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Italian Constitution, Appunti di Diritto Pubblico

Libera Università Internazionale degli Studi Sociali Guido Carli (LUISS)Diritto Pubblico
Prof. Cristina Fasone

Appunti Public Law Cristina Fasone, seconda parte del corso, Italian Constitution, anno accademico 2021/2022

Tipologia: Appunti

2021/2022

In vendita dal 08/07/2022

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Italian Constitutional History and Principles of the Italian Constitution
The Albertine Statute (1848-1922?)
• Conceded by Carlo Alberto in 1848, for the Kingdom of Piedmont and Sardinia, ruled by the House of Savoy
(after the liberal revolutionary uprisings).
• In 1861 it became the first (and only) Constitution of the Kingdom of Italy.
• It was a Constitution which was short, flexible and (apparently) octroyeè.
• A liberal and unitary form of State, with a form of Government which was formally a «pure constitutional
system», quite soon evolving towards a quasi-parliamentary one.
The Fascist period (1922-1943)
• During the Albertine Statute, a difficult and unaccomplished evolution towards a democratic State
(enlargement of electoral suffrage) and towards a parliamentary form of Government
• After the WWI:
- crisis of the liberal state
- new mass political parties
- proportional electoral system
• The rise of the Fascist regime in 1922: formally, in compliance with (one of the possible readings of) the
Albertine Statute
• No Constitution was adopted under Fascism (the concept of Constitution being in contrast with the culture of
the authoritarian or totalitarian regime).
• Formally, Italy continued to be ruled under the Albertine Statute, “amended” with some statutes (“leggi
fascistissime”)
• The legislation and the politics of the regime gradually emptied the Statute of its meaning: liberties, political
pluralism, free elections
The origins of the Italian Constitution of 1947: some dates
• 25th July 1943: Mussolini’s fall, through a decision of the Great Council of Fascism
• 1943-1945: WWII and Patriotic War (Resistance) at the same time: two provisional Constitutions drafted by the
anti-fascist parties, in the National Liberation Committee: D.Lgs.Lgt. Nos. 151/1944 and 98/1946
• 2nd June 1946: institutional Referendum (choice between Monarchy and Republic) + election of a Constituent
Assembly
• May 1947: end of unity among anti-fascist parties in supporting the Executive
• 22nd December 1947: Vote of the new Republican Constitution (453 yes; 62 no). A compromise among
Catholics, Liberals and Marxists
• 18th April 1948: elections for the Chamber of Deputies and the Senate
The foundational role of the political parties
• Political parties were born before the Republican Institutions
• (Controversial) idea of the «material Constitution» (Mortati): founding set of values carried by the dominant
social class/es or party/ies, which ensure the coordination of different State institutions
• Consistent with this interpretation is the idea of a «Second Republic» (with a new Constitution), starting in
1994, after a complete change of the party system.
• On the contrary, only one Constitution: the Republican Constitution, as implemented, interpreted and
(sometimes) revised
The gradual implementation of the Italian Constitution
●1956: Constitutional Court
●1958: National Council of the Judiciary (CSM)
●1970: referendums (abrogative and constitutional) and ordinary Regions
●1988 and 1999: Prime Minister’s Office and Executive Organization
●1990: local autonomies
Constitutional amendments: procedures and limits (articolo 138, 139)
Procedure:
1. laws amending the constitution and other constitutional laws shall be adopted by each House afte two
successive deliberations → interval: > 3 months
2. needs to obtain absolute majority in each House at the second voting
3. Referendum: requested withing 3 months of publication by:
-⅕ of the members of a House
- 500 000 voters
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Italian Constitutional History and Principles of the Italian Constitution

The Albertine Statute (1848-1922?)

