Strasbourg, 19-21 March 2013
19 March 2013
Local and regional democracy in Italy
Rapporteurs: Marina BESPALOVA, Russian Federation (L, EPP/CCE)1
Knud ANDERSEN, Denmark (R, ILDG)
Recommendation 337 (2013) 2
Explanatory memorandum 5
This report on the situation of local and regional democracy in Italy follows on from Recommendation 35 (1997) and the two monitoring visits carried out from 2 to 4 November 2011 and 3 to 5 December 2012. The report welcomes the fact that the principle of local self-government is enshrined in the Italian Constitution, along with a new chapter (Title V) on Regions, Provinces and Municipalities, which was included in 2001. The report also notes with satisfaction the adoption of the law on the funding of local authorities in March 2011 and of the Law on Fiscal Federalism in 2009. However, the rapporteurs express regret that the right of local authorities to manage a substantial share of public affairs under their own responsibility is not fully respected and that the principle of direct elections of officials at provincial level is being called into question. In addition, the rapporteurs note that the scale and effect of the shifting of responsibilities from municipalities to independent consortia should be reviewed, along with the limited discretion for local authorities, and add that the insufficient mechanisms for financial equalisation and the lack of consultation procedures concerning the redistribution of financial resources to local authorities do not meet the standards of the Charter.
The rapporteurs recommend that the Italian authorities guarantee the maintenance of a substantial share of public functions for local and regional authorities and ensure the democratic value of direct elections; review the scale and effect of shifting responsibilities from municipalities to consortia; and ensure the sensitive application of austerity measures, especially concerning arbitrary staff cuts and inadequate funding of local and regional authorities. In this connection, the rapporteurs emphasise the importance of having an equalisation procedure in order to achieve a functional system of local and regional funding which is compatible with the Charter. Lastly, the rapporteurs highlight the need to improve consultation mechanisms and encourage the Italian authorities to sign and ratify the Additional Protocol to the European Charter of Local Self-Government on the right to participate in the affairs of a local authority (CETS No. 207) in the near future.
Local and regional democracy in Italy
RECOMMENDATION 337 (2013)2
1. The Congress of Local and Regional Authorities of the Council of Europe refers to:
a. Article 2, paragraph 1.b.of Statutory Resolution CM/Res(2011)2 of the Committee of Ministers relating to the Congress of Local and Regional Authorities of the Council of Europe, which stipulates that one of the aims of the Congress is “to submit proposals to the Committee of Ministers in order to promote local and regional democracy”;
b. Article 2, paragraph 3, of the above-mentioned Statutory Resolution CM/Res(2011)2, which stipulates that “The Congress shall prepare on a regular basis country-by-country reports on the situation of local and regional democracy in all member states and in states which have applied to join the Council of Europe, and shall ensure, in particular, that the principles of the European Charter of Local Self-Government are implemented”;
c. Resolution 307 (2010) revised on Procedures for monitoring the obligations and commitments entered into by the Council of Europe member states in respect of their ratification of the European Charter of Local Self-Government (ETS No.122);
d. Resolution 299 (2010) of the Congress on the follow-up by the Congress of the Council of Europe Conference of Ministers responsible for Local and Regional Government (Utrecht, Netherlands, 16-17 November 2009);
e. Recommendation 35 (1997) on local and regional democracy in Italy which was adopted by the Congress in June 1997.
1. The Congress underlines that:
a. Italy became a member of the Council of Europe on 5 May 1949. It is a founder member of the Organisation. It signed the European Charter of Local Self-Government (ETS No.122, hereafter referred to as “the Charter”) on 15 October 1985 and ratified it on 11 May 1990. Italy has adopted all the provisions of the Charter with no reservations or declarations;
b. Italy has not signed the Additional Protocol to the European Charter of Local Self-Government on the right to participate in the affairs of a local authority (CETS No. 207), Protocol No. 3 to the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities concerning Euroregional Co-operation Groupings (ECGs) (CETS No. 206), or Protocol No. 2 to the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities concerning interterritorial co-operation (ETS No.169);
c. The Congress Monitoring Committee appointed Mr Knud ANDERSEN (Denmark, R, ILDG) and Mrs Marina BESPALOVA (Russian Federation, L, EPP/CCE) as Co-rapporteurs to monitor local and regional democracy in Italy;
d. The two monitoring visits took place from 2 to 4 November 2011 and from 3 to 5 December 2012. During the visits, the Congress monitoring delegation met representatives of the state institutions (Parliament, Government), the Constitutional Court, the Ombudsmen, local authorities and their associations (for the detailed programme of the visits, please see the appendices);
e. The delegation would like to thank the Permanent Representation of Italy to the Council of Europe, the Italian authorities, the national associations of local authorities and all the persons with whom discussions took place, for their readiness to assist, their interest in the Congress’s work and their cooperation throughout the visits.
