italian federalism

An Italian Federalism?: The State, Its Institutions and National Culture as Rule of LawGuarantorAuthor(s): Louis F. Del Duca and Patrick Del DucaReviewed work(s):Source: The American Journal of Comparative Law, Vol. 54, No. 4 (Fall, 2006), pp. 799-841Published by: American Society of Comparative LawStable URL: http://www.jstor.org/stable/20454519 .Accessed: 18/11/2011 06:23

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LOUIS F. DEL DUCA AND PATRICK DEL DUCA*

An Italian Federalism?-The State, its Institutions and National Culture as Rule of Law Guarantor

Italy presents a nascent federalism, inventing its Regions to ad dress national political blockages. Evolving relations between Re gions and State, plus supranational union, illustrate roles and origins of Italy's State institutions and constitutional rule of law. As the State invents Regions and embraces Supranationalism, its institu tions and cultural values assure continued guarantee of fundamental constitutional principles. Electoral reform, referenda, New Deal-style authorities and judicial activism, all within Italy's historically founded consensus on the constitutional rule of law, reinforce the State and strengthen its role of guaranteeing such rule of law. As Italy continues its experiment of evolving from a unitary to a decentralized, federal-type constitutional democracy, its national judiciary and civil service, along with its legal culture which includes national organiza tion of legal education and professions, support its institutions in as suring the constitutional rule of law. Italy's experience may yield insights for other States' redefinition of federalism, e.g. Argentina,

Brazil, Mexico, and Russia, as they address challenges of applying the constitutional rule of law, while confronting change.

I. FEDERALISM VIA REGIONALIZATION AND SUPRANATIONALISM

Italy offers an ongoing story of State transformation. Its nascent federalism combining Regionalization and Supranationalism is cen

* Respectively, Professor and Edward N. Polisher Distinguished Faculty

Scholar, Penn State Dickinson School of Law, B A. Temple, J.D. Harvard, Dott. di

Giur. University of Rome Law School; and, Partner, Manatt Phelps & Phillips LLP; UCLA Law School Adjunct Professor, BA. Harvard, D.E.A. Universit? de Lyon II, J.D. Harvard, laurea in giurisprudenza Universit? di Bologna, Ph.D. European Uni

versity Institute. The authors thank George Berman, Stephen Gardbaum, Lucia

LaRosa-Ames, Paolo Mengozzi, Yves Many, Mathias Reimann, Arthur Rosett, Susan

Schmidt and Richard Steinberg, the participants in the Apr. 6-7, 2006 joint meeting of the American and Italian Societies of Comparative Law at Penn State Dickinson School of Law, and faculty colloquia at UC Davis, UCLA, and Loyola law schools, for critique, as well as Penn State Dickinson School of Law students for research assis tance: Vieri Canepele (LL.M. 2005, Studio Legale Canepele), Daniele Ferretti (LL.M. candidate 2007), Cristina Franchini (LL.M. 2004, doctoral candidate Universit? di Firenze law faculty), Gianluca Gentili (LL.M. candidate 2007) and Sofia Marchiafava (LL.M. 2005, Studio Legale Plantade Posi e Associati).

799

800 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 54

tral to this transformation, and the State's survival in the face of Italy's abundant political impasse. As Italy regionalizes and supranationalizes, the State's premier role becomes increasingly to assure the rule of law in conformity with its Constitution's funda

mental principles.' The achievements of constitutional governance merit celebration by Italians accomplishing them, as well as legal and political science students of federalism, aspiring leaders of nomi nally federal countries transitioning to multi-party democracy, and even the international development community engaging so-called sub-sovereign governments. The State's ongoing transformation through Regionalization and Supranationalism is a key to what

makes Italy work as a democratic society under the constitutional rule of law.

Italy's legal system since World War II offers two superficially dissonant, but intimately related, constants: (1) sustained evolution in the attributes of local, national and supranational levels of govern

ment; and (2) consistent respect for the rule of law in conformity with its 1948 Constitution's "fundamental principles." The Constitution's fundamental principles have constrained and shaped the governmen tal evolution, and that evolution has more deeply rooted the funda

mental principles.

The 1948 Constitution labels its opening articles "fundamental principles." Among them are: popular sovereignty "exercised in the forms and limits of the Constitution;" recognition of human rights; equality of citizens and religions before the law; and Italy's conform ity to international law, as well as promotion of local autonomies and advancement of linguistic minorities. Italy's Constitutional Court de fines the notion of fundamental principles even more broadly. Faced in 1988 with the constitutionality of a Bolzano Provincial Council

member's immunity from prosecution for having disparaged the Ital ian flag, the Court procedurally dodged the question, but declared,

with a Marbury v. Madison bravura:

The Italian Constitution contains some supreme principles that cannot be subverted or modified in their essential con tent either by laws of constitutional amendment or other constitutional laws. Such are principles that the Constitu tion itself explicitly contemplates as absolute limits to the power of constitutional revision, such as the republican form [of government] (CONST. art. 139), as well as principles that, although not expressly mentioned among those not subject

1. This is a novel response to questions on the role of the State in a world of

globalization, supranationalism and regionalism. See Governance in a Global

Economy: Political Authority in Transition (Miles Kahler & David A. Lake eds.,

2003); The State after Statism: New State Activities in the Age of Liberaliza

tion (Jonah D. Levy ed., 2006).

2006] AN ITALIAN FEDERALISM? 801

to the principle of constitutional revision, are part of the su preme values on which the Italian Constitution is based.2

The Constitutional Court's articulation and protection of "supreme" and "fundamental" constitutional principles, including through its work as arbiter of disputes between State and Regions, contribute significantly to the State's assurance of the constitutional rule of law. Modification of electoral rules and recourse to national referenda, plus creation of "new Deal"-style authorities to assert State power in management of markets, also add to such assurance.

Regionalization and Supranationalism have proceeded concur rently with redefining the State's essence, paradoxically reinforcing its role as guarantor of the constitutional rule of law. Earlier in It aly's post-war history, Regionalism seemed to some merely a political party game to maintain power.3 However, both Regionalization and Supranationalism with time appear to be contributing to distill the State's premier purpose to the highest level, namely, assuring the constitutional rule of law.

Under the 1948 Constitution, Italy's legal system has addressed intimidating challenges in the face of sustained political blockages, including industrial revolution, urbanization, entrenched bureau cracy, stagnant political classes, corruption, organized crime, and ter rorism of right and left. These challenges unfolded as Italy's political parties and governmental institutions struggled to define themselves in a new republican and eventually European environment, initially in the cold war and subsequently in the post-cold war era. As civil society rapidly evolved to greater dynamism, heterogeneity and pros perity, Italian politics often appeared locked in insoluble impasses.

With growth and ongoing political blockage, the stakes increased in construction (or as here asserted, reconstruction through deconstruc tion) of the Italian State in a rule of law framework consistent with its 1948 Constitution's fundamental principles. Italy's ultimately disastrous experience of fascism and the consequent post-war politi cal system's mediation of conflicts by avoiding crisp choices (which exacerbated national political impasse), reinforced centrality of the constitutional rule of law to the restructuring process unfolding as a

mechanism for working around political impasse.

2. Corte cost, judgment no. 1146 of Dec. 15, 1988, considerations in law, ?2.1, Gazz. Uff. of Jan. 11, 1989, prima serie sp?ciale no. 2. The Court references "funda

mental" and "supreme" principles in support of constitutional rule of law in various

contexts, e.g. to define the relation between European Community and Italian law.

See text infra starting note 118.

3. Yves Many, The Political Dynamics of Regionalism: Italy, France, Spain, in Regionalism in European Politics 1-28, 18 (Roger Morgan ed., 1986), endorsing

Giorgio Berti, La riforma dello stato-La vicenda regionale, in Luigi Graziano & Sid

ney G. Tarrow, La crisi italiana 482 (1979).


II. REINFORCEMENT OF NATIONAL POWER

A. Italy's National Electoral System and Political Parties

From the 1948 Constitution's adoption, Italy employed propor tional representation to impede any one political party dominating national life.4 Accordingly, Parliament closely reflected the various parties' electoral strength through the post-war period. Nationally, proportional representation fragmented electoral representation among parties, making government practical only by broad coalition. In contrast, individual party or narrow coalition governance of Re gions and municipalities was common.

When the Communists' de facto exclusion from national power became apparent, they became Regionalization proponents.5 Like wise, as the Christian Democrats recognized that they would main tain national predominance with coalition partners, they delayed implementing the 1948 Constitution provision for Regional govern

ment.6 The Communists maintained a fifth to a third of national vote from 1948 to 1992; however, fearing a Communist agenda that might include irrevocable Stalinist control, the other parties excluded them from national government until 1996, notwithstanding the 1973 "his toric compromise" of cooperation between Communists and Christian

Democrats.7 Because of the long-standing exclusion, the same politi cal class governed Italy from 1948 through 1992 despite frequent elections and reconstitution of coalition governments.8 By 1996 the

world changed, and the bulk of the Communists, following the Berlin wall's collapse, mutated into the Partito Democratico della Sinistra's social democracy.9 The pattern of national center-left coalition gov ernments further changed as the tangentopoli scandals exposed their entrenched corruption.10

Starting in the 1990s, Italy wrestled with ways to render its elec toral mechanisms more decisive. In 1993, it determined to elect its

Parliament on a predominantly first-past-the-post system." Another

4. See Alberto Pasolini Zanelli, The Electoral Reform in Italy: Towards a Major ity System, in Italy in Transition: The Long Road from the First to the Second

Republic: The 1997 Edmund D. Pellegrino Lectures on Contemporary Italian

Politics (Paolo Janni ed., 1998). 5. M?ny, supra note 3, at 14-15.

6. Id. at 15-16.

7. LUIGI LOTTI, I PARTITI DELLA RePUBBLICA. La POL?TICA IN ITALIA DAL 1946 AL

1997 (1997). 8. For Italy's 59 governments, predominantly Christian Democrat and Socialist

coalitions, from 1948 to 2001, see www.cronologia.it/governi2.htm. 9. See Lotti, supra note 7.

10. See, e.g., Antonella Delia Porta, A Judges' Revolution? Political Corruption and the Judiciary in Italy, 39 Eur. J. Pol. Res. 1 (2001).

11. By Apr. 14, 1993 referendum, 82 percent of the 35 million voters, Ministero dellTnterno, http://referendum.interno.it/ind_ref.htm, endorsed majority election of

three-fourths of the Senate's 315 members. DPR no. 170 of June 5, 1993, Gazz. Uff. no. 130 of June 5, 1993. Laws nos. 276 and 277 of Aug. 4, 1993, Gazz. Uff. no. 183 of


1993 reform provided direct popular mayoral election in larger mu nicipalities (with a run-off between the two leading candidates absent a first round majority), thereby allowing new talent entry into Italian politics.12

In 2005, Italy returned to the proportionality model for national elections for the Chamber of Deputies and Regional results for the Senate.13 To address conflicting objectives of promoting electoral co alitions, assuring Parliamentary majorities able to govern, and pro tecting linguistic minorities and smaller parties, the proportionality is subject to thresholds to receive seats as well as premiums for re ceiving the most votes.14

A June 2006 referendum rejected an amendment of Italy's Con stitution.15 The amendment under the heading of "devolution" (nom inally greater health, education and public safety powers to Regions)

would have encouraged parties to campaign through coalitions whose leader would become Prime Minister, as well as redefined Parliamen tary roles.16 Under the amendment only the Chamber of Deputies

would ordinarily have considered legislative matters constitutionally reserved to the State, and undertaken confidence votes to unseat Prime Minister and Government.17 The renamed "Federal Senate of the Republic" would have considered only legislation within concur rent State and Regional power, plus budget legislation.'8 In each case, the other House could propose modification, but the initial

Aug. 6, 1993 then implemented "first-past-the-post" election of three-fourths of Depu ties (472 of 630), i.e. run-off of the two leaders absent a first round majority, with

remaining seats allotted proportionally to parties with at least 4 percent of national

vote. Id.

12. Law no. 81 of Mar. 25, 1993, art. 6, Gazz. Uff. no. 72 of Mar. 27, 1993. See

Bruno Dente, Sub-National Governments in the Long Italian Transition, 20(1) W. Eur. Pol. 176 (1997).

13. Law no. 270 of Dec. 21, 2005, Gazz. Uff. no. 303 of Dec. 30, 2005, ord. supp. no. 213.

14. Id. In Apr. 2006 Italian residents abroad first elected members of Parliament, an idea raised with the 1993 electoral reforms. Law no. 459 of Dec. 27, 2001, Gazz.

Uff. no. 4 of Jan. 5, 2002; Constitutional Law no. 1 of Jan. 17, 2000, Gazz. Uff. no. 15

of Jan. 20, 2000; Constitutional Law no. 1 of Jan. 23, 2001, Gazz. Uff. no. 19 of Jan.

24, 2001; DPR no. 104 of Apr. 2, 2003, Gazz. Uff. no. 109 of May 13, 2003; Law no. 270 of Dec. 21, 2005, supra note 13. Ballots in the four "in the world" districts may be cast by candidate name, unlike for domestic candidates elected by position on party list. Id. The close election lent significance to the 12 Deputies and 6 Senators so chosen. La Cassazione conferma la vittoria dell'Unione, La Repubblica (Apr. 19,

2006). 15. Referendum, il trionfo del No, La Repubblica (June 26, 2006). Of the 53.6

percent of eligible voters participating, 61.7 percent rejected the amendment. Id.

Parliament, when adopting the amendment as Constitutional Law, failed to reach the

majorities to obviate a referendum, Gazz. Uff. no. 269 of Nov. 18, 2005. See text infra note 27. The Court of Cassation then for the first time found all three referendum triggers satisfied. Referendum contro devolution: quorum ampiamente superato, La

Repubblica (Mar. 14, 2006). 16. Constitutional Law, supra note 15.

17. Id. art. 14, 32.

18. Id. art. 1, 14.


House would retain the definitive vote.19 In limited matters, con cerning national maintenance of "civil and social rights" and "electo ral legislation, governmental entities and fundamental functions of

Municipalities, Provinces and Metropolitan Cities," both Houses would vote.20

The failed constitutional amendment exemplifies ongoing re course to changes of procedure to address political impasse. Its prin cipal advocate was the Lega Nord, a key part of the then-governing Berlusconi coalition. Its Parliamentary approval cemented the Lega to the governing coalition, while scheduling the confirmatory referen dum just after pending elections left open whether the amendment would ever take effect. The amendment would have offered new pro cedural paths for political accommodation, but not directly altered balance of power among political forces. Although not in this in stance yielding institutional development, this pattern is ingrained in the successful institutionalization of Regionalization and Suprana tionalism in Italy.

B. National Referenda

Increased recourse to referenda coincides with the breakdown of uninterrupted center-left coalition governments and intensification of hollowing out the State's role in the 1990s, from below by Regional ization and from above by implementation of Italy's European obliga tions. The referenda reaffirm the national electorate's voice while affording a decisive mechanism to address political questions. Italy began as a Republic by a June 2, 1946 referendum on Republic vs.

Monarchy (the Republic prevailed with 54 percent).21 The next refer endum was not until 1974 (a failed referendum to revoke a law al lowing divorce), followed by 1978 referenda on antiterrorism

measures and political party finance, 1981 referenda on terrorism, life imprisonment, right to bear arms and abortion, and a 1985 refer endum on pensions, and from then through 2003, Italians were called 12 times to vote on 41 referenda.22

From its 1948 inception, Italy's Constitution has contemplated two national referendum types: national law abrogation and recon sideration of constitutional amendment.23 Each allows a disgruntled political minority of sufficient relevance direct recourse to the na tional electorate.

