a quo does not have any
discretionary power and does not dispose of the question of
unconstitutionality. In other words if he does have a doubt (and the law is
relevant i.e. essential to resolving the case) then he has no choice but to
send the claim to the Constitutional Court: he cannot choose to do
otherwise.
The order with which the judge a quo suspends the case and refers the
question of unconstitutionality must contain the judge’s reasons for taking
this decision and should obviously indicate: a) the constitutional provision
that is considered to have been violated; b) the statute law that is alleged to
be unconstitutional; c) the reasons why the question is considered relevant;
d) the reasons why the question is considered not to be clearly unfounded.
6.3.2. The Principaliter Proceedings
The principaliter proceeding is regulated by Art. 127, It. Const. which was
modified in 2001 when Title V, Part II of the Italian Constitution was
amended by the then centre-left majority and confirmed in a constitutional
referendum. This proceeding can be used by the State to lodge a claim
against a regional law and by the Regions to file a complaint against a state
law. Before the amendment of 2001, the State – or more precisely the
Council of Ministers – could lodge a claim with the Constitutional Court
against a regional law before this came into effect, while the Regions could
only take action against a state law after it had come into effect. In other
words, prior to the reform of 2001 the State had the power to prevent a
regional law from coming into force by asking for constitutional review and
obviously the review carried out by the Constitutional Court was
preventative (a priori) and not repressive (a posteriori). Seen from another
point of view, the Regions were not on the same standing as the State in
terms of asking for constitutional review. In this regard, the most important
change resulting from the reform of 2001 was to introduce repressive
review for both state and regional legislation. This does not mean that
preventative review was eliminated altogether in the Italian system, but we
address this issue later. According to the amended Art. 127, It. Const. the
State and the Regions have sixty days following the publication of the
regional or state law in the Official Journal to lodge a claim with the
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Constitutional Court (it should be noted that a Region may also take action
against a law approved by another Region). With respect to the period prior
to the 2001 amendment, the State and the Regions have to follow the same
procedure, however, despite this amendment the State and the Regions are
not completely on a par in terms of their locus standi. The State may take
action against a regional law for any violation of the Constitution, in other
words the State does not need a specific interest to take action. On the
contrary the Regions can only lodge a claim with the Constitutional Court
against a state law if it interferes with their competences. In other words,
although to a lesser extent with respect to the period prior to the reform of
2001, the State continues to be in a more favourable position with respect to
the Regions. The interpretation that has been given to Art. 127, It. Const. is
that the State has a general legislative power despite the fact that following
the constitutional amendment of 2001 the residual legislative power (i.e.
related to the subject-matters that are not listed in the Constitution) now
belongs to the Regions. One must also bear in mind that there is another
important provision contained in the Constitution and that is Art. 5, which
while recognising local autonomy, clearly states that the Republic is “one
and indivisible”.
6.3.3. A Third Proceeding? Constitutional Review of the Statutes of the Ordinary
Regions
As illustrated in the previous two paragraphs both the incidenter and the
principaliter proceeding (after the 2001 amendment) result in repressive (a
posteriori) review of state or regional legislation, however, in Italy there is still
a case where preventative (a priori) review is carried out. Following the
constitutional amendments of 1999 and 2001 all the Ordinary Regions can
adopt a statute which determines the form of government and the
fundamental principles of the organization and the functioning of the
Region, in accordance with the Constitution (see Chapters Seven and
Twelve). These statutes are adopted and amended by the Regional Council
with a law that has to be approved twice with a majority of its members and
with an interval between the votes of no less than two months. Within thirty
days of its publication, the Central Government may bring a case
concerning the constitutional legitimacy of a regional statute before the
Constitutional Court (see Art. 123 It. Const.). At first sight it would appear
that the constitutional review of the Statutes of the Ordinary Regions takes
place after the Statute has come into effect given the fact that the
Constitution talks of “within thirty days of its publication”, however, if one
reads the third paragraph of Art. 123 It. Const. one discovers that the
publication of the Statute has merely the function of giving notice of its
approval, but this does not mean that the Statute has come into effect. In
fact Art. 123.3 it. Const. states that “The statute shall be submitted to a
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popular referendum when, within three months of its publication, a request
is made by one fiftieth of the electors of the Region or by one fifth of the
members of the regional Council. The statute submitted to referendum shall
not be promulgated unless approved by a majority of valid votes”. The
procedure that is followed is similar to the one provided for in Art. 138 It.
Const. with regard to constitutional amendments that are approved with an
absolute majority, but not a majority of two thirds. Again publication in the
Official Journal has the function of simply giving notice of the amendment
because according to Art. 138.2 It. Const. “such laws shall be submitted to
popular referendum when, within three months of their publication, a
request is made by one fifth of the members of either Chamber or by
500,000 electors or by five regional Councils. The law submitted to
referendum shall not be promulgated unless approved by a majority of valid
votes”. If the Government does take action against a Regional Statute it will
be before it has come in force, therefore review is preventative. Some
commentators claim that the amended Art. 123 It. Const. has actually
assigned the Constitutional Court a fifth function i.e. constitutional review
of Regional Statutes. This theory, however, is unconvincing because Art.
134.1 states that “the Constitutional Court shall decide on disputes
concerning the constitutional legitimacy of laws and acts having the force of
law, adopted by the State and the Regions” and it appears to be undisputable
that the Statutes of the Ordinary Regions are “laws … adopted by… the
Regions”, undoubtedly they are sui generis laws – given the procedure that is
used to approve them – but still laws.
6.4. The Types of Decision
The decisions of the Constitutional Court can be divided into two main
categories: judgments (sentenze) and orders (ordinanze). With a judgment the
Court makes a final and unappealable decision thus terminating the
proceedings, whereas when it issues an order it takes a procedural decision
that does not close the case (however, it should be noted that in some cases
the Court may deliver a sentenza even when the decision it takes is
procedural). In turn, the judgments of the Constitutional Court that decide
on the merits of the case can be divided into two types. The Court will
deliver a sentenza di rigetto when it judges the law or act having force of law
not to be in violation of the Constitution in other words it dismisses the
question of unconstitutionality, while it will deliver a sentenza di accoglimento
when it decides that the law is unconstitutional. As we will see in the
following paragraphs the types of judgments that can be delivered by the
Constitutional Court are quite diverse and therefore further classifications
can be made.
In truth there is a third type of decision, the decree, which unlike the
other two is not taken collegially, but solely by the President of the
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Constitutional Court and it concerns internal organizational aspects of the
Court.
6.4.1. Decisions of Inadmissibility
The Constitutional Court will judge the question of unconstitutionality
to be inadmissible when the procedural conditions for the Court to decide
the merits of the case are not satisfied. More precisely the Court will issue an
order of inadmissibility if the organ that has filed the claim did not have locus
standi. For example, with regard to incidenter proceedings, the Court will
judge the claim to be inadmissible if it was filed by a body that cannot be
defined as a judge (see par. 6.3.1.) or if the question of unconstitutionality
was not referred to the Court through a pending court case. Furthermore,
the Constitutional Court may overthrow the judge a quo’s decision on the
relevance of the case. In other words, the Constitutional Court will issue an
order (or again, in difficult cases, a judgment) with which it holds that the
question of unconstitutionality is inadmissible because the law (or act having
force of law) which is the object of the claim is not essential in reaching a
decision in the case a quo. One will have a similar occurrence with so-called
ius superveniens i.e. when the Constitutional Court remits a claim because the
law under scrutiny has been repealed. Other decisions of inadmissibility will
be taken if the object of the question of unconstitutionality is an act that
cannot be reviewed by the Constitutional Court (e.g. a parliamentary
standing order) or if the law contrasts with self-executing European law (in
this case the judge a quo should simply not apply the domestic legislation.
The Constitutional Court will also issue an order (or sometimes a judgment)
of inadmissibility if the question of unconstitutionality is clearly unfounded.
In this case if the claim is the result of an incidenter proceeding, this decision
is rather like the awarding of a “yellow card” to the judge a quo who had
referred the question to the Constitutional Court despite the fact that the
question of unconstitutionality did not meet one of the conditions that had
to be satisfied. Other cases where the question of unconstitutionality may be
considered inadmissible is when the thema decidendum is difficult to establish
due to the fact that the challenged provision or the constitutional parameter
is not clearly indicated. Finally, a rather delicate case of inadmissibility is
when the Constitutional Court considers the question to be a case of
“review of a discretional power of Parliament”. Decisions of this nature can
be quite controversial because, in turn, they rely on the discretionary power
of the Constitutional Court.
6.4.2. Judgments of Acceptance and Dismissal
As outlined above, these are the decisions with which the Constitutional
Court accepts the question of unconstitutionality and declares the
challenged provision to be unconstitutional or it dismisses the claim and
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rules that the law is not in contrast with the Constitution. What is important
to underline is the fact that judgments with which the Constitutional Court
dismisses the questions of unconstitutionality referred to it through an
incidenter proceeding by a civil, criminal or administrative judge only have
inter partes effects i.e. they only bind the parties to the controversy (par. 4.5),
while the judgments with which the Constitutional Court declares a law
unconstitutional have an erga omnes effect.
The decision taken by the Court is a comparative judgment on the basis
of which it compares the laws that are presumed to be unconstitutional (i.e.
the object, par. 6.1.) with the provisions of the Constitution that are
presumed to have been violated (i.e. the parameter par. 6.2.). Furthermore,
the decision has to strictly refer to the claim that was lodged. In other words
there has to be perfect correspondence between the question of
unconstitutionality that was put to the Court and the answer that the latter
gives in its judgment: this is known in Italian as the principio della
corrispondenza tra chiesto e pronunciato. This principle is clearly stated in Art. 27,
Law 87/1953, however, this same provision also provides for an exception
to this rule: the Constitutional Court may declare the “consequential
unconstitutionality” of other laws that were not contained in the order with
which the judge a quo referred the question to the Constitutional Court
because they become null and void as a consequence of the declaration of
unconstitutionality of the law that was explicitly challenged.
6.4.3. Interpretative Judgments
A particular type of decision that may be taken by the Constitutional
Court is an interpretative judgment i.e. a decision based on the difference
between provision and norm, the provision being the written text of the
legislative act and the norm being the meaning given to the provision by the
Courts through the exercise of their interpretative powers. One may have
interpretative judgments of acceptance or interpretative judgments of
dismissal.
When the Constitutional Court delivers an interpretative judgment of
acceptance it declares the challenged provision unconstitutional just like an
ordinary decision of acceptance, but it does so on the basis of a particular
process of reasoning. In fact the Court explains the fact that different
meanings may be given to the challenged provision i.e. there may be more
than one norm. In the case of a interpretative judgment of acceptance the
Court may be convinced that one of the norms is not unconstitutional,
however, it acknowledges the fact that in practice a different meaning is
given to the provision, a meaning that gives rise to a norm that is not in
pursuance of the Constitution. As a result the Constitutional Court declares
the law to be unconstitutional.
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On the contrary, when the Court delivers an interpretative judgment of
dismissal, the reasoning is the exact opposite. Just like any other decision of
dismissal the Constitutional Court judges the challenge provision not be
unconstitutional, but again the reasoning of the Court is based on the
meaning that is to be given to it. In this case the Constitutional Court
quashes the challenge because the provision should be interpreted so as to
give rise to norm A which is in pursuance of the Constitution and not norm
B, contained in the order of referral, which is unconstitutional.
To put it in simpler terms when the Constitutional Court delivers an
interpretative judgment of acceptance it underlines the fact that a meaning
may be given to the provision that is in pursuance of the Constitution
(Norm A), but it acknowledges the fact that, in practice the Courts are
interpreting the challenged provision in such a way (Norm B) that it violates
the Constitution. On the contrary when the Constitutional Court delivers an
interpretative decision of dismissal it judges the interpretation that has been
given to the provision by the judge a quo (Norm A) unconstitutional, but it
underlines that another meaning has to be assigned to it (Norm B), a
meaning that is in pursuance of the Constitution.
At this point, however, we should recall the fact that judgments of
acceptance and dismissal do not have the same effect (see par. 6.4.2.) and
that the concrete application of interpretative judgments of dismissal rely
entirely on the fact that all the judges follow the interpretation indicated by
the Constitutional Court. In fact, given that they are judgments of dismissal
they only have inter partes effects. It also has to be said that the judiciary has
often demonstrated a certain reluctance to do this because they see this as
an interference on the part of the Constitutional Court of their interpretative
powers (see par. 4.4.). As a result, what often happens is that the
Constitutional Court first delivers an interpretative judgment of dismissal,
thus judging the challenged provision not to be unconstitutional. If,
however, the meaning (norm) indicated by the Constitutional Court is not
subsequently followed by the ordinary courts, the Court acknowledges this
fact and, as result, when the provision is challenged again it delivers an
interpretative judgment of acceptance and strikes down the law.
6.4.4. Manipulative judgments
Unlike interpretative judgments, manipulative decisions may only be
judgments of acceptance. They are called “manipulative” because the
Constitutional Court does not just declare the challenged provision
unconstitutional, but it actually modifies or integrates it in some way. Many
constitutional scholars have strongly criticised these decisions because,
again, they create problems in terms of the relationship between the
Constitutional Court and the ordinary judiciary with regard to the way the
provision is interpreted, but most of all many commentators consider these
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decisions to be an interference on the part of the Court with the legislative
powers of the Parliament. In truth, manipulative judgments have been
classified in different ways by various scholars of Italian constitutional law,
however, for reasons of brevity we will only refer to three types of
manipulative judgment herein: a) judgments of partial acceptance; b)
substitutive judgments; c) additive judgments.
6.4.4.1. Judgments of Partial Acceptance
With this sort of decision the Constitutional Court declares a part of the
provision and not the entire legislative text unconstitutional. The judgment
will read as follows “the Constitutional declares the constitutional
illegitimacy of the Law X in the part in which…”. The Court is often obliged
to take these decisions because of the way laws are drafted. If each norm
resulted from a single provision (i.e. a single article) then the Constitutional
Court would simply deliver a judgment of acceptance that strikes down the
whole law. On the contrary when the law is drafted in a more complex
manner then the Constitutional Court is forced to declare certain parts of
the law unconstitutional while leaving others unscathed. The underlying
principle is that of avoiding to strike down legislation needlessly (utile per
inutile non vitatur).
6.4.4.2. Substitutive Judgments
The “creativity” of the Constitutional Court emerges quite
preponderantly when it makes use of substitutive judgments. In this case the
object of the declaration of constitutional illegitimacy is the part of the
challenged provision that gives rise to a certain norm rather than another.
Instead of simply striking down the law the Constitutional Court actually
carries out the “substitution” itself. Here the “manipulation” of the text is
quite evident, the aim being that of filling a legal vacuum that would be
created if the Court simply delivered a judgment of partial acceptance.
Interesting to note that a good example of a substitutive judgment was in a
case that concerned consent to prosecution in the case of contempt of the
Constitutional Court. With Const. Court Decision 15/1969 the
Constitutional Court declared Art. 313.3 of the Italian Criminal Code
unconstitutional because it conferred consent to prosecution to the Minister
of Justice. The Constitutional Court considered this provision to be a
violation of the independence of the Court therefore it substituted the
provision which provided that it should be the Minister of Justice to give
this consent with a provision which gave this power the Court itself.
6.4.4.3. Additive Judgments
The Constitutional Court tries to strike down unconstitutional laws in yet
another creative way de facto by “legislating” itself. More precisely, the
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Constitutional Court declares a law to be in violation of the Constitution to
the extent that it lacks a norm (rule) that is constitutionally necessary and
then it “adds” the missing rule to the statute. A classic example of an
additive judgment is Const. Court Decision 190/1970 according to which
the Constitutional Court held that Art. 304 bis of the Italian Criminal
Procedure Code was unconstitutional to the extent that it did not permit the
defence counsel to be present during the interrogation of the defendant.
According to the Court, the code embodied a norm (or rule) that the
defence counsel could not be present at key trial events. In practice the
effect of this judgment was to insert a provision permitting the defence
counsel to attend pretrial events. In all these cases what the Constitutional
Court is judging to be unconstitutional is an omission on the part of the
lawmaker. One of Italy’s most eminent constitutionalists, Vezio Crisafulli,
described the Court’s self-imposed standard for when it should strike down
a legislative omission, thereby supplying a norm that is “missing” from a
challenged law: The Court must stay within the “rime obbligate” or
“prescribed verses” of the statute. As William Nardini of Yale Law School
aptly put it “perhaps the metaphor works better in English this way: Judges
may not rewrite statutes in free verse. A judge may add only those clauses
that the Constitution requires. When the choice among a “variety of
solutions” depends on a “discretionary balancing of values,” the Court has
held that it may not try to fix the statute” (see Const. Court Decision
15/1982).
Over time the Constitutional Court has had to face more complex cases
involving laws on State spending programs related to Italy’s welfare state. There
have been more and more claims of uneven distribution of benefits i.e.
violations of the principle of equality provided for in Art. 3, It. Const. A good
example is Const. Court Decision 240/1994, which extended minimum pension
rights to pensioners who had been excluded by the challenged statute law.
These decisions tend to place ever-growing strains on the Italian treasury and
many commentators argue that this sort of additive judgment violates Art. 81.4,
It. Const., which states that “all other laws implying new or additional
expenditures must set forth the means for covering them”. Although the
Constitutional Court and the majority of constitutionalists reject the notion that
Art. 81.4 prohibits the Court from delivering judgments that lead to higher state
expenditure, the Court has taken the financial impact of it decisions quite
seriously. Moreover, in an attempt to minimise the economic effects of its
decisions, in the 1980s the Court attempted to limit the retroactive effects its
decisions in particular cases. These judgments, however, were heavily criticised
by commentators and in recent years the Court has resorted to decisions of this
sort. What the Constitutional Court has developed in recent years is a new type
of additive judgments, which declare provisions unconstitutional because of an
omission, but instead of adding the
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norm (or rule) that is missing as it would with a conventional additive
judgment it simply indicates the principles that should be followed by
Parliament in integrating the statute law. The characteristic of these
judgments is the attempt to create a form of collaboration between the
Constitutional Court, Parliament and the judiciary. An example is Const.
Court Decision 243/1993, where the Constitutional Court declared a statute
law unconstitutional because it did not foresee a severance payment for
public employees. In this judgment, the Constitutional Court established the
principle that public as well as private employees are entitled to a severance
payment, but it left it up to Parliament to determine the legal mechanisms
for actually determining the payment and therefore the financial impact.
6.4.5. Exhortative Judgments
Finally, another rather unusual decision that can be taken by the
Constitutional Court are so-called “exhortative” decisions i.e. judgments in
which, faced with norms that can be considered unconstitutional in the
abstract, the Court temporarily rejects the challenge (therefore they are
technically judgments of dismissal) apparently justifying the exemption of
those norms from constitutional review, and at the same time inviting
Parliament with a “warning” to change the statute. Sometimes the judgment
is a mere plea to Parliament, in other cases the Constitutional Court
indicates to Parliament how the provisions should be integrated and
modified. If the lawmaker remains inert, the Constitutional Court may hand
down further judgments that turn away challenges to the law, but at a
certain point it will strike down the provision thus deciding the question of
unconstitutionality once and for all. A famous case was Const. Court
Decision 225/1974 with which the Constitutional Court provided a set of
rules for the reform Italy’s public television service.
7. The Other Functions of the Italian Constitutional Court
Although probably the most significant, constitutional review is not the
only function that a Constitutional or Supreme Court can exercise as
illustrated in par. 4.6. and, as we have seen, the Italian Constitutional Court
is by no means an exception. The other three functions of the Court are
illustrated briefly in the paragraphs below
7.1. Resolution of Jurisdictional Disputes
7.1.1. Resolution of Jurisdictional Disputes between Branches of Government
Art. 37 of Law 87/1953 states that “conflicts between branches of
government shall be resolved by the Constitutional Court provided that the
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conflict arises between bodies that have the competence to express the final
will of the branches of government they belong to” and “whose
competences are regulated by the Constitution”. In other words one must
distinguish between disputes between branches of government (poteri dello
stato) and disputes between organs within that branch of government. The
former consist of disputes between constitutional bodies that do not
recognise any superior power other than theirs (superiorem non recognoscentes)
and it is for this reason that the Constitutional Court is responsible for their
resolution, while the latter are conflicts that have to be resolved by the
constitutional body they belong to (for example disputes between ministers
are resolved by the Council of Ministers, disputes between ordinary judges
by the Court of Cassation and so on). In other words the disputes that are
decided by the Constitutional Court must have a “constitutional tone”.