1. The Congress notes with satisfaction:
a. the consolidation of the fundamental principle of local self- government in the Italian Constitution;
b. the inclusion, in 2001, of a new chapter (Title V) in the Italian Constitution on Regions, Provinces and Municipalities;
c. the adoption of the law on the funding of local authorities in March 2011, which provides for the allocation of a portion of national taxes to local authorities, to compensate for certain State transfers which had been abolished;
d. the adoption in 2009 of the Law on Fiscal Federalism setting out the fundamental principles for the coordination of public finances and the tax system, as well as the definition of tax equalisation.
1. The Congress regrets:
a. the non-respect of the right of local authorities to manage a substantial share of public affairs under their own responsibility, in the light of Article 3.1 of the Charter;
b. that the principle of direct elections of the officials at the provincial level is called into question with the introduction of indirect elections for provinces within the framework of the ongoing reform (Article 3.2 of the Charter);
c. the reallocation of responsibilities, which ought rightly to be allocated to municipalities, to independent local consortia (Article 4.4 );
d. the cuts in personnel and the arbitrary character of the financial restriction for the staff of local authorities (“linear cuts”) (Article 6.1);
e. the inadequacy of the financial resources that the local authorities may dispose freely within the framework of their powers, and the fact that these resources are not always commensurate with the responsibilities provided by the law (Article 9.1 and 9.2);
f. the insufficiency of the mechanisms and procedures for financial equalisation at the local and regional levels and the resulting unfairness and financial burdens (Article 9.5);
g. the lack of mechanisms for consultation of local authorities by the government in an appropriate manner, on issues related to the redistribution of financial resources to be allocated to them
h. that only the regions (and not the provinces or municipalities) have the right to commence proceedings in the Constitutional Court.
1. The Congress recommends that the Committee of Ministers invite the Italian authorities to:
a. complete the reform project launched with the constitutional amendments of over a decade ago and continued with legislation in 2009, in order to achieve the declared goals of fiscal federalism (Arts. 4 and 9);
b. guarantee the maintenance of a substantial share of public functions for local and regional authorities, which should be full and exclusive (Art. 3.1);
c. recommit to the democratic value of direct elections in any future structural reform proposals, notably as concerns the provincial level (Art. 3.2);
d. review the scale and effect of shifting responsibilities from municipalities to consortia (Art. 4.4);
e. ensure a sensitive application of cash saving measures in the public sector and therewith prevent the democracy-denying effects of “linear cuts” with respect to the internal administrative structures and staffing of local authorities (Art. 6);
f. endeavour to match resources to local and regional functions and to ensure the availability of adequate funding to local and regional authorities (Art. 9.1, Art. 9.2);
g. develop and implement equalisation procedures in order to achieve a functional system of local and regional funding, which is compatible with the Charter (Art. 9.5) as far as local authorities are concerned, and which takes inspiration from the Reference Framework on Regional Democracy, as regards the Italian regions;
h. improve the mechanisms of consultation with local authorities in the light of Article 9.6 of the Charter;
i. review the law in order to allow the provinces and municipalities with the right to apply, through a representative, to the Constitutional Court;
j. make further efforts to continue and to reinforce the implementation of anti-corruption measures, in order to ensure a high level of local and regional democracy;
k. sign and ratify in the near future the Additional Protocol to the European Charter of Local Self-Government on the right to participate in the affairs of a local authority (CETS No. 207).
1. The Congress invites the Committee of Ministers of the Council of Europe to take into consideration the present recommendation on local and regional democracy in Italy, as well as the explanatory memorandum, in its own monitoring procedures and other activities related to this member State.
Local and regional democracy in Italy
Table of contents
1. INTRODUCTION 5
2. POLITICAL CONTEXT 6
3. HONOURING OF OBLIGATIONS AND COMMITMENTS 7
3.1. Constitutional and legislative provisions 9
3.2. Local self-government: (European Charter on Local Self-Government) 11
3.3. Analysis of the situation of local and regional democracy on an article by article basis 11
4. CONCLUSIONS AND FURTHER STEPS OF THE MONITORING PROCEDURE 23
Appendix 1 – Information on human rights provided to the delegation during
the monitoring visits to Italy 24
Appendix 2 – Programme of the 1st part of the Congress monitoring visit to Italy
(2-4 November 2011) 28
Appendix 3 – Programme of the 2nd part of the Congress monitoring visit to Italy
(4-6 December 2012) 32
1. The Congress of Local and Regional Authorities of the Council of Europe (hereafter the Congress), prepares on a regular basis country-by-country reports on the situation of local and regional democracy in all member states and in states which have applied to join the Council of Europe, and ensures, in particular, that the principles of the European Charter of Local Self-Government are implemented.
2. Italy signed the European Charter of Local Self-Government on 15 October 1985 and ratified it on 11 May 1990. Italy has adopted all the provisions of the Charter with no reservations or declarations. Italy has not signed the Additional Protocol to the European Charter of Local Self-Government on the right to participate in the affairs of a local authority.
3. The state of local and regional democracy in Italy was the subject of a Congress monitoring report – the previous report was drawn up and adopted in 1997.4 On the basis of this report, Recommendation 35 (1997) on local and regional democracy in Italy was adopted by the Congress in June 1997.
