OUTSOURCING FEDERALISM IN A POLITICAL VACUUM: CONCLUDING REMARKS

Over the long and far-from-concluded Italian federalizing process, only one feature has never changed: all the most complex and controversial issues have eventually culminated in decisions by the Constitutional Court, and everything indicates that this will continue in the future.

This leads to the first concluding remark of this chapter: constitutional adjudication has shaped the contours of Italian regionalism much more than constitutional amendments have. This might sound surprising, but it guarantees that the federalizing process is guided by the rule of law even when political priorities change rapidly and are sometimes unpredictable. At the same time, the essentially judicial nature of Italian federalism-in-the-making represents an incentive for some political forces to instrumentalize federalism and to propose (and sometimes introduce) irresponsible and inconsistent legislation, knowing that the Court will “fix” it and can even be blamed for that. As a matter of fact, this attitude is spreading, and the overall quality of the legislation on intergovernmental relations is decreasing.

Second, the technical rather than the political character of Italian federalism-in-the-making is one of the most serious shortcomings of the process. If looked at from the perspective of the formal provisions, of the case law of the Court, and of the practice of some regions, Italy could easily be defined as a federal country, still quite centralized in some aspects (particularly regarding the representation of the regions in national decision making and the administration of justice) but also very decentralized in others (including in several fields of competence,⁴³ treaty-making capacity, control over legislation, etc.). What is missing, though, is the political culture of federalism, both at the national and at the sub-national level. The examples mentioned above signal that there is no shared view about the meaning and the goals of a federal system.⁴⁴

Furthermore, the political climate surrounding federalism is very volatile. While most parties are nominally “federalist” and some (such as the Northern League) declare federalism to be their very raison d’être, at the same time the people are increasingly skeptical about the capacity of a federal structure to better address their concerns. Apart from some virtuous administrations, most regions have demonstrated little institutional and political capacity: they are perceived as expensive and inefficient, even if not corrupted, institutions.⁴⁵ At present, the regions control (and spend) 43 percent of the overall resources,⁴⁶ and they are responsible, inter alia, for the entire health care system,⁴⁷ which has produced debts so far of forty-five billion Euros that need to be covered by the national budget.⁴⁸ This leads to the paradox of, simultaneously, an increasing demand for federalism (especially in the North) and rising criticism of federal solutions to the country’s problems (particularly in the South).

At this point, further far-reaching constitutional reforms seem unlikely. The next steps in Italy’s federalizing process will be the implementation of the constitutional provisions on financial relations and maybe some minor shifts in competences. Also, a few regions – including all special ones – still need to adopt their new autonomy statutes. The constitutional framework allows for federal governance: it is now up to the political process to eventually take federalism seriously. The necessary precondition for a satisfying implementation of the quite developed institutional setting, however, is a clear vision of what this federal transformation is all for and how balances will be readjusted. The political class, both at the central and at the regional level, seems to lack such a clear view, and there is no indication that federalism will ripen in the political culture soon. As long as this is the case, Italy will remain a federal country without federalism.

1 Their distinct treatment was mainly a reaction to complex problems of regional diversity: international obligations imposed by the 1946 Peace Treaty and fears regarding the secession of these peripheral areas. For more on this see Francesco Palermo, “South Tyrol’s Special Status within the Italian Constitution,” in Jens Woelk, Francesco Palermo, and Joseph Marko, eds., Tolerance through Law: Self Governance and Group Rights in South Tyrol (Leiden and Boston: Nijhoff 2008), 33–49.

2 Roberto Bin “Veri e falsi problemi del federalismo in Italia,” in Luigi Mariucci et al., eds., Il federalismo preso sul serio (Bologna: Il Mulino 1996), 61–78.

3 Jens Woelk, Konfliktregelung und Kooperation im italienischen und deutschen Verfassungsrecht (Baden Baden: Nomos 1999).

4 See Article 138 Const. for the amendment procedure for the national Constitution and Article 123 Const. for the amendments to the regional autonomy statutes.

5 In practice, though, to determine what “more favourable” means is hardly an easy task. For example, does stronger autonomy for the municipal government, as provided for by the 2001 reform, represent a more or a less “favourable” provision for the regions?

6 Article 114 Const., as amended in 2001, reads: “The Republic is composed of the Municipalities, the Provinces, the Metropolitan Cities, the regions and the State.” See comments by Franco Pizzetti, “Le nuove esigenze di ‘governance’ in un sistema policentrico ‘esploso, ’” Le Regioni 6 (2001): 1153–96.

