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.
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. 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. 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. 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.
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. 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. 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.
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.↑
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, Federalismi.it, 13/2011.↑