CONCLUSION
European integration has in one way or another provoked (directly or indirectly) constitutional changes in its Member States in favour of the subnational units. These changes vary significantly between and within the Member States.
Their level and efficiency depend mainly on the constitutional position of the sub-national units, which includes not only constitutional status but also extra-constitutional factors. In general, the status of the regions in the EU essentially depends on channels of intergovernmental coordination established within the State. Indeed, sub-national units have succeeded in claiming a role in European affairs only through the States. In various ways sub-national units have gained some form of access to EU decision making within their respective Member States. The mechanisms consist of functional rules and institutions of interest reconciliation and conflict resolution that maintain the Member States’ ability to speak and negotiate with one voice in Brussels. Moreover, the formalization of the changes does not automatically mean more efficiency. A high degree of formalization does not guarantee the smooth operation of domestic coordination mechanisms in EU matters. Pragmatic solutions based on a climate of mutual trust and informal patterns of close working relations between central and regional governments, as in Austria and the United Kingdom, allow for much more flexibility when looking for common ground in European affairs. Nevertheless, other experiences of central-regional distrust should warn against an over-reliance on informal practices.In the case of Italian reform, which has been analyzed in more detail in this chapter, the following points can be highlighted. In a certain way, some changes recently implemented seem to be drawn from previous EU experiences and may be defined as a kind of “horizontal effect” of sub-national initiatives beyond the subnational units’ own borders.49 However, there are many more steps to be taken before we can call this a complete reform.
From a substantive point of view, the principle of fair co-operation (in both vertical and horizontal directions) inspires the relationship between national and regional levels. Indeed, top-down and bottom-up perspectives are both characterized by a co-operation system. The consultation-negotiation model, especially through the Conference System, appears to be increasingly formalized. In fact, it seems to be more formal than effective. Looking in more detail at the top-down pressures, we have seen that there is a great degree of confusion with regard to the allocation of competences. This is generating a number of cases before the Italian Constitutional Court in order to define the boundaries of sub-national constitutional space. Moreover, in spite of the changes, many tools, such as the State’s substitution power when regional authorities fail to implement European obligations, empower the central government, and as a consequence regional autonomy appears to be reduced in EU affairs. Thus, in fields driven by EU law the legal-litigation model prevails, even though the cooperative model is being increasingly adopted.With regard to bottom-up pressures, the Italian regions have secured a role in the decision-making process alongside the central government. The Italian legislation seems to adopt the consultation model to a greater degree, establishing specific mechanisms of intergovernmental coordination. Nevertheless, the participation of the Italian regions in EU decision making must be described as at best sporadic. The involvement of regional parliaments as well is far from being effective. As already illustrated, even the early warning system provided in the Lisbon Treaty is far from resolving the question, as proved by the debate that is already taking place within some Member States. In brief, the Italian regions have not succeeded in breaching central-state monopoly control over European decision-making; that is, they do not seem to have occupied the constitutional space available to them.
Finally, in order to complete the description of the framework with regard to some specific situations, this chapter has referred to a network dimension. This complementary and comprehensive perspective, based on a cooperative approach, seems to be the best way to capture the relationship between the EU, the Member States, and the regions, passing beyond a formal dimension and a strict distinction between the top-down and the bottom-up pressures. Among other examples, as we have already seen in the field of the structural funds, the regions seem to be able to connect with the European Commission, acting as an administrative European authority for community goals, irrespective of their constitutional space within the Member States.
1 See Francesco Palermo, this volume, chap. 11.
2 Charlie Jeffery, “Sub-national Mobilization and European Integration” Journal of Common Market Studies 38 (2000).
3 Liesbet Hooghe, Cohesion Policy and European Integration (Oxford: Clarendon Press 1996).
4 See Stephen Weatherill, “The Challenge of the Regional Dimension in the European Union,” in Stephen Weatherhill and Ulf Bernitz, eds., The Role of Regions and Sub-nationals Actors in Europe (Oxford: Hart 2005).