7 Francesco Palermo, “Il regionalismo differenziato,” in Tania Groppi and Marco Olivetti, eds., La Repubblica delle autonomie: Regioni ed enti locali nel nuovo titolo V (Torino: Giappichelli 2003), 55–62.

8 For an overview of the controversial issues and of the doctrine of the Constitutional Court dealing with the division of powers between the national government and the regions see Roberto Bin, “I criteri di individuazione delle materie,” Le Regioni 5 (2006): 889–902. See also Valerio Onida, “Il giudice costituzionale e i conflitti tra legislatori centrali e locali,” Le Regioni 1 (2007): 11–26; and Tania Groppi, “Il Titolo V cinque anni dopo, ovvero la Costituzione di carta,” Le Regioni 3–4 (2007): 421–32.

9 English text from the official translation provided by the Italian Parliament: http://english.camera.it/.

10 The Court did so in particular in judgments 303/2003 and 14/2004. On these judgments see the special issue of the journal Le Regioni 4–5 (2005): 771–896, papers by Valerio Onida, Adele Anzon Demmig, Raffaele Bifulco, Roberto Bin, Paolo Caretti, Antonio D’Atena, Giandomenico Falcon, Stelio Mangiameli, Emanuele Rossi, Antonio Ruggeri, Ilenia Ruggiu, Rosanna Tosi, and Luciano Vandelli.

11 Law no. 131/2003 and law no. 11/2005. See Paolo Cavaleri and Elisabetta Lamarque, eds., L’attuazione del nuovo titolo V, parte seconda, della Costituzione: Commento alla legge “La Loggia” (Torino: Giappichelli 2004).

12 Some important regions still have to adopt their autonomy statutes. Notably, this is the case for all five special regions (on Friuli-Venezia Giulia and Sardinia, see below) and for the big and rich Northern Region of Veneto. The biggest region in the country (Lombardy) adopted its new autonomy statute only in May 2008. It is worth noting that of the thirteen autonomy statues approved, six have been challenged by the national government before the Constitutional Court. In most of the cases, the autonomy statutes had to be revised after the ruling of the Court. Figures updated to September 2010. For further information see http://www.astrid-online.it/i-nuovi-st/Statuti-ap/index.htm.

13 So far, four ordinary regions have initiated procedures according to article 116.3 Const., but none of them has been completed. Politically, it is unlikely that this will ever happen.

14 Given the lesson learned from the constitutional referendum of 2006, a constitutional reform introducing a fully fledged federal system is likely to be rejected by the voters, mainly on two grounds. On the one hand, many citizens do not consider this a priority. On the other, particularly in the South of the country, any federalization is seen as a threat for the poor regions of the South and as a lack of solidarity on the side of the rich North.

15 See inter alia Ronald Watts, Comparing Federal Systems, 2d ed. (Montreal and Kingston: McGill-Queen’s University Press 1999), 43–55.

16 Pietro Giarda, “Le regole del federalismo fiscale nell’articolo 119: Un economista di fronte alla nuova Costituzione,” Le Regioni 6 (2001) 1425–84.

17 For a detailled analysis, see the special issue of the journal Le istituzioni del federalismo, no. 4 (2006): 669–774 ( “L’autonomia finanziaria e tributaria delle regioni”).

18 So far (as of September 2010) four such bylaws have been adopted, in areas such as the transfer of public goods from the national government to the regions and the determination of standard costs for health care services.

19 For a short comment on the law in English, see Tommaso Edoardo Frosini, “Introduction to Italian Fiscal Federalism,” in federalismi.it, no. 19 (2009), available at http://www.federalismi.it.

20 This may also be linked to the fact that most of the financial “privileges” of the special regions are entrenched in constitutional provisions, which cannot be overruled by an ordinary parliamentary bill. The issue is more complicated than this, however, since the law in question implements a constitutional provision, and therefore the relationship between various sources of law is not entirely clear.

21 As of September 2010, only South Tyrol and Trentino had successfully completed negotiations with the national government. The bilateral agreement concluded in November 2009 (which led to the amendment of the autonomy statute) provides that the two autonomous provinces take up new responsibilities in several areas (including universities and postal services) without receiving additional funds from Rome and that the national government retains some minor revenues that had so far been transferred to the sub-national entities. Overall, the budget of the two autonomous provinces concerned has been curtailed by some 10 percent (including the additional costs for the new competences), but the financial transfers from Rome are secure and constitutionally entrenched. Therefore, they cannot be further reduced unilaterally.

22 In per capita financial transfers from the State, for instance, the Aosta Valley receives thirteen times more than Lombardy.