19. Id.

20. Id.

21. Ministero dell'Interno, http://referendum.interno.it/ind_ref.htm. 22. Id.

23. Respectively, Const, art. 75, Const, art. 138. Regional territory and statute

modification may also involve referenda of those directly concerned. Respectively, Const, art. 132, Const, art. 123.


An abrogative referendum, on petition by 500,000 voters or five Regional Councils, achieves total or partial repeal of a law or an act having force of law if a majority of the electorate votes and a majority of valid votes cast supports it.24 Tax, budget, and treaty ratification laws, plus amnesties and pardons, are not subject to abrogative referenda.25

Constitutional amendments are by Constitutional laws, ap proved by each house of Parliament twice, at least three months apart, by absolute majority of each house the second time.26 Should the second vote be a lesser majority, the amendment is subject to pop ular referendum triggered within three months of its publication by one fifth of the members of a house, 500,000 voters, or five Regional Councils.27 Once the referendum is triggered, the measure is valid only if approved by a majority of those voting.28

C. New Deal Institutions

In the 1990s, Italy focused on invigoration of the State by imple menting antitrust, energy, securities, telecom, and privacy authori ties on the US New Deal model of independent regulatory commissions with technical expertise. European Community direc tives motivated reform of national law in the relevant subject matters together with the creation of the new authorities, a kind of State in stitution not previously present in Italy and divorced from the State's existing bureaucracy.29

CONSOB (Commissione Nazionale per le Societa e le Operazioni di Borsa-National Commission for Companies and Securities Ex change Operations), Italy's first independent regulatory authority, addresses Italy's securities markets.30 While recognized as strength ening capital markets with greater transparency and minority share holder protection, it has by no means addressed all issues. For example, notwithstanding CONSOB and the Communication Regula

24. Const, art. 75.

25. Id. The Constitutional Court resolves disputes over such issues. Constitu

tional Law no. 1 of Mar. 11, 1953, Gazz. Uff. no. 62 of Mar. 14, 1953. 26. Const, art. 138. On the Constitutional Court's protection of the Constitu

tion's fundamental principles from amendment, see text supra starting note 2.

27. Id.

28. Id.

29. See Patrick Del Duca & Duccio Mortillaro, The Maturation of Italy's Response to European Community Law: Electric and Telecommunications Sector Institutional

Innovations, 23 Fordham Int'l L.J. 536 (2000); Lucia Musselli, Direttive comunitarie e creazione amministrativa di un mercato nei servizi pubblici, Diritto Amministra

tivo 79 (1998). 30. Created by Law no. 216 of June 7, 1974, Gazz. Uff. no. 149 of June 8, 1974;

enhanced by Law no. 281 of June 4, 1985, Gazz. Uff. no. 142 of June 18, 1985, ord. supp., including to implement EEC Directives nos. 279 of Mar. 5, 1979, OJ L 66/21 (Mar. 16, 1979), 390 of Mar. 17, 1980, OJ L 100/1 (Apr. 17, 1980) and 121 of Feb. 15, 1982, OJ L 48/26 (Feb. 20, 1982).


tory Authority (Agcom),31 questions were raised by Silvio Berlus coni's service as Prime Minister while owning the half of the Italian broadcasting sector outside State control.32

Other independent authorities are: Regulatory Authority for Electricity and Gas,33 which has overseen introduction of competition into Italian electricity markets; Authority for Protection of Personal

Data;34 Antitrust Authority;35 Authority for Oversight of Public Works;36 and National Commission of Guaranty of Implementation of the Law on Strike in Essential Public Services.37 The varied

means to select their members are formally intended to assure inde pendence,38 but only time will reveal their adequacy to prevent

31. Law no. 249 of July 31, 1997, Gazz. Uff. no. 177 of July 31, 1997, ord. supp. no. 154/L; DPR no. 318 of Sept. 19, 1997, Gazz. Uff. no. 221 of Sept. 22, 1997, ord. supp. no. 191/L. Agcom is to assure competition and citizen rights in the telecom,

broadcast, and publishing sectors. For telecommunications, it addresses Commission

Directives no. 338 of June 28, 1990, OJ L 192/10 (July 24, 1990), and no. 301 of May 16, 1988, OJ L 131/73 (May 27, 1988).

32. See Aldo Fontanarosa, Rai e Mediaset, padrone ?nico, La Repubblica (July 6,

2004); Council of Europe Resolution 1387 (2004); Silvio Berlusconi, The Economist (May 26, 2005).

33. Created by Law no. 481 of Nov. 14, 1995; Gazz. Uff. no. 270 of Nov. 18, 1995, it addresses European Directive no. 92 of Dec. 19, 1996, OJ L 27/20 (Jan. 30, 1997) (internal electricity market, implemented by D.L. no. 79 of Mar. 16, 1999, Gazz. Uff.

no. 75 of Mar. 31, 1999); Council Directive no. 377 of June 29,1990, OJ L 185/16 (July 17, 1990) (transparency of industrial gas and electric prices); Council Recommenda

tion of Apr. 21, 1983, OJ L123/40 (May 11, 1983) (gas pricing); Council Recommenda tion of Oct. 27, 1981, OJ L 337/12 (Nov. 24, 1981) (electricity pricing).

34. Created by Law no. 675 of Dec. 31, 1996, Gazz. Uff. no. 5 of Jan. 8, 1997, ord.

supp. no. 3, prompted by Council Directive no. 46 of 1995, OJ L 281/31 (Nov. 23, 1995).

35. Created by Law no. 287 of Oct. 10, 1990, Gazz. Uff. no. 240 of Oct. 13, 1990, and Law no. 57 of Mar. 5, 2001, Gazz. Uff. no. 66 of Mar. 22, 2001, prompted by Council Regulation no. 4064 of Dec. 21, 1989, OJ L 395/1 (Dec. 30, 1989).

36. Autorit? per la Vigilanza sui Lavori Pubblici, contemplated by Law no. 109 of Feb. 11, 1994, Gazz. Uff. no. 41 of Feb. 19, 1994, ord. supp., commenced activity fol

lowing Law no. 415 of Nov. 18, 1998, Gazz. Uff. no. 284 of Dec. 4, 1998, ord. supp. 37. Commissione Nazionale di Garanzia dell'Attuazione delta Legge sullo Sci

opero nei Servizi Pubblici Essenziali, created by Law no. 146 of June 12, 1990, Gazz.

Uff. no. 137 of June 14, 1990, amended by Law no. 83 of Apr. 11, 2000, Gazz. Uff. no.

85 of Apr. 11,2000. 38. In order of creation: (1) CONSOB has a president and four members, named

by President of the Republic decree on Prime Minister proposal, after Council of Min isters deliberation. Law no. 216 of June 7, 1974, supra note 30, art. 1(3); (2) The

presidents of Parliament's Houses jointly name the nine members of the Commission on Strike in Essential Public Services, who may not be political or labor leaders and

who elect from their number a president for one three-year term. Law no. 146 of June

12, 1990, supra note 37, art. 12; (3) The presidents of Parliament's Houses jointly name the Antitrust Authority's four members and president, the Minister of Industry names its Secretary General. Law no. 287 of Oct. 10, 1990, supra note 35, art. 10(2),

11(5); (4) The presidents of Parliament's Houses jointly name the five members of the public works oversight authority, Law no. 109 of Feb. 11, 1994, supra note 36, art.

4(2); (5) The three member Authorities for (a) Electricity and Gas and (b) Communica tions, are named by President of the Republic decree after Council of Ministers delib eration, following nomination by the relevant subject matter Minister, constrained by advance two-thirds vote of the relevant Parliamentary committees. Law no. 481 of

Nov. 14, 1995, supra note 33, art. 2(7); (6) Each House of Parliament appoints two of


"agency capture" by regulated entities and bureaucratic and party "colonization."

III. DEVOLUTION TO REGIONS

Under the 1948 Constitution, Italy is comprised of 20 Regions,39 divided into provinces and municipalities. The Constitution accorded five outlying Regions (Friuli-Venezia Giulia, Sardinia, Sicily, Tren tino-Alto Adige, and Val d'Aosta) so-called Special Statutes, which af forded them some immediate autonomy reflective of comparative geographic isolation, prior legislative and administrative self-suffi ciency, and linguistic minorities.40 It did so to co-opt greater de

mands for autonomy or even independence.41 Although the regions of Italy have two-thousand-year plus histo

ries as distinct cultural and political entities, the 1948 Constitution drew on them only in a limited fashion; its Regions have no exact correspondence to homogeneous historical realities. They correspond neither to the seven entities from which Italy was unified in the 1860s,42 nor do they correspond in any comprehensive way to prior entities. For example, Rome as capital of the Papal States had an experience divergent from parts of its Lazio Region outside the Papal States. Further, many areas were long controlled by foreign powers, some of whom were "Italian" powers, e.g. Venice's Republic. The his tories of Italy's component parts are much longer and more varied than those of the British colonies that united to become the original 13 states of the United States. However, unlike the 13 American col onies that more or less simultaneously rebelled against British rule to create a confederation, Italy's Regions in their present incarna tions have not joined to create a State. Rather, the State through its

the four member Authority for personal data protection. Law no. 675 of Dec. 31,1996,

supra note 34, art. 30(3).

39. Const, art. 131. Constitutional Law no. 3 of Dec. 27,1963, Gazz. Uff. no. 3 of

Jan. 4, 1964, created Molise as the 20th Region. 40. Const, art. 116. See Constitutional Law no. 1 of Jan. 31, 1963, Gazz. Uff. no.

29 of Feb. 1,1963, for Friuli-Venezia Giulia; Constitutional Law no. 3 of Feb. 26,1948, Gazz. Uff. no. 58 Mar. 9, 1948, for Sardinia; D.L. no. 455 of May 15, 1946, Gazz. Uff. no. 133-3 of June 10, 1946, converted into Constitutional Law no. 2 of Feb. 26, 1948, Gazz. Uff. no. 58 of Mar. 9, 1948, for Sicily; Constitutional Law no. 5 of Feb. 28, 1948, Gazz. Uff. no. 62 of Mar. 16, 1948, and DPR no. 670 of Aug. 31, 1972, Gazz. Uff. no.

301 of Nov. 20, 1972, for Trentino-Alto Adige; Constitutional Law no. 4 of Feb. 26, 1948, Gazz. Uff. no. 59 of Mar. 10, 1948, for Val d'Aosta.

41. See, e.g., Giuseppe Carlo Marino, Storia del separatismo siciliano: 1943

1947 (1979). For the treaty basis for autonomy of Trentino-Alto Adige and its prov inces Trento and Bolzano, see Lorenzo D?liai, Ai confini dell'Italia e al centro

dell'Europa I At the Frontier of Italy and at the Centre of Europe, in Nation, Federal ism and Democracy: The EU, Italy and the American Federal Experience 19-24

(Sergio Fabbrini ed., 2001). 42. Daniel Ziblatt, Structuring the State: The Formation of Italy and Ger

many and the Puzzle of Federalism 57-78 (2006).


institutions continues to birth and shape its Regions as meaningful political and governmental units.

Gaspare Ambrosini, a constitutional law professor who was a member of the Constituent Assembly that drafted the 1948 Constitu tion and of the Corte Costituzionale from its inception through 1967 (and eventually its president), defined the concept of "Regional State" in a 1933 essay, republished in 1944.43 He distinguished such a State from unitary and federal states as characterized by constitutional guarantees of Regional autonomy founded in a national constitution. Anticipating Italian realities of national political impasse which have driven the development of Italian Regionalism in recent decades, he observed that the Regional State, with reference to Austria in the period 1867-1918 and the Spanish Republic under its 1933 Constitu tion, arose as a new form of State from "practical needs," just as the federal state was born in the United States when its present federal constitution replaced the prior Articles of Confederation in 1787.

Although the 1948 Constitution directly granted even the non Special Statute Regions legislative powers for limited matters such as agriculture, public works, tourism and urban planning,44 the Regions were little more than paper entities even after the first Regional Councils for ordinary statute Regions were elected in 1970.45 Moreover, until the 2001 Constitutional amendment dis cussed below, the Regions had no power to impose taxes; they de pended solely on State revenue sharing.46 Even the fundamental challenge of the south's economic lag behind northern Italy was ad dressed through the 1990s principally by direct State subsidies and economic development initiatives outside the framework of the Regions.47

43. Gaspare Ambrosini, Autonom?a Regionale e Federalismo: Austria

Spagna-Germania-U.R.S.S. (1944).

44. Const, art. 117, effective from 1948 to 2001.

45. Law no. 108 of Feb. 17, 1968, Gazz. Uff. no. 61 of Mar. 6, 1968 (electoral

mechanism); Law no. 281 of May 16, 1970, Gazz. Uff. no. 27 of May 22, 1970; DPR

nos. 1-6 of Jan. 14, 1972, Gazz. Uff. no. 12 of Jan. 15, 1972; DPR nos. 7-11 of Jan. 15,

1972, Gazz. Uff. no. 24 of Jan. 27, 1972; Law no. 382 of July 22, 1975, Gazz. Uff. no.

220 of Aug. 20, 1975. 46. On Region finances pre- and post-2001 reform, see Marco Annunziata & Ist

v?n Sz?kely, The Evolving Role of Regions in Italy: The Financing and Management of Health Care Services, in International Monetary Fund, Italy: Selected Issues, IMF Staff Country Report No. 00/82, 95-102 (July 2000); Piero Giarda, // federal ismo fiscale nella Costituzione italiana: le conseguenze del referendum del 7 ottobre I

Fiscal Federalism in the Italian Constitution: The After-math of the October 7th Refer endum, in Nation, Federalism and Democracy: The EU, Italy and the American

Federal Experience 105-18 (Sergio Fabbrini ed., 2001); Alessandro Petretto, Le ENTRATE DELLE REGIONI E DEGLI ENTI LOCALI SECONDO IL NUOVO ART. 119 DELLA CoSTI

tuzione: un'analisi econ?mica (2003). See text infra note 82.

47. See Carlo Trigilia, Sviluppo senza autonom?a. Effetti perversi delle

POLITICHE NEL MeZZOGIORNO (1994).


Nonetheless, the Regions were fruitful venues for expression and concentration of divergent political views.48 Notably, the opposition Communist party assumed power in some of Italy's principal cities and a few of its Regions. Emilia Romagna, as a prominent example, became known as prospering through its many family enterprises that relied on the efficiency and honesty of Communist-dominated governments of its municipalities and the Region, as well as its his torical traditions of social capital.49

A. Region-Building by Legislation

A 1977 Presidential Decree represented an initial significant step towards staffing the Regions: it moved several thousand State employees to the Regions, but left them dependent on State revenue transfers.50 Legislative activity of 1997-1998 initiated major restruc turing, but did not close the process of establishing a more robust legal and financial foundation for the Regions. This round was asso ciated with the rise of the Lega Nord political party, that sought fuller devolution of powers to Regions so as to free its northern home base from what it saw as the millstone of net State transfers of re sources to address the south's economic development.51 The center right coalition's reliance on the Lega Nord to maintain government leadership further pushed the issue of governmental structure to the fore.

Legislation of 1997 broadly "conferred" Regions, provinces and municipalities "all functions and administrative duties relative to care of the interests and promotion of the respective communities' de velopment."52 Excluded were subject matters parallel to those exclu sively reserved to State legislation in the subsequent 2001 constitutional amendments.53 The conferral was to be in observance of "subsidiarity," the European law concept that the lowest effective level of government should act.54 Recognizing that effective "confer ral" required substantial implementation activity, Parliament dele gated to the Government the power to issue implementing decrees,

48. For dimensions along which Regional autonomy progressively emerged, see

Franco Pizzetti, Federalismo, Regionalismo e Riforma dello Stato (1996), re

viewed by Martin A. Rogoff, Federalism in Italy and the Relevance of the American Experience, 12 Tul. Eur. & Crv. L.F. 65 (1997).