Another aspect that is important to point out is the fact that the notion of
branch of government (potere dello stato) does not merely correspond to the
exercise of the conventional legislative, executive and judicial functions, but
is more complex. In fact in the context of the Italian form of government
there are constitutional bodies that cannot be allocated to one of the three
functions of the triarchy. One just has to think of the President of the
Republic, the Constitutional Court or the Superior Council of the Judiciary.
As many commentators have underlined the three traditional branches of
government are not monolithic and therefore internal disputes of
jurisdiction may arise.
In any case it should be underlined that the Italian Constitution does not
contain a list of the branches of government that can lodge a claim with the
Constitutional Court in the case of a jurisdictional dispute. It is in fact the
case law of the Constitutional Court that over time has established which
bodies are to be considered a potere dello stato and therefore locus standi. For
example, a minister may raise a dispute against the Government he belongs
to: this was the case with the Justice Minister of the Dini Government in
1996. In fact, the then minister Filippo Mancuso, raised a dispute before the
Constitutional Court because the President of the Council of Ministers and
the President of the Republic had withdrawn his mandate after Mancuso
had lost a so-called “individual” vote of no confidence (Mancuso had
entered into conflict with the rest of the Government after ordering a series
of inspections in the offices of the public prosecutors in Milan where the
famous “Tangentopoli” investigations began in 1992). Locus standi has also
been given to single Members of Parliament and even to Committees
promoting an abrogative referendum.
The object of the dispute may be an administrative, judicial and even, in
exceptional cases, legislative act. Moreover, the dispute may arise either
because one branch of government is exercising a power that belongs to
another branch of government, i.e. one party claims the power exercised by
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another (vindicatio potestatis) or – and this is the more frequent of the two
cases – one branch of government challenges the way that another branch
of government has exercised its power because it has adversely affected the
claimant in some way.
In the case of disputes of jurisdiction the procedure to be followed is
divided into two phases. First of all the Constitutional Court has to decide
whether the claim that has been lodged is admissible or not. In other words
the Constitutional Court has to verify whether the dispute has a
constitutional tone. Then it shall identify the parties to the dispute. Second,
the Constitutional Court will enter into the merits of the case and resolve
the dispute. In practice the Court will declare that function X should be
exercise by body Y. Given the fact that the dispute is between parties the
judgment only has inter partes effects therefore another body could always
lodge a claim with the Constitutional Court and argue that it should exercise
the function in question. A consequence of this conflict resolution is that
the Constitutional Court will declare the annulment of the concrete act that
provoked the dispute. This annulment will have an erga omnes effect.
7.1.2. Resolution of jurisdictional disputes between the State and the Regions
Art. 37 of Law 87/1953 states that “if a Region approves an act that
invades the sphere of competence of the State or of another Region, the
State or the interested Region may lodge a claim with the Constitutional
Court to decide who the competence belongs to”. With the exception of
statute laws, all acts of the State or the Regions may be the cause of a
dispute. Statute laws are of course excluded because as we saw in par. 6.3.2.
the State or the Region can file a claim directly before the Constitutional
Court challenging their constitutional legitimacy.
Usually the object of the conflict is an administrative act, which may
even consist of a government regulation. This is noteworthy due to the fact
that, according to Art. 134, It. Const., secondary sources of law cannot be
the object of constitutional review, but despite this they may come under
the scrutiny of the Constitutional Court when the latter is called upon to
resolve a jurisdictional dispute (cfr. par. 6.1.)
Jurisdictional disputes between the State and the Regions differ from
jurisdictional disputes between branches of government because the parties
are predetermined (the State and the Regions). As a result the procedure is
not divided into two parts given the fact that the Constitutional Court does
not deliver a preliminary judgment of admissibility and it therefore begins
when the claim is lodged by the State or by the Region. More precisely, the
President of the Council of Ministers will file the claim on behalf of the
State (following approval by the Council), while the President of the
Regional executive will file the claim on behalf of the Region (again after
approval by the Regional Executive). The claim has to be lodged with the
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Constitutional Court within sixty days of the publication (or notification) of
the act that caused the dispute.
In a similar manner to the resolution of conflicts between branches of
government, the Constitutional Court will resolve the dispute by declaring
who the competence belongs to (the State or the Regions) with
consequential annulment of the disputed act. Again, due to the fact that the
case is between two parties, the judgment will only have inter partes effects,
while the annulment of the act will have an erga onmes effect. It should be
underlined, however, that commentators have debated whether the
judgment that solves a dispute involving one Region and the State should
extend its effects to the other Regions. Roberto Bin and Giovanni
Pitruzzella, for example, argue that if the decision went in favour of the
Region then the other Regions will benefit from the effects of the judgment
i.e. the favourable interpretation of their competences and of course the
annulment of the act. On the contrary if the Constitutional Court decided in
favour of the State then the other Regions will not be affected otherwise
this would be an infringement of their right to defence. The two authors,
however, underline the fact that the judgment will be a non-binding but
authoritative precedent for future decisions concerning disputes between
the State and the Regions.
7.2. Impeachment of the President of the Republic
The responsibilities of the President of the Republic and the high crimes
he/she can be accused of have already been illustrated in other chapters.
Here it suffices to say that like many other Constitutional or Supreme
Courts – such as those of Austria, Slovakia, Slovenia, Chile and South Korea
– the Italian Constitution (Art. 134.3) states that the Italian Constitutional
Court shall decide “on accusations raised against the President of the
Republic, in accordance with the Constitution”. In brief what can the
President of the Republic be impeached for? According to Art 90.1 It.
Const. the President of the Republic shall not be held responsible for acts
carried out in the exercise of his duties, save in cases of high treason or
attempts to overthrow the Constitution. These are the only two presidential crimes.
The impeachment procedure is divided into two phases. In fact,
according to Art. 90.2 It. Const., the first stage of the procedure takes place
in Parliament in joint session. The actual investigation to ascertain whether
the President should be impeached is actually carried out by a committee
composed of the Immunities Commissions of the Senate and the Chamber
of Deputies. This committee has five months to obtain and examine all the
evidence related to the notitia criminis. The powers of this committee are
actually quite wide given the fact that it can authorise telephone
interception, searches, inspections and seizures. At the end of its
investigation the Committee can do one of three things: a) issue an order
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dismissing the case; b) present a written report proposing impeachment, c)
declare its incompetence because the crime is not one of those provided for
in Art. 90 It. Const. and transmit the proceedings to the judiciary so that an
ordinary criminal procedure can be initiated. If the overall majority of
members of Parliament in joint session vote in favour of impeachment then
the proceedings will be transferred to the Constitutional Court where the
second stage of the procedure takes place. Parliament will elect one or more
members of the committee to sustain the prosecution before the
Constitutional Court and, as a precautionary measure the President of the
Republic may be suspended from office (temporary impediment).
According to Art. 135.7 It. Const. “when sitting to judge on a case of
impeachment against the President of the Republic, the Court shall
comprise sixteen additional members, who shall be drawn by lot from a list
of citizens elected by Parliament every nine years, from among those
possessing the qualifications for election to the Senate, by the same
procedures as for the appointment of the ordinary judges of the Court”.
The Constitutional Court, in this case composed of thirty-one members, will
then decide whether the President of the Republic is guilty of high treason
or attempting to the overthrow the Constitution. (It is worth noting that
until the approval of a constitutional amendment in 1989 ministerial crimes
were also judged by the Constitutional Court).
7.3. Judgment of Admissibility of Abrogative Referendums
A fourth function was assigned to the Court by Const. Law 1/1953. In
fact, Art. 2 of this constitutional provision states that the Constitutional
Court will decide whether “requests to hold an abrogative referendum, as
provided for by Art. 75, It. Const., are admissible”. The procedure for
demanding an abrogative referendum is described in another chapter of this
book., therefore it suffices to underline that the function of the
Constitutional Court is not to verify the validity of the referendum
procedure unlike the Central Office of the Court of Cassation, but to ensure
that the referendum request does not violate one of the limits of
admissibility contained in Art. 75 It. Const. and in the case law of the
Constitutional Court itself (see par. 7.4.1. and also Chapter Eleven)
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ITALIAN SOURCES OF LAW
ARIANNA VEDASCHI
SUMMARY: 1. Sources of Law Deriving from Forms of Government and Forms of State
– 1.1. Sources Related to Production and Sources of Production – 1.2. Sources of
Cognizance – 1.3. Acts and Facts – 1.3.1. Facts – 1.3.2. Sources from Other Legal
Systems – 2. Interpretation – 3. Conflict and Techniques of Resolution – 3.1.
Criterion of Chronology – 3.2. Criterion of Hierarchy – 3.3. Criterion of
Competence – 3.4. Criterion of Specialisation – 4. Constitutional Statutory Limits –
5. Types of National Sources – 6. Constitutional Sources – 6.1. Constitution – 6.2.
Constitutional Amendment Laws – 6.3. Procedure – 7. Primary Sources – 7.1.
Ordinary State Law – 7.1.1. Procedure – 7.1.1.1. Who Has Legislative Initiative? –
7.1.1.2. Exercise of Legislative Initiative – 7.1.1.3. Deliberation – 7.1.1.4. Integration
of Effectiveness – 7.2. Acts having Force of Law – 7.2.1. Legislative Decrees – 7.2.2.
Law Decrees – 7.3 Forms of Anomalous Delegation 7.4. Abrogative Referendum –
7.4.1. Procedure – 7.5. Rules of Constitutional Bodies – 7.5.1. Parliamentary
Standing Orders – 7.5.2. Rules of other Constitutional Bodies – 8. Secondary
Sources – 8.1. Government Regulations.
1. Sources of Law Deriving from Forms of Government and
Forms of State
The system of sources of law must be studied in close relationship to the
Form of Government and the Form of State . The processes for producing
laws, the political regime, the effectiveness of the laws themselves and their
reciprocal relationship must be viewed within the larger picture of the
distribution of power among the branches of government (Form of
Government), the relationship between government and individual freedom
(Form of State, or relationship between the State structures and society) and
the development of institutional pluralism (Form of State intended as
distribution of sovereign power over its territory - see Chapter Three).
Although this chapter is limited to considerations of a synchronic nature,
the above statement, that is supported from both a diachronic and
synchronic perspective, has important practical implications. Even though
sources of law are established by the Constitution, and guided by the
principle, “rule on rules” in its text, any aspect of law it or other specific
laws do not regulate, must still be guided by constitutional principles. To
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clarify, problems arising from sources not settled by constitutional principles
can be resolved by applying the principles deriving from the choices
subjected to and characterising the form of government and state.
1.1. Sources Related to Production and Sources of Production
Sources of law are constituted by regulations on the production of law
and by regulations producing law.
Sources on the production of law enable sources producing law to be
identified. Furthermore they indicate the nomen iuris, that is, the competent
authority to deliberate the law, the procedure to follow for its approved, as
well as the criteria for its enforcement. Sources on law production also
provide instruments for interpreting a law so its regulations or rules can be
implemented. Most importantly, through sources on production, the Italian
legal order has been able to organise itself into a unified, complete and
coherent system (see below, par. 2 and 3).
The Italian Constitution indicates which sources produce law, that is,
they regulate so-called primary sources which in turn regulate inferior or socalled secondary sources. No source can create another source that is
equally or more effective; in other words, a source may only create other less
effective sources. A superior source that creates an inferior source also
establishes its effectiveness, so it follows that no source can prescribe its
own effectiveness. If a source were to prescribe its own effectiveness, it
would contrast its own production sources.
According to the most widely accepted definition in legal scholarship,
sources of production of law are the acts or facts which can produce a law
(Rechtssatz, règle de droit), that is, rules competent to regulate the legal
relationship among the subjects of the law, and which lead to reciprocal
rights and duties. Thus the sources of production are rules that have the
capacity to reform laws.
1.2. Sources of Cognizance
Sources of production are quite distinct from sources of cognizance which
are sources that give legal notice about the sources of production. The most
important form of cognizance is the Official Gazette of the Italian Republic
(Gazzetta ufficiale della Repubblica italiana, G.U) that publishes all laws approved by
the State. These in turn are inserted into the annual Italian Republic Official
Collection of Laws (Raccolta ufficiale degli Atti normative della Repubblica italiana).
Other than the official Gazette, there are the Official Regional Gazettes
(Bollettini Ufficiali delle Regioni, B.U.R.), which are the principle sources of
cognizance on a regional level. On a European level, the source of cognizance is
the Official Journal of the European Union (OJEU).
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A law enters into effect after a specified period of time from its
publication (the so-called vacatio legis) and becomes obligatory for everyone.
The publication of a law and the period before it enters into effect
simply allow citizens to know that legislation regulating a certain subject
matter exists This is based on the principle of the presumed knowledge of
the law (ignotantia legis non ecusat) and on the judge’s obligation to apply law
without having to prove its existence (iura novit curia).
Laws that are published either on paper or electronically by public
officials or private persons, in sources other than the official sources of
cognizance, have no legal value and do not enter into effect.
1.3. Acts and Facts
Sources of law can be further divided into 2 macro-categories: acts and facts.
In general, acts are voluntarily adopted laws that produce a juridical effect
because they satisfy three conditions: of existence, of validity and of efficacy. In
other words, an act becomes a law if it is adopted during the exercise
of power conferred to a competent body by law, if it is recognisable as a law
of the type it claims to be and if the body that issued it and the nomen iuris
identify the law and lead back to its source.
An act is valid if the body competent to adopt it followed the rules on
procedure and substance, established by law for the correct exercise of
legislative power.
The act is effective if it is has the requisites to produce its own effects.
Therefore acts are a product of voluntary legislative power exercised by a
competent body to produce a particular type of law with a specific form,
following a specific procedure. The resulting law is divided into articles that
are further divided into paragraphs. Each paragraph is given a title indicating
the topic it deals with. The topics in turn are grouped into sections which
then form the document.
Instead facts are not produced by the will of a specific body or subject
but nevertheless produce legal effects because the law recognizes that they
have the ability to do so.
1.3.1. Facts
Traditional customs and practices have particular importance are far as
facts are concerned because they combine two elements: one, objective,
results from behaviour that has remained unchanged over the passage of
time (so-called diuturnitas); the other, subjective, derives from the perception
that certain social behaviour is obligatory and considered to be legally
binding (so-called opinio iuris seu necessitatis) and if not respected, is punishable
by law.
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2. Interpretation
Interpretation enables the meaning of the law to be distinguished from
the expression of the law that is from the language in which the provisions
are written so the law can be applied. For example when applying a general
and abstract law, a judge rules on a concrete case. On the other hand, an
administrator resolves the particular question put to him for solution by
deducing the law from the provisions. Generally speaking, applying the law,
or the major premise of the same syllogism regulates a fact or the minor
premise of a juridical syllogism. Both the fact and the law are arrived at
through a hermeneutical operation. Interpreting their different
constitutional elements that place it in a specific category and refer to a
specific law leads to the concrete case. In the same way, language placing the
law within a specific policy area, has to be interpreted because the precise
unequivocal meaning of legal provisions cannot always be derived from the
single words of the text. Their interpretation depends on context, temporal
references and laws governing the policy area. To sum up, a clear, precise
and unequivocal law is a myth and as such it does not exist in reality or if it
does, it is an exception in the total of rather complex norms.
In some cases legislators attempt to clarify the meaning of an unclear law
by issuing another law to interpret it (so-called authentic interpretation)
which is not really interpretative because it has the characteristics of a true
law i.e., it guides the administrators’ or judges’ interpretation of it but it
cannot prevent them from forming their own personal interpretation. In
fact, the principle of the separation of power means that the legislative
branch cannot take the place of the judge or the administrator.
As a rule, judges and administrators have the right to interpret the law
and to reconstruct the voluntas of the legislative branch. Their interpretation
can be historically oriented or can bring to light the legislative branch’s
rationale for adopting a particular law. If more than one law exists for a
particular policy area the interpreter must look for the consistent law and
apply the so-called logical-systematic interpretation to it. In fact, when a
sector is unregulated by law, interpretation allows laws regulating a similar
sector to be extended to it (so-called analogy, legis or iuris, according to
whether specific laws or general principles are applied). This interpretative
activity enables any lacunae to be filled so the law is complete.
Finally, when two or more laws seem to be inconsistent or at least
partially contrasting, the interpreter’s job is to resolve the contrast and to
give back the consistent and unequivocal meaning to the law. Where
hermeneutical activity is not sufficient, the Judiciary has available a series of
instruments for solving any contrasts through sources on law production.
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3. Conflicts and Techniques of Resolution
The criteria of hierarchy, chronology, competence and specialisation
have been devised to resolve contrasts between laws that cannot be resolved
by using interpretation alone as illustrated above.
3.1. Criterion of Chronology
Laws belonging to the same category, but approved at different times
can contrast one another. This case can be resolved by applying the criterion
of chronology, lex posterior derogat priori. An “old” law in effect that contrasts
a “new” one approved at a later date is repealed by the “new” law and
ceases to have effect. In general in a dynamic legal system, which must keep
abreast of changing social needs, repeal enables the “newer” law to cause
the “older” law cease its effectiveness. Once the “new” law enters into
effect it becomes the only law applicable by the Judiciary and the only one
that can constitute, amend or annul other laws. For facts subject to
jurisdiction that emerged before the “new” law came into effect, the “old”
law is still applicable because only a law that explicitly declares itself to be
retroactive can deviate from this general ruling. In keeping with the
principle that law needs to be certain, laws only have future validity (socalled principle of non retroactivity), therefore their repeal is effective ex
nunc. When legislators feel it is opportune and expressly state so, exceptions
can be made to this rule. They are not applicable to criminal law however
because the exception of necessary retroactivity is applied in accordance
with the provisions of Art. 25.2, It. Const.
The repeal may be expressed, when the “new” law specifies which “old”
law must be repealed; tacit when the “new” law is incompatible with the
“old” one, or implicit when the “new” law regulates the entire policy area
which was the object of the superceded law, even in the absence of any
contrast with the “new” law.
When there is a clear-cut repeal of the law, most legal scholars exclude
its reinstatement except when expressly provided for by legislation.
3.2. Criterion of Hierarchy
Laws of a different category may be contradictory when one law
occupies a higher level in the hierarchy of legal sources. In this case the
contrast is resolved by applying the criterion of hierarchy, lex superior derogat
legi inferiori. i.e. an abnormal situation is resolved when the law on a lower
level yields its place to a law on a higher level, but does not change as with
repeal. The law on the lower level is declared illegitimate and then annulled.
Annulment causes the law to lose validity ex tunc. The Constitutional Court
is the competent body to declare constitutional illegitimacy of primary
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sources that contrast with the Constitution whereas bodies competent to
rule on the legitimacy of administrative provisions and for secondary
sources, declare the illegitimacy of the latter.
To sum up, annulment resolves a contrast between laws of different
levels and acts ex tunc on the law’s validity. Instead repeal resolves a contrast
between laws of an equal level and acts ex nunc on the law’s effectiveness.
3.3. Criterion of Competence
Contrasts between laws on the same level cannot always be resolved by
applying the criterion of chronology because the fundamental principles
defining an area of competence are sometimes restricted to specific sources,
as is the case for parliamentary standing orders (see Chapter Four), policy
areas assigned to European Union competence or distribution of
competence to State and Regions. As a rule in deferred cases, a contrast
between sources on the same level is resolved in terms of competence. The
prevailing law source is the one the Constitution considers competent in
that area. A contrast between sources on the same level but with different
areas of competency is not necessarily resolved by repealing the more recent
law. Instead it can be resolved by declaring a law that invades the
competency of another, to be illegitimate. Only the Constitutional Court is
competent to declare primary sources constitutionally illegitimate, whereas
ordinary and administrative judges are competent to declare secondary
sources illegitimate because of a flaw of competence.
3.4. Criterion of Specialisation
A law of a general nature and one of a specific nature may contrast each
other. In this case, lex specialis derogat lex generali, or, lex posterior generalis non
derogat legi priori speciali, that is, a specific law takes precedence over a general
one. The general law is not applied but remains valid and effective. The
effect of the criterion of specialisation is ex nunc repeal.
