Professional Documents
Culture Documents
Book Law 2
Book Law 2
Book Law 2
TABLE OF CONTENTS
PREFACE p.iXIII
CHAPTER ONE
CHARACTERISTICS OF THE STATE
Giuseppe Franco Ferrari
CHAPTER TWO
TRENDS IN THE DEVELOPMENT OF THE ITALIAN STATE
Giuseppe Franco Ferrari
1. Premise p. 21
2. Globalisation and Multi-level Constitutionalism » 24
3. State and International Law: Alternative Solutions and the
Italian Option » 26
4. The European Legal Order and its Historical Development » 28
CHAPTER THREE
FORMS OF STATE AND FORMS OF GOVERNMENT
Justin Orlando Frosini
1. Terminological Premise p. 31
CHAPTER FOUR
PARLIAMENT
Lorenzo Cuocolo
CHAPTER FIVE
THE GOVERNMENT
Antonello Tarzia
CHAPTER SIX
PUBLIC ADMINISTRATION
Antonello Tarzia
CHAPTER SEVEN
THE REGIONS
Lorenzo Cuocolo
CHAPTER EIGHT
THE PRESIDENT OF THE REPUBLIC
Oreste Pollicino
CHAPTER NINE
THE JUDICIARY
Oreste Pollicino
CHAPTER TEN
CONSTITUTIONAL JUSTICE
Justin Orlando Frosini
TABLE OF CONTENTS IX
CHAPTER ELEVEN
ITALIAN SOURCES OF LAW
Arianna Vedaschi
CHAPTER TWELVE
REGIONAL AND LOCAL GOVERNMENT SOURCES OF LAW
Arianna Vedaschi
CHAPTER THIRTEEN
EUROPEAN SOURCES OF LAW AND THEIR RELATIONSHIP
WITH DOMESTIC SOURCES OF LAW
Arianna Vedaschi
CHAPTER FOURTEEN
FUNDAMENTAL RIGHTS AND FREEDOMS
Giuseppe Franco Ferrari
TABLE OF CONTENTS XI
PREFACE
G.F.F.
CHAPTER ONE
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.
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
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
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).
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
5. People
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
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
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
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
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.
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
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 for-
profit 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.
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.
CHAPTER TWO
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
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
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.
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.
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).
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.
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.
CHAPTER THREE
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
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).
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).
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.
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.
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.
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. Baden-
Württemberg 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.
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 sub-
state 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.
CHAPTER FOUR
PARLIAMENT
LORENZO CUOCOLO
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
PARLIAMENT 59
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 twenty-
five 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
PARLIAMENT 61
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.
PARLIAMENT 63
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 State-
controlled 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.
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 so-
called “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
PARLIAMENT 67
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).
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
PARLIAMENT 69
that fewer legal protections might be available for the latter in comparison
to those provided for other employees.
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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CHAPTER FIVE
THE GOVERNMENT
ANTONELLO TARZIA
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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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.
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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,
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
THE GOVERNMENT 87
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 anti-racket
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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documents, budgets, financial forecasts, decree laws for annual and long-term
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).
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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CHAPTER SIX
PUBLIC ADMINISTRATION
ANTONELLO TARZIA
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
PUBLIC ADMINISTRATION 99
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
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.
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 non-State 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
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).
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 non-fulfilment, 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
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 citizen-
administration 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.
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
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.
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).
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 non-
existence 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,
the essential elements are (compare Council of State, Section VI no. 948, 14-
7-1999) 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
exist where administrative action is binding and the contents of the acts pre-
determined. 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.
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.
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
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
CHAPTER SEVEN
THE REGIONS
LORENZO CUOCOLO
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
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 “unreformed-
Constitutional 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.
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 three-
month 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
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
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
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.
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
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.
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.
CHAPTER EIGHT
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.
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.
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.).
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
8) shall confer the honours of the Republic (Art. 87, It. Const.).
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.).
5.2.4. 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
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 politico-
institutional 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.
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.
CHAPTER NINE
THE JUDICIARY
ORESTE POLLICINO
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.
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 joint-
session 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).
uniform interpretation of the law, the unity of national law and the respect
of the limits of the different jurisdictions”.
CHAPTER TEN
CONSTITUTIONAL JUSTICE
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.
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
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.
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).
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 so-
called 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.
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.
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.
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”.
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.
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
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
CHAPTER ELEVEN
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.
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.
1.3.1. 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.
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.
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.
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
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.
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
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.
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.
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
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.
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.
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.
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 so-
called 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
CHAPTER TWELVE
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.
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).
1.2.1. 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.
More specifically, given the special procedure for its approval, Statutes can
also be defined as entrenched regional laws (Const. Court Decision
304/2002).
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 land-
use 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
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)
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).
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.).
CHAPTER THIRTEEN
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.
CHAPTER FOURTEEN
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.
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.
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.
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.
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”.
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.
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
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 sub-
primary 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.
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
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
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.
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).
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.
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.
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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