5 Sergio Bartole, “Europa e Regioni,” in Roberto Scarciglia, ed., Unione europea e autonomie regionali Prospettive per una Costituzione europea, Atti del Convegno di Trieste del 18–19 ottobre 2002 (Torino: Giappichelli 2003), 3–9.
6 Case C-95/97, Region Wallon v. Commission (1997), ECR I-1787.
7 Cases C-227, 228, 229 and 230/85, Commission v. Belgium (1988), ECR 1; Case C-33/90, Commission v. Italy (1991), ECR I-5987; Case C-211/91, Commission v. Belgium (1992), ECR I -6757; Case C-388/01, Commission v. Italy (2003), ECR, I-721, recently, case C-573/08, Commission v. Italy.
8 See an analysis of the principle in Ornella Porchia, Principi dell’ordinamento europeo: La cooperazione pluridirezionale (Bologna: Zanichelli 2008).
9 See Case C-2/88, Zwartveld (1990), ECR I-3365; Case T-16/90, Panagiotopoulou (1990), ECR, II-89; case C-94/00, Roquette Frères (2002), ECR I-9011.
10 The first rules directed towards the regions can be found in Article 107 (3) TFEU (former Article 87 EC) in the field of state aid law. Then the treaty included regional policy (Articles 174–8 TFEU, formerly 158–62 EC). With the adoption of the European Union Treaty, Article 203 EC (now Article 16 paragraph 2 TEU) has been modified in order to permit the participation of the regional representative in the EU Council. Moreover, Article 305 TFEU (former Article 263 EC) refers to the Committee of the Regions. Finally and above all, according to the new Article 3, paragraph 3 TEU, the European Union “shall promote economic, social and territorial cohesion, and solidarity among Member States.”
11 Commission Communication, “Towards a Reinforced Culture of Consultation and Dialogue – General Principles and Minimum Standards for Consultation of Interested Parties,” COM (2002), 704; Commission Communication, “Dialogue with Associations of Regional and Local Authorities on the Formulation of European Union Policy,” COM (2003) 811 final.
12 I do not intend to refer to the debate about so-called multi-level governance (e.g., Gary Marks, Liesbet Hooghe, and Kermit Blank, “European Integration and the State,” EUI Working Papers RSC 95/6). I use the expression “network perspective” only with regard to some specific situations that cannot be explained in a formal way on the basis of traditional principles and that go beyond a strict distinction between top-down and bottom-up perspectives.
13 See the judgments of the Italian Constitutional Court, n. 126/96 and, after the reform of Title V of the Constitution, n. 526/2002.
14 See Italian Constitutional Court, n. 536/2002. The competence in the field of the environment is very problematic, which justifies the large number of cases before the Constitutional Court and the European Court of Justice.
15 See Hans Smit and Peter Herzog, The Law of the European Community: A Commentary on the EEC Treaty (Article 6 EU) (New York: Matthew Bender 1976).
16 See Annual Report 2007, from the Government to Parliament.
17 Law n. 11 of 4 February 2005, enacting the “general provisions governing Italy’s participation in the European Union’s legislative process and procedures for complying with Community obligations.” Its reform is now in progress.
18 Case C-503/06 R, Commission v. Italy (2007), ECR I-1; recently, case C-573/08 R, Commissione c. Italia.
19 Commission Communication, “Application of Article 228 of the EC Treaty,” SEC (2005) 1658, recently amended by SEC (2010) 923/3.
20 Action for constitutional legitimacy, 6 March 2007, No. 13 of the Autonomous Province of Trento, G. U. series Corte Cost. No. 13, 28 March 2007.
21 Jeffery, “Sub-national Mobilization,” 14. According to Jeffery, three points seem especially important: “(a) internal administrative adaptation to (the) environment; (b) leadership; and (c) strategies of coalition-building which lend support to SNA European policy interests.”
22 Jeffery, “Sub-national Mobilization,” 17. According to the author “the question is one of the extent to which the territorial space which SNAs formally represent also constitutes a civil society.”