4. Constitutional Statutory Limits
Many constitutional provisions reserve specific subject matters to
ordinary State laws and acts having the force of law to restrict the executive
branch’s regulatory power and to restrain the legislative branch because the
Constituent Assembly wanted to impose primary sources of law in policy
areas subject to constitutional limits to encourage the participation of
minority parties in this type of parliamentary decision.
There are two types of statutory limits, absolute and relative. If the limit is
absolute, only the law can regulate a particular policy area and primary
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sources regulate its subject matters (Art. 13, It. Const.). If, on the other
hand, the statutory limit is relative, the law establishes the principles and
secondary sources may establish the detailed provisions as seen in Arts. 23
and 97, It. Const.
Likewise there are simple and reinforced limits. For a simple limit, the
Constitution requires law to regulate a certain subject matter, but it does not
place any restrictions on its content as seen in Art. 23, It. Const. With a
reinforced limit, the Constitution provides for the law and its provisions, i.e. it
conditions the subject matter being regulated as seen in Art. 16, It. Const.
The so-called atypical laws instead are characterised by particular passive
or active limits, For example Art. 75.2, It. Const. establishes that certain
categories of laws may not be amended by referendums nor may subsequent
ordinary laws amend laws executing international treaties.
The Constitution can also require a more complete and reinforced
procedure than usual for these atypical laws to be approved, as can be seen
for example in the following articles: 1) Art. 79, It. Const., the adoption of
the law on amnesty and pardon; 2) Art. 116.3, It. Const., the constitution of
special forms of regional autonomy; 3) Art. 132.2, It. Const., the passage of
Provinces and Municipalities from one Region to another.
Laws approving the national budget or authorising the ratification of
international treaties (Arts. 81 and 80, It. Const.) are considered to be mere
formalities and consequently have no legislative content.
5. Types of National Sources
The system of sources of law is structured like a pyramid, with the
Constitution and other constitutional sources (laws regarding constitutional
amendment and other constitutional acts) at the summit. Immediately below
constitutional sources are primary sources. Ordinary laws deliberated by the
Chamber of Deputies occupy a central place among primary sources as do
acts which have force of law, i.e. legislative decrees and law decrees adopted
by the Government but with the same active or passive force as laws.
Regional laws adopted by Regional Councils on subject matters not
expressly reserved to the exclusive competence of the State are found on the
same level as ordinary State laws (see Chapters Seven and Twelve). Other
primary sources are the abrogative referendum, and the standing orders of
the Chamber of Deputies, the Senate of the Republic, the Presidency and
the Constitutional Court.
On a lower level than primary sources are government, ministerial and
inter-ministerial regulations: the latter two are further subject to regulations
approved by the entire Council of Ministers because nothing may contrast
government regulations.
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At the bottom of the hierarchy of legal sources are administrative
provisions adopted by public administrations.
6. Constitutional Sources
In Italian law, the Constitution, laws governing constitutional
amendment and other constitutional acts all belong on the same level of
super-primary sources.
International, generally recognised laws that have been introduced into
Italian law, can also be placed at the maximum hierarchical level as provided
for by Art. 10.1, It. Const. if they concern subject matters regulated by
constitutional sources.
6.1. Constitution
At the summit of the hierarchy of legal sources is the Constitution,
which entered into effect on 1 January 1948. It is the expression of the
power exercised by the constituent assembly when electors chose the
republican form of government in the national referendum on 2 June 1946.
The Constitution is the founding source of Italian law and as such has
been given maximum innovative capacity (active force) and maximum
capacity to resist repeal or modification (passive force). In fact the
fundamental principles can be amended only through a more complicated
procedure with respect to that followed for ordinary laws and then only
within the limits the Constitution establishes (see below, par. 6.3.1.).
Like most contemporary constitutions, the Italian Constitution is rigid.
Respect of its provisions is guaranteed by the Constitutional Court, which
because it verifies constitutional legitimacy, can annul those primary sources
that infringe constitutional principles or rules.
The Italian Constitution is long because it does not merely regulate the
organisation of the State (the constitutional bodies and their relationships)
but also recognises and protects active subjective positions, or rights (even
of an economic-social nature), which citizens have with regard to public
power. In some cases constitutional provisions are not limited to stating
principles but also provide provisions to implement them.
The Italian Constitution is also programmatic because it is not limited to
providing general rules to regulate public power and its relationship with
citizens, but it also sets objectives towards which the activity of the State
must be directed. On more than one occasion, the Constitutional Court has
clarified that all provisions of the Constitution are obligatory: the provisions
which set forth precepts, are immediately obligatory, whereas the
“programmatic” ones, require legislation because they outline a “program”
to be carried out. Therefore immediately recognised and guaranteed rights
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cannot be derived from programmed laws because they produce active
subjective juridical positions that the State is obliged to “render effective”.
From this viewpoint, the Italian Constitution not only solemnly
sanctions an objective that has already been attained, but presents future
goals. In this sense it orients the action of the State through its fundamental
principles and values.
The programmes presented in the Constitution, are for the most part
generic in nature, and can be modified according to socio-economic
conditions and political-institutional tendencies. From this prospective, the
Italian Constitution is adaptable, that is, open to legitimising different
tendencies of thought. This dynamic approach has ensured the longevity of
the Constitution’s fundamental principles because it allowed them to adapt
to changing social needs and an evolving political, economic and social
context.
To sum up, the Italian Constitution is written, rigid, long, programmatic,
adaptable and thus receptive to change.
6.2. Constitutional Amendment Laws
The power of constitutional amendment is a “constituted” power and as
such is limited by the Constitution, which instead is an expression of the
“constituent” power and not subject to the rules governing law but guided
solely by political will.
The purpose of the amendment laws is to modify the Constitution
within the explicit and implicit limits the Constitution establishes.
In Art. 139, the Italian Constitution provides only one explicit limit to its
amendment: “the Republican form of State (in substance provisions
regarding the eligibility of the office of the President of the Republic), may
not be changed by way of constitutional amendments” because it is strictly
connected to the democratic nature of the laws, “sovereignty belongs to the
people” (Art. 1, It. Const.) and “all citizens are equal before the law” (Art. 3,
It. Const.).
Besides this explicit limit the Constituent Assembly placed on
amendment, legal scholarship and constitutional case law have proposed a
series of implicit limits referring to the fundamental principles (see Const.
Court Decisions 1146/1988 and 203/1989) although the Constitution does
not explicitly state this. The Constitutional Court also places the inviolable
rights of man (Arts. 2 and 13, It. Const.) at the same level as supreme
principles which cannot be amended in peius (see Const. Court Decision
235/1988).
Art. 138, It. Const. regarding the procedure for constitutional
amendments mentions “other constitutional acts”: these acts are the superprimary sources, whose purpose is to integrate the Constitution or put its
laws into effect rather than amend it. When the Constitution itself provides
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for certain subject matters to be regulated by constitutional law (for
example, Arts. 71.1, 116.1 and 137.1, It. Const.), it places a constitutional
statutory limit on them. The Constitution also provides for so-called
“reinforced” constitutional laws to be applied to certain subject matters that
require additional procedures for their approval with respect to those
established by Art. 138, It. Const. For example, existing Regions, upon the
request of as many Municipal Councils as equal one third of the population
in question and after consulting their Regional Councils, may propose to
merge or create new Regions with a minimum population of one million
inhabitants. However this proposal requires the additional procedure of a
referendum approved by the majority of the population involved in
according to the provisions of Art. 132.1, It. Const. In other cases,
Parliament decides to assign constitutional relevance to a particular subject
matter and “constitutionalise” it.
6.3. Procedure
Art. 138, It. Const. regulates the procedure for approving constitutional
amendment laws and other constitutional laws. The legislative branch’s
procedure is identical for both sources, but the Constitution establishes
more stringent conditions for their approval than for ordinary laws. In
actuality, according to the provisions of Art. 138, It. Const., at least four
conditions must be met so an amendment can obtain the necessary
deliberation for the vast political consensus necessary for its approval: 1) it
requires a double vote of each Chamber of Parliament; 2) there must be “an
interval between the votes of not less than three months; 3) it “shall be
approved by a qualified majority (which is greater than the majority of the
government) of the members of each Chamber in the second voting” and 4)
there must be the possibility of recourse to the people through a popular
referendum.
A bill to amend articles of the Constitution may be submitted by the
following bodies, all of which have legislative initiative: the Government,
Members of Parliament, 500,000 electors, Regional Councils or the National
Council on Economy and Labour, CNEL. The bill is approved for the first time
by each of the two Chambers according to procedure for ordinary bills. The
provisions of Art. 72, It. Const. require the competent committees for each
Chamber to work in reference session. For this reason a bill may not be
approved by the examining or drafting committee (see Const. Court Decision
168/1963). In this phase the bill may be amended but it is still subject to various
passages between the two Chambers, the so-called shuttle mechanism, until a
single draft is voted and approved by each Chamber. Afterwards a three-month
period of time must elapse before the second vote as established by the
Constituent Assembly to provide for due deliberation and to avoid hurried
reforms or those passed by a “makeshift” majority.
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There are three possible outcomes for the second vote, when no
modifications or questions on prejudicial or procedural matters are accepted
which might suspend the voting. One, if the bill is approved by the qualified
majority of two-thirds of the members of each Chamber of Parliament, it is
promulgated by the President of the Republic, published in the Official
Gazette and comes into effect after fifteen days. Two, the bill is approved
by an absolute majority (half of the deputies or senators plus one) of the
members of each Chamber but the qualified majority of two-thirds is not
reached. In this hypothesis, the law is not promulgated but published in the
Official Gazette so that a three-month interval can elapse during which a
referendum proposal may be submitted by one-fifth of the members of each
Chamber, 500,000 electors or five Regional Councils. A referendum in
which the electorate expresses its opinion on constitutional amendment laws
represents another possible outcome. On one hand those subjects eligible to
submit a referendum proposal may choose not to exercise this right. In this
case, once the three-month interval has expired, the law is promulgated and
then published so it can enter into effect. On the other, if the subjects
eligible to submit a referendum proposal decide to do so, whether or not the
constitutional law enters into effect depends on the outcome of the
referendum. In the absence of a structural quorum, that is a minimum
number of voters, the bill is passed simply if approved by the majority of
valid votes.
In the third outcome, the bill is rejected if not even the absolute majority
is reached among members of both Chambers in the second vote.
7. Primary Sources
Primary sources are placed just below the Constitution in the hierarchy
of legal sources. Constitutional provisions establish the procedure for
approving primary sources (Art. 70. It. Const.), but at the same time, often
make them particularly difficult to amend (Art. 132.2, It. Const., etc.; see
above, par. 4).
In light of the above, laws that establish provisions that infringing the
Constitution illegitimate and as such can be annulled by the Constitutional
Court (see Chapter Ten)
The system of primary sources is a closed system because all sources at
this level must be expressly provided for by the Constitution, the only body
competent to introduce any new sources at this level. In other words,
ordinary law cannot create sources that compete with each other.
Ordinary State law has particular importance among primary sources,
because it is competent to innovate law by amending preceding laws and
regulations but at the same time, it resists repeal or amendment by
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subsequent laws that are subordinate to it, such as government regulations.
A primary source has “force of law” if it is competent to repeal or
amend previous laws at the same level, or previous or subsequent laws at a
subordinate level. Legislative decrees and law decrees have “force of law”
because they have the same active and passive capability as ordinary laws
approved by Parliament.
According to the provisions of Art. 75, It. Const., popular referendum, is
a primary sources because it can repeal or amend laws and acts having force
of law. Other primary sources of law are “generally recognised principles of
international law”, (Art. 10.1, It. Const.), regulated by primary sources and
international treaty law introduced into the Italian law system through
primary sources.
7.1. Ordinary State law
Italian State law had traditionally been considered the only source of law
par excellence, but the present regional structure of the State places regional
law at the same level as ordinary State law (see Chapters Seven and Twelve).
Ordinary State law is subordinate to the Constitution and subject to the
procedural and substantial limits the latter places on it. Laws that do not
respect the principles and provisions of the Constitution are illegitimate and
as such can be annulled by the Constitutional Court (Art. 134, It. Const.).
7.1.1. Procedure
Art. 70, It. Const. establishes that “legislative power shall be exercised jointly
by the two Chambers, the Chamber of Deputies and the Senate of the
Republic”, whereas Arts. 71-74, It. Const. regulate legislative proceedings i.e.
legislative initiative, debate, vote, promulgation and finally, publication in the
official Gazette. Parliamentary standing orders intervene to regulate any aspects
of proceedings the Constitution does not specifically regulate.
7.1.1.1. Who has legislative Initiative?
“Legislative initiative belongs to the Government, to each member of
the two Chambers and to those organs and bodies on which it is conferred
by constitutional law” (Art. 71.1, It. Const.). This initiative has also been
granted to Regional Councils (Art. 121.2, It. Const.) and the National
Council of Economy and Labour, CNEL (Art. 99.3, It. Const.).
In the parliamentary form of government, legislative initiative belongs to
the Council of Ministers that endeavours to carry out its political agenda
through the bills it presents to Parliament. Bills are introduced by single
Ministers, then deliberated by the Council of Ministers (the executive
branch’s collegial body). After obtaining the authorisation of the President
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of the Republic (Art. 87.4, It. Const.), they are then submitted to Parliament.
Because Government initiative is particularly important in the Italian form
of parliamentary government there are subject matters reserved for it alone.
Only the Government may submit national budgets to Parliament each year
(Art. 81.1, It. Const.) and law decrees to Parliament for conversion into law
(Art. 77, It. Const.).
Parliamentary initiative is frequently exercised by single Deputies and
Senators or, more often, groups of parliamentary members not necessarily
belonging to the same political party, who propose a bill and submit it to
their respective Chamber. It is also common practice for the leaders of
different parliamentary groups to propose a bill.
Art. 71.2, It. Const. provides that “the people may initiate legislation
through the proposal of a bill drafted in articles signed by no less than 50,000
voters” but it was not until 1970 and the approval of Law no. 352 that this right
was exercised for the first time because until then no law had ever existed to
regulate the collection of signatures. Even now this legislative initiative is less
important than the other initiatives illustrated above.
Regional Councils also have legislative initiative and may propose bills
which must first be approved by the elected Assembly of the Region and
then submitted to one of the Chambers of Parliament by the President of
the Regional Cabinet (Art. 121.2, It. Const.).
Arts. 99.2-3, It. Const. give the National Council of Economy and
Labour the right to “contribute to the drafting of economic and social laws,
according to the principles and within the limits laid down by law and to
offer its advice to Parliament” but compared to that of other bodies, its
legislative initiative has been given little importance.
Lastly, Municipalities, after having consulted their Region Council, have
legislative initiative to submit a bill to change provincial boundaries and
establish new Provinces within the same Region (Art. 133.1, It. Const.). This
procedure initiated by Municipalities terminates with an ordinary law
approved by Parliament.
7.1.1.2. Exercise of Legislative Initiative
Legislation is initiated by presenting a proposal of a bill drafted in articles
and accompanied by a report giving the reasons, objectives and
characteristics of the bill, which may be submitted indistinctly to either
Chamber whereas only Deputies and Senators must submit a bill to their
respective Chamber.
The exercise of legislative initiative does not mean Parliament is obliged to
deliberate a bill submitted to it. In fact, whether or not a bill is examined
depends on the political evaluation the Conference of Group leaders gives it.
Once the bill has been submitted, the Speaker of the Chamber in
question assigns it to a parliamentary comission having competence over the
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subject matter. More than one committee may be involved when the bill
concerns different but complementary policy areas. Next is the deliberation
phase where the bill is examined, discussed and voted. There are at least
three procedures that may be followed to transform a bill into law: ordinary
procedure (Art. 72.1, It. Const.), the so-called debating procedure (Arts. 72.3
- 4, It. Const.) and the so-called drafting procedure.
7.1.1.3. Deliberation
In ordinary procedure the so-called reference commission examines the
bill in a reference session where a commission head is chosen to lead the
discussion on the bill in its entirety. Next the text is analysed article by
article along with any amendments. For more complex bills, a select
committee within the reference commission may be formed to draw up a
text that is a compromise between the various political positions.
The commission then adopts the so-called “base text” and reports it to
its Chamber (Art. 72.1, It. Const.). There may just be one report if the
commission members reached a unanimous agreement on the same text; to
the contrary, there may be one or more reports from minority parties
alongside the report of the majority party
After receiving the report(s), the full Chamber discusses the bill and any
amendments, approves it article by article concluding with the final vote on
each article and on the final text of the entire bill, which may be different
from the original text proposed because of amendments to individual
articles.
In a parliamentary form of government such as that in force in Italy, a
bill is passed with the favourable vote of a simple majority, that is, it
becomes law if voted on by the political majority of the Government. By
rule, the ballot is open, and the method used is the electronic vote.
The full Chamber has exclusive competency to approve “bills on
constitutional or electoral matters, those delegating legislative power or
authorising the ratification of international treaties or approving the budgets
and the final balance” (Art. 72.4, It. Const.), instead for “bills declared to be
urgent the full Chamber shall establish an abbreviated procedure” (Art. 72.2,
It. Const.).
When the full Chamber is not required for approval, there are other
special procedures to be followed. A bill may be approved in a debating
session or edited in a drafting session. In both cases the difference in
procedure lies in the role played by the competent commission.
In the so-called debating procedure, bills, which are not of general
interest, are usually assigned to the competent commission to be examined,
discussed and voted. Legislative procedure begins and ends in the so-called
debating commission unless the Government, one-fifth of the commission
or one-tenth of the members of the Chamber demand that the bill be
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debated and voted on by the full Chamber (Art. 72.3, It. Const.). This
procedure protects the minority party’s interest in having a bill discussed in
a pleunum session of the Chamber on one hand, and on the other, protects
the Government from the formation of a majority of commission members
contrary to or not fully in agreement with its political agenda.
In the drafting procedure instead, first the bill is discussed by the full
Chamber and then assigned to a competent commission to draft its articles.
The full Chamber then votes on the commission’s draft, article by article
and on the text as a whole. In other words, the full Chamber approves a bill
whose text was drafted in the parliamentary commission.
Regardless of the type of procedure initiated, once the legislative iter is
concluded within one Chamber, the bill passes to the other Chamber for
discussion and vote.
With the so-called double vote, i.e. when the second Chamber has
approved the same text voted by the first Chamber with a simple majority
(that is of those members present) the law is declared perfect. This law,
together with a message from the Speaker of the Chamber that voted last, is
transmitted to the President of the Republic so he can verify the regularity
of the procedure followed (so-called promulgation, see below). If the
second Chamber amends the text voted by the first Chamber, the first
Chamber must re-approve the amended text. This passage from one
Chamber to another continues until both branches of Parliament vote an
identical text.
For the sake of simplicity, and in the spirit of perfect bicameralism, each
Chamber only examines the amendments of the other Chamber in
accordance with the limits imposed by parliamentary standing orders.
7.1.1.4. Integration of Effectiveness
As illustrated above, a law approved by the two Chambers of Parliament
is perfect, but it still is not effective, that is it does not produce a juridical
effect because it has not been promulgated. A law is presented to the
President of the Republic so he can verify its legitimacy and constitutional
merit before promulgating it within 30 days from the last Chamber’s final
vote.
The President of the Republic may send a law back to the Chambers and
request a new deliberation stating the reasons why he wants it to be reexamined. At this point, according to Art. 74.2, It. Const., Parliament may
re-approve the bill that has been sent back and if this is the case, the
President is obliged to promulgate the law (see Chapter Eight).
A law must be published in the Official Gazette within thirty days of its
promulgation for its effects to be enforced. Fifteen days after its publication
it enters into effect (Unified Act 1092/1985).
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7.2. Acts having Force of Law
Legislative decrees (Art. 76, It. Const.) and law decrees (Art. 77, It.
Const.), the so-called acts having force of law issued by the Government,
are considered primary sources on the same level as ordinary State laws.
These are the only two instances when the Constitution delegates the
Government to exercise primary legislative power in the place of
Parliament, the only competent body with the prerogative to exercise
legislative power according to the provisions of Art. 70, It. Const.
