TOP-DOWN PRESSURES (DESCENDING PHASE)

In general terms, the EU does not liaise with the regions. This is left to the Member State. Nevertheless, the treaties (TEU and TFEU) take the regional dimension into consideration in several articles.¹⁰ Moreover, as we will see, the EU deals with sub-national actors in many instances (such as regional policy).

Another important point related to the top-down perspective concerns the allocation of competences. On the one hand, many competences recently attributed to the regions concern issues previously transferred to and already regulated by the EU. On the other hand, the EU has assumed various competences in fields that were constitutionally assigned to the legislative and administrative powers of regions. Since the completion of the internal market program and the adoption of the TEU during the early 1990s, most of the law-making powers of the legislative regions in fields like agriculture, fisheries, transport, culture, education and training, employment and social affairs, environmental policy, public health, research and technology, local government, security matters, or even taxation have been affected by the widening scope of the European regulatory activities. In other words, European legislation is regularly cross-cutting the allocation of competences in Member States.

As a consequence, the Member States with legislative regions have had to face the challenges of Europeanization: they have had to adapt the domestic balance of power to the impact of European political integration. However, many doubts remain about the allocation of competences to regions and to the central powers, especially in some fields driven by European law,¹³ such as State aid or the environment.¹⁴ In this regard, it is crucial to establish mechanisms that serve to enforce the boundaries of sub-national constitutional space. Generally speaking, national systems, such as that in Italy, rely on their courts. Indeed, the Italian Constitutional Court enforces the limits when sub-national units attempt to “over-utilize” or expand their sub-constitutional space or, on the contrary, when the central government intends to reduce this space. However, the Constitutional Court has acknowledged that the European integration process may have a significant impact on the allocation of internal competences. Indeed the region may have to transfer competences to the State in some cases if this is necessary in order to ensure compliance with EU law.¹⁵ The increasing number of cases appearing before the Constitutional Court highlights the complexity of the issue.

The competences question is also relevant to the so-called descending phase: in the fields of their legislative competence many regions have the power and the duty to implement EU law. Considering the Italian experience, the regions have improved the system for the implementation of EU law, which can be carried out at two different levels: the legislative and the administrative. In other words, regional responsibility in EU matters could affect both legislation and the administration.¹⁶ Several regional statutes have introduced new instruments designed to ensure the regular implementation of EU directives.

Closely linked to the issue of implementation is the question of responsibility at the EU level. Regional participation is subject to the principle of the unity of the State (i.e., the regions cannot derogate from the guidelines on European policy laid down by the State), which entails the principle of the State’s exclusive responsibility at EU level, as mentioned above. This principle makes it necessary to identify mechanisms and procedures to ensure that local entities respect European Union law. Primarily, the Italian Constitution provides the so-called power of “substitution” in favour of the State. The State has the power to execute by substitution, in lieu of the regions, when regional authorities fail to implement European obligations. This power represents the main tool for the government to remedy the systematic violations of European Union Law committed by the regions. The main problem here is to assess whether Italian law achieves the right balance between the conflicting interests of the government (not to violate European Union law) and those of the regions (not to see their functions and competences taken away owing to substitutive power). It is important to underline that State regulation yields when the regions implement European law adequately.

Recently, in 2005, all the different instruments designed to reduce the risk of responsibility due to regional infringements, were organized into a single piece of legislation (Law Num. 11/2005).¹⁷ Among those instruments, urgent measures or fast-track procedures can be adopted by the State in order to avoid the late implementation of EU law.

In this context, the use of fast-track decrees has to be evaluated in the light of the distribution of competences between the State and the regions, according to Title V of the Constitution, as amended in 2001. With regard to this issue, the Order of the President of the Court of Justice, 19 December 2006, is worth mentioning:¹⁸ following the Commission’s request, the president ordered Italy to suspend the application of Liguria Region Law Num. 36/2006, since it was thought to conflict with directive 79/409/CEE on the issue of wild-bird conservation. On this occasion, the Italian government executed the order through a fast-track instrument that suspended the application of this regional law. This suspension can give rise to an issue that must be carefully assessed in the light of European principles and, in particular, in the light of the supremacy of European Union law. This point serves to illustrate the problems posed by Law Num. 11/2005. They specifically concern the ways in which the State carries out its substitutive power towards the regions, as well as the relationship between national and regional laws – and even the overall relationship between the national and European Union systems.

Another important instrument provided by Italian law concerns the reimbursement of financial damages caused by regional violation. The Community Act, 2007, amending the previous regulation laid down in the Budget Act for 2007, sets out a “compensation mechanism” (diritto di rivalsa) through which the government may recover from the regions and local administrative entities the amounts paid to comply with pecuniary sanctions imposed by the European Court of Justice (ECJ) according to Article 258 TFEU. This provision is particularly significant if we bear in mind the Commission’s intention to prosecute the States’ failure to observe ECJ rulings with more severity and speed.¹⁹ The methods and maximum amounts that the State may claim from the regions in these situations are defined by an agreement between the State and the regions that endorses the cooperative federalism principle introduced with the 2001 reform of Title V of Part II of the Constitution. At least in principle, it seeks to overcome the tendency to draw a clear separation between State and regional competences and favours institutions and mechanisms that promote co-operation between the State and regional entities when resolving issues of common interest.

The new Italian legislation requires the intervention of the president of the Italian Council of Ministers if the agreement is not reached. However, this could induce the State to follow obstructionist conduct by voluntarily preventing the attainment of the agreement and unilaterally determining its content.²⁰ It remains therefore to assess if, in practice, the procedure described above will be applied respecting the principles that inspired the 2001 constitutional reform and, especially, if the interests of the regions will be protected by being suitably involved in the process of adopting the relevant agreements. At the moment it is impossible to answer this question, since it hasn’t been applied so far. Moreover, there are no rules for the reverse situation, allowing the intervention of the regions, as in other national systems (such as Austria). Even though the reform process in Italy continues – if not yet fully applied – it would appear at first sight that in spite of the increase of constitutional space granted to the sub-national units, in practice many tools tend to enhance the power of the central authorities. In short, in fields driven by EU law, regional autonomy appears to be undermined in favour of the central government.