  • Conceded by Carlo Alberto in 1848, for the Kingdom of Piedmont and Sardinia, ruled by the House of Savoy (after the liberal revolutionary uprisings).
  • In 1861 it became the first (and only) Constitution of the Kingdom of Italy.
  • It was a Constitution which was short, flexible and (apparently) octroyeè.
  • A liberal and unitary form of State, with a form of Government which was formally a «pure constitutional system», quite soon evolving towards a quasi-parliamentary one. The Fascist period (1922-1943)
  • During the Albertine Statute, a difficult and unaccomplished evolution towards a democratic State (enlargement of electoral suffrage) and towards a parliamentary form of Government
  • After the WWI:
    • crisis of the liberal state
    • new mass political parties
    • proportional electoral system
  • The rise of the Fascist regime in 1922: formally, in compliance with (one of the possible readings of) the Albertine Statute
  • No Constitution was adopted under Fascism (the concept of Constitution being in contrast with the culture of the authoritarian or totalitarian regime).
  • Formally, Italy continued to be ruled under the Albertine Statute, “amended” with some statutes (“leggi fascistissime”)
  • The legislation and the politics of the regime gradually emptied the Statute of its meaning: liberties, political pluralism, free elections The origins of the Italian Constitution of 1947: some dates
  • 25th July 1943: Mussolini’s fall, through a decision of the Great Council of Fascism
  • 1943-1945: WWII and Patriotic War (Resistance) at the same time: two provisional Constitutions drafted by the anti-fascist parties, in the National Liberation Committee: D.Lgs.Lgt. Nos. 151/1944 and 98/
  • 2nd June 1946: institutional Referendum (choice between Monarchy and Republic) + election of a Constituent Assembly
  • May 1947: end of unity among anti-fascist parties in supporting the Executive
  • 22nd December 1947: Vote of the new Republican Constitution (453 yes; 62 no). A compromise among Catholics, Liberals and Marxists
  • 18th April 1948: elections for the Chamber of Deputies and the Senate The foundational role of the political parties
  • Political parties were born before the Republican Institutions
  • (Controversial) idea of the «material Constitution» (Mortati): founding set of values carried by the dominant social class/es or party/ies, which ensure the coordination of different State institutions
  • Consistent with this interpretation is the idea of a «Second Republic» (with a new Constitution), starting in 1994, after a complete change of the party system.
  • On the contrary, only one Constitution: the Republican Constitution, as implemented, interpreted and (sometimes) revised The gradual implementation of the Italian Constitution ● 1956: Constitutional Court ● 1958: National Council of the Judiciary (CSM) ● 1970: referendums (abrogative and constitutional) and ordinary Regions ● 1988 and 1999: Prime Minister’s Office and Executive Organization ● 1990: local autonomies Constitutional amendments: procedures and limits ( articolo 138, 139 ) Procedure :
    1. laws amending the constitution and other constitutional laws shall be adopted by each House afte two successive deliberations → interval: > 3 months
    2. needs to obtain absolute majority in each House at the second voting 3. Referendum : requested withing 3 months of publication by:
      • ⅕ of the members of a House
      • 500 000 voters
  • 5 Regional councils No Referendum if in the second voting by each of the Houses a majority of ⅔ is reached Limit to constitutional amendments → the form of the Republic The main Constitutional Laws (amending the Italian Constitution)
  • n. 2/1963: number of MPs and length of the legislative term of the Senate
  • n. 2/1967: length of the mandate of Constitutional judges
  • n. 1/1989: criminal trials for ministers
  • n. 1/1991: «white semester» for the President of the Republic
  • n. 1/1992: amnesty and pardon
  • n. 3/1993: parliamentary immunities
  • n. 1/1999: direct election of the Presidents of the Regions
  • n. 3/1999: fair trial
  • n. 1/2000 and n. 1/2001: postal vote for italian citizens residing abroad
  • n. 3/2001: regional and local autonomy enhanced
  • n. 1/2003: positive action for gender equality in the accession to public service
  • n. 1/2007: complete abolition of death penalty
  • n. 1/2012: balanced budget
  • n. 1/2020: reduction of MPs
  • n. 1/2021: voting age lowered to 18y for the Senate
  • n. 1/2022: enhanced protection of the environment in the Constitution Some fundamental principles of the Italian Constitution: Democratic, Personalistic, Pluralistic, Autonomistic, Labouristic, Internationalistic Article 3 → equality principle Divided in:
  • formal equality: parità sociale and uguaglianza di fronte alla legge
  • substantial equality Article 2 → inviolable rights → La Repubblica riconosce e garantisce i diritti inviolabili dell’uomo

Electoral legislation in Italy

Broadening the suffrage

  • 1848-1882: right to vote given to 2% of the male population
  • 1882: electoral reform, 7%
  • 1912, universal suffrage: all adult males over 30 given right to vote (23%)
  • 1918: voting age lowered to 21
  • Jan 1945: all adult males and women over 21 were given the right to vote
  • March 1946: right to be elected given to women over 25
    • Spring 1946: first free local elections
    • 2 June 1946: Institutional referendum and election of the Constituent Assembly
  • 1975: voting age lowered to 18 (only for the Chamber)
  • 1993: right to vote in local and European elections extended to European citizens residing in a different member States
  • 2000-2001: constitutional amendments acknowledging the expatriate vote in general elections and in referendums
  • 2021: voting age lowered to 18 for the Senate Electoral systems for general elections - Italian Kingdom (1848-1943)
  • 1848-1918 (French model): single member constituencies, top-two runoff vote if the most voted in the first round did not get 50% of the votes (representing 33% of the eligible voters)
  • 1882-1890: multi-member constituencies, then, back to the previous system (with some modifications)
  • 1911: universal male suffrage
  • 1919: Proportional system
  • 1923: “legge Acerbo”, 2/3 of the seats to the most voted list (if it got 25% of the votes)
  • 1928: yes/no vote to the single list presented by the National Fascist Party
  • 1939: abolition of the Chamber of deputies. Establishment of the unelected “Camera dei fasci e delle corporazioni”

as the equal status of each individual right to vote, in such a manner as profoundly to alter the composition of the democratic representative bodies on which the entire architecture of the prevailing constitutional order is based”.