There are various circumstances that legitimise the exercise of primary
legislative power by the Government. For legislative decrees, it is Parliament
that decides to delegate the government to adopt primary sources of law
because it prefers to not directly issue the law itself either for technical
reasons or for considerations of a political nature (re-organisation of the
National Health Service, reform of the Criminal Code, for example),
whereas for law decrees, it is the exceptional case of necessity and urgency
(natural disasters such as earthquakes, floods, etc.) that legitimises the
Government’s intervention. In both instances Parliament controls the
Government’s primary legislative activity: for a legislative decree the control
is preventative; for a law decree, the Government’s exercise of legislative
power is controlled afterwards.
Legislative decrees and law decrees have been put on an equal level to
ordinary laws so they can have the same innovative capability (so-called
active force) and the same resistance (so-called passive force), i.e. they can
repeal or amend preceding laws and cannot be repealed or amended by
secondary sources.
7.2.1. Legislative Decrees
According to Art. 76, It. Const., with specific reference to legislative
decrees, Parliament may delegate legislative power to the Council of
Ministers (the Government’s collegial body,) but not to another body, not
even to single ministers. The Government may not in turn sub-delegate this
power to another body (see Const. Court Decisions 48/1961, 125/1976,
139/1976).
The law delegating legislative power is a parliamentary law approved by
ordinary procedure (Art. 72.4, It. Const.) subject to limits of a formal and
substantial character (i.e. the limit of full Chambers). Should legislative
powers be delegated for more than two years, Law no. 400/1988 expressly
requests the opinion of the parliamentary commissions competent on the
subject matter. The law delegating legislative power must also indicate the
principles and criteria of guidance and its objective, subject matter, and the
time limit within which the Government has to adopt the legislative decree.
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These limits are obviously aimed at containing the Government’s
primary legislative power so it cannot exercise this power indefinitely on
undefined subject matters without the guide of legislative principles and
criteria.
Parliament (the body which detains the legislative power) delegates the
exercise of primary legislative power to the Government (body which as a
rule has executive and not legislative power). However it cannot delegate
greater power than it holds, nor can it delegate power that changes the
relationship between the delegating subject and the delegated subject. As a
consequence Parliament cannot delegate the Government to adopt acts
whereby the Executive branch could control the Legislative branch, and
take over its power to convert law decrees, authorise treaties to be ratified,
or approve the national budgets for example.
Parliament may always delegate power but it may also explicitly or
implicitly revoke this power and exercise its own legislative power on the
subject matter delegated.
According to the provisions of the law delegating power, a legislative
decree is deliberated by the Council of Ministers and issued with the nomen
iuris of “Legislative Decree” by the President of the Republic as a DPR
(Decree of the President of the Republic).
After its issue, a legislative decree is published in the Official Gazette and
unless provided for differently, enters into effect after fifteen days.
The Government is not legally obliged to exercise delegated legislative
power within the established terms, nor in relation to when the President of
the Republic issues the decree, but as a rule, it is in its own interest to do so.
The delegation of power loses effect uno actu, when the decree is
adopted, that is when it has force of law, except when otherwise provided
for, regardless of when the terms established by Parliament, expire. Clauses
may be inserted into the delegation of power so the Government may make
corrections to the legislative decree (so-called corrective delegation).
The Government may adopt several delegated decrees, to put into effect
a single delegation act only if it deals with several distinct subject matters;
otherwise the partial exercise of delegated legislative power is not admissible
nor may its exercise be fragmented over a period of time (Art.14.3, Law no.
400/1988).
The recent tendency for the frequent use of delegated legislation has
consequently increased the number of delegated decrees and decreased law
decrees because Parliament often delegates vast subject matters with vague
or insufficiently defined principles and criteria of guidance. On one hand,
there is an increase in the number of delegations postponed because the
power has not been exercised within the time period provided for and on
the other, there is the increase in corrective delegation not sufficiently
regulated, or circumscribed by the delegation act. This has led academics to
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criticise the use of this instrument intended for exceptional use only but
which has become ordinary legislative practice.
Legislative decrees are often utilised to approve so-called Unified Acts,
that is, acts that collect and order laws already in effect on a single subject
matter, but adopted at different times. Parliament may delegate the
Government to identify, integrate and even amend sources that regulate the
same policy area so that the law can be rationally organised. In this case the
Unified Act has an innovative effect because the delegated decree repeals
precedent laws and introduces a new one to substitute them.
To make law “certain” and to simplify existing legislation, this procedure
has been “institutionalised”; each year the Government draws up a priority
list of laws in effect to be codified and presents it to Parliament (Law no.
59/1997, amended by Art. 1, Law no. 229/2003). Given the vast number of
subject matters delegated, codices often “re-organise” laws on a particular
subject matter with innovative solutions.
If a delegated law does not respect procedural and substantial limits
placed on it by the Constitution, it is considered invalid, or constitutionally
illegitimate.
If a delegated decree violates the limits established by the law on
delegation, it indirectly violates Art. 76, It. Const. and becomes
constitutionally illegitimate (see Const. Court Decision 3/1957). More
controversial is the violation of “additional limits” established by the law of
delegation but not expressly provided for by the Constitution. In this case,
some academics lean towards declaring the simple illegitimacy of the decree,
whereas others lean towards declaring it unconstitutional because it violates
Art. 77.1, It. Const.
As far as the relationship between the delegation act and a delegated
decree is concerned, both are primary sources subordinate to the
Constitution but they are not perfectly equal. A decree, as a delegated act,
must respect the delegation act, i.e. it may not amend any limits the
delegation act establishes on the exercise of legislative power.
7.2.2. Law Decrees
Art. 77.2, It. Const. establishes that “in exceptional cases of necessity and
urgency the Government may issue provisional measures having the force
of law”. The Government directly evaluates the case and assumes
responsibility for submitting these measures to Parliament so they can be
converted into law, but it is Parliament that controls the Government’s
legislative initiative (see below).
If the exceptional nature of the case is determined, a law decree is
approved by the Council of Ministers, then passed to the President of the
Republic who issues it as a “Law Decree”, and publishes it in the Official
Gazette. Given the urgency the law decree enters into effect immediately.
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The same day of its publication, the Government presents the law decree
to Parliament. Even if Parliament has been dissolved, it is expressly
summoned to meet within five days to convert a law decree into law within
sixty days of its publication, otherwise it loses effect ex tunc, that is, it loses
effect from its origin, as if it had never existed. Its failure to be converted
into law is reported in the Official Gazette. However “the two Chambers of
Parliament may approve laws to regulate rights and obligations arising out of
decrees that have not been converted into law” (Art. 77.3, It. Const.).
The temporary nature of the law decree has two consequences: a decree
that has not been converted into law because one Chamber voted against it
or because the sixty-day term expired, loses effect, and any effects it
produced in the meantime are null. Similarly, once the decree is converted
into law, it disappears because the conversion law substitutes it.
The conversion law is an ordinary law that allows Parliament to control
the Government’s legislative activity, and consequently eliminate any
Government responsibility for the law since the original decree has been
substituted.
Any amendments introduced during the conversion phase must “strictly
adhere” to the subject matter of the law decree (Art. 96bis, Regulations of
the Chamber of Deputies and Art. 97, Regulations of the Senate).
The law of conversion follows a procedure of urgency characterised by
abbreviated time limits.
Even though it is generally thought that the President of the Republic
cannot postpone the law of conversion, in practicality he can exercise this
power and cause a decree to lose effect. In any case, the Government has
political, criminal, civil and administrative responsibility for all decrees that
have not been converted into law.
The Constitution limits the primary legislative power it attributes to the
Government which can legitimately use it in cases of necessity and urgency
requiring the immediate intervention of law. Nevertheless, in practice,
recourse to this instrument has been abused, and at certain times, law
decrees have acted as “reinforced bills”. In the history of the Italian
Constitution, the Government has often ignored Constitutional limits and
broadly interpreted the formula, “exceptional cases of necessity and
urgency”, to adopt law decrees in cases that perhaps were exceptional, but
not unforeseeable (for example in the tax sector). The Government often
issues urgent decrees to approve organisational reforms (in public education
for example), to placate complaints of some categories of workers or in
answer to economic claims: the provisions are not urgent but the
Government needs to provide the decree urgently.
In recent years due to greater limits on its legislative power, the
Government has adopted more law decrees than before and consequently
Parliament has had to approve an increasing number of laws of conversion.
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Parliamentary obstructionism and the re-issuing of decrees, i.e. the adoption
of decrees identical or analogous to expired ones has further distorted the
use of law decrees. This re-issuing of decrees led the Constitutional Court to
intervene with Decision 360/1996 by which it declared illegitimate to
submit a new law decree whose text is identical to a preceding one that was
not converted, unless the new decree is based on new cases of necessity and
urgency and unless its provisions have been modified accordingly. After the
Constitutional Court’s decision, there was a reversal of this tendency and a
much more cautious recourse to re-proposing law decrees identical to
previous, non-converted ones.
Like a legislative decree, a law decree has general competencies because
there is no limit on subject matters it may deal with but there are policy
areas it may not regulate for logical reasons or legislative restrictions. In fact
the Government may not adopt law decrees which regard the specific
activities directly under its power or which change the relationship between
the Legislative and Executive branch. For example, a law decree cannot
convert another law decree. The Legislative branch has placed additional
limits on the Government. It may not 1) delegate power by means of a law
decree as provided for by Art. 76, It. Const.; 2) regulate subject matters
reserved to Parliament by Art. 72.4, It. Const.; 3) re-issue an unconverted
decree if Parliament votes against it; 4) regulate legal relationships arising
from unconverted decrees, nor 5) bring laws declared illegitimate by the
Constitutional Court back into force (Art. 15.2, Law no. 400/1988).
A law decree approved when there is no case of necessity and urgency as
provided for by the Constitution is constitutionally illegitimate and the flaw,
so-called in procedendo, is transferred to any law of conversion (Constitutional
Court Decision 29/1995). Similarly the Constitutional Court provides for
impugned provisions of a law decree to be transferred to the corresponding
provisions when the decree is re-issued (Constitutional Court Decision
84/1996).
7.3 Forms of Anomalous Delegation
There also exist atypical or anomalous forms of decrees. For example, a
special statute delegates the Government to put into effect special forms of
Regional autonomy without stipulating limits of time or stringent guidelines
based on constitutional sources.
Another equally important example is the “conferment of necessary
powers to the Government during a state of war resolved by Parliament”
(Art. 78, It. Const.), and even though it is Parliament that formally confers
power to the Executive branch, this atypical decree may significantly limit
personal freedom and fundamental rights.
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7.4. Abrogative Referendum
Art. 75, It. Const. regulates recourse to popular referendums, but it was
not until 1970 and Law no. 352 that necessary legislation for referendums
was finally approved in a compromise reached between Catholic and secular
political forces in view of the law on divorce to be submitted to popular
referendum in 1972. In 1987, with Court Decision no. 29, the Constitutional
Court added the abrogative referendum to the list of primary sources. This
is an instrument of direct democracy that enables the people to totally or
partially repeal an ordinary State law or an act having force of law.
7.4.1. Procedure
A popular referendum may only be called at the request of 500,000
electors or five regional councils, by means of a petition presented by its socalled promoters, i.e. at least ten citizens duly registered on electoral rolls for
the Chamber of Deputies, and filed with the Central Office at the Court of
Cassation. Notification of the filed petition is published in the Official
Gazette and from the date of its publication there is three-month period of
time in which to collect signatures in accordance with the provisions of Law
no. 352/1970, i.e. the signatures must be written on special protocol paper
and verified. The collected signatures are then filed at the Central Office at
the Court of Cassation. For referendums presented by Regions, the elected
Assemblies of at least five Regions must approve it with an absolute
majority of its members after which especially appointed delegates file the
petition at the Central Office.
A petition may only be filed between 1 January and 30 September; it may
not be filed at the end of the previous year’s legislative term, nor in the six
months following the convocation of electoral committees (Art. 32 and 31,
Law no. 352/1970).
By 15 December of the year the petition is filed, the Central Office at the
Court of Cassation must examine it and verify the procedural regularity
followed up to that point according to the guidelines of Law no. 352/1970.
The Central Office also makes sure the object of the petition is a law or an
act with force of law and unifies all referendum petitions on similar subject
matters.
Once the Central Office has verified the data, the petition is transmitted
to the Constitutional Court, which must verify its admissibility by 10
February of the following year according to the guidelines of Art. 75.2, It.
Const. which states “it is forbidden to call a referendum for certain subject
matters, nor is it allowed to vote to abolish tax or budget laws, amnesties or
pardons, or laws authorising the ratification of international treaties”. Over
the years constitutional case law has amplified this list by giving a new
interpretation to subject matters already excluded from referendum in
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paragraph 2, or by including additional subject matters deriving from the
fundamental principles or the nature of a referendum itself . Now it is also
forbidden to call a referendum for laws connected in some way to the
Constitution, constitutional laws or laws with a particular “constitutional”
protection (Constitutional Court Decisions 16/1978 and 27/1982). A
referendum may not repeal constitutional laws, laws with a binding
constitutional content or so-called atypical laws adopted with “reinforced”
legislative proceedings. The Constitutional Court also declares inadmissible
those petitions whose vague language prevents the elector from knowingly
expressing his vote because in Decision 28/1987 the Constitutional Court
states that a petition must be written in unequivocal, clear, simple and
homogeneous language. With Decisions 29/1987 and 14/1999, the
Constitutional Court admitted referendum petitions on electoral matters as
long as they did not paralyse the electoral body.
If the referendum is declared admissible, the President of the Republic
issues a decree that indicates the date for the electoral consultation, which
must take place on a Sunday between 15 April and 15 June (Art. 43, Law no.
352/1970).
At the voting stations, electors find a ballot paper with the petition
printed on it; they vote yes if they want to repeal the law or part of it, or no
if they want to keep the law in effect.
The scrutiny of the ballots takes place in the Central Office. The
structural quorum of half the electors with voting rights must vote for the
referendum to be considered valid. If the quorum is not reached, the
referendum is invalid and the law remains in effect. It is obvious that
abstention from voting favours the party contrary to abolishing the law.
If the structural quorum is reached the law is repealed when there are
more votes in favour of abrogation than against (the functional quorum is
equal to the majority of valid ballots). The President of the Republic then
issues a Presidential Decree which declares that the law has been repealed
and he publishes this fact in the Official Gazette. The law is repealed the
day after the date of its publication but the President of the Republic may
postpone it for sixty days maximum to give Parliament the chance to fill in
any legislative gaps. Vice versa if the votes against exceed the votes in
favour, the law remains in effect and the Minister of Justice publishes the
result in the Official Gazette. Following a negative outcome, an identical
referendum petition may not be presented for the next five years (Arts. 26
and 38, Law no. 352/1970).
If Parliament is dissolved before the referendum takes place, the
procedure is automatically suspended and is only resumed a year after new
elections (this is the present case of the referendum that proposes to modify
the electoral system for the Italian Parliament – see Chapter Four).
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The Central Office may decide to interrupt the referendum if in the
meantime Parliament repeals or amends the law subject to referendum. The
new law that Parliament approves must actually change the essential
principles and contents of the preceding law to block the referendum. If it
does not, the referendum must take place as planned and the new law
approved by Parliament becomes the law subject to referendum
(Constitutional Court Decision 68/1978).
7.5. Rules of Constitutional Bodies
The Standing Orders of the Government’s constitutional bodies, i.e. the
Chamber of Deputies, the Senate of the Republic, the Constitutional Court
and the Presidency of the Republic, are considered primary sources. Their
position in the hierarchy of legal sources is directly related to the function
they have to guarantee the autonomy of these bodies (Const. Court
Decision no. 129/1981).
7.5.1. Parliamentary Standing Orders
Each Chamber of Parliament autonomously adopts its own Standing
Orders in respect of the provisions of the Constitution.
From a procedure point of view, Standing Orders must be approved or
amended by the absolute majority of its members and not just by a simple
majority because the opposition parties in Parliament must also participate
in the decision.
From a substantial point of view, the Standing Orders regulate both the
internal organisation of each Chamber and its other activities, the prime one
being controlling the Government’s activities. They also integrate the
procedure established by the Constitution for the iter legis. Parliament’s
Standing Orders play an important role in regulating its internal
organisational aspects, the exercise of powers belonging to each Chamber
and the relationship between Parliament and Government, that is, between
majority party and opposition.
Standing Orders are not subject to external control because they express
the autonomy and independence of each Chamber (see Chapter Four). In
fact, this autonomy was protected from undue interference by other powers,
especially sovereign power, while the Constitution was being drawn up
(interna corporis acta).
To date there are no Standing Orders for Parliament when it sits in joint
session even though the Italian Constitution provides for this. In this case,
the Standing Orders of the Chamber of Deputies are applied (Art. 35,
Standing Orders, Chamber of Deputies and Art. 65, Standing Orders,
Senate of the Republic).
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7.5.2. Rules of Other Constitutional Bodies
The autonomy the Constitution gives other bodies serves as a basis for
their internal rules and justifies their position on a level with primary
sources.
The rules of the Presidency of the Republic are deliberated by the
President upon the proposal of the Secretary General of the Presidency and
regulate its offices and services. The Constitutional Court has other general
and special rules that regulate the position of judges vis-à-vis the Court. In
fact Law no. 87/1953, requires the absolute majority of Constitutional
Court judges to approve any procedural rules regarding the Court.
Instead given the limit of law that restricts the organisational and
managerial autonomy of the Council of Ministers, the internal rules of the
Presidency of the Council of Ministers are secondary sources.
By the same token, the internal rules of the Superior Council of the
Judiciary are also secondary sources (see Chapter Nine).
8. Secondary Law Sources
To the contrary of primary sources, secondary sources are not
considered numerus clausus but instead can be integrated by the Legislative
branch. Because a single centralised or de-centralised administration no
longer exists, secondary sources are located on various administrative levels.
There is no single system of secondary sources, but rather a system of
independent secondary sources of the State, Regions and local bodies (see
Chapters Six, Seven and Twelve).
Of particular importance among secondary sources are government
regulations, immediately subordinate to ordinary law and to other primary
sources. Judges must disapply regulations that infringe laws.
Before the 2001 Constitutional reform, Art. 87.5, It. Const. only gave
regulatory power to “the President of the Republic who shall issue
government regulations”. When Title V of the Constitution was amended,
regulatory power was given to Municipalities, Provinces and Metropolitan
cities as well (Art. 117.6, It. Const.).
8.1. Government Regulations
The Government’s secondary source legislative power is regulated by
Art. 17, Law no. 400/1988 that disciplines the type of power and its
decisional iter, above and beyond anything provided for by Constitutional
regulations.
A government regulation may be proposed by one or more Ministers,
but it must be deliberated by the Government’s collegial body after
receiving the State Council’s obligatory but not binding opinion. Once this
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procedure is complete, the President of the Republic issues the regulation as
a Presidential Decree Law, submits it to the Court of Accounts for
preventive control and filing, and publishes it in the Official Gazette.
In 1988, the Legislative branch catalogued the following types of
government regulations; executive regulations, integrative regulations
organisational regulations and independent regulations and it regulated socalled delegated regulations (see above).
Executive regulationsensure that laws, acts having force of law and
European Union directives are implemented (Law no, 25/1999).
Integrative regulations are more problematic. Since they activate and
integrate laws and legislative decrees containing norms on principles they
cannot be adopted for subject matters covered by the absolute statutory
limits (see above).
Legal scholars considers independent regulations to be controversial
because they intervene in subject matters not covered by statutory limits and
not regulated by laws or acts having force of law. This type of regulation has
scarce practical application because most policy areas are regulated by a
primary source.
Finally delegated regulations are used in delegislation (see Chapter Six, par.
7.3 for further details).
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CHAPTER TWELVE
REGIONAL AND LOCAL GOVERNMENT
SOURCES OF LAW
ARIANNA VEDASCHI
SUMMARY: 1. Regional Autonomy and the System of Legal Sources – 1.1. Statutes of
Regions with Special Forms of Autonomy and so-called Statutory Laws – 1.2.
Statutes of Regions with Ordinary Forms of Autonomy – 1.2.1. Procedure – 1.2.2.
Position in the System of Legal Sources – 2. Legislative Power: Regional Laws – 2.1.
Procedure – 2.2. Legislative Power of Regions with Special Forms of Autonomy – 3.