49. See, e.g., Robert D. Putnam et al., Making Democracy Work?Crvic Tradi

tions in Modern Italy (1993). 50. DPR no. 616 of July 24, 1977, Gazz. Uff. no. 234 of Aug. 29, 1977. See An

nunziata & Sz?kely, supra note 46, at 86.

51. See Thomas W. Gold, The Lega Nord and Contemporary Politics in Italy

(2003). 52. Law no. 59 of Mar. 15, 1997, art. 1(2), Gazz. Uff. no. 63 of Mar. 17, 1997.

53. Id. art. 1(3), (4) and (5). See text infra note 75. 54. Id. art. 3(1), 4. On subsidiarity, see Treaty Establishing the European Com

munity, art. 5, OJ C 340/3 (Nov. 10, 1997); Nicholas Barber, The Limited Modesty of Subsidiarity, 11 Eur. L.J. 308 (2005).


including to further rationalize the State public administration.55 To address the ongoing need for legislation and budgetary reallocation, the law created a Parliamentary Commission of 20 senators and 20 deputies to opine on transfer issues.56 A second law, focused on sim plifying various aspects of Italian administrative law and procedure, promptly followed.57

The Government issued its implementing legislative decrees in early 1998, systematically identifying the matters for which adminis trative responsibility was transferred to Regions and other local gov ernments, and those for which it remained with the State.58 Among

matters shifted away from the State were economic development, en vironmental regulation, infrastructure, land use, local police and so cial services.59 Another such decree addressed health care reorganization, in Italy principally a government service. The decree confirmed health care as provided locally, but subject to State control.60

In the 1997-1998 activity, the State granted Regions increased staff and responsibilities. But even so, Regions found themselves

without meaningful budgetary autonomy and without their own tax power.61 Regions exercised discretion over far less than half their ex penditures: even now, health care, as to which Regions function es sentially as conduits for transfer of State funds to local health units and hospitals, constitutes over 60 percent of their total outlays.62

B. Constitutional Reform to Enhance Regional Powers

Constitutional amendment in 2001 addressed division of powers between Regions and State.63 Although Parliament duly adopted it twice, the second time with the two-thirds majority to obviate a refer endum, the majority held a referendum in any event, to bolster popu lar attention to expansion of Regional powers.64 Although electoral

55. Id. art. 1(1), 11(1).

56. "[N]amed respectively by the Presidents of the Senate of the Republic and of the Chamber of Deputies, on designation of the Parliamentary groups," id. art. 5.

57. Law no. 127 of May 15, 1997, Gazz. Uff. no. 113 of May 17, 1997. 58. D.L. no. 112 of Mar. 31,1998, Gazz. Uff. no. 92 of Apr. 21,1998, ord. supp. no.

77, rectification Gazz. Uff. no. 116 of May 2, 1997.

59. Id.

60. D.L. no. 115 of Mar. 31, 1998, Gazz. Uff. no. 96 of Apr. 27, 1998.

61. Const, art. 119, in effect from 1948 to 2001.

62. Annunziata & Sz?kely, supra note 46, at 88-89. See infra note 83.

63. Constitutional Law no. 3 of Oct. 18, 2001, Gazz. Uff. no. 248 of Oct. 24, 2001,

following Regional president direct election introduced by Constitutional Law no. 1 of Nov. 22, 1999, Gazz. Uff. no. 299 of Dec. 22, 1999 (ordinary Regions) and Constitu

tional Law no. 2 of Jan. 31, 2001, Gazz. Uff. no. 26 of Feb. 1, 2001 (special statute

Regions). 64. Previously, each amendment was adopted without referendum. See Augusto

Barbera & Carlo Fusaro, La sovranit? popolare, Corso di Diritto Pubblico (2004).


participation in the October 7, 2001 referendum was only 34 percent, 64 percent of those voting ratified it.65

The 2001 amendment created a new Constitution Title V, titled "Regions, Provinces, Municipalities." Previously, Regions were to is sue "legislative norms" within a specified list of subject matters "in the limits of the fundamental principles established by laws of the State," provided that such norms were not "in contrast with the na tional interest and those of other Regions," and Parliament could delegate to the Regions the power to issue implementing norms.66 The prior text considered Regions and other local government enti ties the base of a pyramid hierarchically presided by the State. The new Title V describes Regions and other local governments as having, within their own spheres of activity, equal dignity with the State.67

A Region's constitution is its Statuto (Statute), which "in har mony with the Constitution," determines its form of government, or ganization and operation.68 A Region is governed by a popularly elected Regional Council.69 The Giunta is the Region's executive body, appointed by its popularly elected President.70 If the President fails a Regional Council confidence vote by an absolute majority of the Council members, called by at least a fifth of the Council, the

Council is dissolved for new elections, and the Giunta's mandate is revoked; resignation of three fifths of the Council achieves the same result.7'

The 2001 constitutional amendment suppressed the State com missar assigned to each Region to "oversee" coordination of State and Regional administrative functions.72 However, the State may still substitute itself for Regions and other local governments: (1) to as sure respect of international and Community obligations; (2) in cases of grave danger to health and public welfare; and (3) to protect legal or economic unity, particularly essential levels of services concerning civil and social rights.73 As part of the constitutional glue bonding

65. See Ministero dellTnterno, supra note 11.

66. Const, art. 117, prior to 2001 amendment.

67. Const, art. 114 now provides: "The Republic is constituted by Municipalities,

Provinces, Metropolitan Cities, Regions and the State." Previously it provided: "The

Republic is divided into Regions, Provinces and Municipalities." 68. Const, art. 123. The Regional Council may modify a Regional Statute by ab

solute Council majority in two votes at least two months apart, which the State has 30 days to challenge before the Constitutional Court. Constitutional Law no. 1 of Nov.

22,1999, art. 3, supra note 63. If a 50th of the Region's voters or a fifth of the Regional Council triggers a referendum, the modification is valid only if approved by a majority of votes cast. Id. How Regions will recraft their charters remains to be seen.

69. Const, art. 121, 122. To promote distinction between Regions and State, a

Regional Council member may not also serve in Parliament. Const, art. 122.

70. Id.

71. Const, art. 126.

72. Const, art. 124, abrogated by Constitutional Law no. 3 of Oct. 18, 2001, Gazz.

Uff. no. 248 of Oct. 24, 2001.



State and local governments, the procedures relative to such substi tution are to be defined in accord with principles of "subsidiarity" and "loyal collaboration."74

The 2001 amendment: (1) reserves the State exclusive legislative power in limited matters,75 (2) enumerates matters of concurrent State and Regional legislative power,76 subject to State legislative de termination of "fundamental principles," and (3) grants Regions legis lative power in every other matter.77 Regions may not restrict free circulation of persons and goods, nor may they limit the right to work.78 The 2001 amendment subjects State and Regional legislative power to the Constitution, "as well as the restrictions derived from the [European] Community order and international obligations."79

As to administrative matters, the 2001 constitutional amend ment further embraces subsidiarity. Administrative powers are at tributed to municipalities, unless, "to assure their unitary exercise," they are conferred to provinces, metropolitan cities, Regions and the State on the basis of "principles of subsidiarity, differentiation and adequacy."80 The arrangement as to administrative matters under the 2001 amendment contrasts with the previous regime which granted Regions administrative functions except for those of "exclu sively local interest," attributable by State law to provinces, munici palities or other local entities.81

The 2001 reform clarifies that Regions and other local govern ments set their own budgets and have their own resources, including their own taxes, albeit "in harmony with the Constitution and accord

74. Id. For Constitutional Court application, see text infra starting note 108. 75. Among matters reserved to the State are international relations; immigra

tion; "relations between the Republic and religious confessions"; defense; money; fi

nancial markets; competition; State taxes, equalization of financial resources among

governmental entities; election law; public order and safety, other than local adminis

trative police; citizenship; criminal, civil and administrative justice; welfare and so

cial security; customs duties, weights and measures; "informational, statistical and

computer coordination of local, Regional and State public administration data"; pat ents; and environment and cultural patrimony protection. Const, art. 117.

76. Among concurrent matters are "international and European Union relations

of Regions"; foreign trade; labor law; "education, excepting autonomy of scholastic in

stitutions and with exclusion of professional education and formation"; professions;

research; protection of health; nutrition; sport regulation; civil protection; "govern ance of territory"; civil ports and airports; major transportation and navigation net

works; regulation of communication; production, transport and national distribution

of energy; supplementary social security; harmonization of public accounts and coor

dination of public finance and tax system; and valorization of cultural and environ

mental goods. Id.

11. Id.



80. Const, art. 118. See Paolo Caretti, La Corte e la Tutela delle Esigenze Unitarie: dall'Interesse Nazionale al Principio di Sussidiariet?, 32 Le Regioni 381-90

(2004), Lorenza Violini, / Confini d?lia Sussidiariet?: Potest? Legislativa uConcor rente," Leale Collaborazione e "Strict Scrutiny," 32 Le Regioni 587-603 (2004).

81. Const, art. 118, in effect from 1948 to 2001.


ing to the principles of coordination of public finance and tax sys tem."82 They are to participate proportionately in State taxes concerning their territory,83 while State law is to establish an equali zation fund for distribution to entities with lesser tax capacity per inhabitant (Regions limiting exercise of their taxing authority risk less ability to tap it),84 and the State may selectively direct further resources.85 Regions and other local governments may incur debt "only to finance expenses of investment," and no State guarantee is allowed.86

The available statistics suggest that Regions are exploring use of their augmented powers of taxation to build revenue bases,87 albeit from a rickety foundation. Regional revenue bases include taxes on business activity, which Regions may adjust upward or downward by about 30 percent from the nationally set base and differentiate in ap plication by taxpayer category,88 personal income taxes collected through a Regionally adjustable surcharge on income declared for State income tax,89 and dedicated shares set by State law in national value added tax90 and gasoline excise tax revenues,9' as well as mis

82. Const, art. 119. See also supra note 46.

83. Id. On the particular, but analogous, rights of special statute Regions, see

Emanuele Barone Ricciardelli, II rapporta tra finanza statale e finanza regionale: analisi di una recente sentenza della Corte Costituzionale, in Tributi On Line:

Rivista del Ministero dell'Economia e delle FiNANZE (June 2006). Regions re

main obligated to apply their share of such funds with first priority to meet health care obligations. D.L. no. 56 of Feb. 18, 2000, art. 8, 9, Gazz. Uff. no. 62 of Mar. 15, 2000.

84. D.L. no. 56 of Feb. 18, 2000, art. 7, supra note 83.

85. Const, art. 119. For early estimation of new Constitution Title Vs distribu

tional implications and the equalization fund's significance, see Annunziata &

Sz?kely, supra note 46, at 97-98. On the Constitutional Court's role in determining limits on State control of Regional "equalization funds" spending, see Corte cost, judg

ment no. 49 of Jan. 29, 2004, Gazz. Uff. of Feb. 4, 2004, prima serie sp?ciale no. 5

(validating Emilia-Romagna Region challenge to State targeting of infrastructure

funding). 86. Id. Local government bond finance is emerging, to support capital investment

and to securitize tax and other receivables. See, e.g., reports of Dexia Crediop, an

investment bank, available at www.dexia-crediop.it. 87. One set shows Regions' tax receipts as percent of total receipts climbing: 33.8

percent in 1999, 37.8 percent in 2000, 38.9 percent in 2001, 39.1 percent in 2002, and 39.8 percent in 2003, with the balance substantially State transfers. Tbl.25.6, Istituto

Nazionale di Statistica, Annuario statistico italiano 2005 (Nov. 2005). Another set

shows Regions in 2001 deriving 49.9 percent of revenues from their own taxation,

growing to 58.9 percent in 2002, Fig.3.1, p. 129, Istituto Nazionale di Statistica, Statistiche delle Amministrazioni pubbliche, Anni 2001-2002, Annuario (3) (2005), with the balance State transfers. Id. at Tbl.3.1, p. 140 et seq.

88. Imposta Regionale sulle Attivit? Produttive ("IRAP"), introduced by D.L. no.

446 of Dec. 15, 1997, art. 16, Gazz. Uff. no. 298 of Dec. 23, 1997, upheld by European Court of Justice, Case C-475/03 (Oct. 3, 2006), as not reached by European limits on value added tax.

89. D.L. no. 446 of Dec. 15,1997, art. 50, supra note 88, as amended by D.L. no. 56

of Feb. 18, 2000, supra note 83.

90. Instituted for ordinary statute Regions by D.L. no. 56 of Feb. 18, 2000, art. 2,

supra note 83.


cellaneous Regionally set taxes including vehicle registration taxes and hazardous waste disposal surcharges.92

Regions and other local governmental entities are subject to sig nificant State control beyond State establishment of revenue trans fers. In addition to the State power to substitute itself for Regional and other local governments,93 the President of the Republic, having heard a Parliamentary Commission's opinion, can dissolve a Regional Council and remove a Giunta President if they act "contrary to the Constitution or in grave violation of the law," as well as for reasons of "national security."94 Regions and other local governmental entities also remain subject to audit by the national Corte dei Conti.95 Fur ther, the Constitutional Court, as discussed immediately below, has staked a significant role for itself in defining proper State and Re gional activity spheres.

The tools for State control of Regions, including the Constitu tional Court's protection and promotion of Regional spheres of activ ity, together confirm classification of Italian Regionalism as a system of Regional autonomy guaranteed by a national constitution, cer tainly not the joining of sovereign states in a federative, federal or supranational union. Conversely, Regions' legislative and budgetary autonomy confirms Italian Regionalism as not the mere decentraliza tion of administrative functions evidenced in unitary states.

C. Region-Building by Constitutional Court Decision

Constitutional Court jurisprudence has extensively developed the ramifications of Regional government. Indeed, one of the Court's first decisions invalidated, as incompatible with the Constitution article 120 prohibition on limiting right to work, legislation of the au tonomous Province of Bolzano. In the challenged legislation, the Province, relying on the Special Statute of Trentino-Alto Adige, sought to create a system to regulate artisans that de facto excluded participation of artisans from outside the Region.96

The State may within 60 days of publication challenge a Re gional law before the Constitutional Court as exceeding Regional competence.97 Likewise, a Region can challenge a law or act having the force of a law, either of the State or another Region.98 This mech

91. Instituted for ordinary statute Regions by Law no. 549 of Dec. 28, 1995, art.

3(12), Gazz. Uff. no. 302 of Dec. 29, 1995, ord. supp., as amended by D.L. no. 56 of

Feb. 18, 2000, art. 4, 12, supra note 83.

92. See, e.g., Annunziata & Sz?kely, supra note 46, at 95-96.

93. See text supra note 73 and infra starting note 108.


95. See text infra note 230.

96. Corte cost, judgment no. 6 of June 15, 1956 (Pr?s. Cons. v. Bolzano), available

at www.cortecostituzionale.it.