  1. Also the electoral legislation applicable to the Senate was struck down on the grounds that there was not necessarily any relationship between the majority of seats allocated and the actual majority of votes cast nationwide, as “the majority bonus is to be allocated for each region”. This means that “the effect is that the majority within the Senate is the chance result of the sum total of regional bonuses, which may end up overturning the result obtained by the lists or coalitions of lists on national level, favoring the formation of disparate parliamentary majorities in the two Houses of Parliament, even if the overall distribution of votes is substantially homogeneous”.This risks compromising “both the proper functioning of the form of government delineated by the republican Constitution under which the government must enjoy the confidence of both houses (Article 94(1) Const.) as well as the exercise of legislative powers” (Article 70 Const.). “Ultimately, it risks thwarting the intended result of a sufficiently stable parliamentary majority and government”. → Proportional system with high thresholds.
  2. The Court struck down the system of list voting on the grounds that voters were unable to express any preferences and that the lists were so large that the identities of many candidates were unknown to voters. In this way, the law deprives ‘voters of any ability to choose their own representatives, which is left entirely to the parties’ and thus constrains ‘the freedom of choice of voters when electing their own representatives in Parliament, which is one of the principal manifestations of popular sovereignty, and thus run contrary to the democratic principle, impairing the freedom in voting itself guaranteed under Article 48 of the Constitution’.
  • Limitation of the effects of the judgement: Finally, the Court held that the decision will only “take effect during the next general election, which will have to be held either according to the rules contained in the legislation remaining in force following this decision, or according to new electoral legislation enacted by Parliament”. Therefore, it does not in any way affect any actions carried out as a consequence of decisions made whilst the annulled provisions were in force, including the outcome of elections held and measures adopted by the Parliament thereby elected. “ The elections held under the terms of electoral legislation that has been ruled unconstitutional are ultimately, and quite obviously, a settled matter […] ”. Similarly, any acts which the Houses of Parliament may adopt before new elections are held will not be affected. The fundamental principle in this case is the continuity of the State. An electoral system never applied: Law no. 52/2015 (“Italicum”)
  • “Majority assuring”, only related to the Chamber of deputies
  • Majority prize up to 15% of the seats (however <55% seats in total): 340 seats
  • Minimum threshold for the majority bonus: 40% (at the first round)
  • (single) electoral threshold: 3%
  • Possible run-off vote among the two most voted lists
  • Short closed lists with 2 preferential votes (double preference system M/F)
  • Top candidates directly elected
  • Limited number of multiple candidatures
  • Not applicable before 1 July 2016 Judgement No. 35/
  • The Constitutional Court heard the case even if the law no. 52/2015 had never been applied: individual citizens may ask ordinary civil courts to acknowledge the integrity of right to vote according to a law which needs to be in conformity with the Constitution
  • The Court upheld the constitutionality of a 55% seats bonus for the party getting 40% of the votes at the first ballot
  • The Court struck down the provision concerning the run- off voting mechanism, relying on the arguments used by judgement no. 1/2014.
  • The Court struck down the provision according to which top candidates standing for election in multiple constituencies might choose themselves the constituency in which to be elected, by resorting the provision according to which the choice should be made by a drawing.
  • The electoral law, as reviewed by the judgement, is immediately applicable. Core point of the judgement, on the run-off vote: •The violation of articles 1(2), 3 and 48(2) Const. does not derive, per se, from the fact that a majority bonus is attributed in a second round but from the concrete modalities envisaged. •A list can access the second round on the basis of a very limited consensus obtained in the first round, getting more than double the seats it would have obtained on the basis of the votes of the first round. In this way the provisions produce, although at the second round, the same effects already censured by the Court in the judgement no. 1/2014. •In the Court’s view, the legitimate pursuit of the aims of efficiency of the decision-making and government stability, surely of constitutional relevance, determines an excessive sacrifice of the principles of the necessary representativeness of the Chamber of deputies and of the equality of the vote. Final statement:
  • This Court cannot avoid to underline that the outcome of the referendum of the 4th December 2016 confirmed a constitutional arrangement based on the parity of place and functions of the two elective Houses. •In this context, the Constitution, while note requiring to introduce the same electoral systems for the two branches of the Parliament, requires, in order not to jeopardize the correct functioning of the parliamentary form of government, that the systems adopted, although different, do not impede, at the outcome of the elections, the formation of homogeneous parliamentary majorities. •2017-…: an electoral law written by the Constitutional Court? Current electoral system (Law no. 165/2017)
    • Judgment no. 1/2014: the ‘Porcellum’ was declared unconstitutional (the majority bonus had no minimum threshold and there was no possibility for the citizens to express any preference for the MPs)
    • a new two-round system with a majority bonus was approved (by the (centre-left parliamentary majority) for the election of the Chamber of Deputies (in strict coordination with the constitutional reform), the so-called ‘Italicum’: law no. 52/2015. The majority bonus was awarded to the list obtaining 40% of the votes or – in case no list reached this threshold – to the winner of a run-off held between the top two lists after a second electoral ballot.
  • Judgment no. 35/2017: two points of the Italicum have been annulled: the majority bonus, assigned after the second ballot, and the possibility for a candidate to compete in several constituencies and to subsequently choose the constituency where to be elected. And the Court explicitly wished for similar electoral system for the two Houses (after the outcome of the constitutional referendum and in the light of the parliamentary form of government).
  • Approved in Fall 2017, by a wide parliamentary majority (so called «Rosatellum-bis»)
  • The same electoral system for both Housed: Mixed system , with one vote (for each House)
    • 63% of the seats according to a proportional system, with blocked listes
    • 37% of the seats according to a first-past-the-post system, in single-member constituencies
    • Coalitions (for single-member constituencies) or single lists
  • Electoral thresholds: 10% for coalitions; 3% for lists (but 1% to have their votes useful for the coalition)
  • Up to 5 (plus 1) pluri candidatures. Max 60% candidates of the same sex Regional and local electoral systems
  • Since 2001, each region may approve its own electoral law respecting some constitutional principles (if the President is directly elected, simul stabunt, simul cadent)
  • State competence to regulate local elections, with differences between:
    • Municipalities with more than 15,000 inhabitants;
    • Smaller municipalities;
    • Provinces’ bodies are no longer elected (since 2012)
    • Both in regional election and in bigger municipalities there is a majority bonus: an Italian model? (R. D’Alimonte)