Regional Regulatory Power – 4. Local Autonomy and the System of Legal Sources –
4.1. Statutes – 4.2. Regulations.
1. Regional Autonomy and the System of Legal Sources
A description of regional sources of law has to be carried out within the
framework of institutional pluralism that exists in Italy (see Chapter Seven).
Although the Republic remains one and indivisible, the Constitution
foresees forms of regional and local autonomy. In particular, Art. 116, It.
Const. grants “particular forms and conditions of autonomy” to five Italian
Regions on the basis of their geographical location at Italy’s borders and the
presence of ethno-linguistic minorities (as is the case of Friuli-Venezia
Giulia, Trentino-Alto Adige and Valle d’Aosta) or do the basis of socioeconomic factors (Sardinia and Sicily). The special autonomy of these
Regions is guaranteed by the Constitution and their Statutes are adopted by
means of a Constitutional law therefore they are not an expression of selfdetermination of the Regions in question (Art. 116.1, It. Const.).
The other fifteen Regions have an autonomous status that is regulated by
Title V of the Constitution and is defined as “ordinary autonomy”.
A constitutional reform in 2001 introduced so-called “differentiated
regionalism” whereby Regions can now negotiate additional forms and
particular conditions of autonomy with regard to subject-matters that come
under concurrent legislation (Art. 117.2, It. Const.), and on “matters over
which the State shall have sole legislative power” such as those provided for
by Art. 117.3, letter “l”, with regard to the “offices of justices of peace”;
letter “n” on “general rules on education” and letter “s” on “protection of
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the environment”. State law can assign greater autonomy to the Regions that
have made a request of this nature once the latter have consulted the local
authorities. More precisely, “the law must be approved by the two
Chambers with an absolute majority of their members on the basis of an
agreement between the State and the Region” (Art. 116.3, It. Const.).
Above and beyond this special form of autonomy, the legal sources of
regional law consist of Special or Ordinary Statutes (depending on the
Region in question), regional laws and regional regulations.
1.1. Statutes of Regions with Special Forms of Autonomy and so-called Statutory Laws
The statutes of Regions with so-called special autonomy (hereafter
Special Regions) have a very analytical content, especially if compared to the
statutes of Regions with so-called ordinary autonomy (hereafter Ordinary
Regions). Special Statutes are not limited to the organisational aspects of the
Region but they also regulate their functions and fields of competence.
Furthermore, Constitutional Law no. 2/2002 now even permits the Special
Regions to regulate their own form of government. The so-called statutory
law is a new source of law in the regional system and is adopted with an
entrenched procedure because it must be approved by the absolute majority
of the members of the Regional Council. Moreover, if 1/50 of the Region’s
electors or 1/5 of the Council members so request, a statutory law may be
submitted to popular referendum. Instead, if a majority of 2/3 of Regional
Council members approves a statutory law, a referendum may be requested
by only a fraction of the region’s electors (with variations from Region to
Region). Statutory laws may undergo preventative review of legitimacy on
the part of the Constitutional Court.
The above illustrates that statutory laws are 1) regional laws with a
“reserved competency” (because they only regulate the Regional
government’s political powers) and 2) they are entrenched (because of the
special procedure that is adopted to approve them). In other words, they are
supra-ordinate to ordinary regional laws but sub-ordinate to special statutes
and of course, to the Constitution.
Coming back to Special Statutes, it should be noted that they are
constitutional laws and are therefore at the top of the hierarchy of legal
sources. As a result, they can even derogate from specific constitutional
provisions (with the exception of the fundamental principles).
1.2. Statutes of Regions with Ordinary Forms of Autonomy
Each Ordinary Region has its own statute that “determines the form of
government and the fundamental principles of its organisation and
functioning, in harmony with the Constitution”. Specifically, Statutes
regulate the exercise of legislative initiative, the holding of referendums on
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regional laws and administrative provisions and the publication of regional
laws and regulations (Art. 123.1, It. Const.; also see It. It. Const. Court
Decisions 304/2002 and 2/2004). Each Statute provides for the Council of
Local Authorities, which “shall function as a consultative body for Regions
and local authorities (Art. 123, u.c., It. Const.).
Prior to a constitutional reform in 1999, Statutes had to “be in harmony”
not only with the Constitution, but also with the laws of the Republic and
they were limited to regulating the internal organisation of the Regions but
not their form of government (which the new Art. 123, It. Const. now
provides for). In other words, the subject matters that the Regions can now
regulate have been considerably extended.
1.2.1. Procedure
The procedure for approving the Statutes of the Ordinary Regions was
amended by Constitutional Law 1/1999. According to the new Art. 123.2,
It. Const. Statutes “shall be adopted and amended by the Regional Council
by a law approved twice with a majority of its members and with an interval
between the votes of no less than two months”. The national Government
may bring a case concerning the constitutional legitimacy of a regional
Statute before the Constitutional Court within 30 days of its publication”
(see It. Const. Court Decision 304/2002).
Within three months of publication, 1/50 of the electors of the Region
or 1/5 of the members of the Regional Council may present a request
asking for the Statute to be submitted to popular referendum. In this case
the statute is not promulgated unless it has been approved by a majority of
valid votes. The President of the Regional Cabinet promulgates the Statute
after which it is published in the Official Bulletin of the Region.
Prior to this reform, a Statute had to be approved by the absolute
majority of the Regional Council and then submitted to the national
Parliament which could then approve or reject it, but with no possibility of
amendment. Once approved in this way, the Statute was promulgated by the
President of the Republic and published in the Official Gazette. If
Parliament did not approve the Statute, the Regional Council had to re-draft
it and then submit again it to Parliament for approval.
For many years, legal scholars were divided as to the paternity of these
Statutes. Some authors felt it was a regional act because the Regional
Council made the decision, and others, a State law because the law ratifying
it was approved by Parliament. Still others felt it was a dual act because of
its dual nature, and this perhaps is the correct definition. In any case, this is
no longer an issue. The constitutional reform repealed the provision
according to which regional laws had to have the rubber stamp of the
government commissioner therefore now there is no doubt that the Statute
is a regional act that comes under the exclusive competency of the Council.
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More specifically, given the special procedure for its approval, Statutes can
also be defined as entrenched regional laws (Const. Court Decision
304/2002).
1.2.2. Position in the System of Legal Sources
Due to the fact that it is an entrenched law, a Statute is supra-ordinate to
an ordinary regional law therefore the relationship between the two sources
is regulated on the basis of the criterion of hierarchy, but within the
competential limits laid down by the Constitution
The relationship between optional provisions of the Statutes and
regional laws is more complex. Some authors deny that there is a separation
of competence and therefore consider statutory provisions that regulate
subject matters that come under the residual or concurrent legislative power
of the Regions to be legitimate. This theory, however, gives rise to various
problems given the fact that the statutory provisions are supposed to
respect the principles laid down by State law on matters of concurrent
competence, thus limiting the range and scope of the Statutes to a
minimum. Similarly, statutory provisions concerning so-called residual
subject matters would entrench the latter thus preventing subsequent
amendments by means of ordinary regional laws. With regard to this issue
one should refer to the case law of the Constitutional Court according to
which the programmatic provisions of regional statutes are to be considered
non-binding thus preventing them from determining the validity of regional
laws.
As underlined above, Statutes are no longer bound to respect the state
laws; now they simply have “to be in harmony with the Constitution”.
Nevertheless many authors still argue that the relationship between Statutes
and ordinary State law is hierarchical in nature because it is the latter that
develops the constitutional principles of the former. Thus, according to a
strict interpretation State laws which implement values that are deduced
from Title V of the Italian Constitution should prevail over regional
Statutes. In other words, the criterion of competence competes with that of
hierarchy in resolving contrasts between Statutes and ordinary State laws.
2. Legislative Power: Regional Laws
As explained in other Chapters, the reform of Title V of the Constitution
radically modified the allocation of of competencies between State and
Region so that now all the residual subject matters (i.e. those not specifically
listed in the Constitution) come under the competency of the Regions.
The provisions of the reformed Art. 117, It. Const. introduce a twofold
constraint, “within the limits set by European Union law and international
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obligations”, that conditions not just regional law but also state law, putting
both sources on an equal standing (Art. 117.1, It. Const.).
Furthermore, as a result of the reform, “Regions may establish
agreements with foreign States and understandings with territorial entities
that belong to a foreign State, in the cases and forms provided for by State
law” (Art. 117.9, It. Const.).
Lastly, regional law, just like state law, is subject to review on the part of
Constitutional Court in order to verify its constitutional legitimacy.
In spite of the extension of regional competencies, regional legislative
power is still prone to interference by the State due to several “transversal”
subject matters that are of exclusive competence of the latter, examples
being: “the determination of the basic standards of welfare related to civil
and social rights” (Art. 117.2, letter “m”, It. Const.) or civil and criminal law
(Art. 117.2, letter l , It. Const.). Concurrent subject matters (i.e. subject
matters that come under the legislative competence of both the State and
the Regions) also run the same risk; for example, health protection and landuse regulation are policy areas which often give rise to conflicts between
State and the Regions that have to be resolved by the Constitutional Court.
Regional law is a primary source of law in the context of the hierarchy of
legal sources; it is subordinate to the Constitution and on the same level as
ordinary State law and acts having force of law. Art. 117, It. Const. allocates
competencies to the State and the Regions and establishes that the
relationship between State law and regional law is based on the principles of
separation and concurrence (Art. 117. 2-4, It. Const.). When the two sources
contrast, the one that is competent in that policy area prevails. If the matter
is subject to concurrent competency, the criterion of hierarchy intervenes
because the principles laid down by state law are supra-ordinate to
provisions contained in regional legislation.
This set-up gives rise to a series of well-known interpretative problems,
i.e., what is meant by fundamental principles of a subject matter? Moreover,
it is not clear whether the Regions can exercise their concurrent legislative
competence in the absence of a State framework law containing the
principles that discipline the subject matter in question. It seems that
principles not directly and explicitly laid down by law can be inferred from
the interpretation of existing legislation (It. It. Const. Court Decision
282/2002. See Art. 1.3, Law no. 131/2003 which obliged the Government
to adopt decrees recognising fundamental principles inferred from laws
already in effect; see It. It. Const. Court Decision 280/2004).
Up until now the Constitutional Court has tended to allow the State’s
legislative power to expand. On the basis of the principle of subsidiarity, for
example, the Constitutional Court has granted particular functions to the
State allowing its competencies to expand as long as they do not
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unreasonably compress regional competencies (It. Const. Court Decisions
282/2002 and 303/2003).
2.1. Procedure
The regional legislative procedure consists of at least four phases:
initiative, deliberation, promulgation and publication all of which are
regulated by the Constitution, Regional Statutes and Regional Council
standing orders (i.e. internal rules and regulations).
The Statutes regulate legislative initiative, which can be exercised by
Regional Cabinets, members of Regional Councils and other subjects that
are specifically granted this competency. Statutes can also attribute initiative
to regional electoral bodies and local authorities.
Deliberation takes place in the Regional Councils where council
commissions conduct the preliminary proceedings in what is known as a
referral session. Some regional laws may also be drafted by the council
commissions in specific sessions. Regional laws are approved with a relative
(simple) majority but in some cases the Statute foresees a qualified
majorities.
Once it has been approved, the regional law is promulgated by the
President of the Regional Cabinet and published in the Official Bulletin of
the Region.
The reform of 2001 abolished preventive review of regional laws. In
particular, the Government Commissioner’s endorsement is no longer
required. Before the reform, a bill, that is a law approved by the Regional
Council but not yet promulgated, had to be submitted to the Government
which 1) authorised the Commissioner to endorse it, or 2) found it to be
flawed and thus asked the Commissioner to send the bill back to the
Regional Council. The Council could amend the bill in accordance with the
Government’s indications or re-approved it with an absolute majority. In
this case, the Commissioner could endorse the law or call into question its
constitutional legitimacy by filing a claim in front of the Constitutional
Court or contest it from a substantive standpoint in front of Parliament.
Since the preventative review has now been abolished, the Government
may only challenge a regional law after it has been published in the Gazette,
i.e. it can only challenge a regional law that has already come into effect (i.e.
repressive review)
2.2. Legislative Power of Regions with Special Forms of Autonomy
The Statutes of Special Regions list the subject matters that come under the
exclusive, concurrent or integrative-executive legislative powers of the Regions.
All the Statutes of the Special Regions indicate the policy areas that are
of exclusive regional competence. This exclusive legislative power has to be
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exercised in compliance with the general principles of the legal system and
the fundamental principles of all socio-economic reforms.
The reform of 2001 only regarded the Ordinary Regions, however, it did
specify that the Special Regions are guaranteed the same forms of autonomy
granted to the latter (Art. 10, Constitutional Law no. 3/2001).
3. Regional Regulatory Power
Before the reform of 1999, the power to issue regulations (sometimes
also called bye-laws) was not particularly important because Regional
Councils, which were the competent body to do so, preferred to adopt
primary legislation as provided for by Art. 121.1, It. Const. After the reform,
the situation changed and greater space was given to regional regulations.
It should be noted, however, the holder of regulatory power is now less clearly
defined since it the Regional Statutes that decide whether it is to be exercised by the
Regional Council or the Regional Cabinet i.e. the executive body.
Three observations can be made.
First the Statutes are now the sources that designate the holder of
regional regulatory power and how it is to be exercised (It. Const. Court
Decision 313/2003). This means that the exercise of regulatory power is
differentiated from Region to Region.
Second, the reform of Title V establishes that Regions can exercise
regulatory power on residual and concurrent subject matters (see Art. 117 It.
Const.). Furthermore, Regions may adopt regulations for subject matters
exclusively reserved to the State (Art 117.2, It. Const.) provided the latter
delegates this competence to them (ex Art. 117.6, It. Const.).
Third, now that Art. 125 It. Const. has been repealed, Statutes are no
longer subject to government control.
In light of the above, it is evident that regional regulatory power has been
extended and consequently, the importance of this legal source has increased.
Bye-laws or regulations are acts that are subordinate to regional laws
which in turn are subordinate to the Regional Statutes (at least with regard
to the reserved policy areas).
From a broader point of view (i.e. not limited to the system of regional
sources of law) the position of regulations within the system of legal sources
depends on primary legislation and on the allocation of subject matters
between the State and the Regions. All this is further complicated by the socalled “transversal” subject matters of exclusive State competence (see Par.
2). In addition, in the absence of primary regional legislation concerning
residual subject matters, there might be pre-existing State legislation and
related executive regulations. In this case regional regulatory power is
temporarily restricted until the new Regional legislation comes into effect
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(Const. Court Decisions 282/2002 and 519/2002). A further limitation to
regional regulatory power may occur when State legislative power expands
as a result of the principle of subsidiarity through which the State can then
exercise regulatory power.
The relationship between regional and state regulations is strictly
connected to how primary legislative functions are exercised.
As for the relationship and possible contrast between regional and local
government authorities, the Constitution grants the latter regulatory power
“with respect to the organisation and the fulfilment of the functions
assigned to them” (Art. 117.6, It. Const.). The regulations of local bodies
may not in any case contrast any policy area reserved exclusively to State
legislative powers (Art. 117.2, letter “p”, it. Const.), nor to Regional
Councils (Art. 117.4, It. Const.). Criteria of hierarchy and competence
continually intersect with each other and cannot be strictly separated,
making it difficult to understand the exact position of local government
regulations within the system of legal sources.
4. Local Autonomy and the System of Legal Sources
The autonomy of Municipalities and Provinces is guaranteed by the
Constitution. On one hand, the amendment of Title V places local
government bodies on the same level as the Regions and the State (Art.
114.1, It. Const.), and on the other, it “constitutionalises” their statutory
power (Art. 114.2, It. Const.). In more specific terms, “Municipalities and
Provinces are defined as autonomous entities with their own Statutes,
powers and functions according to the principles laid down in the
Constitution” (see Chapter Seven)
As various legal scholars have pointed out, even though the Constitution
recognises the statutory autonomy of Municipalities and Provinces, they are
still bound to the State through the laws of the Republic and regional laws,
so their position on an institutional-organisational level remains uncertain.
The new Art. 117, It. Const. does not include “local government” as a
subject matter, but according to the provisions of Art. 117.2, letter “p”, It.
Const., “the electoral legislation, local government and fundamental
functions of Municipalities, Provinces and Metropolitan Cities are under the
sole legislative power of the State”. Furthermore, “the Regions have sole
legislative power regarding Municipalities and Provinces with respect to any
matters not expressly reserved to State law” (see Art. 117.4, It. Const.). Both
State and regional legislation is required so that autonomy given directly and
explicitly to the local authorities by the Constitution can become effective.
This has a significant effect on the system of legal sources at local
government level and its relationship with regional and State sources of law.
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4.1. Statutes
Some authors hold that statutes are hierarchically subordinate to
legislation, in simpler terms the Statutes of Municipalities and Provinces are
conditioned by State law that regulate the subject matters listed under Art.
117.2, letter “p”, It. Const. and in much the same way, they are conditioned
by all the regional laws concerning subject matters not expressly mentioned
in Art. 117, It. Const.
Instead, the local government authorities of Special Regions come under
the discipline of the respective Statutes. In fact this is a subject matter over
which the Special Regions exercise exclusive legislative power with all the
limits this consequently implies.
It is not easy to determine which limits or competencies belong to the
State and which belong to the Region nor is it easy to define the relationship
between their respective sources of law and the Regional Statutes. In
general, most legal scholars agree that both primary law and the constitution
pursue the aim of enhancing local government autonomy. These authors
also recognise the fact that certain subject matters come under the reserved
competence of the Regional Statute i.e. the fundamental aspects
organisation of local government authorities, the form of cooperation
between local authorities, instruments of popular participation in local
government, access to information and to administrative procedures. Even
recent case law makes a distinction between statutes whose regulatory power
is guaranteed by fundamental constitutional principles and existing laws,
which expand the autonomy of local government authorities. In fact,
statutes may derogate from all primary legislation, with the exception of
those containing fundamental principles (see Court of Cassation, Joint
bench, 12868/2005).
The relationship between local government statutes, on one hand, and
regional and state legislation, on the other, is developed through the
combined application of the criteria of hierarchy and competence.
A Statute is approved by a majority of 2/3 of Municipality Council
members. Should this qualified majority not be reached, then the Statute has
to be to be approved twice with an absolute majority of the Council
members within a 30-day period. Once approved, the Statute is published in
the Official Regional Bulletin and put on the municipal notice board, and
then inserted into the Official Archive of Local Government Statutes.
4.2. Regulations
The Constitution establishes that “Municipalities and Provinces shall
have regulatory power with respect to the organisation and fulfilment of the
functions assigned to them” (Art, 117.6, It. Const.).
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Regulations or bye-laws are a secondary source subordinate to law. State
or regional law determines how the autonomy of local authorities is actually
exercised. An example of this is the electoral law for local government
authorities, which is contained in State legislation. The latter also regulates
the governing bodies and fundamental functions of Municipalities and
Provinces.
Various authors have also pointed out that because the regulatory power
of local government authorities is recognised by the Constitution this can be
suppressed by legislation that is too detailed.
On one hand, the relationship between regulations and primary laws is
determined by the criterion of competence according to which competence
must be expressly attributed to the local authorities by law (within the limits
of the Municipal Statute). On the other, the relationship between regulations
and laws cannot always be determined by the criterion of competence and
these leads some legal scholars to talk of a convergence between two
distinct sources which integrate each other.
Regulations are adopted according to rules laid down by the municipal
statutes and, generally speaking, they deal with the organisation and
functioning of the local government institutions. The relationship between
regulations and municipal statutes is of a hierarchical nature.
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CHAPTER THIRTEEN
EUROPEAN SOURCES OF LAW AND THEIR
RELATIONSHIP WITH DOMESTIC SOURCES
OF LAW
ARIANNA VEDASCHI
SUMMARY: 1. Law of the European Union: Principle Distinctions – 1.1. Primary and
Secondary Sources of Law – 1.2. Principle of Attribution and Principle of
Subsidiarity – 2. Types of Sources of Law – 2.1. Non-binding Acts:
Recommendations and Opinions – 2.2. Binding Acts: Regulations, Directives and
Decisions – 2.3. Soft Law – 3. Relationship between Community Law and Italian
Law – 3.1. Influence of Primary Sources of Community Law – 3.2. Influence of
Secondary Sources of Community Law: Directives – 3.3. Influence of Secondary
Source of Community Law: Regulations.