23 Jeffery, “Regions and the European Union,” 36; Nergelius, The Committee of the Regions Today, 119.
24 Jeffery, “Regions and the European Union,” 44.
25 Andy Smith, “L’echelon infraregional: Lieu privilegie des fonds structurels?” in Patrick Le Gales and Christian Lequesne, eds., Les paradoxes des regions en Europe (Paris: La Decouverte 1997), 57–63; Alessandro Alfieri, “I rapporti con le istituzioni dell’Unione europea,” in Alessandro Alfieri, ed., La politica estera delle Regioni (Bologna: Il Mulino 2004), 115–16.
26 See for example, Giovanni Luchena, “Gli uffici regionali di collegamento con l’Unione europea nella tutela degli ‘interessi territoriali, ’” in Michele Buquicchio, ed., Studi sui rapporti internazionali e comunitari delle Regioni (Bari: Cacucci 2004), 222; Vittorino Rodaro, “La sussidiarietà applicata: regioni, stati, Unione europea.
Le attività degli uffici regionali di collegamento a Bruxelles,” in Anna Camper and Peter Buβjäger, eds., La Sussidiarietà Applicata: Regioni, Stati, Unione europea (Wien: Braumüller 2006), 208–12.27 Jeffery, above, note 2, 5.
28 Weatherill, “The Challenge of the Regional Dimension,” 19.
29 Jeffery, above, note 2, 5.
30 Michael Morass, “Austria: The case of Federal Newcomer in European Union Politics,” in Charlie Jeffery, ed., The Regional Dimension of the European Union (London: Taylor & Francis 1997), 76.
31 Jeffery, above, note 3, 9. According to Jeffrey, the strong subnational authorities claimed “to ‘domesticize’ European policy-making by establishing the principle ‘in foro interno, in foro externo.’”
32 See the introduction to this volume by Michael D. Burgess and G. Alan Tarr.
33 Commission Communication, “A Citizens’ Agenda: Delivering result for Europe,” COM (2006) 211. See also COM (2008) 586 final, Report from the Commission on Subsidiarity and Proportionality (15th report on Better Lawmaking, 2007), and recently COM (2010) 291 final. In 2006, the CoR created a network to monitor subsidiarity, a tool for exchanging information between European territorial (sub-state level) actors on policy documents and proposals of the European Commission (see http://subsidiarity.cor.europa.eu/NEWS/tabid/647/Default.aspx)
34 European Parliament, Conference of Community and European Affairs Committees of Parliaments of the European Union (COSAC), Contribution adopted by the XXXVII COSAC, Berlin, 13–15 May 2007, OJ C 206, 5 September 2007.
35 See Annual Report 2006: during 2006 the Parliament examined at least five proposals of various acts and made some observations about them.
36 The notion of “partnership” is one of the fundamental principles underlying the programming and implementation of the Structural Funds. See Council Reg. 1083/2006, laying down general provisions on the European Regional Development Fund, the European Social Fund, and the Cohesion Fund and repealing Regulation (EC) 1260/1999 (2006) OJ L 210/25. See Article 11 about partnership: “1. The objectives of the Funds shall be pursued in the framework of close co-operation, (hereinafter referred to as partnership), between the Commission and each Member State. Each Member State shall organise, where appropriate and in accordance with current national rules and practices, a partnership with authorities and bodies such as: (a) the competent regional, local, urban and other public authorities; (b) the economic and social partners; (c) any other appropriate body representing civil society, environmental partners, non-governmental organisations, and bodies responsible for promoting equality between men and women. Each Member State shall designate the most representative partners at the national, regional and local level and in the economic, social, environmental or other spheres (hereinafter referred to as partners), in accordance with national rules and practices, taking account of the need to promote equality between men and women and sustainable development through the integration of environmental protection and improvement requirements. 2. The partnership shall be conducted in full compliance with the respective institutional, legal and financial powers of each partner category as defined in paragraph 1. The partnership shall cover the preparation, implementation, monitoring and evaluation of operational programmes. Member States shall involve, where appropriate, each of the relevant partners, and particularly the regions, in the different stages of programming within the time limit set for each stage.”