Under the Albertine Statute, parliamentarians were taken from wealthy social classes and didn’t have a salary Today parliamentarians have an economic indemnity → to avoid any risk of external inferences → if a member of parliament is in need for money, he/she is easily corruptible Financial allowance makes members of parliament independent from bribing Except from the financial aspect, we have traditional freedom of the representative mandate: each MP carries out his/her duties without a binding mandate → MPs are totally free in their decisions Members of Parliament cannot be held accountable for the opinions expressed or votes cast in the performance of their function → without authorization of the House, no MP can be subjected to personal/home search, arrest … such authority is also required to monitor an MP’s conversations or communication (including e-mails) The Law Making process

  1. Legislative initiative by
  • government
  • MoP
  • 50 000 citizens
  • CNEL
  • regional council
  1. Approval by the House
  2. Transmission of the Bill (same text or with amendments) to the other House
  3. Promulgation by the President of the Republic (“safenet” of constitutionality)
  4. Publication on the official journal → publicity, so citizens get acquainted with the content of the law → N.B: publication doesn’t coincide with the entry into force of the law
  5. Entry into force → vacatio legis 2 Procedures:
  6. Ordinary procedures → most common the bill is examined first by a Parliamentary committee, that has the task of making preliminary assessment and evaluation (written report) → the committee choses a relatore to discuss the text in the plenary → long debate → the committee acts in a reporting capacity ( commissione in sede referente )
  7. Special (shorter) procedures committees act in a legislative capacity ( commissione in sede legislativa ) → they have the task of considering and definitively approving a bill Committees can also act in a drafting capacity ( c. in sede redigente ) → the House cannot amend the articles Legislative Decrees The exercise of the legislative function may not be delegated to the Government unless principles and criteria have been established and then only for a limited time and for specified objects. Articolo 76 Law-Decrees - Decree-Laws The Government may not, without an enabling act from the Houses, issue decrees having the force of ordinary law.cWhen in extraordinary cases of necessity and urgency the Government adopts provisional measures having the force of law, it must on the same day present said measures for confirmation to the Houses which, even if dissolved, shall be summoned especially for this purpose and shall convene within five days. The decrees lose effect from their inception if they are not confirmed within sixty days from their publication. The Houses may however regulate by law legal relationships arising out of not confirmed decrees. → Articolo 77 Confidence relationship → articoli: 92, 93, 94, 95 Italy has a parliamentary form of Government

The initial explicit motion of confidence from both houses to the Government, to be voted once the government is formed Peculiar feature of bicameralism → confidence comes from both houses In the italian system we have 4 parliamentary procedures regarding confidence relationship 2 are in art. 94:

1. motion of confidence initial act from the two houses to the Government → reasoned motion voted on roll-call 2. motion of no-confidence symmetrical instrument through which Houses can ask the government to resign → needs to be signed by at least 1/10 of the representatives of one House Quorum: simple majority (to require higher majority, the government needs a constitutional provision) → 50% + 1 of the people voting (N.B. in the Senate before 2018 “abstention” was considered as a present vote → now it’s not) Three days delay The Government can resign whenever The only way to oblige a resignation is through the motion of no-confidence → Prodi government 1998/ Question of confidence → official declaration → the government declares the importance of the vote; if it doesn’t go in favor of the government, it is obliged to resign It’s also possible to deny the confidence to one single minister → happened in 1995 with minister Mancuso (justice) → individual motion of confidence Synthesis the 4 procedures regarding confidence

  1. motion of confidence
  2. motion of no confidence
  3. question of confidence
  4. individual motion of confidence

Non può esercitare tale facoltà negli ultimi sei mesi del suo mandato, salvo che essi coincidano in tutto o in parte con gli ultimi sei mesi della legislatura

  • Only 3 precedents: 1992, 2006 and 2013 → After the general elections in 2013, Napolitano had no powers to dissolve the parliament, whereas he did have them after his re- election (=> appointment of Letta as President of the Council) → N.B. in the EU member States no other State has these features (the President can dissolve the chambers) Article 89: no act of the PoR is valid if it’s not signed by a proposing minister, or a competent minister according to the matter-at-hand ( che si assume le responsabilità ) A member of the government has to sign presidential acts, so that the responsibility doesn’t fall entirely on the President Acts with legislative value + others (indicated by law) are countersigned by the President of the Minister’s council (Head of Government) A few acts aren’t countersigned: personal acts (e.g. resignation), oral statements, declarations of temporary impediments The role of the counter-signature changes, depending on the nature of the presidential act. Presidential Acts can be:
    1. fully presidential (both formally and substantially presidential)
      • appointment of 5 Senators for life
      • appointment of 5 constitutional judges The content of these acts is fully decided by the president → in this case the counter-signature is merely formal
  • sending messages to the Houses of Parliament (used to push parliament, e.g. to approve some kind of legislation - the President usually uses informal messages)
  • granting of pardons and commuting punishments → before 2006 it was considered a dual power judgment 200/2006 of the Constitutional court → decided that it was a fully presidential power, and the counter-signature of the ministry of justice was just a formality
  • “promulgation with critical motivation” → after the promulgation of a law, the president can send a message with concerns/warnings about the piece of legislation → Request for a new deliberation of a legislative deliberation (art. 74 Const.)
  • NOT a veto power: the Parliament is free to re-approve the same text. In that case (never occurred yet), the President would have the duty to promulgate the law.
    1. formally presidential
      • Most of governmental legal act come into force in the form of decrees of the PotR (so called “dPR”), but the content of the presidential decree is determined by the Government, which proposed it
      • Governmental bill are introduced to the Parliament upon a Presidential “authorization” (which is about a mere formality)
      • Both secondary legal acts (as regulation) and primary acts (as delegated legislation or decree-laws) come into force after the emanation by the PotR
      • Few cases of refusal of the emanation (i.e. “Englaro case”)
      • Declaration of war (following the parliamentary deliberation)
    2. complex - or dual (governmental and presidential)
      • appointment of the President of the council (counter-signed by the President of the council him/herself) The President isn’t fully free to decide The appointee has to be able to gain the confidence in the parliament
      • appointment of the ministers discussed in 2018 with the veto of President Mattarella, in the formation of the Conte I Government (Minister Savona)
      • dissolution of Parliament
        1. duty to hear the Speakers
        2. countersigned by the President of the Council of the Presidential decree of Parliament’s dissolution Metaphor of the “Squeeze Box” → the power held by the PoR largely depends on the political situation In a cohesive and clear government, the role of the PoR holds less power (and vice versa)

In times of a stable majority in both the Houses (granting a stable confidence to the Government), the President’s role is recessive (even though it is NEVER just symbolical/ceremonial: at least with regard to the fully presidential powers) Without a clear majority and under political uncertainty, the role of the president gets more important. Examples:

  1. appointment of Monti and Draghi governments
  2. situation after 2013 and 2018 elections Irresponsibility of the President of the Republic (Art. 89)
  • Responsible only for “high treason” and “attempt to overthrow the constitution” (art 90, altro tradimento o per attentato alla costituzione ) → the President can be persecuted for these crimes, through a process of impeachment:
  1. parliament in joint session, debates and then approves the impeachment of the President (after the proposal examined by a bicameral committee)
  2. constitutional court decides on the impeachment → in these cases 16 members are added to the Court The role of the PoR requires a high level of privacy and confidentiality Conclusions
  • The position of the President of the Republic in the constitutional architecture is highly disputable:
  • Within the circuit of the political direction “indirizzo politico” (the power to determine, in concrete, the aims of the State and the means through which the aims can be fulfilled)?
  • Among the “guarantee” institutions: i.e., those called upon to ensure the constitutional coherence of the constitutional system?
  • Holding his/her own “ constitutional political direction power ” “indirizzo politico costituzionale”? (Barile) Super partes? Inter-partes? “Non partisan” acting? Bipartisan election?
  • Ordinary laws, but constitutionally essential, etc.
  • “Manipulative” referendums: repeal of mere words with the aim of radically change the meaning of the law (judgments no. 36/1997; no. 10/2020) The case-law of the Constitutional on abrogative referendum Court , issued since the 1970s (judgment no. 16/1978) in order to declare admissibility (or inadmissibility, as happened in almost half of the cases), established a series of principles and guidelines that a proposal for an abrogative referendum needs to follow.
  • Referendum → instrument of direct democracy. In a representative democracy the referendum cannot to obtain a popular vote of confidence on the general political choices of the promoters of the referendum, sustaining complex and blocked referendum proposals.
  • Implicit limitations manage to avoid a misuse of the abrogative referendum, preventing its natural plebiscitarian degeneration and keeping the primacy of representative democracy. It has been a clever – although not always easy – way to limit the use of an instrument that, precisely because it invokes the holder of the sovereign power, originates effects that most of the time tend to exceed the question that has been asked to the citizens and often also the legal framework that defines the legal consequences of the referendum itself → Direct democracy? Better, a tool of direct expression of popular will, within a system of representative democracy **Constitutional Referendum (art.

Abrogative Referendum (art. 75) Who** - ⅕ members of one Chamber

  • 500 000 electors
  • 5 regional councils
  • 500 000 electors
  • 5 regional councils When entro tre mesi dalla pubblicazione when the request is made What leggi di revisione della Costituzione e altri leggi costituzionali abrogazione totale o parziale di una legge o di un altro atto avente valore di legge Quorum La legge sottoposta a referendum non è promulgata se non è approvata dalla maggioranza dei voti validi La proposta soggetta a referendum è approvata se ha partecipato alla votazione la maggioranza degli aventi diritto, e se è raggiunta la maggioranza dei voti validamente espressi

Government

Articolo 95 → defines the structure of the Government and mutual relationship → Government: essential + additional bodies + auxiliary bodies Structure of government: essential bodies

- President of the council → conducts the government and holds responsibility - Council of ministers → promotes and coordinates the activities of Ministers - Ministers → individually responsibility for their own ministries 3 possible ways to define the relationships:

  1. president leads and determines political direction
  2. most important body = council as a whole
  3. each minister defines the policies of his/her sector N.B. the constitution is vague about the relationship of the three parts of Government, for historical reasons → it is up to the law to define the relationship of the organs of Government law 400/1998 it took long because the parties didn’t want the relationship to be codified → the approval of this law was strongly supported by governments Spadolini/Craxi Additional bodies (can exist or not)
  • Vice-president(s) of the Council of Ministers (e.g. Conte I Di Maio and Salvini)
  • Ministers without portfolio (so they're not head of a Ministry, bu of a smaller administrative structure)
  • Under-secretaries of State and Vice Ministri ( Sottosegretari di Stato ) → they ensure the presence of the government in parliament
  • High and special commissioners (e.g. General Figliolo for the covid emergency)
  • Inter Ministerial committee → composed by more ministers (e.g. environmental and digital transition) Auxiliary bodies:
  • CNEL: National Council of economy and labor (has legislative initiative)
  • Council of State
  • Court of Auditors (Corte dei Conti) Council of State and Court of Auditors have 2 functions: advisory (auxiliary) bodies + part of the judiciary Ministerial crimes need to be authorised by the House Can be denied if the person was acting in favour of the State → The President of the Council of Ministers and the Ministers, even if they resign from office, are subject to normal justice for crimes committed in the exercise of their duties, provided authorization is given by the Senate of the Republic or the Chamber of Deputies, in accordance with the norms established by Constitutional Law (Art. 96 Const., after 1989 constitutional amendment). The Assembly can deny the authorization, by absolute majority, if it considers “that the person has acted for the protection of a State interest that is constitutionally relevant or for the pursuance of a preeminent public interest in the function of Government” (Article 9 of the Constitutional Law no. 1/1989). Combination of political and technocratic elements Government = political body and head of administration Each government needs political validation but at the same time it needs technical abilities and expertise → combination of political and technocratic elements There’s an asymmetry/unbalance between the blend that characterises the Italian government and the one that characterises European Institutions → In the European Union institutions technocrats and technocracy matter more than in its Member States. This asymmetry is important! Italian Council of Ministers Council of the EU ( + European Council ) Only the ministers are allowed (not members of the staff) Composed by ministers and technicians → the technical side accompanies the decision Art. 10 TEU: Indirect democratic accountability of the EU through national institutions The good functioning of EU democracy depends on how good national governments work
  1. The functioning of the Union shall be founded on representative democracy.
  2. Citizens are directly represented at Union level in the European Parliament. Member States are represented in the European Council by their Heads of State or Government and in the Council by their Governments, themselves democratically accountable either to their national Parliaments, or to their citizens.