1. Law of the European Union: Principle Distinctions
The institutional and organisational complexities of the European Union
are reflected in its system of legal sources that is considerably detailed and
rather peculiar. There are several elements that complicate it; some can be
traced back to the political relationships among its governing bodies
whereas others are directly connected to the multiple decision-making
procedures that must be followed. Just to give an example, in the European
Union’s system of legal sources, there is no direct correspondence between
the nomen iuris of the act and the legislative procedure that is followed for its
adoption. This means that numerous procedures can be followed in order to
express the will of the European institutions in their different areas of
competence. These legislative procedures often vary with regard to the
consultative phase (where political or technical bodies may intervene) or the
decision-making phase (where the majority needed to approve the law may
differ). Consequently it is not easy to construct a linear overview of the
European Union’s system of legal sources, nor is it easy to reconstruct the
relationship between European and domestic sources of law.
1.1. Primary and Secondary Sources of Law
The law of the European Union (from now on community law) consists
of the founding treaties and the sources that derive from the latter.
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The Treaties of the European Community comprise the founding
treaties and their subsequent amendments. In 1951 the Treaty of Paris
established the European Coal and Steel Community (ECSC); in 1957 the
Treaties of Rome established the EURATOM (European Atomic Energy
Community) and the European Economic Community (EEC). With the
Merger Treaty of Brussels in 1965, the three communities were unified,
although each one maintained is own area of competence. In 1986 the
adoption of the Single European Act permitted a greater integration
between the Member States. In 1992, the Treaty of Maastricht or Treaty on
European Union, integrated the three communities into the European
Union, while Treaty of Amsterdam (1997) represented another important
step towards the European integration. The approval of the Treaty of Nice
in 2000 led to the Treaty of Lisbon in 2007 for the adoption of the
European Constitution, which has still not been ratified by all Member
States.
The Treaty on European Union (TUE) establishes which competences
are to be attributed to the European Union, regulates community bodies
and their legislative powers and establishes the procedure for adopting
secondary sources of community law (also known as “derived” law).
Primary sources of law (i.e. the Treaties, also know as “original” law) are
at the top of the hierarchy of legal sources in a position of supremacy with
respect to the secondary sources of law. This supremacy is guaranteed by
the interpretation given to the Treaties by the European Court of Justice
(ECJ), which has exclusive jurisdiction with regard to the interpretation of
both primary and secondary sources of community law. The ECJ also has
competency to verify whether secondary sources of law conform to the
founding treaties (Arts. 220 and 234, Treaty of the European Community).
Art. 6.2 (TEU) establishes that the common constitutional traditions of the
Member States all contribute to form these general principles of community
law.
On the contrary, conflicts between secondary sources of law cannot be
settled on the basis of the criterion of hierarchy, instead, as a rule, the
criterion of competence is applied. The Treaty of European Union
establishes that the source of law that prevails is the one enacted by the
body that has competency in that particular subject matter or policy area.
1.2. Principle of Attribution and Principle of Subsidiarity
Generally speaking, at European Community level legislative
competence is determined on the basis of the principle of attribution. In
fact, the Treaty expressly assigns sectors to be regulated by the European
Union legislature and not by the national legislatures (Arts 5 and 234, TEU).
This distribution is linear and clear in appearance only because in actual
fact there is no precise list of subject matters Member States have assigned
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to a supra-national level. As a result, competence is decided by bearing in
mind either the subject matter and policy area or the final objective to be
pursued (often both these criteria are used).
In actuality there is a widespread tendency to extend European Union
competences due to frequent recourse to the procedure established in Art.
308 TEU. Furthermore, the ECJ has played a decisive role in extending
both the policy areas of the European Union and the effectiveness of the
Treaties. Furthermore, the ECJ’s doctrine of implicit powers has also played
a fundamental role in determining the competencies of the European
Union.
The Treaty of Maastricht instead introduced the principle of subsidiarity,
that is, in sectors where the Community does not have exclusive
competence, it may intervene only when the action of a Member State is
insufficient to achieve the objectives of a law which can be better reached
through the Community’s intervention. (Art. 5, TEU). In theory the
dynamic application of this principle can either extend or limit Community
competences, but in practice the latter are almost always extended because
the European institutions that have to evaluate the situation before
Community intervention is admissible, tend to increase their competencies
in order to widen their range of action.
2. Types of Sources of Law
At European Union level secondary sources of law include binding and
non-binding acts.
2.1. Non-binding Acts: Recommendations and Opinions
There are two types of non-binding acts, recommendations and
opinions. Recommendations are invitations addressed to Member States to
conform to certain behaviour whereas opinions express the position of a
European Union body. Recommendations and opinions are not laws in the
strict sense of the word because failure to comply with them does not lead
to a sanction.
2.2 Binding Acts: Regulations, Directives and Decisions
European Union regulations, directives and decisions instead are sources of
law. Regulations establish general and abstract rules, which are obligatory and
binding for all European Union citizens. Furthermore, regulations are directly
applicable within Italy’s legal system (Art. 249-2, TEU). In other words, these
regulations do not have to be implemented by Italian law to become effective,
but are immediately binding for all citizens. The ECJ has in fact declared
domestic laws that reproduce the contents of regulations to be illegitimate.
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On the contrary to regulations, directives are binding as to the result to
be achieved, but leave their implementation to the discretion of the Member
States (Art. 249.3, TEU). Consequently, it is up to each Member State to put
the directive into effect and to choose the most suitable legislative
instruments for attaining the results the European Union desires within a
certain time limit. Directives may be addressed to individual, several or all
Member States.
The European Union usually employs directives to establish those
general principles necessary for the harmonisation of the different rules at
national level that govern a given policy area. Directives are generally drafted
in such a way that the Member States within this framework can then
approve more specific domestic legislation. However so-called detailed
directives may also be adopted that are written in such clear, precise and
unequivocable terms that they resemble regulations and can be applied
directly if they are not implemented at national level (so-called self-executing
directives). It should be noted that these directives only have vertical direct
effect because they are applicable only to Member States that have not
complied with the directive and not to single individuals. In other words,
self-executing directives cannot introduce obligations for individuals but
only for Member States.
Decisions are directly applicable acts that are binding in their entirety to
the legal person(s) or Member State(s) to which they are addressed, i.e. they
are individually rather than generally applicable and this distinguishes them
from regulations. The legislative nature of decisions is disputable; in fact, the
case law of the ECJ considers sources of law only those decisions adopted
on the basis of Art. 251, TEC that have been published and are addressed to
a Member State.
2.3. Soft Law
An overview of community sources of law must include the atypical acts
of a non-binding nature better known as “soft” law. For the most part these
are acts that are not provided for by Art. 249 TEU, but are adopted by
community institutions to attain important objectives which go beyond their
specific competences.
The first type of act that we can include in this category are interinstitutional agreements that regulate relationships between individual
community institutions by clarifying or, at times, innovating the provisions
contained in the founding treaties. Such acts have played a primary role in the
progressive involvement of the European Parliament in community decisions
that have traditionally been characterised by a “democratic deficit” because the
European Parliament was hardly ever consulted. In the same manner,
international agreements have had considerable importance in the progressive
evolution of instruments upholding and protecting human rights.
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Thanks to the instruments of soft law, community institutions promote
the coordination and development of social policies in individual Member
States through a complex mechanism called the open method of coordination,
based on the adoption of non-binding measures.
Among other non-binding measures adopted by individual institutions
one should distinguish between instruments aimed at determining the
content of certain community policies from those aimed at bringing these
policies into effect. In general, the former consist of preparatory acts that
precede the adoption of legislative acts in the strict sense of the term. Their
function is to involve Member States, regional governments or private
individuals in decisions the Community is contemplating on adopting. This
enriches the decisional process because, on one hand, it promotes better
decisions and, on the other, it is a way of obtaining a wide consensus for
policies that are adopted. There are three types of instrument: green papers, or
documents of a cognitive nature with which the Commission outlines the
problem it intends to address, its juridical reference and the principle
directions this action will take; white papers, or documents in which, with the
intent of provoking a debate, the Commission illustrates the intervention it
proposes to make in a given policy area, and plans of action, documents in
which the Commission explains in detail the intervention it intends to carry
out in order to address a specific problem. These three acts are formally
adopted by means of the Commission’s instrument of communication.
Other soft law instruments include guidelines and codes of conduct of the
European Commission and Conclusions of the European Council. All three
establish rules of conduct. Their non-binding nature enables them to be
utilised in those sectors where the Community lacks the necessary
competency to legislate a binding law.
3. Relationship between Community Law and Italian Law
3.1. Influence of Primary Sources of Community Law
When Italy decided to participate in the project for a unified Europe, it
willing accepted the conditions imposed by the Treaty, which significantly
affect national sovereignty. On the contrary to other states, when Italy
joined the European Community, it did not have to amend the Constitution
because Art. 11, It. Const already established that Italy “shall agree, in
conditions of equality with other states, to such limitations of sovereignty as
may be necessary to allow for a legal system that will ensure peace and
justice between nations; it shall promote and encourage international
organizations having such ends in view”. In fact, a wide interpretation of
Art. 11, It. Const. enabled the Italy to hand over part of its sovereignty to
the institutions of the European Community. Technically, the transfer of
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competence and, at the same time, the limitation of sovereignty was
provided for by the founding treaties which have since been modified by a
series of amendments. At national level, the Treaty was executed with an
ordinary law formally subordinate to the Constitution.
The recent amendments to Title V, It. Const. include specific references
to European Union obligations to which both State and regional legislation
must adhere (Art. 117.1, It. Const.).
3.2. Influence of Secondary Sources of Community Law: Directives
As regards the influence of derived community law on Italian law, one
must distinguish directives from regulations. Directives require the
intervention of State law because, for the most part, they are not directly
applicable within the Italian legal system. In the past, the European
Commission often decided to impose sanctions on Italy due to delayed
compliance with European directives. To remedy this situation in the mideighties, Italy decided to approve a so-called Annual Community Law with
which all directives are implemented. Basically, every year the Italian
Parliament adopts a law proposed by the Government with which directives
that still have to be implemented are brought into effect. This permits Italy
to fulfil all its obligations at European level and avoid sanctions due to
delayed or failed implementation of directives.
The Annual Community Law can directly implement provisions of
directives, by amending or repealing Italian laws, but it may also delegate the
Government to adopt legislative decrees to implement EU provisions.
Furthermore, it may solicit implementation by means of secondary sources
of law (Government regulations). Finally, “in the matters that lay within
their field of competence, the Regions and the Autonomous Provinces of
Trento and Bolzano shall take part in any decisions pertaining to the
formation of Community law” (See Art. 117.5, It. Const.); however the State
shall act in substitution of the Regions whenever they fail to fulfil their
responsibilities (see Art. 120.2, It. Const.)
It should be noted, that Law no. 11/2005 recently repealed the first
Annual Community Law (Law no. 86/1989), the so-called “La Pergola” law
from the name of the Minister who first proposed it. In particular, it
intervened to regulate Italy’s participation in both the bottom-up and topdown phases of the Community’s legislative process. More precisely, it
reinforced the Italian Parliament’s participation in the Community’s
decision-making processes and also emphasised the role played by the
Italian Regions. With regard to the top-down phase, this law also regulates
the implementation of the acts of the community institutions as well as the
decisions of the ECJ.
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3.3. Influence of Secondary Sources of Community Law: Regulations
Regulations are self-executing thus they are binding and do not require a
national law to implement them. From this point of view, it is interesting to
study the evolution of the case law of the Italian Constitutional Court –
especially compared to that of the ECJ – with regard to the resolution of
conflicts between domestic law and European regulations.
Today, there is no doubt that conflicts between European regulations
and Italian primary sources of law are to be resolved by the non-application
of the latter. In other words, the judge who interprets the law, must apply
the European regulation and not apply the Italian law that is in contrast with
the latter. This demonstrates the principle that community law prevails over
the laws of the Member States. It should be noted, however, that this has
not always been the case. On the contrary, this doctrine is the result of a
long and difficult “judicial dialogue” between the Italian Constitutional
Court (and other Constitutional Courts) and the ECJ.
Initially, the Italian Constitutional Court took a so-called “hyper-state”
position and affirmed that conflicts between national law and community
law had to be resolved on the basis of the criterion of chronology i.e. the
more recent of the two laws had to be applied (It. Const. Court Decision
14/1964). In disagreement with this notion, the ECJ responded that when
the legislatures of the then six Member States transferred power to the
European Community, this implied a permanent limitation of sovereignty
thus affirming the supremacy of Community law over national law (ECJ,
Case C-6/64).
Subsequently the Italian Constitutional Court reviewed its position and
adopted a “dualist” approach to resolving conflicts between Italian law and
community law i.e. it applied two different criteria according to when the
community source of law was approved. If the latter was more recent than
the Italian source of law, then the Constitutional Court applied the criterion
of chronology (thus considering the Italian law to have been repealed). On
the contrary, if the community law was approved prior to the Italian law, the
Constitutional Court considered the latter to be invalid due to an indirect
violation of Art. 11, It. Const., i.e. it applied the criterion of hierarchy.
According to this doctrine, however, only the Constitutional Court could
declare the Italian law illegitimate (It. Const. Court Decision 232/1975) and
this solution therefore rendered the effectiveness of community law
dependent on a decision of an Italian judge. Instead, the ECJ held that each
single national judge is obliged to apply community law directly without
having to appeal to its respective Constitutional or Supreme Court (ECJ,
Case 106/77).
In the mid-eighties, the Italian Constitutional Court finally accepted this
case law of the ECJ thus acknowledging both the supremacy and direct
effect of community law. In fact, in various decisions the Italian
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Constitutional Court has affirmed that community law is always to be
preferred regardless of whether it was approved before or after the
conflicting national law (Const. Court Decisions 170/1985, 286/86, 306/92
and 307/92). Furthermore, it also affirmed that the European
Community/European Union and Italy have two distinct and autonomous
legal orders, each of which has its own system of legal sources (this is know
as the dualist theory, see Chapter Two). However, when Italy signed the first
Treaty of Rome, it transferred competence to the European Community
with regard to certain subject matters and policy areas and, as a consequent,
accepted that community law would take precedence over Italian law. In
other words, conflicts between Italian law and community law shall be
resolved by applying the criterion of competence.
This doctrine holds true for all self-executing laws i.e. for regulations and
detailed directives. Furthermore, it should be noted that the supremacy of
self-executing community law should be upheld not just by the Judiciary,
but by all those who are called upon to apply the law (such as the public
administration, as affirmed by the Italian Constitutional Court in Decision
389/89).
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CHAPTER FOURTEEN
FUNDAMENTAL RIGHTS AND FREEDOMS
GIUSEPPE FRANCO FERRARI
SUMMARY: 1. Historical Perspective: Rights and the Evolution of Constitutionalism – 2.
Generations of Rights – 3. Individual Rights – 3.1. Personal Freedom and Related
Elements – 3.2. Personal Domicile – 3.3. Freedom of Correspondence and
Information – 3.4. Freedom of Movement, Residence and Expatriation – 4. Rights
of the Public Sphere – 4.1. Freedom of Assembly – 4.2. Freedom of Association –
4.3. Freedom of Religion and Creed – 4.4. Freedom of Expression – 5. Social Rights
– 5.1. Education – 5.2. Healthcare – 5.3. Welfare – 5.4. Housing – 6. Economic
Rights – 6.1. Right to Property – 6.2. Freedom of Enterprise – 6.3. The Market and
Competition – 6.4. Trade Union Rights – 7. Political Rights – 8. Constitutional
Duties.
1. Historical Perspective: Rights and the Evolution of
Constitutionalism
The centuries from 1600 to 1900 can be considered the Golden Age of
the development of human rights.
In Mediaeval times it was the social classes and groups rather than the
individual that were protected; in other words only the rights of social
groups – not those of individuals – that counted. The most significant
product of those times were the English Charters, in particular the Magna
Charta (1215), the first attempt to protect the writ of habeas corpus and
freedom of movement and to circumscribe the power of the Crown. These
rights were extended to all individuals regardless of their social position thus
signifying a break with class or social group rights.
This was only a foretaste of the epoch to come, marked by the liberal
concept of rights that began with the English Bill of Rights in 1689. With it,
the idea that the protection of individual rights is an eminent and
irrenounceable function of State organisation began to impose itself. The
Bill of Rights emphasised the power of the State to impose punishment and
to regulate a standing army based on the rule of law.
The modern age of constitutional rights opened on the eve of the
American Revolution. In particular in 1791, just a few years after the
approval of the US Constitution (1787), the first ten amendments (the
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American Bill of Rights) entered into effect to protect freedom of religion,
press, speech, assembly; freedom from excessive fines and forfeitures and
from double jeopardy, as well as the right to bear arms, to be secure and to
due process. These freedoms were considered pre-existing conditions rather
than rights sanctioned by the Bill of Rights, echoing back to the assertion of
nautural law found in the Declaration of Independence, the influence of the
English tradition of common law and the theories of John Locke. All of the
above-mentioned rights are to ensure the individual is free from undue
interference of public power. Law is seen as a possible instrument the State
can use to violate the privacy of citizens; therefore its application must be
curtailed and regulated as much as possible, through the assertion of
unalienable rights (hierarchically superior to ordinary law), where the citizen
is free from the “intrusion” of State power.
In 1789 the Declaration of the Rights of Man and the Citizen was
approved in France. This document has interesting points in common and
significant differences with respect to the American Bill of Rights. The latter
is dry and pragmatic unlike the Declaration which is much more
philosophical, wordy and less suitable for immediate application. Such
differences arise from the political situations of the times in which they were
written. The Bill of Rights was drawn up when the independence of the
American nation and the enjoyment of individual rights were a reality
whereas the French Declaration was fundamentally a declaration of intent; it
gave juridical form to a social reality that had yet to be constructed. The
Declaration states that the “aim of all political associations is to guarantee
the happiness of all and to preserve the natural fundamental rights of man,
that is liberty, property, security and the resistance of oppression”; on the
contrary, the American Bill of Rights often refers to the “common good”
which leads some authors to hold that the French Declaration is rooted in a
more individualistic vision than the
In the years following 1789 (i.e. during the Revolution and then the
Reign of Terror) the French Declaration was replaced by a series of
subsequent Constitutions. The French model rapidly circulated throughout
Europe thanks to its innovative character that rendered it superiorir to all
other models of the time, but also because of the Napoleonic wars.
After 1848 other constitutions – often less democratic than those drawn
up during the American and French Revolutions – were approved in various
countries in Europe and in all of them the protection of basic rights was
paramount, a good a example being the French Constitution of 1848.
With the Constitution of 1849 for the first time the German people
adopted their own bill of rights which then became the parameter for a bill
of rights for the various states of the German Federation. As a result the
enjoyment of the same rights became a key element uniting all German
citizens in the different Länder.
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In 1848, Italy too adopted its first Constitution, the Statuto albertino,
although this proved to be a modest instrument as far as protecting rights
goes, and surely inferior to the other two illustrated above.
The beginning of the 1900s and the post World War I period opened
with a radically different international political alignment that called for new
solutions in formulating rights. The most notable example is the German
Constitution of 1919, better known as the Weimar Constitution, a milestone
for that era because it finally put individual human rights at the centre of a
unifying concept of a constitution no longer considered as a mere limit to
public power. It is thanks to this Constitution that the passage from liberal
constitutionalism to democratic constitutionalism was completed. Other
noteworthy examples of that era are the Austrian and the Czechoslovak
Constitutions both dated 1920.
After World War II a new phase of constitutionalism began where
unalienable rights formed the principle nucleus of constitutions,
emphasising those ethical and social values on which society is built.
It is with this spirit and in the aftermath of the horrors of World War II
and the Fascist Regime that in 1948 the new Italian Constitution came into
force.
2. Generations of Rights
All the Constitutions that were adopted in the first half of the Twentieth
Century included a bill of rights in order to guarantee individual freedom
against undue interference on the part of the State. Basically the aim of these
Constitutions was to ensure that public power abstained from authoritarian
and repressive actions i.e. from acting outside the law and putting the
security and liberty of its citizens at stake. Rights that are protected in this
way are defined as negative freedoms because public power is asked to abstain
from carrying out certain actions.
