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The Italian way of the Supremacy Clause: The Top-Down Federalism Before the Constitutional Court

di - 11 agosto 2011
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Transcript of the speech at the Conference Making multi‐level public management work: cases from the EU and North America, Panel on Multi‐Level Public Sector Management Institutional Constraints,Glendon College, York University,June 17th 2011

The topic of this panel is Multi‐Level Public Sector Management Institutional Constraints. And it is clear why I am in this panel: because the subject of my intervention is “The Italian way of the Supremacy Clause: The TopDown Federalism before the Constitutional Court”. Anyone who reads the subject can suppose that I will talk about the supremacy that the Italian Central Government has over the Regions or that, if I would like to extend the subject, of the European Union over the individual States[1].

First case: To avoid a black-out, in the 2002 the State adopted a legislation to give to the Ministry for Industry the power to license new electrical facilities. A very serious problem, because the new distribution of competences (set in 2001) states that the production, transportation and distribution of electric power is a concurrent competence between Central Government and Regions.
Second case: 2010. Construction of nuclear power plants. The main problem is where to place the facilities. The nimby syndrome drives the Regions to oppose the national nuclear program. The law about construction, localization and exercise of the nuclear activities goes before the Constitutional Court. As we have said, Energy is a concurrent competence.

Let us start from far away. We should know how subsidiarity works in the European Union after the Lisbon Treaty[2]. Under Article 5 the limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality. In areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level. In this article we have definitions of subsidiarity and proportionality. The Protocol on subsidiarity, moreover, provides that before proposing legislative acts, the Commission shall consult widely to take into account the regional and local dimension of the action. Draft legislative acts shall be justified with regard to the principles of subsidiarity and proportionality, the reasons for concluding that a Union objective can be better achieved at Union level shall be substantiated by qualitative and, wherever possible, quantitative indicators. Any national Parliament or any chamber of a national Parliament may send to the European Parliament, the Council and the Commission a reasoned opinion stating why it considers that the draft in question does not comply with the principle of subsidiarity. Where reasoned opinions represent at least one third of all the votes allocated to the national Parliaments the draft must be reviewed. After such review, the institution involved may decide to maintain, amend or withdraw the draft. Reasons must be given for this decision. If it chooses to maintain the proposal, if, by a majority of 55 % of the members of the Council or a majority of the votes cast in the European Parliament, the legislator is of the opinion that the proposal is not compatible with the principle of subsidiarity; the legislative proposal shall not be given further consideration.

There is a debate about the existence of a Supremacy clause in the European Treaty. Many scholars compared the Supremacy Clause and the Principle of Subsidiarity[3]. We will examine this point later. Now we can notice that when competences are enumerated, the Union powers are given from the States. But when other competences are involved, the UE intervention needs the approval of the States. In some way, it needs an agreement. But the need of an agreement also tells us that there is an institutional flexibility: a reading of the Constitution doesn’t show which the EU competences are and which ones pertain to the State. Let us remember that the European Union was constructed starting from the bottom, from the lower level, the States.

In Italy, we have a different model[4]. We have a top-down federalism. The central government had to respond to the centrifugal tendencies by distributing competences to the Regions. After the Constitutional reform of 2001, the constitutional entities are on an equal footing and have the same institutional dignity, and there is no hierarchy between them. According to art. 114, “The Republic is comprised of Municipalities, Provinces, Metropolitan Cities, Regions, and the State”. Also the State has no higher collocation with respect to the other constitutional entities. Law-making competences are provided according to a distinction similar to the European one: an enumeration of central state law-making competences, an enumeration of shared law-making competences. The competences not enumerated fall in the area of the Regions. It is a new construction, if we recall the previous text of the Constitution, where the State could decide the extension of regional law-making competences, because the Regions had only concurring competences, and none of their own, and the State could attract them whenever it wanted, invoking a “national interest” clause.

Note

1.  On plurality and autonomy of the legal order S. ROMANO, L’ordinamento giuridico, 1931, mostly the second section, La pluralità degli ordinamenti giuridici e le loro relazioni, 93-198. On Crisis of the State, Oltre lo Stato, 1917, Scritti minori, Milan, 1990, 421. On the autonomy of the public administration, see A. ROMANO, Autonomia nel diritto pubblico, Dig. disc. pubbl., II, Torino, 1987, 30. A recent essay on Santi Romano in english language A.SANDULLI, Santi Romano and the Perception of the Public Law Complexity, Italian Journal Of Public Law, 2009, 1-38.

2.  P. KIIVER, The Treaty of Lisbon, the National Parliaments and the Principle of Subsidiarity, Maastricht Journal of European and Comparative Law, Vol. 15, pp. 77-83, 2008; R. SCHUTZE, Subsidiarity after Lisbon: reinforcing the safeguards of Federalism?, Cambridge Law Journal, 68(3), November 2009, pp. 525–536.

3.  G.A. BERMANN, Taking Subsidiarity Seriously: Federalism in the European Community and the United States, Colum. L. Rev. , 94 (1994), 331; A. MOSCARINI, Sussidiarietà e Supremacy Clause sono davvero perfettamente equivalenti?, Giur. cost., 2003, 2791-2805.

4.  A. ROMANO, Osservazioni conclusive, ASSOCIAZIONE ITALIANA DEI PROFESSORI DI DIRITTO AMMINISTRATIVO, Annuario 2002, Milan, 2003, 589-590. On the principle of legality, A. ROMANO, Il principio di legalità nella Costituzione italiana, ASSOCIAZIONE ITALIANA DEI COSTITUZIONALISTI, Annuario 1998, Principio di eguaglianza e principio di legalità nella pluralità degli ordinamenti giuridici, Atti del XIII Convegno Annuale, Trieste, 17-18 dicembre 1998, Padua, 1999, 95 and F. SATTA, Principio di legalità e pubblica amministrazione nello Stato democratico, Padua, 1969.

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