4. Mr Knud ANDERSEN (Denmark, R, ILDG) and Mrs Marina BESPALOVA (Russian Federation, L, EPP/CCE) were appointed Co-rapporteurs by the Monitoring Committee to monitor local and regional democracy in Italy. In carrying out their task, the Co-rapporteurs were assisted by a consultant, Mr Chris Himsworth (United Kingdom), a Vice-President of the Group of Independent Experts and the Congress secretariat.
5. The two monitoring visits took place from 2-4 November 2011 and 3-5 December 2012. During the visits, the Congress monitoring delegation met representatives of the state institutions (Parliament, Government), judicial institutions (Constitutional Court, Ombudsmen), local authorities and their associations (for the detailed programme of the visits please see Appendices ).
6. This report was drafted on the basis of information received during the visits to Italy, extracts from the relevant legislation and other information and documents provided by the representatives of the Italian authorities, international organisations and experts.
7. The delegation would like to thank the Permanent Representation of Italy to the Council of Europe, the Italian authorities, the national associations of local authorities and all the persons with whom discussions took place, for their readiness to assist, their interest in the Congress’s work and their cooperation throughout.
2. POLITICAL CONTEXT
8. This monitoring exercise has been conducted at what has been described to the delegation as a historic time in the politics of Italy. Dominating Italian politics at the national level in 2011-2012 has been the impact of the Euro crisis on government policy and indeed on the composition of the central government. Only days after our first visit to the country, the government of Silvio Berlusconi which had been formed from a coalition of the PdL (People of Freedom) Party and the Lega Nord (Northern League) following the general election of 2008 was replaced, in circumstances which reverberated around Europe, on 16 November 2011 by the “non-political” government of Mario Monti. It was with ministers and civil servants of that government that we met on our second visit. However, within two days of that second visit, Mr Monti had given notice of his resignation as Prime Minister and the next parliamentary elections had been brought forward to February 2013.
9. Although dramatic in itself, the change of government in November 2011 was just one example of the general domination of Italian politics by the impact on the European Union and on Italy itself of the global financial crisis since 2008. The economic policies and the measures of financial constraint adopted by governments in the period since 2010 have had sharp and enduring consequences for the funding and indeed the structure and organisation of regional and local government. Even prior to the events of November 2011, the European Central Bank had written (5 August 2011) to the then prime minister insisting that the dire financial position of Italy demanded a response. Included in the letter was the requirement of: “a comprehensive, far-reaching and credible reform strategy, including the full liberalisation of local public services. This should apply particularly to the provision of local services through large scale privatisations.” The results of these pressures are noted at various points in this report.
10. The timing of regional-level elections in Italy is determined by the statutes of the different regions. In March 2010, elections took place in 13 of the 20 regions. Overall turnout at 64.2% was low by recent standards. Seven regions were held by left-leaning coalitions and six by the right. The most recent local elections were those held in some 1300 municipalities (including many major cities) in May 2011. Probably most politically significant were substantial swings to the left in Milan and in Naples.
11. Italy was last the object of a Congress report in 1997. On the basis of that report, the Congress issued Recommendation 35 (1997). Because so much time has passed and so much has changed in Italy the contents of that Recommendation have little direct relevance today. For the record, however, it should be recalled that the principal concerns expressed in the Recommendation were the status and role of municipal and provincial secretaries (the system by which such officials were employees of the Ministry of the Interior has since been ended); the supervision of decisions of municipal and provincial councils by regional supervisory committees (also since terminated); the suspension/dissolution of elected bodies by the President (see para 57); aspects of the autonomy of local authority staff management (the nature of this problem has changed – see para 53-55); local financial autonomy (again, the nature and dimensions of this problem have changed considerably – see para 60-68).
3. HONOURING OF OBLIGATIONS AND COMMITMENTS
The European Charter of Local Self-government
12. When Italy ratified the Charter with effect from 11 May 1990, no declarations (reservations) were entered. This has two principal consequences. In the first place, the monitoring exercise that was undertaken by the rapporteurs had regard to all the substantive provisions of the Charter, although naturally, some have greater prominence in the analysis which follows below because of the particular circumstances in the country. The second consequence is that, in the absence of any declaration by Italy under Art 13 of the Charter, it may be presumed that Charter standards are to be applied to authorities at all levels – municipalities, provinces and regions.5
13. The ways in which the Charter has been applied in the Italian courts are treated below (under Art 11) but it may be noted, at this point, that the Charter enjoys a status in the Italian legal order at a level between that of the Constitution and ordinary law. It is norme inter poste. The Charter is widely credited as having provided the basis for the reform of local government in the late 1990s and, as an informal indication of the respect attributed to the Charter; it is included in an official published collection of local government legislation.6
The current structure of regional and local government in Italy7
14. A number of aspects of the regional and local authorities of Italy are addressed in the Charter-based analysis in section 3.2 and 3.3 of the report. It will, however, be useful at this stage to note the structure of the system in outline. It will be observed below that, very significantly, the Italian Constitution denies any formal hierarchy in the pattern of territorial authorities. However, the system may readily be described as one incorporating three levels:
15. The regions of Italy date formally from the post-War Constitution of 1948 although there were substantial delays in implementation of the provisions and most regions were not, in fact, created until 1970.8 The regions are now stipulated in Art 131 of the Constitution. There are 20 regions but it is an asymmetric system – with five of the regions defined as being of special status – the islands of Sardinia and Sicily, and Valle d’Aosta, Trentino-Alto Adige and Fiuli-Venezia Giulia. One of those regions (Trentino-Alto Adige) is subdivided into two autonomous provinces (Trentino and South Tyrol) which are themselves treated for various purposes as having a status equivalent to a region.