23 On average, every citizen of Lombardy pays taxes of 13,700 euros per year, while the expenses for services for the territory of that region are 8,850 euros per citizen. Conversely, Calabria receives per capita 2,750 euros a year more than it generates. Moreover, all special regions spend more than they produce (particularly, Sicily, Sardinia, and the Aosta Valley). Further details are in the special issue “Federalismo fiscale” of Il Sole 24 ore, 4 August 2008.

24 More details are in Enrico Buglione, “Aspetti finanziari della specialità delle Regioni a statuto differenziato,” in Antonio Ferrara and Giulio Maria Salerno, eds., Le nuove specialità nella riforma dell’ordinamento regionale (Milano: Giuffre 2003), 205–42.

25 A few dozen municipalities have initiated the procedure, particularly Veneto asking to join Trentino-South Tyrol (inter alia Lamon, Asiago, Cortina d’Ampezzo, Enego, Conca, Lusiana, Gallo, Rotzo, Foza, Roana) and Friuli-Venezia-Giulia (Cinto Caomaggiore, Pramaggiore, Gruaro, Teglio Veneto), and Piemont asking to join the Aosta Valley (including Noasca, Valprato, Ronco, and Ribordone).

26 See Matteo Barbero, “Come (non) si resolve la questione delle ‘secessioni’ dei comuni di confine (e dei privilegi delle autonomie speciali),” in federalismi.it, no. 9 (2008) (available at www.federalismi.it). For the theoretical framework, see Maurizio Pedrazza Gorlero, Le variazioni territoriali delle regioni (Padova: Cedam), vol. 1 (1979) and 2 (1991).

27 The autonomous Region Aosta Valley challenged the constitutionality of the procedure, which provides that regional parliaments are merely consulted but do not have a formal veto right on the change of regional borders. The Region contested the idea that the territory of the special regions should be constitutionally entrenched. The Court maintained, however, that the current text of the Constitution is clear in determining the requirements for changing regional borders and rejected the claim (judgment no. 66/2007). For more on this see Maurizio Malo, “Forma e sostanza in tema di variazioni territoriali regionali (a margine della pronuncia 66/2007 della Corte Costituzionale),” Le Regioni 3 (2007): 641–50.

28 The arguments used in this particular case drew on the common history under the Habsburg Empire and the ethno-cultural differences from the rest of the region of Veneto. This added political fuel to the already contentious debate on the so-called financial privileges of the special regions. Nevertheless, the referendum was approved by the overwhelming majority of the population concerned (over 90 percent voted in favour).

29 The lack of a clear vision of a vertical division of powers and functions and the resulting dissatisfaction of citizens with the current system is demonstrated by a further paradox regarding the role of the provinces. The provinces are institutions of local government, with elected councils and presidents, performing administrative functions in a limited number of areas, such as inter-communal infrastructure, waste management, and school boards. Particularly after the constitutional reform of 2001, their role has become increasingly irrelevant, while the costs of running them, especially the salaries of the political personnel and the administrative staff, have continuously increased. Scholars and citizens advocated the abolition of the provinces as a means to save money and to rationalize the division of functions between the regions and the municipalities. However, not only was the political elite unable to agree on their abolition in the constitutional reform of 2001, but after that the number of provinces increased dramatically, from 95 to 110 in only a few years. This is generally perceived as a mere multiplication of political posts, which is regarded with scepticism by the citizenry.

30 Law no. 38/2001.

31 Law no. 482/1999.

32 Text in http://www.consiglio.regione.fvg.it/DocOnLine/News/allegati/A354.pdf. The draft basic law was prepared by a special “Convention” (set up by regional law no. 12/2004), which included several representatives of civil society.

33 As mentioned, Slovene is spoken by roughly sixty-five thousand people, German (or better, an ancient German dialect) is spoken by a few hundred in only five small municipalities, and Friulian (which is now recognized as a language but used to be considered a dialect) could be considered the language of the whole population of Friuli (almost two million people), although only some of them know and use it.

34 Regional law no. 7/2006.

35 One thinks in particular of the controversial decision of the French Constitutional Council on the use of the term “Corsican people.” In 2002, the Council struck down the proposed autonomy statute for Corsica (decision no. 2001–454 DC) because it mentioned the existence of a “Corsican people,” even though this characteristic was defined as “an integral part of the French people”. Also the Italian Constitutional Court made clear in 2000 (case no. 496/2000) that there is no such thing as a “regional people,” since under the Constitution the “people” denotes a unitary concept and only the Italian people as such are vested with sovereignty.