37 See, for example, Commission Communication, “Guidelines for a Community Initiative Concerning trans-European Co-operation Intended to Encourage Harmonious and Balanced Development of the European Territory – INTERREG III,” OJ C 226, 10 September 2004. See Renate Kicker, Joseph Marko, and Michael Steiner, eds., Changing Borders: Legal and Economic Aspects of European Enlargement (Frankfurt am Main: Peter Lang Publishing 1998), 257.
38 European Parliament and Council Reg. 1082/2006 on a European Grouping of Territorial Co-operation (EGTC), (2006) OJ L 210/19.
39 See Commission, “European Governance: A White Paper,” COM (2001) 428 final. Later, Commission Communication, “A Framework for Target-Based Tripartite Contracts and Agreements between the Community, the States and Regional and Local Authorities,” COM (2002) 709 final.
40 According to the Communication “Flexibility is inherent in the very principles of economic and social cohesion, the aim of which is to reduce disparities in the levels of development of the different regions and the backwardness of the regions.”
41 The allocation of competences in favour of sub-national units can never justify the infringement. See Cases C-227, 228, 229 and 230/85, above, note 8; J Case C-33/90, Commission v Italy (1991), ECR I-05987; Case C-211/91, Commission v Belgium, Case, (1992), ECR I-06757. The exclusivity of the State’s responsibility can be considered as a limitation of the principle of autonomy: Nicolas Levrat, “L’emergence des collectivites territoriales comme acteurs de plein droit dans le système institutionnel communautaire”; Paul Magnette and Eric Remacle, eds., Le nouveau modèle europeen, vol. 1, Institutions et Gouvernance (Bruxelles: Editions de l’Universite de Bruxelles 2000), 155.
42 See Jean-Bernard Auby, “Decentralisation et pluralisme juridique,” Melanges Paul Amselek (Bruxelles: Bruylant 2005), 45.
43 On the notion of “region” see Pablo Pèrez Tremps and Lorenza Violini, “La Costituzione europea e l’organizzazione territoriale degli Stati membri,” Rivista italiana di diritto pubblico comparato (2004): 1445; F. Saint-Oven Mercaiai, “Sur la notion juridique de region,” Revue de Droit Public et de la Science Politique en France et à l’etranger (1987): 1313.
44 See Jean-Berrnard Auby, “L’Europe et la decentralisation,” Revue française de la decentralisation 1 (1995): 16.
45 See Opinion of Advocate General Ruiz-Jarabo Colomer in Case C-417/04 P, Regione Siciliana v Commission (2006), ECR I-3881, point 43. The Advocate General highlights the point that “the Court has followed a variable geometry approach… which changes according to the field under consideration and exhibits the pragmatism employed to secure the effectiveness of Community law, in order thus to satisfy the desire for integration… inherent in the Treaty.”
46 Concerning the flexibility of instruments, see Jo Shaw, “Relating Constitutionalism and Flexibility in the European Union,” in Grainne De Burca and Joanne Scott, eds., Constitutional Change in the EU from Uniformity to Flexibility? (Oxford: Hart Publishing 2001), 337.
47 Case C-95/97, Region wallonne v Commission (1997), ECR I-1787, point 6, and Case C-180/97, Regione Toscana v Commission (1997), ECR I-05245, point 5.2. See Ornella Porchia, “Le regioni dinanzi al giudice comunitario: La scelta del legislatore italiano,” in Guiseppe Cataldi and Anna Papa, eds., Formazione del diritto comunitario e internazionale e sua applicazione interna: Ruolo delle Regioni e dello Stato nelle esperienze italiana e spagnola, Atti del convegno, 23 aprile 2004, (Napoli: Editoriale Scientifica 2005), 106.
48 In support of the region, in the field of state aid, see Case T-288/97, Regione autonoma Friuli Venezia Giulia v Commission (1999), ECR II-01871. See Ornella Porchia, “Le Regioni italiane davanti al Tribunale di primo grado: Il riconoscimento della legittimazione attiva in materia di aiuti pubblici,” Diritto pubblico comparato europeo (1999): 1674. Against the region, in the field of structural funds, see causa C-15/06P, Sicilia v. Commissione (2007), ECR I-2591.
49 See Burgess and Tarr, this volume, chap. 1.