98. Id.


anism, established by the 2001 amendment, superseded the previous mechanism that treated Region and State less equally. Formerly the State could also challenge the Regional Council to re-adopt the chal lenged Regional measure, as well as then ask Parliament to recon sider the measure as substantively inappropriate.99

The Constitutional Court's work has involved a steady stream of cases addressing spheres of State and Regional action. As shown in Figure 1, the Court's pronouncements of all kinds have grown sub stantially over the years with a particular spike in 1988 as the Court cleared its backlog.100

1200 -

600 - ____;_ X

1956 1960 1964 1968 1972 1976 1980 1984 1988 1992 1996 2000 2004

FIGURE 1 CONSTITUTIONAL COURT PRONOUNCEMENTS BY YEAR

The Court's web site indexes its pronouncements by the category of "judgments of conflicts of attribution among entities," and this cat egory, which includes disputes between State and Regions, plus po tentially conflicts among Regions, is a steady presence as indicated below. However, it fails to capture a post-2001 increase in Court pro nouncements addressing the Constitution article 117 allocation of re sponsibility between State and Regions. Interrogating the site for "art. 117," which also retrieves other legal material references to an article 117, shows an increasing number of such pronouncements after the 2001 article 117 amendment, as indicated in Figure 2.101

Further confirmation of the post-2001 increase is an Emilia-Ro magna Region listing of Constitutional Court pronouncements that it considered pertinent to defining State and Regional spheres. It shows cases growing from 28 and 53 in 2002 and 2003, respectively,

99. Const, art. 127, in force from 1948 to 2001. The constitutional amendment

rejected June 2006 would have restored the prerogative to ask Parliament to void a

Regional law. Constitutional Law, art. 45, supra note 15.

100. Statistics compiled from www.cortecostituzionale.it. The Court often disposes of multiple cases related by subject matter with one decision or order.

101. Search for "art. 117" among the Court's pronunce (pronouncements) yields 25,

35, 58, 96, and 109 pronunce respectively for years 2001 through 2005 (as reflected in

the graphic in text), while a similar search, but among massime (headnotes) with

attention to retrieving only Constitution art. 117-related pronouncements, yields 25,

44, 26, 90, and 118 for the corresponding years.


120 -

100 --- A

80 - __ _

60 -

40 -

20 - _ . , ' -- -7 'l

1956 1960 1964 1968 1972 1976 1980 1984 1988 1992 1996 2000 2004

-Judgments of conflict of attribution among entities: - - -art. 117]

FIGURE 2 CONSTITUTIONAL COURT JUDGMENTS INVOLVING REGIONS AND THE STATE

to 109 and 100 in 2004 and 2005, respectively.102 Common issues in this litigation are environmental protection, often concerning waste disposal,103 interplay of national taxation and equalization of Re gional financial resources,104 allocation of powers between Regions and State regarding social security,105 powers of municipalities, prov inces and metropolitan cities,106 and health care.107

102. Regione Emilia-Romagna, Decisioni della Corte Costituzionale concernenti il

Titolo V della Costituzione, Banca dati Contenzioso Costituzionale - Titolo V, available at www.regione.emilia-romagna.it.

103. Under Const, art. 117(2)(s). E.g., Corte cost, judgment no. 505 of Dec. 4, 2002

(Soc. Ecograf s.p.a. v. Prov. Treviso), Gazz. Uff. of Dec. 11, 2002, prima serie sp?ciale no. 49 (voiding V?neto Region's limitation on disposal in V?neto landfills of other Re

gions' hazardous waste).

104. Under Const, art. 117(2)(e). E.g., Corte cost, judgment no. 296 of Sept. 26, 2003 {Pr?s. Cons. v. Piemonte), Gazz. Uff. of Oct. 1, 2003, prima serie sp?ciale no. 39

(voiding Regional legislation providing tax exemption for Olympic organizing entity and alternative energy vehicles); Corte cost, judgment no. 94 of Mar. 28, 2003 (Pr?s. Cons. v. Lazio), Gazz. Uff. of Apr. 2, 2003, prima serie sp?ciale no. 13 (upholding

Regional law subsidy scheme for "historic business places").

105. Under Const, art. 117(2)(o). Corte cost. ord. no. 526 of Dec. 9, 2002, Gazz.

Uff. of Dec. 11, 2002, prima serie sp?ciale no. 49 (declaring inadmissible as inade

quately posed a first instance judge question concerning compatibility, of a Regional law regulating publically-subsidized rents, with constitutional reservation to State of

assuring national civil and social rights minimum standards).

106. Under Const, art. 117(2)(p). See, e.g., Corte cost, judgment no. 201 of June

11, 2003, Gazz. Uff. of June 18, 2003, prima serie sp?ciale no. 24 (Lombardia Region

legislation limiting State-mandated incompatibility of simultaneous holding of Re

gional and municipal councilor positions to larger municipalities, unconstitutional); Corte cost, judgment no. 376 of July 23, 2002, Gazz. Uff. of July 31, 2002, prima serie

sp?ciale no. 30 (as Court denies, under the pre-2001 Constitution Title V, Emilia-Ro

magna and Liguria challenges to State administrative procedure reform measures, it

invites renewed challenges under amended Title V (at f5 considerations in law)).

107. Under Const, art. 117(3). See, e.g., Corte cost, judgment no. 88 of Mar. 27,

2003, Gazz. Uff. of Apr. 2, 2003, prima serie sp?ciale no. 13 (voids State effort to

regulate provision of addiction treatments); Corte cost, judgment no. 282 of June 26,

2002, Gazz. Uff. of July 3, 2002, prima serie sp?ciale no. 26 (voiding Regional law

purporting to suspend electroshock and lobotomy therapy).


As an example of the Constitutional Court's action as arbiter of allocation of governmental powers, its decision no. 70 of 2004, ad dressed a challenge by the State to Tuscany Region legislation.'08

With the challenged legislation, the Region claimed the ability to act in place of municipalities and provinces failing timely to approve haz ardous waste remediation plans. In bringing the original jurisdiction action before the Court, the State asserted that the Constitution lim ited such power of substitution to the State itself. The Region coun tered that national constitutional and legislative provisions, as well as European Community directives, afforded it authority to act.

The Constitutional Court ruled strictly on constitutional grounds. It acknowledged that Constitution article 117(2)(p), as amended 2001, reserves definition of "fundamental functions" of mu nicipalities, provinces and metropolitan cities exclusively to State legislation, while Constitution article 118(1) delegates all administra tive functions to municipalities unless legislation justified on criteria of "subsidiarity, differentiation, and adequacy" allocates competence to a different governmental level. The Court reasoned that because the State power of substitution established by Constitution article 120 derives from the need for State substitution to protect essential State interests as articulated by article 120, such power of State sub stitution is "extraordinary and additive." The Court accordingly con cluded that the State power of substitution is not exclusive and upheld the Regional law. The Court further noted that its pre-2001 amendment jurisprudence on criteria for State substitution of Regions remained valid. The Court concluded that the criteria for a Region to substitute itself for its municipalities and provinces include that the criteria for substitution, both as to substance and procedure, be well defined and that the principle of "loyal collaboration" among governmental levels mandated procedural guarantees to assure that undue exercise of a power of substitution be avoided.

By articulating the foregoing legal framework and premising its operation on application of the aspirational principle of conduct con sistent with "loyal collaboration," the Court assumed ongoing respon sibility to assess its application to the facts of whatever case the State or a Region might bring before it. In the instant case, the Court con cluded that the challenged Regional legislation indeed conformed to the framework and dismissed the State's challenge of it.

The Constitutional Court further consolidated its pivotal role in the definition of State and Regional spheres by its 2005 ruling'09 on

108. Corte cost, judgment no. 70 of Mar. 2, 2004 (Pr?s. Cons. v. Toscana), Gazz.

Uff. of Mar. 10, 2004, prima serie sp?ciale no. 10.

109. Corte cost, judgment no. 417 of Nov. 14, 2005, Gazz. Uff. of Nov. 16, 2005,

prima serie sp?ciale no. 46. For similar reasoning, see Corte cost, judgment no. 88 of

Mar. 10, 2006, Gazz. Uff. of Mar. 15, 2006, prima serie sp?ciale no. 11 (Court voided

2005 State budget law limitation on Friuli-Venezia Giulia Region's future ability to


an original jurisdiction case in which Campania, Marche, Tuscany, and Val d'Aosta challenged the constitutionality of 2004 State legisla tion addressing the national deficit,"0 insofar as such legislation un dertook to restrict Regional and local budgetary autonomy. In upholding part of the challenge, the Court further elaborated the bounds on the Constitution article 117(3) reservation to State legisla tion of definition of fundamental principles of public finance coordination.

To contain costs, the challenged law purported to limit Regions and local governments to accomplishing procurement either through contracts established by the national treasury ministry, or otherwise

within nationally established price and quality parameters."' The Court reaffirmed the principle "constantly affirmed by the jurispru dence of this Court" by which:

norms that establish specific limitations relative to individ ual headings of expense in budgets of the regions and the local entities do not constitute fundamental principles of co ordination of public finance, in the senses of article 117(3) of the Constitution, and they therefore harm the financial au tonomy of expenditure guaranteed by Constitution article 119.112

Further, the Court cited several of its recent decisions for the proposition that the State may impose budgetary policy limitations on Regions and local government entities, but only with "discipline of principle," "for reasons of financial coordination connected to national objectives, conditioned also by [European] [C]ommunity obliga tions."1"3 For such limitations to respect Regional and local govern

ment autonomy, the Court observed, they must be focused on either

hire at-will employees, as violating Region's Special Statute-guaranteed autonomy,

citing in %5 considerations in law, among others, judgment no. 417 of Nov. 14, 2005, here discussed.). See also Corte cost, judgment no. 118 of Mar. 24, 2006, Gazz. Uff. of

Mar. 29, 2006, prima serie sp?ciale no. 13 (upholding Friuli-Venezia Giulia challenge to 2005 State budget law provision for State funds to promote first family home

purchase, on ground that social funds in areas outside State legislative power "must

be assigned generically for social purposes without the above-indicated constraint of

specific destination." 1(9.1 considerations in law, id.).

110. D.L. no. 168 of July 12, 2004, Gazz. Uff. no. 161 of July 12, 2004, ord. supp. no. 122, converted into law with modification by Law no. 191 of July 30, 2004, Gazz. Uff. no. 178 of July 31, 2004, ord. supp. no. 135.

111. ^[4.1 findings in law, Corte cost, judgment no. 417 of Nov. 14, 2005, supra note 109.

112. ^6.3 findings in law, Corte cost, judgment no. 417 of Nov. 14, 2005, supra note 109.

113. Id., citing Corte cost, judgment no. 36 of Jan. 26, 2004, Gazz. Uff. of Feb. 4,

2004, prima serie sp?ciale no. 5; and referencing Corte cost, judgments nos. 376 of

Dec. 30, 2003, Gazz. Uff. Jan. 7, 2004, prima serie sp?ciale no. 1; 4 of Jan. 13, 2004, Gazz. Uff. of Jan. 21, 2004, prima serie sp?ciale no. 3; and, 390 of Dec. 17, 2004, Gazz.

Uff. of Dec. 22, 2004, prima serie sp?ciale no. 49.


"the amount of the current deficit" or in a transitory manner on "the growth of current expenditure of the autonomous entities." The State can establish only "an overall limit, that leaves the entities them selves broad liberty of allocation of the resources.""14

The first of the two cases just discussed involved a State chal lenge of Regional action; the second, Regional challenge of State ac tion. In both cases, the Constitutional Court ensures that it, as the Italian State's ultimate arbiter of compliance with the national con stitution, is also a key arbiter of the balance of power between the State on the one hand and the Regions, provinces and municipalities on the other.

IV. SUPRANATIONAL UNION-RELEVANCE OF GRANITAL

Major hurdles in Italy's commitment to the European Union in clude: (1) definition of the terms for its courts' application of Euro pean law, (2) addressing its chronic deficiency in legislation to implement European norms, and (3) surrender of monetary and fiscal policy authority as it joined the currency union. Annual delegation to the Government of responsibility to issue the necessary measures

was the practical expedient to resolve the legislative impasse."15 The Constitutional Court's resolution of the practicalities of the Italian courts' application of European law is however the resounding decla ration of the supremacy of constitutional values. Just as the Court has positioned itself as the arbiter of the boundaries between Region and State spheres of action, it has also in respect of European law established itself as the guardian of Italian constitutional "funda

mental principles." In the 1960s, the Italian Constitutional Court and the European

Court of Justice took conflicting positions on the relation between Eu ropean Community law and Italian law.1"6 The European Court as serted a monist view under which Community law took supremacy

114. Corte cost, judgment no. 417 of Nov. 14, 2005, supra note 109, citing Corte cost, judgment no. 36 of Jan. 20, 2004, supra note 113 at \6 findings in law. In judg

ment no. 417 of Nov. 14, 2005, the Court went on to conclude:

In the instant case, the provisions challenged do not fix general limits to defi cit or to current expenditure, but they establish limits to expenditures for studies and consultancy assignments conferred to parties outside the admin

istration, to expenses for missions abroad, representation, public relations and conventions, as well as to expenses for acquisition of goods and services; limitations that, regarding individual headings of expense, do not constitute fundamental principles of coordination of public finance, but do comport an

inadmissible invasion into autonomy of the entities for expenditure manage ment. Id.

115. Law no. 86 of Mar. 9, 1989, Gazz. Uff. no. 58 of Mar. 10, 1989. See Paolo

Mengozzi, European Community Law: From the Treaty of Rome to the Treaty of

Amsterdam 144-46 (2d ed. 1999). 116. See Antonio La Pergola & Patrick Del Duca, Community Law, International

Law, and the Italian Constitution, 79 Am. J. Int'l L. 598 (1985).


over national law. Specifically, it considered the Treaty of Rome to have instituted a new legal order to which national law was subject. As an implication of this view, the Court of Justice asserted that any Italian court must apply relevant European Community law to dis putes before such a court. Initially, the Italian Constitutional Court took the dualist view that European Community law and Italian law constituted two separate legal systems. In the initial formulation of its position, the Constitution Court expressed the view that European

Community law would be applied by Italian courts only through a procedure of constitutional judicial review as established by Italy's Constitution. In practice, this meant that an Italian court would be able to apply European law only following the reference of a question to the Constitutional Court and a consequent Constitutional Court decision directing the referring court to apply the European law.1"7

A critical turning point in the Constitutional Court's view was its 1985 Granital decision. There the Court concluded that the dualist view, i.e. the view that the Italian and Community legal systems were separate legal systems, was nonetheless compatible with the routine, direct application of Community law by all Italian courts.

Although the Constitutional Court has made clear that what Italy's Constitution establishes regarding "fundamental principles of the constitutional order and inalienable rights of the human person"

must ultimately prevail, it has determined that Italy's Constitution, based on its article 11 provision for acceptance of international orga nizations, otherwise allows supremacy of Community law over Ital ian law.1"8 It reached this conclusion by reasoning that the

Constitution article 11 acceptance of Italy's participation in interna tional organizations and Italy's ratification of the European Commu nity treaties implied a broad opening to the Community legal system. The Constitutional Court, however, maintained the sovereignty of the Italian legal system and the Constitutional Court's own role as the guarantor of the integrity of the Italian Constitution, by provid ing that any question involving "fundamental principles of the consti tutional order and inalienable rights of the human person" continue to be referred to the Constitutional Court.1"9

The 2001 constitutional amendment that redefined the Regions' role acknowledges the European law view that such law directly ap plies to Regions. It provides that Regions, within their subject mat ter, "participate in decisions directed to the formation of Community

117. On question referral to the Constitutional Court, see text infra note 191.

118. Corte cost, judgment no. 170 of June 8, 1984 (Granital), Gazz. Uff. no. 169 of

June 20, 1984, at point 7 of the considerations of law. See La Pergola & Del Duca,

supra note 116, and Bundesverfassungsgericht (German Federal Constitutional

Court), BVerfGE 73, 339 (Solange II), at 376, referencing La Pergola & Del Duca, supra note 116, as it reached a conceptually analogous result for Germany.