● Legal individual position which is only indirectly (occasionally) protected by the legal order (if it coincides with the public interest), while the «full subjective right» is fully and directly protected. Administrative Acts

  • The main features of administrative acts/provisions («provvedimenti amministrativi»):
  • typical;
  • unilateral;
  • authoritative;
  • motivated;
  • executory Normally, they are the result of the exercise of discretionary powers provided by the law. Also other administrative measures, preliminary to the final act/provision, or manifestation of knowledge/judgment. Administrative Procedure Most of the times, public administrations follow a procedure («procedimento»), due to their pluralistic structure. General principles provided by law no. 241/1990 and subsequent amendments. Principles of transparency, participation, efficiency, simplification, responsibility. Main phases of the administrative procedure:
    1. initiative;
    2. investigative;
    3. constitutive;
    4. (integration of execution) Judicial control of administrative action: the administrative justice system Art. 113 Const. The judicial safeguarding of rights and legitimate interests before the organs of ordinary or administrative justice is always permitted against acts of the public administration.Such judicial protection may not be excluded or limited to particular kinds of appeal or for particular categories of acts. The law determines which judicial bodies are empowered to annul acts of public administration in the cases and with the consequences provided for by the law itself. The administrative justice system
  • Ordinary justice (the same judges for controversies among citizens) or administrative justice (Regional Administrative Tribunals-TAR and Council of State)? Both (a dualistic system, therefore), depending on the legal position endangered and on the subject matter. Traditional criteria (since the XIX Century), now provided by the new code on administrative trial («processo»): legislative decree no. 104/2010.
  • Legal position:
  • «full subjective rights» to the ordinary justice;
  • «legitimate interests» to administrative justice.
  • Subject matter (exclusive jurisdiction), i.e.:
  • administrative sanctions, expulsions of immigrants and public servants: to the ordinary justice;
  • agreements among administrations, independent authorities acts (except data protection authority), right of access to administrative documents: to the administrative justice.

Regional and local government in Italy

Autonomies in Italy

  • 20 regions
  • 110 provinces
  • More than 8,000 municipalities The autonomistic principle (Art. 5 Const.) The Republic, one and indivisible, recognizes and promotes local autonomies; implements in those services that depend on the State the fullest measure of administrative decentralization; and accords the principles and methods of its legislation to the requirements of autonomy and decentralization. Art. 114 Const. - (original version) “The Republic is divided into Regions, Provinces and Municipalitie s” - Revised text (since 2001) “ The Republic is composed of the Municipalities, the Provinces, the Metropolitan Cities, the Regions and the State” Republic ≠ State Territorial Representation at State level
  • Lack of a Second Chamber where Regions are directly represented
  • Inter-institutional cooperation only through intergovernmental relationship:
  • State-Regions Conference (Conferenza Stato-Regioni);
  • State-Cities and Local Autonomies Conference (Conferenza Stato-Città e autonomie locali);
  • Unified Conference (Conferenza Unificata). No means for inter-parliamentary dialogue Asymmetric Regionalism → Art. 116. 5 Regions with special statutes (Sicily, Valle Sardinia, Friuli-Venezia Giulia, d’Aosta/Vallée d’Aoste, Trentino-Alto Adige/Südtirol):
  • First attempts of implementation: ● Const. Court Judg. no. 118/2015 on the referendum in Veneto ● 22 October 2017 - Referendums in Veneto and Lombardy on the activation of the art. 116.3 tool. ● 28 February 2018 - 3 Preliminary agreement signed by Government and Regions of Emilia-Romagna, Lombardy and Veneto Art. 116.1 Const. →
    • Specificity of Trento and Bolzano autonomous provinces
    • 15 Regions with ordinary statutes (delayed implementation: only in 1970) Two important constitutional reforms of the Fifth Title of the Second part Const., so far:
  1. constitutional law no. 1/1999, providing the direct election of the Presidents of the Regions and revising the adoption of regional Statutes
  2. constitutional law no. 3/2001, revising completely the role of the Regions Regional Statutes as sources of law (Artt: 116 and 123)
  • Special Statutes are constitutional laws (Art. 116 Const.) → Ordinary Statutes since Const. Law. No. 1/1999:
    • Regional Laws approved and amended through a special procedure in the regional councils and can be submitted, upon request, to a regional referendum (Art. 123 Const.)
    • They must comply with the Constitution the national Government can challenge it before the Constitutional Court (Art. 123 Const.)
    • Compared to other regional laws, the regional statute is at the top of the hierarchy of the regional norms Since 1999 all ordinary Regions have adopted new Statutes Art. 123 Const: necessary content of the Regional Statutes
    1. The regional form of government
    2. The basic principles for the organization and functioning of the Region
    3. The right of legislative initiative
    4. The right to promote referenda on regional laws and administrative measures
    5. The issue of the publication of regional laws and regulations (BUR)
    6. The Council of local authorities

