Intergovernmental relations in Italy: State-Regions-Autonomous Provinces Conference

AutorEleonora Ceccherini
Páginas216-238

Page 217

I Introduction

The importance of State-Regions relations within composite legal orders became evident as soon as it was understood that any significant government activity requested the combined and coordinated effort of both central State and territorial autonomies (Carrozza 1989).

From a comparative point of view, the methods used to achieve said cooperation are various: for example, by introducing a territorial Chamber, by participating to joint bodies, by intervening in the legislative and administrative proceedings with proposals, opinions, industry standard agreements.

In spite of the constitutional reform performed by Constitutional Law n.3 of 2001, which lead to a significant increase in regional functions, the issue of actual regional participation to the definition of the State’s political agenda has not yet been thoroughly considered. Even if the 2001 reform brought about several remarkable changes, especially with regard to the duties and functions of Regions, it did not operate a systematic review of the instruments promoting greater correlation and participation between the different institutional levels that constitute the Italian Republic (Rolla 2003).

More precisely, no answer has yet been provided to the possibility of establishing a Senate specifically representing all autonomies: the solution to this institutional conundrum has been left to a future constitutional reform. However, in many foreign legal orders, this question represents the heart of all debate concerning the involvement of decentralized institutional levels: generally, the main opinion is in favor of the regionalization (or federalization) of at least one legislative body of the central State (De Vergottini 1990).

As a result of the Italian legislator’s inactivity on the matter, as it was deemed a challenge of demanding “political and parliamentary practicability” (Cerulli Irelli 2001), thePage 218 issue of State-Regions relations has been approached using the instrument of Conferences. These consists of the permanent State-Regions-Autonomous Provinces Conference (hereinafter, State-Regions Conference), the State-Municipalities-Local Autonomies Conference and finally, the State-Regions-Autonomous Provinces-Municipalities-Local Autonomies Conference, also known as unified Conference.

Said joint bodies are regulated by legislative decree n.281 of 1997; they are composed of representatives of the central, as well as of the regional and local executive power. As a consequence, the Italian model for central-local relations has been set by the gradual assimilation of intergovernmental relations, and more exactly, through a process of involvement associated with interstate regionalism (a mechanism ensuring the representation of sub-national interests using intergovernmental negotiation), rather than to intrastate federalism (according to which regional interests are considered and recognized on account of the activity of central institutions, such as, for example, the Upper House).

II The rationale behind the creation of new liaison organizations: cooperative regionalism

As composite legal orders gradually evolved, it became clearer that arranging for the devolution of competence merely in view of a constitutional catalogue of functions could not adequately ensure the recognition of distinct areas of expertise.

In the beginning, the first stages of the Italian regional experience concerning the relations between the central government and regional authorities were shaped by a separatist theory, according to which autonomy would follow upon precise definition of material competence and functions. In particular, the leading interpretation of Title V, part II of the Constitution expressed a preference for diversity, rather than for integration. And in fact, certain constitutional provisions were ultimately ignored, and specifically, those emphasizing the need to coordinate the respective areas of competence, instead of those emphasizing the need to safeguard the existing differences.

However, an abrupt shift inverted the direction of the regionalist development as it reached its peak: the opinion matured by the Constitutional Court, the spirit of the legislative evolution affecting relations between State and Regions, as well as the reviews on the matter formulated by several legal commentators all contributed to the definition of a new model for central-regional relations, founded on the principle of collaboration (the so-called ‘cooperative regionalism’). Said principle is based on the assumption that the activities constituting areas of exclusive competence of any one of the governmental levels are limited.

Cooperative regionalism was favored by the concurrent introduction of the principle of fair collaboration, as developed by the Constitutional Court: on different occasions following ruling n.64 of 1987, the Court held that said principle constitutes the foundation ofPage 219 State-Regions relations, in keeping with which all relations between the different institutional levels must be structured (Bilancia 2001).

Specifically, in decision n.242 of 1997, the same Court argued that “the principle of fair collaboration (...) must govern the relations between State and Regions in the areas and in relation to the activities in which they either possess concurrent competence, or their competence overlaps, thus requiring a balancing of interests (...) Said rule, which enunciates a fundamental constitutional principle in keeping with which the Republic, when protecting its unity, “recognizes and acknowledges local autonomies” (Article 5 of the Constitution), does more than merely arrange for a constitutional devolution of competence limited to subject matter, as it provides for the entire range of institutional relations between State and Regions”.

The Court reiterated its opinion in ruling n.341 of 1996, as it held that “the duty of fairness, which must shape all relations between State and Regions, intrinsically affects the areas of expertise in which the two institutional levels reciprocally influence each other’s functions, that is when one level may not exercise its authority because the other has failed to perform its duties. It therefore becomes essential, when considering an autonomy-based system, to draw on the beneficial, composing effect of an instrument based on the distinction and enunciation of differing competence, but more so, at times, on their interference and reciprocal connection. And this is precisely the essential purpose of the principle of fair collaboration: it is for this reason that it operates not only, albeit fundamentally, in a political-constitutional dimension, given that even before defining the reciprocal legal standing of both State and Regions, it actually delineates the context in which their relations must be carried out.”

Also, anytime the content of a measure is to be defined by way of an agreement, the Constitutional Court underlined the need to promote regional involvement whenever said measure appears to interfere with regional competence (decisions n.747 of 1988, n.186 of 1989, n.444 of 1994, n.389 of 1995, n.207 and 289 of 1996, n.393 of 1999)(Anzon 1998). In keeping with the principle of fair collaboration, all the different institutional levels must in fact be involved in an effort to codetermine the content of the act subject to agreement. In order to do so, they must be made aware of alternative and substitutive mechanisms aimed at overcoming any obstructionist position.

However, even absent any specific provisions on the matter, the duty to reach an agreement must not degenerate to a mere non-binding advisory activity (Constitutional Court decision n. 351 of 1991) (D’Atena 1991). Also, should the State deviate from the content of the agreement, it must provide adequate reasons, which constitute the “minimum requirement validating the State’s unilateral decision” (Constitutional Court decision n.116 of 1994). Recently (Constitutional Court decision n.232 of 2004), the principle of fair collaboration has expanded to incorporate the possibility of invalidating a state-adopted measure (in the specific case, it concerned a measure of the Italian Interministerial Committee on Economic Planning,Page 220 known as CIPE) as it had been approved without allowing for the suggestions submitted by the Region in which the measure was to be implemented (Raggiu 2004).

Moreover, fair collaboration can also be ensured when making use of national reference centers, working as informational and technical interface (Constitutional Court decision n.270/1998) or when the State avails itself of subordinate offices within autonomous provinces (Constitutional Court decision n.483/2001).

It is evident that the Constitutional Court introduced said principle not only to strengthen a specific model of relations based on cooperative regionalism, but also to provide greater safeguards, limiting the State’s ability to unilaterally alter the competence awarded to Regions.

On this matter, it must be noted that the Constitutional judge made a significant effort to introduce procedures aimed at harmonizing state-based activity and regional competence. In fact, it struggled to balance two different objectives: on one hand, to ensure the effectiveness of the State’s involvement, in order to avoid any case of inactivity or legal vacuum; on the other, it tried to bypass any decision that...

Para continuar leyendo

Solicita tu prueba

VLEX utiliza cookies de inicio de sesión para aportarte una mejor experiencia de navegación. Si haces click en 'Aceptar' o continúas navegando por esta web consideramos que aceptas nuestra política de cookies. ACEPTAR