119. See Corte cost, judgment no. 170 of June 8, 1984, supra note 118.


normative acts and provide for the implementation and execution of international agreements and of European Union acts," albeit "in respect of the norms of procedure established by law of the State," that are to "regulate the means of exercise of power of substitution [by the State] in case of noncompliance."'120 Of the two parts of this

Constitutional acknowledgement, i.e. that Regions have a voice in the formulation of European norms and that they may directly apply such norms, the latter appears of greater import. Indeed, the Treaty on the European Union contemplates at best a consultative role on European legislative activity for the Committee of the Regions that it constitutes.121 Further, even as to the Regions' actions to implement European norms directly, the Constitution expressly preserves the State's various tools to constrain Regional action beyond the bounds of what the Constitution contemplates.122

V. THE NATIONAL INSTITUTIONS' LEAD ROLE IN THE

CONSTITUTIONAL RULE OF LAW

Although Italy is a Regional state and member of a suprana tional community to which it has ceded significant sovereignty, it re tains elements of national control typical of a unitary state. Its courts are national, as are its legal professions and training. Its civil, commercial, corporate, criminal and family laws remain uniform na tional bodies of law. Its Parliament retains the power to establish essential principles to bound Regional discretion. As discussed, Italy's Constitutional Court, a national institution, remains at the forefront of defining the relationships between Italy's Regions and its central State authorities. The sections that follow lay out how the State, its institutions and its national legal culture, contribute to as suring the constitutional rule of law as Regionalization and Suprana tionalism further develop, and how Italy's history created this scenario.

A. History, Post-WWII Constitutionalism, and the Rule of Law

What is Italy? To respond that it is the country populated by Italians is to miss much of its richness. Not only is it a country with an extended history of linguistic minorities, it is a country whose pre sent and future involves ever-more immigrants from non-Italian

120. Const, art. 117.

121. Treaty on European Union, Part 5, Title I, Ch. 4, OJ C 325 (Dec. 24, 2002). 122. See text supra, starting note 93.


places.123 Nonetheless, it has ancient and diverse cultural roots wrapped in the rule of law.124

The Roman Empire initially elaborated full bodies of commercial and administrative law.125 In the 11th century, what became the

University of Bologna law faculty emerged as a center of renewed study of Roman legal texts. Review and commenting of these classi cal texts brought Bologna to the center of European scholarship and led to the civil law tradition followed in continental Europe and much of Africa, Asia and Latin America.'26 Although France and Germany were the focus of elaborating the civil, criminal, commercial and pro cedural codes in the 1800s, Italian doctrinal writings on the signifi cance and substance of law through this time and into the modern era remained vibrant and influential.127

The factors underlying Italy's foundation as a unitary state with a centralized, but weak national government, colored its subsequent development and contributed to creating its present dynamic of Re gionalism. Camillo di Cavour, Piemonte's Prime Minister, sought a federal Italy constituted from the territories of Tuscany, Parma, Mo dena, Lombardy-Veneto (Austrian occupied), the Papal States and

123. Economie and political refugees from North Africa, Albania and parts of the former Yugoslavia now form a substantial part of Italy's growing immigration. See

Prospetto 1.1, in ISTAT, Settore Popolazione, Informazioni (10)1, 9 (2004), available at http://catalogo.istat.it/20040621_01/volumel.pdf:

Residence permits for some principal areas of citizenship

Jan. 1, 1992 Jan. 1, 2003

area of citizenship number % female number % female

total permits 648,935 100.0 39.9 1,503,286 100.0 48.3

central western Europe 13.3 38.3 31.1 50.3

north Africa 22.8 10.4 17.8 30.1

east Asia 9.8 58.4 9.8 57.5

Central/South America 7.7 64.2 8.6 69.3

124. See Putnam et al., supra note 49; Ziblatt, supra note 42.

125. See, e.g., Frederick Parker Walton, Historical Introduction to the Ro man Law (Gaunt & Sons, 4th ed. 1994) (1903).

126. Hermann U. Kantorowicz, Studies in the Glossators of the Roman Law

(1938); Charles M. Radding, The Origins of Medieval Jurisprudence: Pav?a and

Bologna (1988); Arthur von Mehren & James Gordley, Civil Law System: An Introduction to the Comparative Study of Law (1977).

127. Peter A.J. van den Berg, The Politics of European Codification: A His tory in the Unification of Law in France, Prussia, the Hapsburg Empire, and the

Netherlands (2005). Piemonte, Naples and Tuscany experimented with codification

in the early 1700s. Giovanni Tarello, Storia della cultura giuridica moderna:

Assolutismo e coDiFiCAZioNE del diritto 207-22 (1976). See also, e.g., Dionisio

Anzilotti, Corso di Diritto Internazionale (1912); Cesare Beccaria, Dei delitti e

delle pene (1764); PiERO Calamandrei, Costruire la democrazia: premesse alla

Costituente (1945); Piero Calamandrei, Corso di diritto processuale: dalle le

zioni (1931); Fabrizio Marinelli, CrviLisTi abruzzesi dell'Ottocento: un itiner

ario giuridico TRA l'Abruzzo e la Francia (2003); Vittorio Emanuele Orlando, Principii Di Diritto Costituzionale, 1889 (1920).


the Bourbon-ruled Kingdom of the Two Sicilies.'28 The States on the Italian peninsula just prior to unification had variously experienced the trauma of Napoleonic invasion and expulsion, Austrian occupa tion, and Bourbon rule. This left them, other than Piemonte, with "divine right" rulers unconstrained by constitutions and elected par liaments, and with brittle, ineffective public administrations.129 Pie

monte, of the seven territorial entities on the Italian peninsula, was the furthest along the path to a market economy, with the most de veloped public administration and ability to indebt itself to pay for the best army.130 The internal pressures on it to achieve larger mar kets and to spread its debt load over a larger base incentivized it to seek territorial expansion.'3' Its attempts to negotiate federation

with the other territorial entities failed, and its military forays, to gether with Garibaldi's exuberant invasion of Sicily,'32 resulted in the collapse of those entities' governance structures. The band-aid

was a hasty "national" referendum, by an extremely restricted slice of society preoccupied with public order, to ratify Italian unification.'33

Hollowness of the rest of Italy's governmental structures and their collapse at unification centralized government in the Piemontese-cre ated State,'34 and consolidated the concomitant vision of the Risorgi

mento, a newly unified Italy freed of foreign occupation and internecine divisions by grass-roots revolution.'35

Under the banner of Vittorio Emanuele II, Duke of Savoy and ultimately King of Italy, the Piemontesi who led Italy's unification imported French administrative law to assist in building the State by assuring a state of law.'36 This effort was not to assure individual rights, but rather to assure effective administration of State power. The theory of the Piedmontese State reflected in Italy's first constitu tion, the statuto Albertino,'37 was that of a monarch according the

128. ZiBLATT, supra note 42, at 89-94. See also, e.g., Alberto Mario Banti, Il

RlSORGIMENTO ITALIANO (2004); STUART J. WOOLF, THE ITALIAN RlSORGIMENTO (1969). For the political ferment as to whether a unitary or federative state would best serve

the cause of a united Italy free from foreign domination, see Pierre-Joseph Prou

dhon, La f?d?ration et l'unit? en Italie (1862).

129. Ziblatt, supra note 42, at 82, 86-88.

130. Id. at 57-78.

131. Id.

132. Id. at 97.

133. Id. at 99-105.

134. Id. at 108, contrasts Italy with Prussia's experience of confronting pre-Ger man unification states where "presence of effective regional political institutions"

made federalism "the path of least resistance to national unification." Id. at 142.

135. Id. at 57-60.

136. The legal history of the Kingdom of Italy's first constitution reflects this at tempt to assure a state of law. See Lo Statuto Albertino illustrato dai lavori

preparatori (Presidenza del Consiglio dei ministri, Dipartimento per le riforme isti tuzionali, Dipartimento per l'informazione e l'editoria, Rome, Luigi Ciaurro ed., 1996).

137. See Arturo Carlo Jemolo & Massimo Severo Giannini, Lo Statuto Alber tino (1946); Giuseppe Maranini, Le origini dello Statuto Albertino (1926); Gior


populace limited political rights. The statuto Albertino's "flexibility," meaning the monarch's ability to change it at will, was the essence of the Italian State's then weakness. The fascist State, with popular ratification, emerged through this weakness in the 1920s.138 The fas cist State considered itself organized under the rule of law, but obvi ously without the strictures of the 1948 Constitution, particularly

without its "fundamental provisions" to protect human dignity and constitutional democracy.

The fascist State sought increased centralization.139 Its constit uent administrative units were Italy's 103 provinces, each under a podesta, the government-designated prefect.140 A further element of the fascist project was governance through corporativist associations, the individual bundles in the creation of the Roman fasci which the fascists employed as their symbol of strength and from which they drew their name.14' Establishment of national management, labor, and professional associations worked to overcome regional and other heterogeneity of Italian society, facilitating central direction. Al though fascism may have allowed trains to run on time (Italy was then at rail electrification's forefront),142 it failed not only by involv ing Italy in a war that it lost. It devastated Italian society by stifling aspirations for individual and collective civil rights to the point that Italy's first post-war referendum was to establish itself as a Republic rather than continuing as a monarchy tainted by association with fascism.'43

The 1948 Constitution's fundamental principles react forcefully to the immediately preceding fascist experience. This reaction af fords insight into the central contemporary significance of respect for the fundamental principles of the 1948 Constitution as a social value and the State's role in assuring such respect through the rule of law under the Constitution. The post-war Italian political class embraced

Gio Rebuffa, Lo Statuto Albertino (2003); Isidoro Soffietti, I Tempi dello

Statuto Albertino: Studi e Fonti (2004). 138. See Gianna Bonis Cuaz, Dallo Statuto Albertino alla Costituzione

Repubblicana (1967); Silvio Trentin, Dallo Statuto Albertino al regime fa

scista (Alessandro Pizzorusso trans., 1983) (1929) (Italian law professor's analysis of

fascist constitutional system, from exile in Paris). 139. See Giuseppe Bonfanti, Il fascismo: la conquista del potere (1976); Al

berto Acquarone, L'organizzazione dello Stato totalitario (1965). 140. See Luigi Ponziani, Il Fascismo dei prefetti: amministrazione e pol?tica

NELLTtALIA MERIDIONALE (1965). 141. See, e.g., Pericle Ducati, Origini ed attributi del fascio littorio (1930). 142. Stefano Maggi, Dalla citt? allo Stato Nazionale: ferro vie e modernizza

zione a Siena tra Risorgimento e Fascismo (1994), describes Italian rail develop ment during fascism.

143. See text supra note 21. Constitutional Law no. 1 of Oct. 23, 2002, Gazz. Uff. no. 252 of Oct. 26, 2002, revoked the bar, Const, transitional rule 13, Gazz. Uff. no.

298 of Dec. 27,1947, ed. straord., on male House of Savoy heirs entering Italy. On the

House of Savoy's current senior member, see Stacy Meichtry, The Would-Be King of

Italy Turns Out to be a Royal Pain, Wall St. J., (June 27, 2006), at 1.


the rule of law under the Constitution as a central tenet of Italian political discourse.'44 As modern Italy emerged from the dark days of fascism, and evolved from a devastated, heavily rural economy to a prosperous industrial democracy, all significant elements of the Ital ian political panorama found at least nominal embrace of the rule of law under the Constitution to be essential to distinguishing them selves from the fascist era and to maintaining Italy as a functioning State. The far-reaching changes in social fabric strained the constitu tional structure that Italy adopted in the early post-war years, as

well as its dedicated judiciary and its legal culture. Terrorism of the left and right, organized crime, and political corruption presented particular challenges.'45 But, Italy's legal and political institutions more than merely survived these and other challenges; they demon strated resilience in responding to them and have contributed signifi cantly to their management. As they did so, a constant theme has been centrality of the rule of law under the Constitution, assured by institutions of the State.

Distinguished post-World War II Italian academics who empha sized the importance of the rule of law under the Constitution, in cluding with reference to (i) judicial review of constitutionality of laws, (ii) Italy-European Community relations, and (iii) federalism and Regionalization, include scholars such as Mauro Cappelletti,'46 Antonio Cassese," 47Giorgio Gaja,'48 Antonio La Pergola,'49 Giuseppe Federico Mancini,'50 Paolo Mengozzi,'5' and Fausto Pocar,'52 among many others. Their work as legal scholars in respect of the Constitu tion, the role of the State, and implications of the constitutional rule

144. See, e.g., Enrico Berlinguer, Per il socialismo nella pace e nella

democrazia in Italia ed in Europa (1979); Enrico Berlinguer, Per UN GOVERNO DI

svolta democr?tica (1972); Alcide De Gasperi, Idee SULLA democrazia CRISTIANA

(1974); Giorgio La Pira, Architettura di uno stato democr?tico (1949); Il com

promesso storico: scRiTTi di Gramsci, Togliatti, Longo (Pietro Valenza ed., 1975).

145. The 1978 Red Brigades' kidnapping of Italy's Prime Minister Aldo Moro and murder 55 days later is but one example.

146. See, e.g., Monica Seccombe, Mauro Cappelletti (1927-2004), EUI Review 26-27

(Autumn 2004), available at www.iue.it.

147. See, e.g., Antonio Cassese (member, International Criminal Tribunal for for mer Yugoslavia), International Law (2d ed. 2004).

148. See, e.g., Giorgio Gaja (member, United Nations International Law Commis

sion), Introduzione al diritto comunitario (2005).

149. See, e.g., Antonio La Pergola, Costituzione e adattamento

dell'ordinamento interno al diritto internazionale (1961); Antonio La Pergola, Tecniche costituzionali e problemi delle autonomie garantite: riflessioni com

paratistiche sul federalismo e sul regionalismo (1987).

150. See, e.g., Giuseppe Federico Mancini, Il diritto sindacale (1971); Giuseppe

Federico Mancini, Costituzione e movtmento operaio (1976).

151. See, e.g., Mengozzi, supra note 115.

152. See, e.g., Fausto Pocar, Il Nuovo Diritto Internazionale Prfvato Italiano

(2002); Fausto Pocar & Mich?le Tamburini, Norme fondamentali dell'Unione e

della Comunit? europea (2003).


of law, in some instances as Italian and European judges and govern ment ministers, resonated both within and beyond Italy.

With this context, the rule of law under the Constitution and re gional autonomy emerge as key themes in modern Italy. Italian legal scholars label Italy's national constitution "rigid," meaning that in contrast to its predecessor statuto Albertino, the current constitution is not readily amended without broad consensus. In addition to the guarantees provided by the formal procedures to amend the Constitu tion, the Constitutional Court was an essential tool to avoid repeti tion of the sovereign's ability to revoke the constitution at will, as

well as of a rising political force to change the nature of the State, as the Fascists succeeded in doing and as it was feared in some quarters that the Communists would do if they came to national power in post

war Italy. The provision for Regionalization itself was also a reaction to the fascist dictatorship's association with a high degree of centralization. 153

Precisely because the Fascists consolidated power with electoral ratification, the 1948 Constitution conceived the rule of law not just legalistically, but rather in the deeper sense of a constitutional rule of law with a court to assure continuing vitality of fundamental consti tutional principles. As the Constitutional Court performs its consti tutionally-defined role as defender and enunciator of Constitutional values in the context of constitutional questions and original jurisdic tion disputes, it has shaped Italian government, including the nature of the relationships between State and Regions, and how Italian courts handle European law. On both topics, the Constitutional Court's role has not been mere service as a referee, but rather defini tion and elaboration of constitutionally grounded legal frameworks that emphasize the State's mediation of the constitutional rule of law.

B. National Civil Law Culture

National law, comprised of the Constitution, national legislation and the civil law tradition, predominates in Italy in both formal and practical ways.