New constraints for regional and local autonomies Balanced budget clause: Const. Law no. 1/2012 → New Art. 119 Const. :

  • Obligation, extended to Regions and local autonomies, to balance their budgets between revenues and expenditures
  • They contribute to ensure the compliance with limits and contraints fixed at the EU level
  • The borrowing for investment expenditures allowed only in case of compliance with the balanced budget rule on the part of all authorities of the Region concerned SUBSIDIARITY PRINCIPLE (Art. 118 Const.) The reform of the Provinces Abolition of provincial elections approved (law no. 56/2014) and upheld by the Constitutional Court (decision no. 50/2015), in waiting for a constitutional amendment, aimed at abolishing the provinces, that did not succeed (2016 constitutional referendum). Law no. 56/2014 has transformed the Provinces of the ordinary Regions into indirectly elected territorial autonomies:
  • the President and the Council are elected by the Mayors and by the members of the Municipal Councils located in the territory of the Province;
  • the former provincial executive (Giunta) is abolished and its competences are re-allocated to the Council;
  • the most significant decisions (approval of the budget; amendments to the statutes) are reserved to a new body, the Council of the Mayors. The reform has also established nine Metropolitan cities (Torino, Milano, Venezia, Genova, Bologna, Firenze, Bari, Napoli, Reggio Calabria) and outlined the special discipline of Rome Capital

The Judiciary

Art. 101 Const. “ Justice is administered in the name of the people ” (art. 1 Cost.) Judges are subject only to the law (law is recognized as the ultimate source of power) Before: judges were submitted to the power of the King (delegates of the King) → “the King cannot adjudicate any case” Art. 68 Albertine Statute: “J ustice emanates from the King and is administered by judges whom he appoints ” Single or divided judiciary? ● art. 24 Const., on the right to defense ( see also art. 6 ECHR, on the “fair trial”* ); ● art. 113 Const. on the right to contest the acts enacted by the administration; ● art. 103 Const ., on the safeguard of legitimate interests. Also some subjective rights in the “reserved matters” (Legislative Decree 104/2010). Unconstitutionality of laws establishing new/other special or extraordinary judges ( Article 102, para. 2, Const.) Only specialised sections of ordinary judges can be established within ordinary judicial bodies (e.g. labour judges, juvenile tribunals…) There is no hierarchy among judges, only a distinction of functions ( art. 107, par. 3, Const. ) ● Each judge plays his/her exclusive part in the functioning of the justice → Therefore, each individual judge can suit the Constitutional Court on matter of his competence “as” the judiciary as a whole, in conflicts of attributions (disputes) among powers Independence of judges Art. 104 Const .: “ The Judiciary branch is autonomous and independent of all other powers ”.

  • Art. 6 ECHR McGonnell case (2000): “appearance of independence”; “objective impartiality” – Bailiff of Guernsey (similar to the Lord Chancellor) → UK Reform Act 2005
  • procedures of appointment
  • length of the mandate
  • protection against pressure from outside (politicians, media, people, etc.) Functional independence
  • “subject only to the law” ( art. 101 Const. ) Institutional independence
  • Separation of powers (is the Judiciary a State power in the strict sense?)
  • Bodies of independence ( art. 104 Cons)
  1. Ordinary judges (civil and criminal) => Tribunals, Courts of Appeal, Court of Cassation High Council of the Judiciary
  2. Administrative judges (legitimate interests / legitimate rights, some subjective rights) => Regional Administrative Tribunals (TAR), Council of State → Consiglio di presidenza della Magistratura amministrativa
  3. Accounting judges => Court of Auditors → Consiglio di presidenza della Magistratura contabile
  4. Military tribunals → Consiglio di Presidenza della Magistratura militare Personal independence ( art. 106 Const. )
  • Appointed by means of competitive examinations
  • Judges may not be removed […] dismissed or suspended […] unless by a decision of the High Council of the Judiciary […] or with the consent of the judges themselves Constitutional Court’s judgement no. 170/2018: participation to the “life of a political party” deemed unlawful Disciplinary measure (to a judge “out of role”, i.e. non exercising judicial functions): independence and impartiality justify special limitations on the judge’s freedom of association High Council of the Judiciary/Consiglio superiore della Magistratura (CSM) 3 members by law
  1. President of the Republic (President of the CSM)
  2. First President of the Court of Cassation
  3. General prosecutor of the Court of Cassation Elective members (only the proportion is fixed by the constitution, the number is set by legislation):
  • ⅔ (currently 16) elected among ordinary judges