36 Decision no. 365/2007. For extensive comments on the judgment see Sergio Bartole, “La Corte costituzionale chiude al ‘federalismo, ’” in Giurisprudenza costituzionale 6 (2007): 4039–44; Paolo Caretti, “La ‘sovranità’ regionale come illusorio succedaneo di una ‘specialità’ perduta: In margine alla sentenza della Corte costituzionale n. 265/2007,” in Le Regioni 1 (2008): 219–26; Adele Anzon Demmig, “Sovranità, processi federalistici, autonomia regionale: In margine alla sentenza n. 365 del 2007 della Corte costituzionale,” in Giurisprudenza costituzionale 6 (2007): 4999–5016; Alessandro Mangia, “Il federalismo della ‘descrizione’ e il federalismo della ‘prescrizione, ’” in Giurisprudenza costituzionale 6 (2007): 4045–51; Paolo Passaglia, “La Corte, la sovranità e le insidie del nominalismo,” in Giurisprudenza costituzionale 6 (2007): 4052–61.

37 See, particularly, part 6 of the decision.

38 Beniamino Caravita, “Il tabù della sovranità e gli « istituti tipici di ordinamenti statuali di tipo federale in radice incompatibili con il grado di autonomia regionale attualmente assicurato nel nostro ordinamento costituzionale,” in federalismi. it, no. 22 (2007) (www.federalismi.it); and Omar Chessa, “La resurrezione della sovranità statale nella sentenza n. 365 del 2007,” in Le Regioni 1 (2008): 227–41.

39 While in 1998 litigation between the national government and the regions made up only 2.76 percent of the Court’s workload, by 2006 it had become 29.16 percent. For more on the phenomenon see Massimo Marcelli and Valeria Giammusso, eds., Tra Stato e Regioni: Guida all’orientamento. Sintesi di 350 pronunce della Corte Costituzionale (2002–2005), Senato della Repubblica, Quaderni di Documentazione, no. 41 (Roma 2005); Istituto di Studi sui Sistemi Regionali, Federali e sulle Autonomie “Massimo Severo Giannini” (ISSiRFA), ed., Osservatorio sulle Regioni (Rome 2006) (http://www.issirfa.cnrit/46,46.html); and Paolo Caretti, La Giurisprudenza costituzionale in materia di rapporti tra Stato e Regioni, in Camera dei Deputati, Osservatorio sulla Legislazione, Rapporto 2004–2005 sullo stato della legislazione (Rome 2005) (www.camera.it/files/servizi_cittadini/Rapporto_2004_5_Parte_III.pdf).

40 Antonio Ruggeri, “Giudizi sulle leggi in via principale e giurisprudenza costituzionale a seguito della riforma del Titolo V ( “modello” ed esperienza a confronto),” in Le istituzioni del federalismo 4 (2006): 775–824.

41 In 2007 inter-governmental litigation diminished by 53 percent compared to 2006, and since then it has stabilized overall. All data can be found on the web-page of the Constitutional Court: http://www.cortecostituzionale.it/informazione/statistiche.asp.

42 Giandomenico Falcon, “Che cosa attendersi, e che cosa non attendersi, dal federalismo fiscale,” Le Regioni 4–5 (2008): 765–70.

43 The long list of competences is contained in article 117 of the Constitution. This provision enumerates the issues to be reserved to the exclusive competence of the national level and those that are subject to shared competence. Among the latter, for instance, “national production, transmission and distribution of energy” is mentioned, an area that in federal countries is usually retained by the central power, since it clearly affects key national interests. However, the Constitutional Court did go so far as to affirm that the list of competences laid down in article 117 of the Constitution is merely “indicative” and can be overruled if some criteria are respected (judgment no. 303/2003).

44 See Francesco Merloni, “Il paradosso italiano: ‘federalismo’ ostentato e centralismo rafforzato,” Le Regioni (2005): 469–74.

45 See Dario Alberto Caprio, “La crisi del regionalismo italiano,” MondOperaio 2008, also available at www.forumcostituzionale.it/site (papers).

46 UIL, Studio sui bilanci di previsione delle regioni 2007, available at http://www.uil.it/regioni-sint-loystampa.pdf.

47 For more on this see Renato Balduzzi, “Cinque anni di legislazione sanitaria decentrata: Varietà e coesione di un sistema nazional-regionale,” Le Regioni 5 (2005): 717–42.

48 See Court of Auditors, “Report on Financial Management of Ordinary regions in 2005 and 2006,” in www.corteconti.it; and Caprio, “La crisi del regionalismo italiano.” Several studies of the health care system show that per capita expenses in the South are twice as much as they are in the North, while the quality of the service is much lower. See the report published by the Catholic University of Rome, available at www.rm.unicatt.it and the Health Report by the NGO Cittadinanza Attiva (www.cittadinanzattiva.it).