In a formal sense, the Civil Code, adopted 1942, reinforces na tional uniformity by defining a hierarchy of sources of Italian law, comprised of national legislation, followed by regulations and then usages.154 The 1948 Constitution placed Constitutional law at the head of this list, and added Regional law, which within constitution ally defined spheres may displace national statutory and regulatory, but not constitutional, law.155 European Community law, now Euro

153. M?ny, supra note 3, at 7.

154. Civ. Code, art. 1, Provisions of the Law in General, Sources of Law, amended

by Law no. 218 of May 31, 1995, Gazz. Uff. ord. supp. no. 128 of June 3, 1995.

155. Const, art. 138. See text supra starting note 120.


pean Union law, trumps the sources of law identified in Italy's Civil Code by virtue, and on the terms, of its acceptance in Italy through the Constitution's article 11.156

In a practical sense, Italy's continued reliance on civil,157 crimi nal,158 commercial,159 civil procedure160 and criminal procedure'6l codes adopted as national legislation provides national uniformity on a core of matters that promotes maintenance of a national iden tity. 162 Even following the 2001 amendments to increase Regional autonomy, the Constitution expressly reserves to State legislation "jurisdiction and procedural norms, civil and criminal legal frame

work, and administrative justice."'163 Moreover, for the time being the abundant legislative production

of Italy's national Parliament and Government outside the code framework'64 substantially outweighs its Regions' legislative produc tion. Regions began significant legislation only recently, and the heavy preponderance of national law predates them.165 However, even as Regional legislation grows in importance, a confluence of fac

156. See text supra starting note 118.

157. Civil Code, adopted by R.D. no. 262 of Mar. 16, 1942, Gazz. Uff. extraord. ed.

no. 79 of Apr. 4, 1942. See Mauro Cappelletti et al., The Italian Legal System

439-52 (1967). 158. The 1931 Criminal Code (Codice Rocco), R.D. no. 1398 of Oct. 19, 1930, Gazz.

Uff. no. 253 of Oct. 28,1930, extensively modified by amendment and Constitutional Court decisions, continues as object of comprehensive amendment debate. See Gae

tano Insolera, Progetti di riforma del c?dice Rocco: il volto attuale del sistema p?nale, in Introduzione al sistema p?nale I (Gaetano Insolera et al. eds., 2000).

159. Merged 1942 with the Civil Code on its adoption, supra note 157. 160. Crv. Pro. Code, adopted by R.D. no. 1443 of Oct. 28, 1940, Gazz. Uff. no. 253

of Oct. 28, 1940, and much amended.

161. A new Criminal Procedure Code, embracing features of the adversarial sys tem typical of the United States, took effect Oct. 24,1989. See Louis F. Del Duca, The

New Italian Criminal Procedure Code: Italy's Adoption of a New "Adversarial" System Marks a Historic Convergence of Civil and Common Law Systems, 10 Dick. J. Int'l L.

73 (1992); Elisabetta Grande, Italian Criminal Justice: Borrowing and Resistance, 227 Am. J. Int'l L. 40 (2000).

162. Unofficial compilations are sometimes published as "Codes," and subject areas

occasionally re-adopted as a Testo ?nico (Unified Text), e.g., the testo ?nico sulle leggi

dipubblica sicurezza (TUPS?Unified text on public safety laws), R.D. no. 773 of June

18, 1931, Gazz. Uff. no. 146 of June 26, 1931, ord. supp. 163. Const, art. 117, amended 2001.

164. On "Constitutional laws," see text supra starting note 26. The next level of

legislation consists of "ordinary laws," adopted by simple Parliamentary majority, and

"acts having the force of law," which are decreti legislativi delegati (delegated legisla tive decrees, D.L.D.) or decreti legge (decree laws, D.L.). Within constitutional limits,

Parliament may delegate the Council of Ministers authority to issue laws, Const, art.

76, which then issues delegated legislative decrees. In extraordinary cases of neces

sity and urgency, the Government may directly issue decree laws. Unless parlia

mentarily ratified within 60 days, they are void ab initia. Const, art. 77. Delegated

legislative decrees and decree laws become effective when issued under President of the Republic signature, Const, art. 87, as Decreti del Presidente delta Repubblica (President of the Republic Decrees, DPR).

165. Indeed, a substantial body of Italian legislation predates even the present 1948 Constitution. Hence, reference here to the occasional Regio decreto (Royal De

cree, R.D.) and even a Regio Editto (Royal Edict).


tors will work to preserve influence of national law on key points. They include Italy's Constitution and the Constitutional definition of the State's ongoing role, the national judiciary working predomi nantly in the civil law tradition,'66 and continued reliance on na tional codes for core legal topics of civil, commercial and criminal law.

C. National Legal Education and Professions

Italy's legal professions are national and contribute to assuring a national legal culture. Their national quality corresponds to the na tional governance of its law faculties, and the national system to se lect and promote law professors. Moreover, the law faculties' influence in imparting a national legal culture extends beyond the formal legal professions because they train such a broad slice of Ital ian university students, even as only a fraction of such students pur sue formal careers in law.

The nationally-defined careers available to university graduates in law include lawyer, State attorney,'67 notary, magistrate (which includes civil and criminal judges and prosecutors), administrative judge, and law professor. A further legal profession, open to univer sity graduates in economics and business, is that of commercialista, a business-oriented advisor intermediate between a lawyer and an ac countant.'68 Specialized training, apprenticeship, and examination are required for each category. Mid-career changes from one profes sion to another are rare.

Law schools are among most popular Italian university facul ties.'69 With limited exceptions, they are State schools.'70 Unlike the selective admission system used in United States law schools,

which admit holders of a first university degree to law study as a

166. For contemporary observation on common and civil law system distinctions, see Patrick Del Duca et al., US Debt Markets Meet the Emerging Markets: Legal

Challenges Faced by Cross Border Lenders, in Law of International Insolvencies and Debt Restructuring (2006).

167. State attorneys (Avvocatura dello Stato) represent the State and most State

entities, including governmental corporations. Generally, three years' experience as a

practicing lawyer is required for the competitive entrance examination. Ministero

della Giustizia, available at http://www.giustizia.it/professioni/notai/decnotai.htm. 168. To qualify as commercialista requires university graduation in economics and

business, and passing a public examination after three-year apprenticeship to enroll

in the State registry. DPR no. 1607 of Oct. 27, 1953, Gazz. Uff. no. 34 of Feb. 11, 1954; D.L.D. no. 107 of June 10, 2002, Gazz. Uff. no. 135 of June 11, 2002.

169. Recent Italian university data (of 2003-2004 enrollments: political science/so ciology, 12.9 percent

- 45,676; economics and statistics, 12.8 percent

- 45,332; law,

11.6 percent -

40,965 enrollments) show law faculties in the top three enrollment sub

ject areas over the five years through 2003-2004, but no longer the leader as previ

ously. ISTAT (Istituto nazionale di statistica), http://www.istat.it/servizi/studenti/ unilav/capitolo3.pdf. As of Jan. 31, 2005, 235,348 students (59 percent female) were

registered in Italy's 51 law faculties, with each of the Bari, Bologna, Naples and Rome

law faculties enrolling over 10,000. Ministero dellTstruzione, dell'Universit? e della

Ricerca, Academic Year 2004-2005, data at Jan. 31, 2005, available at http://www.

miur.it/scripts/p_prov05/totali.asp.


graduate subject, Italian law faculties offer open enrollment to stu dents with a secondary school diploma, the maturita earned by pass ing the secondary school exit examination, typically at age 19.17'

Prior to reform first implemented 2001, an Italian law degree re quired 26 exams and a thesis, nominally over four years. The reform, consistent with the European-wide Bologna process,172 provides a first three-year university degree, which allows recipients to under take competitive State exams for public administration jobs and to exercise limited legal and administrative professional roles in the State or private sector. A full five-year degree course of study allows access to the apprenticeships and examinations prerequisite to law yer, magistrate, and notary careers. Although recently universities have acquired some latitude to determine courses of study,173 law curricula remain substantially uniform, and their degrees nominally equivalent. Like in most civil law countries, only a fraction of stu dents complete law studies, and indeed a reason to divide the old four-year degree into two steps is to graduate more students with at least an initial degree.174 Even smaller percentages meet additional requirements to become lawyers, magistrates, administrative judges, or notaries.175

To become a professor, a law graduate undertakes a further graduate degree in law and sits for a State examination to become a university researcher.176 With one or more established professors' tutelage, the aspiring academic can hope to win a university aca demic post in national competitions based principally on evaluation of publications.177

170. Private law faculties in Rome include Libera Universit? Internazionale Studi Sociali (LUISS) and Pontifical University for Canon Law, and in Milan, Bocconi Uni versity, Carlo Cattaneo University, and Sacred Heart Catholic University.

171. Ministerial decree no. 11 of Jan. 30, 2003, Gazz. Uff. no. 95 of Apr. 24, 2003 amending Law no. 910 of Dec. 11, 1969, art. 1, Gazz. Uff. no. 314 of Dec. 13, 1969.

172. Building on the June 19, 1999 Bologna Declaration by Education Ministers of various countries, some 40 European countries are working toward the system of

three-year initial degree, followed by two-year second university degree. See Euro

pean Commission, The Bologna Process: Next Stop Bergen 2005, http://ec.europa.eu/

education/policies/educ/bologna/bologna_en.html. 173. Ministerial decree no. 509 of Nov. 3, 1999, Gazz. Uff. no. 2 of Jan. 4, 2000.

174. In 2004, 29,648 students received law degrees (mostly the new three-year first degree, but some students finishing the old four-year laurea degree, and a few

the new two-year degree), nearly all (24,582) exceeding the time contemplated to com

plete the respective degrees. Ministero dellTstruzione, delFUniversit? e della Ricerca, Laureati ed Esami, Calendar Year 2004, available at http://www.miur.it/scripts/IU/

vIU2.asp. 175. Most Italian law faculties offer one year post-graduate courses to prepare

graduates to take lawyer, magistrate or notary State examinations. Ministerial de cree no. 537 of Dec. 21, 1999, Gazz. Uff. no. 24 of Jan. 31, 2000.

176. Law no. 230 of Nov. 4, 2005, Gazz. Uff. no. 258 of Nov. 5, 2005.

177. DPR no. 117 of Mar. 23, 2000, Gazz. Uff. no. 109 of May 12, 2000. Nationally, the law faculty confirmed teaching staff comprises 2438 persons as of Dec. 31, 2005, of

whom 1197 (12.4 percent female) were full professors, 472 (34.5 percent female) asso ciate professors, and 769 (45 percent female) researchers. Ministero dellTstruzione,


National legislation regulates the bar,'78 and an avvocato (law yer) may practice throughout Italy.'79 Until recent legislation abro gated the setting of legal and other professional fees,'80 the Consiglio

Nazionale Forense (National Bar Council) fixed allowable fees at a national level for avvocati, although a client could consensually pay

more.181

The centralization of legal services for substantial business activ ities in Milan and Rome contributes to the national character not only of the formal legal system, but also of its practical application. Recent evidence suggests that the larger Italian firms, frequently with a foreign law firm affiliation and typically based in Milan and

deirUniversit? e d?lia Ricerca, Banca dati dei docenti di ruolo, data at Jan. 31, 2005, available at http://www.miur.it/scripts/visione_docenti/vdocenti2.asp.

178. R.D.L. no. 1578 of Nov. 27, 1933, Gazz. Uff. no. 281 of Dec. 5, 1933, converted

into law and amended by Law no. 36 of Jan. 22, 1934, Gazz. Uff. no. 24 of Jan. 30,

1934, amended by Law no. 406 of July 24, 1985, art. 2, Gazz. Uff. no. 190 of Aug. 13, 1985.

179. R.D.L. no. 1578 of 1933, art. 4, following repeal by Law no. 406 of July 24, 1985, supra note 178, of R.D.L. no. 1578 of Nov. 27, 1933, art. 5, 6, supra note 178. In

2002, Italy's 56 million population included 129,000 avvocati (1 per 437). Marco Bel linazzo, Per gli avvocati un bilancio da record, Il Sole 24 Ore (Jan. 22, 2005). The

analogous US ratio in 2002 was 1 per 423. http://www.bls.gov/oco/ocos053.htm; http:/ /www.census.gov/population/www/popclockus.html. To become a lawyer, a law gradu ate must apprentice under a lawyer two years, reduced to one with a year's training course under Law no. 127 of May 15, 1997, art. 17(114), supra note 57, Ministerial

decree no. 537 of Dec. 21, 1999, supra note 175, and then pass the State examination.

R.D.L. no. 1578 of Nov. 27,1933, supra note 178, modified by D.L.L. no. 215 of Sept. 7,

1944, Gazz. Uff. no. 61 of Sept. 28, 1944, and DPR no. 101 of Apr. 10, 1990, Gazz.

Uff. no. 102 of May 4,1990; Law no. 180 of July 18, 2003, converting into law D.L. no.

112 of May 21, 2003, Gazz. Uff. no. 167 of July 21, 2003; R.D.L. no. 1578 of Nov. 27, 1933, supra note 178, art. 5. In recent years, the passage rate is about 50 percent.

See Guido Alpa, President, Consiglio Nazionale Forense, Relazione introduttiva, Con correnza e mercato professionale, Convegno (Rome, Oct. 8, 2005), available at www.

consiglionazionaleforense.it. In 1986, of 9,407 persons taking the exam, only 189

passed. See Istituto Italiano Statistica, Prospetti Statistici Professionali (1989). Law no. 27 of Feb. 24, 1997, art. 1, Gazz. Uff. no. 48 of Feb. 27, 1997 eliminated the

initial practice period as procuratore legale. 180. D.L. no. 223 of July 4, 2006, art. 2(a), Gazz. Uff. no. 153 of July 4, 2006,

rectified Gazz. Uff. no. 159 of July 11, 2006, converted into law by Law no. 248 of

Aug. 4, 2006, Gazz. Uff. no. 186 of Aug. 11, 2006, ord. supp., coordinated text Gazz.

Uff. no. 186 Aug. 11, 2006 ord. supp. The abrogation notwithstanding, Crv. Pro.

Code, art. 90 places the initial burden of filing expenses, lawyers, experts and other

judicial officers on the moving party in litigation. Civ. Pro. Code, art. 91 and 92

require the judge at final judgment to mandate that the loser reimburse the winner such expenses, but leave discretion to adjust the award under reasonableness and

appropriateness criteria.

181. See http://www.awocati.it/servizi/tariffe/tariffe.htm, confirmed by Ministerial

decree no. 127 of Apr. 8, 2004, Gazz. Uff. no. 115 of May 18, 2004, ord. supp. no. 95.

The decree defined fee ranges by service type, multipliable for matters of "particular

importance, complexity and difficulty." E.g., for such transactional matters, the fees

could be doubled, and for such matters of "extraordinary importance," subject to Na

tional Bar Council opinion, quadrupled. Id., annesso F, art. 3(1). The maximum fee

for large (over 5,164,600) transactional matters was 3 percent of the value at issue,

id., annesso F, art. 11. Contingent fees were not contemplated, id., annesso A, art.

4(1).


Rome, are among the most profitable anywhere.'82 Such large, or ganized law firms focus on securities, financial and other business

matters, and relative to the bulk of other lawyers practicing in smaller firms or as individual practitioners, collect a share of legal fees disproportionate to their number.183

Italian Notaries draft and authenticate legal instruments includ ing contracts, wills, and corporate charters, as well as real property and other conveyances.184 In particular, the system for tracking cor porate charters and real property ownership is nationally uniform. To become a notary, a law graduate attends one of a limited number of a two-year notary schools, apprentices with a notary for two years and then takes a challenging national examination to earn the as signment to provide notarial services in a specific territory.'85

D. National Judiciary

In addition to the pivotal constitutional role of Italy's Constitu tional Court, the national organization of its ordinary and adminis trative courts reinforces the national character of its justice system.