This is an extremely vast and heterogeneous category because
considerably different situations all come under it. For example, personal
freedom, the right to domicile or the prohibition of double jeopardy are
different than the freedoms of opinion and assembly, voting rights and
protection from undue taxation. The first group of rights refers to the more
intimate sphere of personal freedom, inherent in man’s physical nature; their
objective is to protect the integrity of each individual as a physical person.
The second group of freedoms protects not only man’s physical nature but
also his social sphere. The freedoms listed above, typical expressions of homo
politicus, all merit protection because through them the individual participates
in his social group. The first category of freedoms is commonly called civil
rights, whereas the second are known as political rights.
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However, the conventional distinction between negative freedom and
positive rights is less clear-cut than first appears.
Evidently the difference between the right to private property and the
right to healthcare is not based on the involvement of the State. The
difference instead lies in how the right is structured and in the fact that by
supplying healthcare, the State pursues an objective of “equal social status”
(Art. 3, It. Const.) that it does not when protecting the right to property.
Only when the State acts to remove obstacles to social inequality does a
social right exist.
During the 1970s constitutionalism took another step forward with the
emergence of so-called new rights i.e. third generation rights. They represent a
broad spectrum of situations and include individual rights of a private
nature (the right to one’s image, honour and identity) as well as the
collective or rights of peoples, for example the right to a clean environment
or to peace.
In recent years, many authors have identified a fourth generation of rights.
These are distinguished from rights of the previous generations not only
because they have just recently been given the status of rights but also
because their protection is intergenerational. Rights such as those of
sustainable development or connected to new applications of research in
biotechnology, do not exhaust themselves in the space of one generation,
but on the contrary are aimed at promoting a responsibility and solidarity in
the utilisation of resources and patrimony of mankind capable of protecting
the needs of generations to come.
Whereas more recent European Constitutions protect these new rights,
the Italian Constitution, now sixty years old, does not contemplate them.
Legal scholars have debated whether the constitutional rights contained in
the Italian Constitution are to be considered a “closed” or “open” list i.e.
with no possibility of integrating new rights into them or, on the contrary,
capable of protecting rights of the third and fourth generations (Pace,
Barbera). In many respects this question is no longer an issue because of the
multi-level protection of new rights. This term is used to define the present
situation whereby the same right may be recognised by various documents
of a pseudo-constitutional nature; different national and even supra-national
juridical bodies may all protect the same rights. This is the case at present
where alongside the traditional recognition of rights by the State, one also
has the European Convention on Human Rights (ECHR) approved in 1950
and European Community Law at a supra-national level.
The most recent and advanced instrument at Community level to protect
human rights is the Charter of Fundamental Rights of the European Union,
approved in Nice in 2000. This document lists a series of fundamental rights
and freedoms to be guaranteed to all EU citizens; its 54 articles are divided
into six headings, each of which is dedicated to one of the Charter’s
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fundamental values (dignity, freedom, equality, solidarity, citizenship and
justice).
The ECHR also contains a pretty comprehensive catalogue of civil and
political rights and established a judicial body, the European Court of
Human Rights in Strasbourg. This Court has competence to review the
statute and case law of the member states of the ECHR (provided they are
not on a superior hierarchical level within the system of legal sources) to
ascertain whether they violate the Convention.
The European Union also has its own judicial body, the Court of Justice
of the European Communities (often referred to as the European Court of
Justice - ECJ) which since 1975 has played an important role in protecting
individual rights. As a result the ECJ now has a vast case law concerning
fundamental rights and freedoms with frequent references to decisions
taken by the Strasbourg Court of Human Rights in similar cases.
As a result of this multi-level protection, the issue of amending less
recent Constitutions in order to up-date them in terms of the rights they
protect would appear to be overcome. However, the increase in the number
of “new rights” is a phenomenon that could lead to not a few problems. If a
new right is protected, then a pre-existing right has to be limited. When an
individual’s right to privacy is increased, inevitably someone else’s freedom
of expression and right to information is restricted. Since Art. 2, It. Const.
“guarantees the inviolable rights of man”, the problem lies in determining
which new rights are fundamental in nature and to which extent they should
belong to this category.
Since most new rights are introduced through case law, judges have a
specific task in resolving conflicts between different rights all of which
deserve to be protected, i.e. they have to balance different interests.
3. Individual Rights
Looking more specifically at Italy, the catalogue of rights and freedoms
contained in the Constitution is substantially based on the individualistic
principle i.e. fundamental rights are considered instruments to protect the
individual. In fact, Title I of the 1948 Constitution lists a series of rights,
whereas the Statuto albertino only included one general provision on
individual rights (Art. 26) leaving it up to Parliament to provide a more
specific definition and discipline.
3.1. Personal Freedom and Related Elements
Personal freedom occupies a central position in the Italian legal system:
to protect physical integrity, Art. 13, It. Const. provides that “no one shall
be detained, inspected, or searched nor otherwise restricted in one’s
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personal liberty” and that “the law shall establish the maximum length of
preventive detention”.
Constitutional statutory and jurisdictional limits are the two instruments
that protect this freedom: in fact Art. 13, It. Const. states that “personal
liberty may not be restricted except in such cases and in the manner as the
law provides” (statutory limit) moreover this article also provides that one’s
personal liberty may not be restricted “save by order of the judiciary for
which the reason must be stated” (jurisdictional limit). This means that on
the basis of criminal law the forces of public security and the judiciary police
must be given specific powers of arrest while the criminal courts must have
the power to apprehend and sentence someone to prison. The general
principle is that restriction on freedom has to be decided by a judge.
Art. 13, It. Const. also provides a constitutional statutory limit according
to which “in exceptional cases of necessity and urgency, strictly defined by
law, the police authorities may take provisional measures, which must be
reported within 48 hours to the judiciary and which, if the latter do not
ratify them within the next 48 hours, are considered as revoked and remain
without effect”. Should they fail to be ratified, the measures lose their
effectiveness ex tunc and the individual regains full enjoyment of his personal
freedom.
These urgent cases are to be found in the Criminal Procedure Code.
3.2. Personal Domicile
Art. 14, It. Const. recognises personal domicile as one of the inviolable
rights; it is not happenstance that this article comes right after the one
regulating personal freedom since both are safeguarded by the same
instruments. Freedom of personal domicile in fact, is conceived as a
corollary completing Art. 13, It. Const. given that alongside the protection
of an individual’s physical integrity the spaces in which his activities are
carried out are also deemed worthy of protection. This is confirmed by how
Art. 14, It. Const construes the term “domicile”. The Constitutional Court,
in Decision no. 87/1988, extended the concept of domicile to include one’s
motor car but the provisions of Art. 14, take the concept even further to
include any domicile (office, hotel room etc.) regardless whether the person
having the right to it, is also the owner, because domicile represents “the
person’s spatial projection” (see Const. Court Decision no. 135/2002).
The provisions of Art. 14, It. Const. safeguard the freedom of domicile,
delimited by the space a person occupies, the so-called ius excludendi alio and
protects it from undue interference. Citizens as well as aliens and refugees
are granted personal domicile as are juridical persons that obviously cannot
enjoy personal freedom.
The article specifically states that personal domicile is “inviolable in the
manner laid down by law in conformity with guarantees prescribed for
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safeguarding personal freedom”. Constitutional statutory and jurisdictional
limits apply to inspections, searches and seizures. Whereas Art. 13.2, It.
Const. contains a clause that could be interpreted as explicitly extending
safeguards to “any other restrictions on one’s personal liberty”, Art. 14, It.
Const. does not contain a similar provision. Some legal scholars argue that
the guarantee of personal domicile only refers to inspections, searches and
seizures, however the majority of authors considers Art. 14 to be an “open”
clause, given that today one’s privacy may be violated by using more recent
technology, for example, interception of telecommunications and electronic
surveillance (see Const. Court Decision no. 135/2002).
The third and final paragraph of Art. 14, It. Const. provides for a
reinforced content-based constitutional statutory limit by stating that
“special laws shall regulate verifications and inspections for reasons of
public health and safety, or for economic and fiscal reasons”.
3.3. Freedom of Correspondence and Information
“The liberty and secrecy of correspondence and of every form of
communication” are regulated by Art. 15.1, It. Const. In this case as well,
the freedom in question should be considered a corollary to personal
freedom as provided for by Art. 13, It. Const. because it protects the
individual’s relationship with society.
Art. 15, It. Const. safeguards correspondence, that is all messages an
individual directs to another in any form whatsoever. Although paragraph 3
explicitly refers to communication by means of correspondence, other
forms of interpersonal communication such as e-mail, which obviously did
not exist at the time of the Constituent Assembly, are undoubtedly
protected given that the provisions states that “every form of
communication” is inviolable. The framers of the Italian Constitution
interpreted correspondence in broad terms because the means, contents and
form are substantially different each time they are used. The necessary
requisite for correspondence is the presence of one or more well defined
recipients. In fact, if the recipient is the general public as is the case of a
letter to a newspaper editor or to an internet website then this would come
under freedom of expression (Art. 21, It. Const.).
Legal scholars have debated what messages are actually protected by Art.
15, It. Const. i.e. only those intended to remain secret or also those
addressed to a particular person that are not secret? Obviously the latter has
a much vaster application and is, in fact, to be considered the correct
interpretation because the constitutional provision concerns both freedom
and secrecy of correspondence. It also means new rights will be safeguarded
in conformity to with the liberal spirit of the Italian Constitution in terms of
protection of rights. In fact, the Italian Constitutional Court came to the
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same conclusion when it extended constitutional protection to radio
communications with Decision no. 1030/1998.
Freedom of correspondence is intended in both its active and passive
forms; both the sender and the recipient are entitled to enjoy this freedom
because it means the right to send messages and to receive them without
external interference.
The rights and freedoms provided for by Art. 15, It. Const., like the
other rights guaranteed by the Constitution, are subject to constitutional
statutory and jurisdictional limits, however Art. 15 does not provide for any
form of preventive intervention on the part of the police authorities, not
even under exceptional circumstances. Art. 15.3, It. Const. in fact states that
“further limitations upon them may only be imposed by decision of the
judiciary, for which the reason must be stated, in accordance with the
guarantees laid down by law” i.e. only a motivated judiciary act may restrict
the freedom in question.
The provisions of Art. 15, It. Const. exclude the possibility of urgent
intervention by police authorities for the same reason they exclude
preventive intervention, while ordinary intervention on the part of the
police authorities is regulated by law.
3.4. Freedom of Movement, Residence and Expatriation
Art. 16, It. Const. guarantees that “every citizen shall have the right to
travel and reside freely in any part of the national territory” and that “every
citizen shall be free to leave the territory of the Republic and re-enter it”,
meaning no law may restrict a citizen’s freedom of movement within
national boundaries.
The freedom of expatriation is regulated by Art. 35.4, It. Const.,
according to which “the Republic shall recognise the freedom to emigrate,
save for such limitations as are established by law for the common good”.
This faculty is guaranteed by an absolute content-based constitutional
statutory limit because of the fact that the Constitution clearly states that the
law can only limit freedom of expatriation for the common good. On the
contrary to the past and to other countries around the world, the freedom to
abandon Italy’s national territory is fully recognised.
Finally, the freedom of residence consists of the freedom to establish
oneself in a place of one’s own choosing for a certain period of time. The
exercise of this freedom comprises the freedom to choose one’s workplace.
The Constitutional Court in fact declared unconstitutional any preferential
measures given to residents in competitive public examinations (Decision
no. 158/1969).
To safeguard these freedoms, the Constitution contains a reinforced
statutory limit given the fact that restrictions can only be imposed by law
and only for reasons of public health or safety.
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4. Rights of the Public Sphere
The constitutionally guaranteed freedoms include those actions an
individual carries out in the public sphere, so as to ensure that every one can
freely take part in civil society, the political arena and the management of
the common good.
4.1. Freedom of Assembly
Art. 17, It. Const. protects “citizens’ rights to assemble peacefully” that
is the right to hold a voluntary assembly of individuals who meet at the
same place for the same purpose. Although both are constituted by persons
who have come together for a specific purpose, an assembly differs from an
association. An association is stable whereas an assembly is not. In fact, an
assembly may be a one-off event (for example the public at a concert) while
an association should maintain a certain stability over time so as to achieve
its objectives.
The Constitution provides that an assembly is lawful when it is “peaceful
and unarmed”. These two provisions are similar and complimentary but not
exactly the same. The former is a general warning against events that could
happen during the assembly to upset public order or physically harm the
participants or third parties. The latter also protects the physical integrity of
the participants and third parties, but in addition it has a more specific
importance: it prohibits arms or other weapons that can be used to harm
other persons from being brought to an assembly
Art. 17, It. Const. also distinguishes between two types of assembly,
which are distinctly regulated, according to the place where the meeting is
held. The first type includes meetings in places open to the public and
meetings in private premises. “Open to the public” means any physical
space with boundaries to which the public has access, but in the respect of
certain conditions established by the person who has legitimate enjoyment
of the premise (a theatre or stadium for instance, where only ticket holders
are admitted). Private premises are those places an individual may utilise
privately even if he is not the legitimate owner (his private domicile). The
Constitution provides that a meeting may take place in these places “with no
previous notice required”.
For meetings in a public place open to everyone such as a street or
square the organisers are obliged by law “to give prior notice to the
authorities” three days prior to the event by supplying all necessary
information such as the date, time and purpose as well as personal data and
signatures of the organisers themselves. The obligation to give prior notice
is not a request for authorisation since the authorities have no power of
discretion to decide whether the meeting can take place or not. If there are
“proven reasons of security or public safety”, the authorities
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may forbid it, or if it is underway, break it up. Since prior notice does not
constitute a condition of legitimacy or existence of the meeting, the other
participants do not have to explain their presence there, nor can the meeting
be broken up for this reason but solely for the proven reasons mentioned
above.
4.2. Freedom of Association
Art. 18, It. Const. recognises that “citizens shall have the right to form
associations freely without authorisation for aims not forbidden to
individuals by criminal law”. There are essentially three aspects mentioned in
this provision: the freedom to organise oneself in groups, the freedom to
pursue legitimate aims and the free formation of an association.
The principle of individual freedom is undoubtedly at the basis of the
first aspect, that is the choice whether or not to join an association. In fact
the Constitution protects both the positive form, the liberty to found or join
an association just as much as the negative form, the freedom not to join an
association if one does not wish to do so. The negative aspect of the
freedom of association was inspired by the experience matured under
twenty years of Fascism when the system of trade unions and other
measures such as the obligation to join the Fascist party for public
employees amounted to mandatory associations.
Even under the present system, some limits are placed on the freedom
of association: i.e. registration in professional organisations as a requisite for
exercising a particular profession (the bar association, public accountants
association, etc), sports federations or obligatory consortiums. In these cases
the freedom not to join the association yields to the need to protect the
consumer who has the guarantee that the person he has turned to for
professional advice has the necessary requisites and knowledge.
The Constitution also provides a general limit to the exercise of the
freedom of association “for aims not forbidden to individuals by criminal
law”.
The third aspect, is the free formation of an association, that is, its
members may choose whatever organisational model they wish with no legal
restrictions. The Legislature may impose limits on the basis of other
constitutional provisions for example when a balancing of interests may be
justified if two associations are formed to pursue the same aim, but each
with different requisites.
Art. 18.2, It. Const., instead imposes specific limits and forbids “secret
associations, and those which pursue political aims, even indirectly, by
means of organisations of a military character”.
Secret associations are defined by Art. 1, Law no. 17/1982 as those
associations that pursue political aims in the broad sense of the word, and
interfere with the functions of constitutional bodies or public
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administrations and: i) hide their existence; ii) make their existence known
but not their purpose and aims or iii) keep the identity of members secret
even from one another.
Para-military groups pursue political ends through “the organisation of
its members into corps, divisions or squads with regulations and internal
hierarchical structure analogous to those of the military, even adopting
uniforms and ranks, whose scope is collective actions of violence or
menace” (see Art. 1, Legislative Decree no. 43/1948). These groups are
prohibited 1) so political parties cannot acquire their own paramilitary group
and 2) because their rigidly hierarchical structure excludes democratic
procedure (wearing a uniform is a particularly telling indication).
Both prohibitions have the same rationale behind them, i.e. avoid the
presence of subjects whose characteristics of secrecy or authoritarianism
would not permit public discussion to proceed in a peaceful and democratic
manner, especially in political arenas. This is the reason for Transitory
Provision XII, “it shall be forbidden to re-organise under any form
whatsoever, the dissolved Fascist party”.
4.3. Freedom of Religion and Creed
Art. 19, It. Const. protects religious freedom establishing that “all shall
be entitled to profess their religious beliefs freely in any form, individual or
in association, to promote them, and to celebrate their rites in public or
private, provided that they are not offensive to public morality”.
In first place, this freedom is also guaranteed to aliens. It is particularly
important to remember this today when democracy must allow plural
institutions given that migration of populations on a vast scale brings
persons of different religious faith in contact.
In second place, the article provides for different forms of worship, from
the most private (individual profession of faith, private practice of faith) to
those which foresee collective practice (group profession of faith, exercise
of religious rites in public) as well as those forms such as propaganda
involving subjects which would otherwise be extraneous to it. The examples
provided for the article are sufficiently vast to cover all possible
manifestations of religious faith.
The limit to these manifestations, “provided that they are not offensive
to public morality” establishes on one hand, a negative limit for legislature
because this is the only reason freedom of religion may be restricted, and on
the other, allows ample space for the exercise of freedom of religion thanks
to the Constitutional Court’s interpretation. The Constitutional Court has
established that the mention of public morality in Art. 19, It. Const. does
not necessarily refer to morality or ethics. To the contrary it includes all
those precepts that guarantee “social relationships” (Decision no. 9/1965)
and permit peaceful co-existence of worshippers. Violation of
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this limit may force public security authorities to place restrictions on this
freedom but never preventative measures. On more than one occasion the
Constitutional Court has stated that repressive preventative measures based
on presumed threat deriving from the practice of a particular religion are
unconstitutional.
Art. 19, It. Const. goes hand in hand with Art. 20, It. Const., freedom of
religious associations, which provides that “the religious character and the
religious or confessional aims of an association or institution shall not justify
special legal limitations or special fiscal burdens for its establishment, legal
capacity, or any of its activities”. The intent of these provisions is to avoid
discrimination and different treatment of religious and non-religious
institutions where one could be chosen over the other.
4.4. Freedom of Expression
Art. 21, It. Const. grants “all the right to express their thoughts freely by
speech, in writing, and by all other means of communication”. In the
expression, “all have the right to express their thoughts”, two different
freedoms are safeguarded, one negative and one positive. The negative one
is the freedom to not express one’s thoughts, although there are greater
guarantees for the positive freedom.
There are two parts to the positive freedom; one is active and protects
the freedom of the sender of the message who may freely exercise it; the
other is passive and safeguards potential recipients of the message who have
the freedom to receive information not covered by secrecy or of a binding
reserved nature. Whereas the active freedom is limited by public morality
(compare Const. Court Decision no. 9/1965), freedom to receive
information is restricted by the other person’s privacy. In fact the freedom
to be informed does not mean the right to know all the so-called “sensitive
data” about an individual without his consensus.
With reference instead to information spread by mass media, particular
importance is given the second part of Art. 21, It. Const., which states “that
this freedom may be exercised by speech, in writing, and by all other means
of communication”. The Constitutional Court pointed out that the general
interest of the populace in information should be protected through “plural
sources of information, free access to them, absence of even temporary
unjustified obstacles imposed by law, and the free circulation of notices and
ideas” (Decision no. 105/1972). Now that the Court made the principle of
pluralism of information sources part of Italian law, it has to ensure the
principle has substantial content.
No regulations govern ownership of a means of communication. In
some cases, limited resources such as radio and TV frequencies, and in
others, the expense involved in exercising such a right, i.e., the cost of
running a daily newspaper or a TV station, lead to an inevitable limitation of
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who really can own a media. The Constitution provides that this limitation is
equal for everybody.
According to Art. 21.2, It. Const., “the press shall not be subjected to
any authorisation or censorship”, so it is unconstitutional to apply any
preventive censorship to control newspaper information. However, the
freedom of expression is always controlled by limits of public morality (Art.
21.6, It. Const.) which means respect for common sense of decency.