16. There are 107 provinces in Italy. Provinces have formed an intermediate level of government since 1861. At that time, there were some 59 provinces but, for a variety of different reasons, numbers have risen over the years. Most recently, seven new provinces (including four in Sardinia) have been established since 2000. It is at the provincial level that reforming proposals in recent years have been most sharply focused. As intermediate authorities between the powerful regions and the identity-wrapped municipalities, the provinces have a particular vulnerability in a cost-saving environment. They have also become the target of populist “anti-bureaucratic” and “anti-politics” sentiment.9 Government proposals have ranged from the total abolition of the provinces to the more nuanced proposals of the Monti Government10 to reduce the number of provinces in a programme of mergers on the basis of criteria of size of population and territory. We return to more specific questions about the reform process11 (especially as to the degree of consultation involved), and the proposed forms of election and executive appointment below but it should be noted that the policy question of whether or not the provinces should be retained (whether there should or should not be an intermediate level of government at all) and, if so, in what number are not questions for resolution by the Congress. Recently, however, the Congress issued its own Recommendation and Resolution on intermediate authorities12 and the rapporteurs urge that these be noted in the course of future reform discussions in Italy. These publications have been energetically invoked in the debate in Italy itself. It is one of the paradoxes of the reform process that, in some respects, more Charter-related difficulties are raised by the proposals to reform the provincial level, rather than to abolish it altogether.
17. There are 8094 municipalities in the country. Although the number of municipalities has fluctuated a little over the years – there were 7720 in 1861; there was a high of 9194 in about 1921; and a low of 7311 in about 1931 – most of the existing municipalities have a long history and a strong sense of identity. As will be explained below (para 49-50), municipalities vary greatly in population, with important consequences for their capacity to discharge their functions. One of the responses to the existence of the smallest of the municipalities has been the widespread formation of local associations/unions of municipalities. These are discussed below. A special case of such unions, however, has been given statutory recognition in legislation which lists “Mountain Communities” as a separate category of authority.13 These are established by regional authorities in mountainous or partially mountainous areas and are composed of representatives of the municipalities involved. They can be allocated additional funds to assist development in their areas.
18. Alongside the municipalities, provinces and regions, Art 114 of the Italian Constitution creates the concept of the metropolitan city14 as a further autonomous entity.15 The metropolitan cities are then mentioned alongside the municipalities and provinces in provisions relating to administrative functions and financial autonomy. In practice, however, these constitutional provisions have yet to be operationalised – the procedures for doing so are very complex but political apathy (and indeed opposition) of some bodies including some regions – and no metropolitan cities formally exist. It has been understood, though, that, were there to be progress towards the creation of these entities, the areas around Rome, Turin, Milan, Bologna, Bari, Genoa, Florence, Venice and Naples would be candidates to be established. Those are named in state legislation16 but others have also been proposed by regions eg. Cagliari, Catania, Messina, Palermo and Trieste. Most recently, the draft legislation designated Bari, Rome, Milan, Geneva, Turin, Reggio Calabria, Venice, Bologna, Florence and Naples. As will be noted below, the creation of metropolitan cities, whether or not in the formal terms of the Constitution, are being discussed as a part of the related current debate about the abolition of some or all of the provinces. Some major cities have an extra “tier” of local government in the form of local districts, the “circonscrizione di decentramento communale”.
19. In the meantime, Rome formally has a special status as the capital city of Italy – see Constitution Art 114.
State territorial administration
20. In order to have a full picture of local administration in Italy it is also necessary to take account of State’s own arrangements for territorial administration. A few of the State’s functions are discharged by mayors17 but the principal means by which the State achieves its purposes is at the provincial level through the prefectures. Prefects are appointed by and are answerable to the central government and they preside over the government’s territorial offices. The principal functions of these offices are policing, public safety and civil security. To assist coordination with the local authorities there is a Standing Conference chaired by the prefect and composed of the heads of provincial bodies, the president of the province, the mayors of municipalities and others as appropriate to the business. If provincial reforms were to progress, there would also be a reorganisation of the prefectorial arrangements.18
3.1. Constitutional and legislative provisions
21. The framework within which the current structure of regional and local government operates is provided by the Italian Constitution and by ordinary legislation.
The Italian Constitution
22. The terms of the Constitution make an important contribution to the structure and operation of regional and local democracy in Italy. Dating from the original text of the Constitution (1948) and included among its “Fundamental Principles” is Art. 5: The Republic is one and indivisible. It recognises and promotes local autonomies, and implements the fullest measure of administrative decentralisation in those services which depend on the State. The Republic adapts the principles and methods of its legislation to the requirements of autonomy and decentralisation.”