Although ordinary and administrative judicial districts are organized by Region and province, all courts are part of the State.

1. Judicial Activism: Constitutional, Ordinary, Administrative

The State institution most prominently responsible for initial ap plication of the constitutional rule of law in post-War Italy is its Corte Costituzionale. Conceived by Italy's 1948 Constitution, it commenced operation in 1956.186 The Constitutional Court is built on Kelsen's model of limiting review of constitutionality of laws to one central institution with both legislative and judicial attributes. Like its counterparts in Austria, Germany, Spain and various central Euro pean and Latin American countries, it is the only court competent to

182. Marco Cobianchi & Roberto Seghetti, Legalrisiko: Guerra tra i re della parcella, Panorama 113 (Feb. 23, 2006), reporting average annual partner revenue in

the 43 largest Italian firms over 1.3 million. 183. Id., reporting such firms billing 1 billion of the 8.5 billion annually col

lected by all practicing Italian lawyers. 184. There are about 5,000 notaries. Federazione Italiana delle Associazioni

Sindacali Notarili, available at www.federnotai.it.

185. Giovanni Casu & Giancarlo Laurini, Codice del Notaio per il concorso.

Norme di interesse notarile per le prove d'esame (2002). See Consiglio Nazionale

del Notariato (National Notary Council) web site listing 16 private notary specializa tion schools, and two university programs: www.notariato.it. D.L. no. 223 of July 4,

2006, supra note 180, also abrogated the national setting of notarial fees.

186. In its first decision, Corte cost, judgment no. 1 of June 14, 1956, Gazz. Uff. of

June 14, 1956, the Court, after affirming its power to review constitutionality of laws adopted even prior to the Constitution, declared unconstitutional criminal and public safety laws that restricted posting of political announcements.


review constitutionality.187 Kelsen's model introduces judicial consti tutional review of laws to a civil law system otherwise blocked by the post-French revolution distrust of judges' power to do anything other than simply apply code and statutory law. The Constitutional Court has all the powers of an American court to accomplish constitutional review, as it addresses issues arising from all Italian governmental entities' obligation to respect the Constitution in their norm crea tion.188 Italy's embrace of Kelsen's concept, previously applied only in Austria just after World War I and in Germany after World War II,

made the Court the fulcrum of declaring unconstitutional significant aspects of fascist epoch legislation contravening liberal concepts of civil and political rights. Its key role paralleled cold war sclerosis of Italy's political life, which impeded consensus for legislative reform of offending fascist era provisions.

Fifteen judges serving nine-year terms comprise the Constitu tional Court.189 Consistent with Italian jurists' view that the Court's power to invalidate laws is a combined quasi-legislative and judicial function, the Court is selected one-third jointly by the two Houses of Parliament, one-third by the President, and one-third by the highest ordinary and administrative courts (Court of Cassation, Council of State and Corte dei Conti).'90

Whenever an Italian court determines that an issue of constitu tionality is pertinent to a case pending before it and is "not mani festly unfounded," the court must refer such question of constitutionality directly to the Constitutional Court.19' The initial proceeding remains suspended until the Constitutional Court decides the constitutional issue.'92 In addition, the Court's original jurisdic tion includes conflicts between the State and Regions, as well as among Regions, conflicts between the legislative and executive branches, impeachment charges against the President of the Repub lic, and admissibility of demands for national referenda.193

187. Const, art. 134. On other constitutional courts, see, e.g., Patrick Del Duca, The Rule of Law: Mexico's Approach to Expropriation Disputes in the Face of Invest

ment Globalization, 51 UCLA L. Rev. 35, 108-09 (2003). 188. Constitutional Law no. 1 of Feb. 9, 1948, Gazz. Uff. no. 43 of Feb. 20, 1948;

Constitutional Law no. 1 of Mar. 11, 1953, supra note 25; General Rules on Constitu

tional Court of Jan. 20, 1966, Gazz. Uff. no. 45 of Feb. 19, 1966, special ed.

189. Const, art. 135; Constitutional Law no. 87 of Mar. 11, 1953, Gazz. Uff. no. 62

of Mar. 14, 1953.

190. Const, art. 135; Constitutional Law no. 2 of Nov. 22, 1967, Gazz. Uff. no. 294

of Nov. 25, 1967.

191. Constitutional Law no. 1 of Feb. 9, 1948, art. 1, supra note 188; Law no. 87 of

Mar. 11, 1953, art. 23-30, supra note 189; Law no. 131 of June 5, 2003, Gazz. Uff. no.

132 of June 10, 2003; Constitutional Law no. 3 of Oct. 18, 2001, supra note 63; Addi tional rules for judgments before the Constitutional Court, Mar. 16, 1956, Gazz. Uff.

no. 71 of Mar. 24, 1956 and further provisions on Court's web page, http://www.

cortecostituzionale.it/ita/testinormativi/fontididisciplina/legge_56.asp#2. 192. Id.

193. Const, art. 134.


Subsequent to the initial wave of Constitutional Court activity, Italy's judicial branch undertook a further kind of active judicial role. Post-war Italy lacked the strong Presidential direction and the well developed elites coming from the grandes ecoles that made France's technocratic public administration function.194 Accordingly, and in the face of sustained national political blockage, the Italian bureau cracy became widely perceived as non-responsive. The judicial branch, and to a modest extent also the Corte dei Conti, responded by becoming activist.195

This activism consisted of the judiciary's expansive application of criminal and tort law to negligent acts, and failures to undertake acts required by law, against both private parties and State bureau crats.196 The judicial activism partially palliated the political stale

mate that prevented meaningful action by the legislative and executive branches to assure effective action by the State bureau cracy. Although not a complete substitute for good public administra tion, the sometimes clamorous use by the magistrates known as

pretori of their power to both prosecute and judge lesser civil and criminal matters197 highlighted the deficiencies of the public administration.

In addition, from the beginning of terrorism of the left and right in the 1970s, the magistracy contributed significantly to the fight against terrorism and organized crime. Many judges paid with their lives for their commitment. In 1983 Rocco Chinnici, the magistrate

who created the Palermo Anti-mafia Pool, was murdered,198 followed by the 1992 murders of magistrates Giovanni Falcone and Paolo Bor sellino.199 The magistracy also played a fundamental role in combat ing political corruption. The "clean hands" investigations produced a so-called "revolution by the judges" to break down the longstanding system of political party finance that fed on the lack of real alterna tion of power in national governance.200

194. ENA, France's National School of Public Administration, www.ena.fr, exem

plifies the grandes ?coles through which France's administrative elites pass.

195. Patrick Del Duca, II giudice italiano e statunitense: il contrasto fra strat?gie di sostituzione e di controllo delta pubblica amministrazione, in Unita della Giurisdi zione e Tutela dell'Ambiente 374 (1986) (Activism of Italian judges with respect to acting in place of the public administration, as compared to the deference of American

judges); Patrick Del Duca, Italian Judicial Activism in Light of French and American Doctrines of Judicial Review and Administrative Decisionmaking: The Case of Air Pollution (Eur. U. Inst., Working Paper No. 89/391,1989). On the Corte dei Conti, see text infra starting note 230.

196. Id.

197. See infra note 211. 198. See www.fondazionechinnici.it.

199. See www.fondazionefalcone.it; Salvo Palazzolo, Omicidio Borsellino, pioggia di ergastoli, La Repubblica (Dec. 9, 1999).

200. See supra note 10.


2. Ordinary and Administrative Courts

A national magistracy, constitutionally guaranteed autonomy from Parliament and Government, staffs the ordinary courts and public prosecutor positions.201 Public prosecutors, known as Procuratori della Repubblica, are career magistrates.202 The Consiglio Superiore della Magistratura (Superior Council of the Mag istracy, "CSM") is the national body that governs the magistracy.203

The CSM's composition is designed to provide national assurance of judicial and prosecutorial autonomy. It is presided over by the Presi dent of the Republic and composed of the President of the Court of Cassation's First Section, and the Court of Cassation's Procuratore Generale (public prosecutor), with the balance of its members magis trates elected two thirds by all ordinary judges, and one third by Par liament from law professors or lawyers having practiced more than 15 years.204 Entrance to the magistracy occurs through a national competitive examination, open to candidates trained in law.205 The CSM is responsible for promoting magistrates.206

The judges who serve on administrative courts are not part of the magistracy; they are part of the executive, rather than the judicial, branch of government. Although not within the CSM's scope, their selection and promotion, on a uniform national basis, is intended to afford them similar impartiality, as well as to assure uniform na tional application of the law that they apply.207 Selection of adminis trative judges, like ordinary judges, is based on educational qualifications and competitive examination pursuant to national leg

201. Const, art. 101-05.

202. Const, art. 102; R.D. no. 12 of Jan. 30, 1941, art. 74, Gazz. Uff. no. 28 of Feb.

4, 1941. A 2005 reform limits magistrates' opportunity to switch between judicial and prosecutorial roles to the first three years as confirmed magistrates. Law no. 150 of

July 25, 2005, art. 2(l)(a), (g), art. 6, Gazz. Uff. no. 175 of July 29, 2005, ord. supp. no.

134.

203. Const, art. 104-05; Law no. 195, Mar. 24, 1958, Gazz. Uff. no. 75 of Mar. 27,

1958; DPR no. 916 of Sept. 16, 1958, Gazz. Uff. no. 232 of Sept. 25, 1958; Law no. 44 of Mar. 28, 2002, Gazz. Uff. no. 75 of Mar. 29, 2002.

204. Const, art. 104-06; Law no. 44 of Mar. 28, 2002, supra note 203.

205. Law no. 150 of July 25, 2005, supra note 202, art. 2(l)(b); Law no. 262 of Nov. 5, 2004, Gazz. Uff. no. 261 of Nov. 6, 2004; Const, art. 106(1).

206. Const, art. 105. Magistrates were promoted principally on seniority rather

than merit. Law no. 570 of July 25,1966, Gazz. Uff. no. 186 of July 28,1966; Law no. 831 of Dec. 20, 1973, Gazz. Uff. no. 333 of Dec. 29, 1973. Recent reform allows more

rapid promotion based on evaluation of merit. Law no. 150 of July 25, 2005, supra note 202.

207. Law no. 1034 of Dec. 6, 1971, art. 13, 14, 15 and 16, Gazz. Uff. no. 314 of Dec.

13, 1971. The three ranks of TAR judges are: consiglieri, primi referendari and refer endari. Referendari are named through State examination. Id. art. 14. After four

years, a referendario becomes a primo referendario, absent exceptional reason. Art.

15, amended by Law no. 186 of Apr. 27,1982, art. 16 et seq., Gazz. Uff. no. 117 of Apr. 29, 1982. Four years later, a primo referendario may become consigliere. Id. Four

years later, each consigliere may fill Council of State vacancies by ranking on senior

ity and career achievement. Id.


islation governing the Regional administrative courts and the Coun cil of State.208 All administrative judges must be graduates of an Italian law faculty, with new judges required to have completed the five-year university study in law; however, they need not be members of the bar.209

The ordinary courts exercise jurisdiction over general civil, com mercial, labor, and criminal matters. Since 1993 they are structured, in ascending order, as Justices of the Peace, Tribunals, Courts of Ap peal, and the Court of Cassation, as follows.210

Justices of Peace (Pretori before a 1998 reform211) are small claims judges of first instance.212 A Justice of Peace's jurisdiction in cludes minor civil213 and criminal214 matters. The Justice of Peace is not a magistrate, but must be a law graduate aged 30 to 70 and pref erably a former judge, lawyer, law professor, police commissioner, or senior public civil servant.215

Tribunali (Tribunals) are general courts of first instance for civil, commercial and criminal matters.216 Each of the 165 Tribunals is

208. DPR no. 214 of Apr. 21, 1973, art. 14-20, Gazz. Uff. no. 131 of May 22, 1973.

Regio Editto no. 2417 of Aug. 18, 1831, three decades before Italy's unification, cre ated the Council of State to address substantive public administration questions. It commenced as an administrative court pursuant to Law no. 2248 of Mar. 20, 1865

(All. E), Gazz. Uff. of Apr. 27, 1865. Law no. 1034 of Dec. 6, 1971, supra note 207, establishes the TARs.

209. Law no. 1034 of Dec. 6, 1971, art. 9-18, supra note 207, for the Tribunali am

ministrativi regionali. R.D. no. 1054 of June 26, 1924, Gazz. Uff. no. 158 of July 7,

1924; R.D. no. 444 of Apr. 21, 1942, Gazz. Uff. no. 114 of May 13, 1942; DPR no. 579 of Sept. 29, 1973, Gazz. Uff. no. 254 of Oct. 1, 1973, for the Council of State.

210. Law no. 374 of Nov. 21, 1991, art. 49, 50, Gazz. Uff. no. 278 of Nov. 27, 1991.

211. D.L. no. 51 of Feb. 19, 1998, Gazz. Uff. no. 66 of Mar. 20, 1998, ord. supp. no.

48/L, eliminated the pretore, the traditional first instance judge. Pretore could initiate certain prosecutions for lesser offenses. Former Crim. Pro. Code, art. 368.

212. Law no. 374 of Nov. 21,1991, art. 1, 44, supra note 160, effective Jan. 2, 1993, created 4700 giudici di pace (Justices of Peace).

213. Crv. Pro. Code, art. 7, amended by Law no. 374 of Nov. 21, 1991, art. 17, 35,

supra note 210.

214. Law no. 374 of Nov. 21, 1991, art. 36, supra note 160; Law no. 468 of Nov. 24,

1999, art. 14, Gazz. Uff. no. 293 of Dec. 15, 1999. Since Jan. 2, 2002, the Justice of

Peace has jurisdiction over crimes and misdemeanors punishable solely by fine. D.L. no. 274 of Aug. 28, 2000, Gazz. Uff. no. 234, ord. supp. no. 166/L of Oct. 6, 2000. As to

such matters, the Justice of Peace may impose house arrest and public service, but

not imprisonment. Id. art. 53 and 54.

215. Law no. 374 of Nov. 21, 1991, art. 5(1)(4), supra note 210.

216. Civ. Pro. Code, art. 9(1). Tribunals exercise criminal jurisdiction over crimes

not within Court of Assize or Justice of Peace jurisdiction. Crim. Pro. Code, art. 6.

Criminal matters subject to more than 24 years imprisonment are decided by Tribu nal special panels, Corti d'Assise (Courts of Assize), Crim. Pro. Code, art. 5, and on

appeal by Court of Appeal special panels, Courts of Appeal of Assize. Crv. Pro. Code, art. 596. Two professional judges, one presiding, and six lay judges comprise them.