Furthermore, “the law shall lay down proper provisions for preventing and
repressing all violations”. To protect public morality, repressive measures
are only permitted after public morality has been offended. The principle of
freedom of communication is protected by an absolute, reinforced
constitutional statutory limit and a limit of jurisdiction which provide that
printed material may be “seized only by order of the judiciary, for which the
reason must be stated, in case of offences for which the law governing the
press expressly provides, or in the case of violation of such provisions as the
said law may prescribe for identifying the persons in charge”. “In such
cases, under conditions of absolute urgency and when the immediate
intervention of the judiciary is not possible, periodical publications may be
seized by officers of the judicial police, who shall report immediately to the
judiciary and in any case not beyond 24 hours”.
The fifth paragraph of Art. 21, It. Const. affirms the principle of
transparency, that is, “the law may order, by means of general provisions,
that the financial sources of periodical publications be disclosed”. The
rationale behind the law is to guarantee that financing of the mass media
sector be made public knowledge as a further guarantee of both the
principle of eternal pluralism and the rights of all users to different sources
of information.
The text of Art. 21, It. Const. makes specific reference to printed
publications without explicitly providing regulations for other media. Given
its silence on the matter, it is not possible to extrapolate the regulations for
the press and apply them to other means of communication, which
therefore have to be regulated by primary law sources.
The legislative evolution regulating radio and TV broadcasting has been
long and convoluted. Law no. 112, 3 May 2004, currently in effect,
established new regulations for RAI, the State owned broadcasting system,
new laws regulating digital broadcasting and lastly a new technique for
calculating antitrust limits to guarantee external pluralism.
5. Social Rights
Art. 3.2, It. Const. provides the foundation for State intervention in the
social services sector; “it is the duty of the Republic to remove all economic
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and social obstacles, which, by limiting the freedom and equality of citizens,
prevent the full development of the individual and the participation of all
workers in the political, economic and social organisation of the country”.
5.1. Education
The right to education is provided for by Arts. 33-34, It. Const. The
Constituent Assembly felt that education is essential to developing a
person’s full potential and that it represents a means for him to better his
social position.
The Constitution provides that “schools shall be open to everyone”, so
access to public education is guaranteed not only to citizens, but also to
aliens and “the Republic shall guarantee primary education, given for at least
eight years, and that it is compulsory and free” and it “shall lay down general
rules for education and shall establish public schools of all kinds and
grades”.
The Constitution regulates education along general lines: according to
the provisions of Art. 43.2, It. Const. it must guarantee “compulsory and
free” primary education for at least eight years; instead primary or subprimary laws establish that it is a citizen’s right and duty to attend school.
Once elementary school is finished, the citizen’s obligation to attend school
ceases whereas the Republic’s commitment to guarantee education
continues “since the able and deserving, even if lacking financial resources,
shall have the right to attain the highest grades of learning” (Art. 34.3, It.
Const.).
The Constitution allows “public and private bodies to establish schools
and educational institutions without financial burdens on the State”. “The
law, in laying down the rights and obligations of private schools which
request parity, shall guarantee full liberty to them, and to their pupils,
equality of treatment with the pupils of public schools” (Art. 33.4, It.
Const.).
As regards the subjects taught, there is a second freedom less tied to the
social dimension of the service and more to the freedom of expression. This
is the so-called freedom in teaching, that is the principle sanctioned by the
Constitution with the formula, “the arts and sciences shall be free, and free
shall be their teaching (Art. 33.1, It. Const.). This means that autonomy of
teaching is constitutionally recognised alongside the autonomy of teachers
to determine the contents of what they teach.
5.2. Healthcare
The Constitution requires the “Republic to protect the health as a basic
right of the individual and as an interest of the community” (Art. 32.1, It.
Const.) which means that all persons have a right to healthcare irrespective
of nationality because it is a “fundamental” right.
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There are two different aspects to the freedoms guaranteed in this article:
one is a negative freedom i.e., no medical procedure may be administered
without the patient’s consent. The other is positive and even more specific,
the principle of freedom of treatment. This means the right to choose one’s
doctor and the right to an informed consent that is, a doctor must explain
the procedure to the patient and obtain his informed consent before
beginning any treatment. In case of emergency there are exceptions to these
regulations.
Healthcare is also regulated by law as a social right; the Constitution
declares that the Republic “shall grant free medical care to the poor” (Art.
32.1, It. Const.). Although free medical care is guaranteed to low income
citizens, not all of them have the right to free healthcare, to the contrary of
what is provided for public education that is free for everyone. Because
healthcare is the most costly service the State must provide, citizens have
different treatment options according to provisions of law in effect. Certain
treatments are provided free, others require a co-payment by the patient,
and still others, require full payment by the patient.
5.3. Welfare
Art. 38, It. Const. guarantees two different principles: paragraph 1, “all
citizens unable to work and lacking the resources necessary for their
existence shall be entitles to private and social assistance”, and paragraph 2,
“workers shall be entitles to adequate insurance for their needs in case of
accident, illness, disability, old age and involuntary unemployment”.
These two provisions are typical of a Welfare State which safeguards the
worker and the citizen unable to work by providing welfare for them, but
also labour in general by ensuring fair wages for work (Art. 36.1, It. Const.).
To protect the principles of pursuit of equal social status (Art. 3.1, It.
Const.), a social welfare system must be organised and “entrusted to public
bodies and institutions established or supplemented by the State” (Art. 38.4,
It. Const.).
Welfare assistance is not attributed exclusively to the State. Private
parties may provide this service through forms of protection offered by
private institutions. In fact, Art. 38.5, It. Const. provides that “private
welfare work shall be free”.
5.4. Housing
The Italian Constitution does not expressly or implicitly mention
adequate housing as a right. Nevertheless both ordinary and constitutional
law and legal scholarship have argued that the right to housing can be
inferred from other general principles of the Constitution, in particular from
Art. 2, It. Const. Such an extensive and “modern” interpretation is a
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significant example of how the Constitution’s flexibility allows it to adapt to
new needs deriving from social change without continuous amendments.
At the beginning of the 1980s ordinary case law and some legal scholars
held that the right to housing was a perfect subjective right, and on the basis
of the French and German experience, intended to give it greater guarantees
that those given a landlord. The supporters of this position felt that the
provisions of Art. 2, It. Const. implicitly included the right to housing
among those fundamental rights guaranteed by the Constitution. However
the Constitutional Court did not approve this position, and after several
judgments in the opposite direction in recent years, the Constitutional Court
finally recognised that the right to housing should be considered “among
the essential requisites of society to which the democratic State created by
the Constitution, conforms” (Decision no. 217/1988), implying that the
right to housing must be recognised so the Constitution’s master plan can
be fulfilled.
This is a significant example of how “new rights” emerge and are
protected. The Constitution contains many open clauses and expressions of
principles (the recognition of inviolable human rights in Art. 2, It. Const. for
example) but it is up to ordinary judges, constitutional judges, legal scholars,
etc. to determine how they are to be interpreted.
6. Economic Rights
The part of the Constitution dedicated to economic rights, the so-called
Economic Constitution, has always been one of the most controversial for
Italian constitutional law. The formulation of Title III in fact is the result of
a balancing of interests among the three principle representatives at the
Constituent Assembly, the Christian Democrats, the Communists and the
Socialists; the difficult mediation, given the three different political
orientations, produced a text whose provisions, open to more than one
interpretation, are not fully applied even today.
At first, the provisions in question were interpreted as ulterior
specifications of the principle of equality in Art. 3, It. Const. “it is the duty
of the Republic to remove all economic and social obstacles, which, by
limiting the freedom and equality of citizens, prevent the full development
of the individual and the participation of all workers in the political,
economic and social organisation of the country”.
From this theoretical interpretation derive a series of consequences: the
intervention of public power in the economic sector, in the name of the
principle of equality would have justified practically any type of State
intervention, even restricting personal freedom; private property would have
been possible only in the name of social equality. To the same extent, the
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enjoyment of all economic freedoms, both individual such as the ownership
of equipment and general such as competition and free market, would have
been severely restricted because social needs protected by the Constitution
would prevail over them.
Starting in the 1970s, this vision was discarded in favour of the
mechanism of a Welfare State and supra-national Community law, created
to protect economic rights among others. Since the role of the State in the
economic market is significantly less important now because of these two
systems, in particular Community law, the safeguard of competition and the
freedom of market have become the State’s principle task in economic
matters. At the same time, the State focuses on regulating the economy,
balancing public finance and monetary stability.
This is why Title III and individual economic rights must be looked at in
a different light so they can be conciliated with European rights. The
influence of Community law on domestic Italian law is such that legislative
power for economic rights has been taken away from national legislation
and given to a higher level, the European Community, thus altering
equilibrium with respect to the Constituent Assembly’s original intentions.
6.1. Right to Property
Art. 42.1 establishes that “property may be public or private”, and in
paragraph 2, the Constitution puts a statutory limit on how it may be
acquired and enjoyed, “in order to ensure its social function and to make it
open to all”. However if during the first decades the Constitution was in
effect, this never led to restrictions on the unconditional enjoyment of
private property, in the light of Italy’s membership in the EU, this right
must be interpreted in a less extensive manner: the law may not institute a
policy for the acquisition and enjoyment of private property which is
prejudicial to other guaranteed constitutional rights.
In addition to the above-illustrated statutory limit, the Constitution
provides for another limit to private property, expropriation. In fact, Art.
42.3, It. Const. states that “private property, in such cases as are provided
for by law, and with payment of compensation, may be expropriated for
reasons of common interest”.
The power to proceed to expropriation at first recognised only to the
State, is now attributed to Regions, Provinces and Municipalities which may
take the necessary steps for expropriation in many ways, usually a
declaration that the property to be expropriated is of common interest.
Compensation is the counteroffer to the subject who has his rights to the
expropriated goods restricted. The Constitutional Court has considerable case
law on expropriation because it is often called to sanction the illegitimacy of
measures that did not assign just compensation for expropriated property. This
means that the subject who has his property expropriated has the right to
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compensation which on one hand, is not the same amount as if the property
were sold on the market, but on the other, must have more than just a
symbolic or negligible value so as to “satisfy” the subject who has to
relinquish his property (Const. Court Decision no. 5/1980).
Expropriation, even with all the guarantees provided for, represents the
classic example of a situation where common interest prevails over
individual rights.
6.2. Freedom of Enterprise
Exercise of economic enterprise “is free” (Art. 41.1, It. Const.) and “it
shall not be carried out against the common good or in a way that may harm
public security, liberty and human dignity” (Art. 41.2, It. Const.).
Even in this case, the compromise between liberal viewpoints and public
regulation of the economy is evident, with the pointer on the scale tending
more towards public regulation than it does for other freedoms. Art. 41.3,
It. Const. imposes a statutory limit, “the law shall determine appropriate
planning and controls so that public and private economic activities may be
directed and coordinated towards social ends”.
With the guarantee of these freedoms, the private person is free to
undertake any economic activity whatsoever, unless legislation has imposed
specific restrictions, for example a license, to protect lawful claims typically
of consumers. The freedom of enterprise may be restricted if in the
balancing of interests, it has less dignity.
Today Art. 41, It. Const. is interpreted as a fundamental right to freedom
of competition where each business entity may have access to the free
market and carry out its activity on equal footing with its competitors under
equal conditions.
6.3. The Market and Competition
Whereas the Italian Constitution protects the freedom of enterprise, it
does not protect the freedom of competition understood as the freedom of
business entities to operate in the market under equal conditions.
Nevertheless this freedom has entered Italian law through Community
law, which at the highest level i.e. the Treaty agreements, makes competition
one of its basic freedoms. Because of its membership in the Community,
Italy has had to adopt a series of instruments suitable to safeguard equality
among competitors in the market and prohibit conditions that could alter it.
Together with other EU countries, Italy has approved laws rendering
illegitimate certain behaviours considered anti-competition by Community
law (for example, cartels, collusion, price fixing) and in general all so-called
“abusive practices” that alter the market and the right of business entities to
enter it and compete under conditions of parity. At the same time, various
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independent Authorities have been instituted to control that these laws are
not violated (see Chapter Six).
Unfortunately in addition to the tardiness with which these instruments
were adopted, another problem exists, that is the disharmony and
multiplicity of the laws. Alongside regulations on general competition
adopted with Law no. 287, 10 October 1990, which prohibits agreements
that restrict freedom of competition, the abuse of dominant position and
concentrations, others have been issued which regulate specific sectors of
considerable interest such as mass communication, the press, radio and TV
advertising, and credit.
Art. 1, Law no. 287/1990 explicitly recognises the prevalence of
Community law in competition. The regulations introduced by the law in
question are applicable to cases “which do not come under the jurisdiction
of Community law” (paragraph 1) or “the principles of Community law on
competition” (paragraph 4). Domestic Italian law has been introduced as a
residual regulation with respect to Community law and Community
principles are such that they complete domestic law when it has gaps in the
specific subject matter.
To guarantee competition and the market as well as the respect of
regulations governing them, the above-mentioned law has instituted an
independent Authority, for brevity’s sake, known as the Antitrust Authority,
like its American counterpart of the same name. It is composed of five
members each of whom has a particular competence, appointed for a single
term of seven years by the Presidents of both Chambers to guarantee its
independence from government politics (also see Chapter Six).
To protect the market and competition in the most efficient way
possible, two different sets of control procedures are applied depending on
whether the abusive practice is concentrations or an agreement to restrict
freedom of competition and abuse of dominant position (see Law no.
287/1990).
6.4. Trade Union Rights
Trade union freedom is protected by the Constitution because it is a
collective reflection of the freedom to work, elevated to a fundamental
principle under the provisions of Art. 1, It. Const., whereas trade union
rights are protected under Art. 39, It. Const., even though most of its
provisions have never been applied. For example, Art. 39.2, It. Const.
provided for a central trade union registration office, but at a constitutional
level the mechanism for instituting the registry was somehow blocked, and
the law was never approved.
Since it is not obligatory to register trade unions, all the other effects
provided for by the Constitution connected to fulfilling this obligation, are
not enforceable. In fact, paragraph 4 of the above-mentioned article
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provided that “registered trade unions shall be legal persons. Being
represented in proportion to the number of their registered members, they
may jointly enter into collective labour contracts”.
Trade unions cannot be legal persons since they are not registered, hence
collective labour contracts cannot be automatically applied to “all those who
belong to the industry to which said contracts refer” (Art. 39.4, It. Const.).
In fact, given the present situation, labour unions are nothing more than unrecognised associations and the contracts they subscribe have no erga omnes
effect.
The original intentions of the Constituent Assembly have been partially
recuperated in practice, so that non-union workers have the right to the
same work and wage conditions provided for in collective labour union
contracts.
7. Political Rights
All lawful claims protected by the Constitution so each individual may
participate in the civil, political and public life of the country, are considered
political rights.
Art. 48, It. Const. sanctions voting rights, “all citizens, men or women,
who have attained their majority shall be entitled to vote”, which means that
the right to vote is granted to citizens, but not to aliens. Recently
Community law has greatly influenced this; in fact, Art. 19 of the founding
Treaties recognises active and passive electoral rights of all European
citizens in local elections in the territory where they reside regardless of
citizenship.
To guarantee each elector’s freedom of expression, the Constitution
provides that “votes shall be personal and equal, free and secret”. However
there are no material consequences for the failure to exercise one’s right to
vote, even though “to vote is a civil duty” (Art. 48.2, It. Const.).
The article goes on to provide for a statutory limit, “the law shall
establish under which conditions and in which ways the citizens who reside
abroad may effectively exercise their right to vote. To this end a
constituency of the Italians abroad is established for the election of the
Chambers, to which a number of seats shall be assigned by constitutional
law in accordance to criteria determined by law”.
Art. 49, It. Const. provides that “all citizens shall have the right to
associate freely in political parties in order to contribute by democratic
means to the determination of national policy”. According to some authors,
this provision calls for a statutory limit whereby political parties should
follow the principles of democracy in their internal organisation, but again
this is a provision that was never implemented.
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The constitutional regulation of political parties is the direct expression
of the principle of political representation and mediated democracy and the
principle of popular sovereignty. The Constitution assigns political parties
the function “to contribute by democratic means to the determination of
national policy” that is to gather together personal political opinions and
“channel” them into larger organisations so their existence can be
recognised and protected. In mediated democracy political parties act as a
channel for mediation between the populace and parliamentary
representatives. In fact, Italian law specifies that parliamentary members
represent the country as a whole and not each of its electorate’s interests, so
there is no possibility of a peremptory mandate in which the parliament
members are obliged to vote according to the wishes of the electors who
voted for him.
Mediated democracy is partially mitigated by the provisions of Art. 50, It.
Const., “all citizens shall have the right to petition the Chambers demanding
legislative measures or setting forth general needs”.
Lastly, Art. 51, It. Const. establishes the principle of access to “public
offices and elective positions in conditions of equality” with a reinforced
content statutory limit determining the requisites for office since “equal
chances must be promoted for men and women”.
8. Constitutional Duties
Art. 2, It. Const. “requires the performance of imperative political,
economic and social duties”. There are two concepts in this article; one, it
provides for duties as well as rights of the citizen and two, it specifies the
scope of the duties. In a liberal state in fact, any restriction of citizen’s
freedom is admissible only if justified by an interest greater than that of the
individual.
The most immediate example is that provided for by Art. 53.1, It.
Const., “all shall contribute to public expenditure in proportion to their
resources”. This means that citizens as well as residents are obliged to pay
the State a part of their income to help finance public services. In fact, the
next paragraph provides that “the taxation system shall conform to the
principle of progressivity”, meaning above a certain level, those who have
higher incomes pay proportionately higher taxes. In a substantial sense, this
provision applies the principle of equality.
Less topical now are the provisions of Art. 52, It. Const., “the defence of
the country is the sacred duty of every citizen”. Until 2005 military service
was mandatory and all males were drafted for eighteen months, later
reduced to twelve months. Although Italian armed forces are presently
composed only of career military, in case of particular and extraordinary
necessity, all citizens may be called to arms.
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Art. 59, It. Const. establishes two obligations: “all citizens shall have the
duty to be loyal to the Republic and to comply with the Constitution and
the laws”. The second of the two is binding for citizens, resident aliens and
even tourists no matter how long they stay in Italy. More controversial is the
extension of the first part. Some authors feel it only regards citizens,
whereas others feel it regards everyone. The solution to the dilemma
depends on how the provision is interpreted. If it means a “spiritual”
obligation signifying the belonging to a community, then it probably cannot
be imposed on non-citizens because there would be no way to impose its
respect or sanction violations. If, to the contrary, the expression is a
hendiadys, the obligation of loyalty and respect of the law can be imposed
on citizens and aliens who sojourn in Italy alike.
“It shall be the duty and right of parents to support, instruct and educate
their children, including those born out of wedlock” (Art. 30.1, It. Const.).
This duty is quite different than others illustrated above because it only
benefits specific individuals and not the entire community although the
difference is not such that it contradicts this category. In the first place the
duty provided for by Art. 30 It. Const. is part of those provisions by which
the Constitution and Italian law safeguard the family and children in general,
and minors in particular; this alone, aside from its ethically relevant aspect,
would justify the introduction of another special category of constitutional
duties. Secondly, that the scope of this article to attain legal and social
protection for individual children, but not provide safeguards all society can
enjoy, is true in appearance only, since exercise of this duty can count on the
help of those forms of intergenerational solidarity mentioned at the
beginning of this chapter.
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LIST OF CONTRIBUTORS
Lorenzo Cuocolo is Associate Professor of Comparative
Public Law in the Faculty of Economics of the Bocconi University,
Milan.
Giuseppe Franco Ferrari is Full Professor of Comparative
Public Law in the Faculty of Economics of the Bocconi University,
Milan and Chief Editor of the comparative law review Diritto pubblico
comparato ed europeo.
Justin Orlando Frosini is Lecturer of Public Law in the
Faculty of Economics of the Bocconi University, Milan and Director
of the Center for Constitutional Studies and Democratic
Development, Bologna.
Oreste Pollicino is Associate Professor of Comparative Public
Law in the Faculty of Economics of the Bocconi University, Milan.
Antonello Tarzia is Research Fellow of Public Law and
Regulation in Economics in the Faculty of Economics of the Bocconi
University, Milan.
Arianna Vedaschi is Associate Professor of Comparative
Public Law in the Faculty of Economics of the Bocconi University,
Milan.
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