23. In 2001,19 a new Title V “Regions, Provisions – Municipalities” was inserted into the Constitution.20 Its provisions are very important.21 They include Art. 114: “The Republic is composed of the Municipalities, the Provinces, the Metropolitan Cities, the Regions and the State. Municipalities, provinces, metropolitan cities and regions are autonomous entities having their own statutes, powers and functions in accordance with the principles laid down in the Constitution. Rome is the capital of the Republic. Its status is regulated by State Law.”
24. It is a provision which not only insists on the autonomous character of the regional and local authorities but also appears to afford them a status of apparent equality with the state, or even a ranking which places the municipality at the top of the hierarchy.22 Art 116 makes some provision for regions and, in particular, reconfirms the distinction already drawn between the “ordinary” regions and the regions with special status. An effect of the reforms of 2001 was to reduce the differences between the two categories.
25. Art 117 distributes legislative competence between the State and the regions. Certain legislative powers (eg in relation to foreign policy) are identified as exclusively within the competence of the State. On the other hand, powers not allocated to the State are conferred (residually) directly on the regions. These include the power to participate in the making of EU policy-making and the implementation of EU law. In between are a number of stipulated powers where there are concurrent competences. “Fundamental principles” are laid down in State legislation but the regions make additional legislation for their territories. The division of legislative competence produced by Art 117 has proved far from perfect – as evidenced by the extent of challenges brought in the Constitutional Court. Certain decisions of the Court stand out. For instance, in the notorious Decision No 303/2003 the Court held that the State could, despite the apparently opposite effect of the wording of the Constitution, remove administrative capacity from the regions in circumstances where the State could achieve better results. State supremacy appeared to have been re-established. Many other decisions appear to have confirmed the rewriting of the (arguably Utopian) subsidiarity rules of the Constitution. At the very least, the constitutional rules have proved to be fluid and there is much scope for uncertainty. For present purposes, two features of the scheme may be of most importance. On the one hand, the subject matter of “electoral legislation, governing bodies and fundamental functions of the municipalities, provinces and metropolitan cities” are placed within the exclusive competence of the State. Thus, much of the legislation governing the structure and functioning of local government derives from the State rather than the individual regions, although there is a built-in uncertainty about, for instance, what actually constitutes “fundamental functions” for this purpose. On the other hand, provision is made for the State to legislate in many areas of direct concern to local government. For instance, “general provisions on education” and “protection of the environment” are within the exclusive competence of the State, although, again, these formulae are far from crystal clear and have given rise to extensive consideration by the Constitutional Court, resulting in that Court having a powerful role in the fashioning of Italian regionalism.
26. Art 118 is particularly important for its articulation of the subsidiarity principle – “Administrative functions are attributed to the municipalities, unless they are attributed to the provinces, metropolitan cities and regions or to the State, pursuant to the principles or subsidiarity, differentiation and proportionality, to ensure their uniform implementation”. That provision captures the spirit of “vertical subsidiarity” but the Article is also said to express a principle of “horizontal subsidiarity”23 where it states that “the State, regions, metropolitan cities, provinces and municipalities shall promote the autonomous initiatives of citizens, both as individuals and as members of associations, relating to activities of general interest, on the basis of the principle of subsidiarity”. It is by no means wholly clear what this “horizontal subsidiarity” amounts to in practice but it does appear to be reflected in the growth in Italy of organisations/consortia at the local level which are quite separate from the local authorities per se. It is, therefore, possible that it even presents a challenge to the notion of the pre-eminence of local elected territorial authorities with defined powers, as secured by the Charter.
27. Art 119 relates to finance.24 All regional and local authorities are to have “revenue and expenditure autonomy” and “independent financial resources”.25 There is to be provision for an equalisation fund and the State has the duty to allocate supplementary resources to authorities to promote economic development and to reduce economic and social imbalances.
28. Although full of bold innovations, the constitutional text of the new Title V has needed follow-up legislation to implement it in full. This process, it will be noted below, has been a very slow one26 and is still far from complete.27
29. Although the content of the new Title V inserted into the Constitution in 2001 is the highest form of law governing regional and local government in Italy, it is not, of course, the only source. Indeed the modern reform process of which the constitutional amendment was an important part had been initiated in 1990;28 and followed by important further laws in 199329 and in 1997.30 Collectively the changes of the 1990s had been inspired (in part, at least) by Italy’s accession to the Charter. In 2000 the law on local government as a whole was consolidated by Decree No 267 of that year. Although there have been changes since (and more are currently proposed) that law continues to form the basis of the modern system. The Law contains important introductory general provisions including a reaffirmation of the autonomy of local authorities (Art 3). Title II defines the powers of the different categories of authority (including, in Ch IV, the powers of the mountain communities). Title III defines the bodies (councils and executives) of authorities (including systems of election and appointment), their functions (including the “State” functions of mayors). Titles IV and V deal with officials and the administration.
