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

di - 11 Agosto 2011
      Stampa Stampa      

As mentioned above, in order to avoid the black-out, in 2002 the Italian Government adopted a legislation to give to Ministry for Industry the power to license new electrical facilities. The new distribution of law making competences states that the energy matter (production, transportation and distribution of energy) is a concurrent competence between State and Regions. But in the Italian Constitution it means that the framework of the matter is set by the State and that detailed rules are set by the Regions. The administrative functions are distributed by the Regions in these matters. It is common opinion that causing the competence in the sector of energy to be shared was a mistake, but the Constitution is clear about it, so no different readings of the article are allowed.
Two years later, following a similar leading case (303/2003), the Constitutional Court has changed the Constitution[5]. Obviously, the Constitutional Court cannot change the Constitution. But it has given an interpretation of the distribution of competences consistent with a flexibility of competences that is not written in the Constitution. The Court recalls that the Italian Constitution provides for subsidiarity, but with regard to the administrative functions. According to art. 118: administrative powers are conferred in general on municipalities except that they may be conferred on provinces, metropolitan cities, regions and the State, in order to ensure that they are exercised uniformly on the basis of the subsidiarity, differentiation, and adequacy principles. Administrative functions have to be exercised at the right level, starting from the bottom: if the local community is not adequate, then the function has to be exercised at a higher level. This means that none of the levels of the administration has exclusive administrative competence under the [Italian] Constitution and that administrative functions may be discharged by each body, without prejudice to the general principle that such functions lie with Municipalities whenever they are not to be conferred on higher-level administrative bodies to ensure that they are exercised uniformly in pursuance of subsidiarity, differentiation and adequacy principles. The Court states that the same rationale has to be applied to the law-making competences. If, for a unitary interest, the State needs to confer a function at the central government level, it can attract the law-making competence, taking it away from the Regional level. But there are four conditions to be satisfied: first, the law needs to respect the principle of subsidiarity; second, the intervention needs to be pertinent; third, the action must respect the principle of proportionality; fourth, the law must establish a procedure in order to reach an agreement between the Central Government and the Region involved.
The title of this speech is related to the Supremacy clause because the Court makes reference to the Supremacy Clause when it creates this new legal instrument to attract competences. The general idea is that every institutional framework provides for a clause that, when needed, operates in such a way as to satisfy general interests, and this can be made possible only with an intervention at the central level. The unitary interest justifies the big novelty, of the application of the principle of subsidiarity to rewrite in a flexible way the rigid scheme of law-making competences.

Now, we can start to speculate about this framework. We examined two legal systems, to find the same principle, declined in two different ways in order to attract competences towards the “federal”-central level. Strangely enough, we are examining a principle that, at first sight, should be a guarantee for the municipalities or the Central Government. And, in any event, a principle that seems a constraint for a multi-level system.
But the first impression is not correct. Stating that the competences can be transferred implies a written justification, and the principle of proportionality implies that the intervention has to be minimum, that is to say that competences need to be shared, because they need to coexist. This is the same in the relationship between individual States and European Union and between Regions and State, regardless of whether the principle has an ascending or descending origin and of whether the federalism is constructed from the bottom or from the top.
Negotiation becomes fundamental. Every transfer is temporary but implies a new distribution of competences and functions between the authorities. The agreement in the Italian system means that State and Regions have to decide how to exercise their functions, because laws cannot provide it. It means that the national legislation needs to be very accurate, because the Constitutional Court can declare the law illegitimate if there are no provisions of agreement when regional competences are involved. Therefore, since agreements can be difficult to reach, the law will have to avoid occupying regional competences. The sentence of the Constitutional Court transforms the dual federalism in a cooperative federalism, and confirms that we do not have a form of centralized government but a multi-level government.
From an administrative stand-point, the principle of subsidiarity implies the principle of fair cooperation. The model of governance can only work if entities make use of “agreements, covenants, formal and informal agreement procedures, joint and negotiated administration mechanisms” and the “consequence is a new decision making, planning and control mechanism that can bring about an integrated government system”. The application of these principles leads to build integrated administrations, where local and central authorities co-exist and work together, in many different forms.
Let us look to the construction of nuclear power plants[6]. The main problem is where to place the facilities. The nimby syndrome drives the Regions to oppose to the national nuclear program and to decide that no plant can be located on the land of a Region against its will. The law about the construction, localization and exercise of the nuclear activities goes before the Constitutional Court. As we have seen, Energy is a concurrent competence. Therefore, an agreement is necessary. But in this case, the Court stated that the State has to aim at the agreement, but that, if there is a provision of a procedure stated to avoid the stall, if it grants autonomy to the Regions, and if it is respected by the State, in the end the State can decide against the will of the Regions. The problem is serious, because it involves the localization of a plant in a Region, and the local communities can be against the operation. The Court has confirmed a procedure that, in the last step (after a first attempt to reach an agreement between State and Region, a second attempt within a balanced commission formed by State and Regions, a third attempt in the Council of Ministers) gives the last word to the Central Government. We have, at the last, one example of the Supremacy of the State.
We also have to consider that a nuclear community, EURATOM, was founded by the European States, together with the Treaty of Rome of 1957, so that the State and the Regions have also to follow the rules imposed by the Treaty, and in the procedures to be followed in order to construct a plant also European administrations will be involved.
This is an example of flexibility without cooperation. But denying it in some cases can be impossible. Examining the following decisions we can, however, assess that the Court is going to decide on a case by case basis: in the cases 79/2011 and 165/2011 the Constitutional Court has declared unlawful the final decision of the State because the procedure had not followed the fair cooperation principle. And in one case the Court observed that the State had refused the competence it had attracted, and so the cooperation wasn’t necessary anymore, confirming the flexibility.
The last word about the cooperation is said by the Court: but we have to think that the State has to provide procedures, negotiations, agreements. In other words, the State, the Region, also the UE have to rule considering the other entities. Each level has to connect with the others.
Subsidiarity and fair cooperation are the two key words. They prevent centralist and neo-regionalist views, and ensure that the multi level system works. We often think that a multi level governance means that every level has its competences. But the best concept to use is integration. The levels are integrated, because they have to cooperate with each other and, if we look at the system as a whole, we can see how functions and competences are linked and work together, often in different directions, not forgetting, however, the interests that every community represents.


5.  F. DE LEONARDIS, La Consulta tra interesse nazionale e energia elettrica, Giur. cost., 2004, 145-153; O. CHESSA, Sussidiarietà ed esigenze unitarie: modelli giurisprudenziali e modelli teorici a confronto, Le Regioni, 2004, 941 – 954; S. AGOSTA, Dall’intesa in senso debole alla leale cooperazione in senso forte? Spunti per una riflessione alla luce della più recente giurisprudenza costituzionale tra (molte) conferme e (qualche) novità, Quaderni regionali, 2004, 703 – 728.

6.  The case remains interesting though the referendum held in June has rejected the nuclear plan: F. COSTANTINO, La disciplina del nucleare nella prospettiva del consenso, Il Foro amministrativo. CdS, 12/2010, p. 2941-2980; G. RAZZANO, La materia concorrente della produzione, trasporto e distribuzione nazionale dell’energia nella recente giurisprudenza costituzionale, fra leale collaborazione e doveri di solidarietà,, 13/2011.

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