Law no. 287 of Apr. 10, 1951, art. 3, Gazz. Uff. no. 102 of May 7, 1951, amended by D.L. no. 31 of Feb. 14, 1978, art. 1, Gazz. Uff. no. 44 of Feb. 14, 1978, converted into

law with modification by Law no. 74 of Mar. 24, 1978 Gazz. Uff. no. 86 of Mar. 29, 1978. Lay judges are secondary school graduates aged 30 to 65. Law no. 287 of Apr. 10, 1951, art. 9, supra note 216, modified by Law no. 405 of May 5, 1952, Gazz. Uff.

no. 105 of May 6,1952; Law no. 1441 of Dec. 27,1956, Gazz. Uff. no. 2 of Jan. 3,1957;


separated into two divisions.217 One comprises single judges who handle all matters within the Tribunal's jurisdiction except those enumerated for the other division, and the other operates with three judge panels to hear criminal matters, plus bankruptcy and certain corporate and other matters.218

Appeals from a Justice of the Peace are to a Tribunal, and ap peals from a Tribunal are to Corti d'Appello (Courts of Appeal).219 From there, issues of law are appealable to the Corte di Cassazione (Court of Cassation), the highest ordinary court.220 Its purpose is to insure the unity and uniformity of national law and to resolve juris dictional conflicts among the civil courts and between the administra tive and civil courts. Unlike Courts of Appeal, only questions of law

may be appealed to it.221 The Constitution guarantees the right of appeal to the Court of Cassation of final judgments and intermediate orders limiting personal liberties.222

The State provides an administrative court headquartered in each of the Regions (Tribunale Amministrativo Regionale, a Regional

Administrative Tribunal-"TAR") with jurisdiction over administra tive actions in that Region.223 The Consiglio di Stato (Council of State), part of which provides substantive advice on administrative

matters, is the supreme administrative court. Three of its six sec tions provide opinions, some binding, to the public administration.224

D.L. no. 31 of Feb. 14, 1978, supra, converted into law with modification by Law no.

74 of Mar. 24, 1978, supra; DPR no. 115 of May 30, 2002, Gazz. Uff. no. 139 of June

15, 2002, ord. supp. no. 126.

217. Civ. Pro. Code, art. 50-bis. 218. Id.

219. Crv. Pro. Code, art. 341; D.L. no. 51 of Feb. 19, 1998, art. 73, 74, supra note

211. The 26 Courts of Appeal work in three-judge panels. R.D. no. 12 of Jan. 30, 1941, art. 56, supra note 202, amended by Law no. 532 of Aug. 8, 1977, art. 1, Gazz.

Uff. no. 226 of Aug. 20, 1977. Courts of Appeal are responsible for foreign judgment recognition. Crv. Pro. Code, art. 796.

220. R.D. no. 12 of Jan. 30, 1941, art. 65, supra note 202. The Court of Cassation has 698 members, comprised of four supervising officials (First President, General

Prosecutor, Magistrate of Public Waters, and First Consigliere), 108 Presidents (of five-member sections) and 586 Counselors and Associate Judges, and is divided into

five judge panels, R.D. no. 12 of Jan. 30, 1941, art. 67, supra note 202, distributed

among five civil, and seven criminal, sections. Representatives of all civil, or all crimi

nal, panels sit on a nine judge panel, id., to resolve jurisdictional conflicts among

ordinary courts, Civ. Pro. Code, art. 360(1) and 374, and between ordinary and spe cial courts, including administrative courts and the Court of Accounts. Civ. Pro.

Code, art. 362. They decide petitions raising conflicts of five judge panels on matters

of law or matters of the most "serious importance." Civ. Pro. Code, art. 374.

221. Civ. Pro. Code, art. 360.

222. Const, art. 111(2). 223. Const, art. 125. Because of the volume associated with Rome as capital, the

TAR of Lazio, its Region, has five sections. Other Regions with an additional section are: Abruzzi, Calabria, Campania, Lombardia, Emilia-Romagna, Puglia, Sicilia, and

Trentino-Alto Adige. Law no. 1034 of Dec. 6, 1971, art. 1, supra note 207.

224. The Council is composed of 111 administrative judges, divided among six sec

tions. The Council's Sections I, II, and III have substantive policy functions, as does

its Adunanza gen?rale (General Assembly), composed of all 111 administrative judges


The other three hear appeals from TARs. About 15 percent of TAR judgments are appealed to the Council of State.225

The administrative courts may annul or modify unlawful admin istrative acts, including of Regions and other local government enti ties.226 In some cases, they can evaluate an administrative act's substantive merit.227 In contrast, an ordinary court can set aside the application of the administrative act in a particular case, but not nul lify it.228 However, both ordinary and administrative courts may now award damages against the State.229

Several special administrative courts exist, of which the most im portant in shaping the State's constitutional role is the Corte dei Conti (Court of Accounts), whose primary functions are review of public finances, auditing, and prosecution of misconduct regarding public assets, extending to all governmental bodies, including Re gions, provinces and municipalities.230 Its review as a national gov ernment entity of local finances is further national assurance of the constitutional rule of law and of the correct conduct of Regional, pro vincial and municipal governments, particularly in respect of fiscal matters.

E. National Civil Service

Employment in the public administration, of the State, Regions, provinces and municipalities, is by public competition unless other

except those who preside or are otherwise assigned to TARs. The Council's Sections

IV, V and VI plus its Adunanza plenaria (Plenum), comprised of the Council's presi dent plus four judges from each of the three judicial sections chosen by the president, perform the Council's judicial functions. The Council's President decides the number of judges assigned to each Section. Appointment as a Council member is for life. Const, art. 100; R.D. no. 1054 of June 26, 1924, supra note 209, amended by R.D.L. no. 1672 of Oct. 23, 1924, Gazz. Uff. no. 257 of Nov. 3, 1924; Law no. 88 of Feb. 8,

1925, Gazz. Uff. no. 37 of Feb. 11, 1925; R.D. no. 444 of Apr. 21,1942, supra note 209; D.L. no. 654 of May 6,1948, Gazz. Uff. no. 135 of June 12,1948; Law no. 1018 of Dec.

21,1950, Gazz. Uff. no. 298 of Dec. 30,1950; Law no. 1034 of Dec. 6,1971, supra note

207; DPR no. 579 of Sept. 29, 1973, supra note 209; Law no. 186 of Apr. 27, 1982, art. 1-7, supra note 210.

225. Giovanni Pale?logo, President, First Section of the Council of State, Steps of the Italian Administrative Law-suit, available at www.giustizia-amministrativa.it.

226. Const, art. 113.

227. R.D. no. 1054 of June 26,1924, art. 27, supra note 209; Law no. 1034 of Dec. 6,

1971, supra note 208.

228. Law no. 2248 of Mar. 20, 1865 (All. E), art. 4, supra note 208.

229. Court of Cassation, Unified Session, judgment no. 13659 of June 13, 2006, available at www.cortedicassazione.it, in addition to affirming administrative court

damage awards, caps a seven-year process of Court of Cassation and Constitutional

Court decisions, plus legislation, with authoritative declaration that administrative court jurisdiction is no longer premised on a plaintiffs interesse legittimo (legitimate interest) in the public administration's proper function, but rather the "presence of a

concrete exercise of power" by the public administration.

230. Const, art. 100(2). See Elio Casetta, Manuale di Diritto Amministrativo

877-94 (2005).


wise specified by law.23' Regions may not make unfounded excep tions, as the Constitutional Court emphasized in finding unconstitutional a Regional law that would have given priority to job candidates previously employed by the Region.232 A significant por tion of public administration employees are now subject to civil, rather than public law, i.e., employment disputes are resolved by or dinary courts applying the Civil Code rather than administrative courts applying administrative law. Such employees are subject to collective bargaining between representative unions and a State agency.233

Italy's national bureaucracy will continue to dwarf that available to the Regions for the foreseeable future. By one count, the State employs about two million people, while as of 2002 Regions employed 90,000; provinces 58,000, municipalities, the traditional local gov ernment unit, 480,000; and local health and hospital authorities 700,000.234 Although Regional autonomy and responsibilities are in creasing, the weight and simple numerical preponderance of the State public administration challenges Regions in their efforts to de velop their fields of action. Further, turnover in the public adminis tration is slow. Even through the 1970s many of the public administration members began employment with the State well prior to the 1948 Constitution.235 The numerical weight of the State public administration and the continuing political battles as to the direction of the State suggest that the process of Regionalization and Italy's adoption of New Deal-style authorities notwithstanding, the long standing, broadly-perceived issues of effectiveness of many parts of Italy's public administration will remain challenges.

231. Const, art. 97(3).

232. Corte cost, judgment no. 81 of Mar. 3, 2006, Gazz. Uff. of Mar. 8, 2006, prima serie sp?ciale no. 10 (invalidates 2005 Abruzzo Region budget law provision for em

ployment and career advantages to Regional employees, finding no basis for exception to "assuring access to public employment of the most competent and meritorious."

114.1.1 holdings in fact, id.).

233. Agenzia per la rappresentanza negoziale delle pubbliche amministrazioni

(Agency for negotiating representation of public administrations). D.L. no. 29 of Feb.

3, 1993, Gazz. Uff. no. 30 of Feb. 6, 1993; D.L. no. 80 of Mar. 31, 1998, Gazz. Uff. no.

82 of Apr. 8, 1998; D.L. no. 165 of Mar. 30, 2001, Gazz. Uff. no. 106 of May 9, 2001.

See Elio Casetta, at 146-52, supra note 230.

234. Tbl.1.1 at p. 30, Istituto Nazionale di Statistica, Statistiche delle Amministra zioni pubbliche, Anni 2001-2002, supra note 87. See Sabino Cassese, Lo stato

dell'amministrazione pubblica a vent'anni dal rapporta Giannini, Giornale di dir

itto amministrativo (1) 99 (2000); Stefano Nespor & Federico Boezio, Quanti sonogli impiegati pubblici?, RIP La rivista dell'impiego e della dirigenza pubblica no. 3

(2005); Pietro Virga, L'Amministrazione locale (2d ed. 2003).

235. See Rodolfo "Rudy" Lewanski, Executive Civil Servants and Politicians in Ital

ian Administration: Some Empirical Evidence from Large Municipalities, paper

presented at NISPAcee 9th Annual Conference on "Government, Market and the

Civic Sector: The Search for a Productive Partnership/' Riga, Latvia (May 10-12, 2001).


VI. WHAT WILL ITALY BECOME? WHAT DOES ITS EXPERIENCE

OFFER OTHERS?

Italy now defines itself as a Regional and Supranational state. Its Regions have significant administrative, financial and legislative autonomy, assured by the national Constitution and further en couraged by European Union law; it has ceded significant authority to the European Union. To reach this point, Italy has morphed in a relatively brief period from fragmented agglomeration of territories to a unitary state with weak central government (1865), a fascist dic tatorship (1930s), a Republic (1948), and a Regional (1990s) and su pranational constituent (1980s) state. To understand what Italy is and what it may become is to look beyond the ephemeral form of the

moment.

Italy has its visionary political thinkers, who even if not ulti mately successful in purely Italian politics, offer legacies well beyond Italy. Machiavelli remains known for his counsel to the prince,236 notwithstanding exile by his Medici patrons. The legacy of Alcide De Gasperi, a founder of the now defunct Christian Democratic Party, endures through his contributions to European union.237 In this per spective, debates about who leads Italy at any moment matter less than appreciation of Italian society's consistency and creativity, through the constitutional rule of law, in redefining the State to suit the changing needs of a dynamic and prosperous population, con cerned to respect human dignity and constitutional democracy. Italy's redefinition of the State by hollowing it out from above and below, while reinforcing the State's role as guarantor of the constitu tional rule of law, offers other countries inspiration as they confront similar challenges, albeit each in light of its own unique history and circumstances. For example, Mexico is coming to grips with alterna tion of power, the content to give to its own federalism, and affirming the constitutional rule of law, also in light of its constitution's new rigidity arising with emergence of multiparty politics, all the while experiencing significant economic and social progress.238 Other at least nominally federal countries facing similar challenges include

Argentina, Brazil and Russia.

The continuing invention of an Italian federalism under the 1948 Constitution is not fundamentally the accommodation of territorial cleavages, i.e., a self-aware minority's concentration in a specific ter

236. Niccol? Machiavelli, Il Principe (Giuseppe Lisio ed., 1900) (1532). 237. Giovanni Allara & Angelo Gatti, Alcide De Gasperi e la Pol?tica Inter

nazionale: Un'Antologia degli Scritti su l'Illustrazione Vaticana, 1933-1938 e

di Discorsi all'Estero, 1945-1954 (1990); Giorgio Del Vecchio et al., Diritto

Naturale e Unit? Europea (1958).

238. See Del Duca, supra note 187.


ritorial area,239 but rather a redefinition of the State to accommodate national political impasse through the invention of governmental levels other than the State itself, accompanied by devolution and del egation of responsibilities.240 Italy's Christian Democrat-led coali tion governments could not conceive national leadership by a

Communist party that might turn away from Western Europe and the United States, but the energy of the left-wing opposition excluded from national power found expression in development of Regional and municipal autonomy. More recently, the Lega Nord and voices of the political right crafted a national role from Regional and munici pal foundations.

The national political process, although frequently manifesting sustained impasse, has in actuality been creative in affirming the State and its institutions through their deconstruction by Regional ization and Supranationalism. The State in the expression of na tional politics instigates the nascent federalism, and the State's institutional mechanisms of control assure its unfolding within the parameters of the constitutional rule of law. These mechanisms range from the Constitutional Court's role as arbiter of the bounda ries between State and Regional responsibilities, to the veto effects of national referenda, the budgetary controls under the continuing dom inance of State revenue-sharing, and the Corte dei Conti audit of all governmental bodies. The uniformity of national legal culture fur ther affirms the State's continuing role as guarantor of the constitu tional rule of law. Within this framework, the Italian electorate has begun to vote in ways that alternate State governance among politi cal groupings, while simultaneously supporting increasingly vibrant Regional and municipal polities.

The Italian State arose as a unitary State because the territorial entities that Piemonte incorporated into the new State of Italy lacked effective political institutions to sustain any federal system.24l More over, the Piemonte regime's elitist character, with its flexible consti tution, paved the way for degeneration into the fascist debacle. In view of this history, the balance struck among the authority of the Regions, that of the national state, and participation in the suprana

239. See Ugo M. Amoretti, Federalism and Territorial Cleavages, in Federalism and Territorial Cleavages 1-23, 2 (Ugo M. Amoretti & Nancy Bermeo eds., 2004)

(essays on federalism and territorial cleavage in Belgium, Canada, France, India,

Mexico, Nigeria, Russia, Spain, Switzerland, Turkey, and United Kingdom, plus

Italy). 240. Ugo M. Amoretti, Italy: Political Institutions and the Mobilization of Territo

rial Differences, in Federalism and Territorial Cleavages 181-200 (Ugo M. Amo retti & Nancy Bermeo eds., 2004), although focusing on the last decade's "political

mobilization of the territorial cleavage between north and south," recounts Italian

politics and governmental structures consistently with the present State reconstruc

tion and constitutional rule of law analysis. 241. See Ziblatt, supra note 42.


tional European Union, is a happy one. Although slow in developing, recourse to regionalization under the 1948 Constitution to work around political impasses, is building political capacity for Regional government, ranging through public administration, taxation, and regional politics distinct from national politics. The story of the Ital ian State's Regionalization and Supranationalism is a story of contin uous procedural adjustments to work through and around national level political impasses by newly invented institutions and practices.

Since the 1948 Constitution's adoption, Italy's dynamic economic and social evolution confronted its revolving door reshufflings of gov ernments, manifesting an apparently sclerotic political system. This confrontation demanded and found an outlet in transformation of the State through Regionalization and Supranationalism. At the same time, the process of transformation contributed to weaving tightly into the fabric of Italian society the aspirations of the 1948 Constitu tion's drafters for a democratic polity respectful of each person's dig nity through the rule of law under the Constitution. The State's transformation is by no means complete, but the restructuring pro cess, which may continue indefinitely as there remains no shortage of political impasse in Italian public life, has increasingly ingrained the Constitution's fundamental principles into Italian society. The ongo ing evolution of Regionalization and Supranationalism within the constraint of State assurance of the constitutional rule of law affirms and deepens the State's role of assuring the Constitutional rule of law and the application of its fundamental principles. Such was the aspi ration of the authors of the 1948 Constitution, and is increasingly the reality of Italian society.

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