3.2. Local self-government: (European Charter on Local Self-Government)
30. It has already been noted that, although it may be normal to use the recommendation which resulted from the previous monitoring exercise as the jumping-off point for the next report, this would be almost wholly inappropriate in the case of Italy in 2012. So much has changed since 1997. Although the core architecture of local and regional democracy remains in place, any account of the position must now be framed by three principal characteristics and it is worth identifying these before embarking on the more detailed article by article analysis of the Charter commitments. The first characteristic is the transforming effect of the constitutional amendments of 2001. Those amendments may be criticised in detail but there can be no doubt that overall they reflect a commitment to a dynamic new experiment in a form of “federalism”31 extending to the whole of territorial governance. As already noted, the constitutional measures of 2001 were not wholly new. Much had been anticipated in earlier ordinary legislation, another feature of which had been to place a very high premium on the notion of “autonomy” in Italian local and regional government. The second principal characteristic is the substantial failure over the succeeding decade to give full effect to the constitutional reforms. This has been a particular feature of local and regional finance (see below under Art 9) but its effects extend more broadly. These are especially apparent in relation to the provinces and municipalities where provisions of the old law of the 2000 consolidation have survived despite the arrival of the new constitutional dispensation.32 And the third characteristic is the superimposition upon this already confused scene of the impact upon Italy of the global financial crisis of 2008 and its immense effects upon the fragile state of Italian public institutions. There is no doubt that the crisis has had a particularly damaging effect upon the only partially reformed state of local and regional government. Although those general effects are now unavoidable, their precise outcome is hugely uncertain. All monitoring reports have to be, to an extent, forward-looking and to analyse the probable outcomes of present events but this is especially difficult in this case.
3.3. Analysis of the situation of local and regional democracy on an article by article basis
Article 2: Constitutional and legal foundations
Article 2 – Constitutional and legal foundation for local self-government
The principle of local self-government shall be recognised in domestic legislation, and where practicable in the constitution.
31. In the light of the provision made for regional and local government in Title V of the Constitution (discussed above) it is clear that Italy satisfies, at the highest and most general level, the requirement of constitutional recognition. There is also a substantial quantity of ordinary legislation. In some respects, however, the quality of that legislation and its overall effect in the honouring of the Charter’s obligations may be criticised.
Article 3 Concept of local self-government
Article 3 – Concept of local self-government
1 Local self-government denotes the right and the ability of local authorities, within the limits of the law, to regulate and manage a substantial share of public affairs under their own responsibility and in the interests of the local population.
2 This right shall be exercised by councils or assemblies composed of members freely elected by secret ballot on the basis of direct, equal, universal suffrage, and which may possess executive organs responsible to them. This provision shall in no way affect recourse to assemblies of citizens, referendums or any other form of direct citizen participation where it is permitted by statute.
32. This Charter Article has two separate aspects to it. The first, which appears in the first paragraph, offers a definition of the meaning of local self-government for Charter purposes where the principal requirement is that authorities should be in a position “to regulate and manage a substantial share of public affairs”. This requires scrutiny of the competences allocated to the different categories of authority and also of their capacity to discharge their allocated functions. These are matters principally addressed under Art 4 below.
33. The second paragraph of the Article addresses the democratic base of the authorities both in respect of their electoral arrangements and also the relationship between elected councils and their executive organs. As to these, primary provision in respect of the regions is made in the Constitution itself. Arts 121-122 define their constituent bodies as the council which has legislative functions and the executive headed by a directly elected president (except where, in the case of certain special-statute regions, there is provision for the council to elect the president) who appoints (and may dismiss) the other members. Electoral and related laws are made by the regions, in accordance with fundamental principles laid down by national law. The Constitution itself forbids individuals from combining membership of a regional council or executive with membership of either house of parliament, another regional council or the European Parliament.
34. Regional council and presidential elections are conducted on a five-yearly cycle. Councils consist of 30-80 councillors, depending on population, but have now been substantially reduced.33 The electoral system34 is a mixed one. It is predominantly a proportionate system but with a bonus top-up allocation to the majority coalition. Once elected, presidents appoint members of their “Giunta”, who may be, depending on the statute of the region, be members of the council or not.
35. Provision for the constituent bodies of municipalities and provinces is made in Title III of the Consolidating Law of 2000. Mayors of municipalities and presidents of provinces are directly elected, in both cases for periods of five years. The periods of office are tied one to another. If the mayor resigns, the council must be dissolved. Whilst the council retains broad powers of maintaining overall direction and control, executive powers are allocated to the mayor and giunta. Electoral systems vary according to the size of the authority. In the (very large number of) small municipalities of under 15000 population, the election of the mayor is by a one-ballot system and the councils are elected by a majority system, with the ruling coalition being allocated 2/3 of the seats. In these smaller authorities the mayor presides over meetings. In the larger municipalities, mayors need an absolute majority with, if necessary, a second round of voting if no candidate has a majority in the first round. Elections to the councils are by a proportional system but with a “bonus” for the party of the majority coalition. In these councils a president of the council is elected. Provincial elections are conducted on the model of the larger municipalities – with ruling coalitions given 60% of the council’s seats.
36. Once elected, mayors and presidents appoint (and may dismiss) members (assesori) of their giunta / government. These assesori may not be members of the council, except in the case of municipalities of under 15000 population.35 Maximum numbers of assesori are fixed by law.
37. An important impact of recent financial constraint has been that the numbers of personnel involved in local authorities have been reduced. There had already been reductions in councillor numbers from 1990 but the 2000 Law provided for numbers of councillors by reference to population – ranging from 60 councillors in the municipalities with a population of over 1m to only 12 for populations of under 1000. In the provinces, the range was 45 councillors for populations of over 1.4m down to 24 for those provinces of under 300000. Now, under Decree Law No 138 of 2011, those figures were substantially. Similar restrictions have been introduced (in all cases, with effect from the local elections of 2011) in relation to the size of giuntas prescribed by the 2000 Law. For instance, the numbers of assessori in municipalities has been reduced from 16 to 12 in the case of the largest authorities and from 3 to 2 for the smallest authorities. These restrictions may be expected to have some impact, as intended, on the overall cost of local government. It seems inevitable, however, that there will also be a cost to pay in terms of the impact of the reforms on democracy itself and it has been pointed out to us that the reduction in size of the smallest municipal councils to a mere 6 will, given the political complexity of their composition, be very problematic. Provision is made36 for procedures in local authorities for popular involvement by consultation and the holding of referendums.
38. The recent proposals for the reform of the provinces raised at least two Article 3 issues. Most prominent were the plans37 to change the system of elections from direct elections by the population (as described) to a system of indirect election by the members of the constituent municipal councils. Such a system was to be justified on the grounds that the conversion of provincial competences to supervisory (“area vasta”) powers (see below) implied the creation of “secundo grado” authorities for which indirect election would be more appropriate. The rapporteurs found, however, this proposed change to be hotly contested. The loss of direct elections was resented and the resulting control of provinces by a forum of mayors (some said a “buffet” of mayors!) would lead to decision-making giving preference to the municipalities of the mayors who were nominated, instead of allowing a more general view of the needs of the province. These proposals are not, in any event, to proceed but they attract two further comments. The first is that we were informed by the Ministry of the Interior that, had the plans proceeded; there might well have been a reversion to direct elections – to reflect an amendment to the proposed provincial powers away from the purely supervisory to the instrumental (see below). But secondly, the rapporteurs should observe that the plans for indirect elections would almost certainly have entailed a Charter violation. The provinces are local authorities for Charter purposes and Article 3 requires that councils be directly elected.
39. The other Article 3 issue is raised by the proposed change from directly elected provincial presidents to an election by the newly-constituted councils. The power to appoint giunte would be removed. These would not be changes which contradict Charter requirements (although it was suggested to us by some that it would) but they were clearly a matter of some sensitivity in the existing provinces.
Article 4: Scope of local self-government
Article 4 – Scope of local self-government
1 The basic powers and responsibilities of local authorities shall be prescribed by the constitution or by statute. However, this provision shall not prevent the attribution to local authorities of powers and responsibilities for specific purposes in accordance with the law.
2 Local authorities shall, within the limits of the law, have full discretion to exercise their initiative with regard to any matter which is not excluded from their competence nor assigned to any other authority.
3 Public responsibilities shall generally be exercised, in preference, by those authorities which are closest to the citizen. Allocation of responsibility to another authority should weigh up the extent and nature of the task and requirements of efficiency and economy.
4 Powers given to local authorities shall normally be full and exclusive. They may not be undermined or limited by another, central or regional, authority except as provided for by the law.
5 Where powers are delegated to them by a central or regional authority, local authorities shall, insofar as possible, be allowed discretion in adapting their exercise to local conditions.
6 Local authorities shall be consulted, insofar as possible, in due time and in an appropriate way in the planning and decision-making processes for all matters which concern them directly.
40. This Article addresses, in the main, the scope of the responsibilities allocated to authorities (including the requirement that they normally be “full and exclusive”) and asserts the principle of subsidiarity in insisting that powers be generally exercised by the authorities closest to the citizen.
41. Since it is the case, in Italy, that Charter obligations extend to the regional as well as the provincial and municipal levels,38 the responsibilities to be considered have to include, in addition to administrative responsibilities at all levels, the legislative competences of the regions. Those have already been mentioned in the summary of Art 117 of the Constitution. Although the Constitution describes the Italian Republic as “one and indivisible” and Italy is not technically regarded as a federal state, Art 117 confers substantial legislative powers on the regions. After the exclusive legislative powers of the State have been taken into account, the list of “concurrent” competences within which the regions can legislate is substantial. The list includes education (with the exception of vocational education), health protection, land-use planning, civil ports and airports, large transport and navigation networks and many more.
42. Two qualifying remarks may, however, be made. The first is to remind of the comment above that there is much blurring of the categories of legislative competence in the Constitution. As mentioned above, Art 117 reserves to the State “protection of the environment, the ecosystem and cultural heritage” but it has proved far from clear exactly what these categories include. Although steps are being taken to define in ordinary legislation the “fundamental functions” of local authorities, that term too has been difficult to interpret precisely. It is inevitable that constitutions in general leave some interpretative obligations to the courts but Art 117 contains more difficulties than is usual. A Bill39 in the Italian Parliament up to December 2012 aimed to amend the Constitution in such a way as to clarify to a rather greater extent the legislative powers of the regions. It would have reallocated several of the regions’ current competences to the State. But, along with other reforming proposals, the Bill effectively died on the resignation of the Monti Government.
43. The other point is that in no way may the legislative competences of the regions be regarded as “full and exclusive”. The concurrent legislative powers of the regions are exercisable after the “determination of the fundamental principles” has been made by the State. Their powers extend to subject matter not expressly covered by State legislation.
44. As to the distribution of administrative competences, the Constitution does not make specific provision. They are left to be specified in ordinary legislation. Art 11840 does, however, articulate very prominently the Charter’s principle of subsidiarity by allocating administrative functions,41 in the first instance, to the municipalities unless, pursuant to the principles of subsidiarity, differentiation and proportionality to ensure their uniform implementation, they are allocated to the provinces, metropolitan cities, regions or the State. In addition, as already mentioned,42 all levels of government are to promote the autonomous initiatives of citizens on the basis of the principle of “horizontal” subsidiarity.
45. Whilst those are the principles laid down by the Constitution, actual administrative functions are specified in legislation which, at least in respect of the provinces and municipalities, predates the Constitution itself. Until very recently,43 there has been no general project designed to bring that legislation into line with the Constitution.
Functions of provinces
46. The principal functions of the provinces were consolidated in the Law of 2000. As further spelled out in evidence supplied by the Union of Provinces, actual functions include transportation, roads, territorial management/environmental protection including waste disposal and sewerage, the management of secondary school buildings, economic development especially by employment centres, social services, and the promotion of culture, tourism and sport. Provinces have a coordinating role in respect of economic planning and other activities by municipalities in their area.
47. Under the recent reforming proposals, it was intended (initially, at least) that only the coordinating functions would survive. The provinces would become area vasta / secundo grado authorities with powers in relation to “policy direction” and coordination of the activities of municipalities. The Stability Law of 2013, adopted by the Parliament at the end of 2012, provides for the assignment of the following functions to the provinces, on a transitional basis and pending their reorganisation: territorial planning, protection and enhancement of the environment, planning of transport services, authorization and control over private transport, provincial roads and related road traffic network, planning and management of school for high schools.
Functions of municipalities
48. Art 118 of the Constitution gives a certain priority to municipalities in the allocation of administrative responsibilities. As spelled out further in Law 131/2003 (“La Loggia”), regions and the State should allocate functions to levels other than the municipality when necessary that they be exercised on a unitary basis or in the interests of economy or efficiency. Art 13 of the Law of 2000 then, in terms not fully adjusted to the demands of the Constitution, defines (first in terms of a form of general competence) the functions of municipalities by reference to sharing in the administration of those sectors (including land use and economic development) not otherwise allocated by law to other authorities. This can include responsibilities for the maintenance of nursery and primary schools and vocational education, waste collection, local roads and local policing as well as some personal social services, social housing, and the issue of trading permits. Also culture, sport and tourism.
49. In addition to their “own” functions, others may be delegated to them and municipalities do, in any event, have certain “state” functions which are discharged by the mayor. These include electoral, statistical and registration services, including the conduct of civil marriages. Where there is no other local police force, the mayor is the local police official. The mayor also has a number of responsibilities in a civil emergency. The mountain communities have responsibilities particularly for territorial planning, infrastructure and development, with any other functions delegated to them by the participating municipalities.
50. As to the question of the capacity of the authorities to discharge the responsibilities formally assigned to them, this is an issue which arises in an acute way in relation to the Italian municipalities. This is because of the very great variation in their size and because many have a very small population. In a formal sense, the municipalities have the same responsibilities, whether they are the biggest of cities or the smallest of villages. Of the roughly 8000 municipalities, 12 have a population of over 250000 (including e.g. Rome with over 2.6m and Milan on 1.3m) but, at the other end of the scale 70% of municipalities have a population of less than 5000, just over 40% have a population of less than 2000, and some have a population of less than 100. It is impossible to imagine that all these small authorities are able, as a practical matter, to discharge their responsibilities on their own. The response to this difficulty has taken three forms. Municipalities have entered into local unions/associations to enable them to discharge their responsibilities on a shared basis. Alternatively, local consortia have been established to take over the tasks. Or, thirdly, the provinces have, in effect, helped out by taking over some responsibilities on an informal basis.
51. Because of the importance of inter-municipal co-operation for this issue (in terms of practice on the ground so far, in terms of current Government proposals for reform, and because of the Charter’s own provisions) this issue is pursued further in this report under Article 10 below.
Article 5: Protection of boundaries
Article 5 – Protection of local authority boundaries
Changes in local authority boundaries shall not be made without prior consultation of the local communities concerned, possibly by means of a referendum where this is permitted by statute.
52. The Charter requirement that boundaries should not be changed without prior consultation of the local communities concerned is not one which has historically been a matter of difficulty. Along with other concerns about the sufficiency of consultation in connection with current proposed reforms in the light of the financial crisis, however, there must now be some questions about consultation on boundaries.44 It depends on what reforms are eventually proposed but the abolition or merger of either municipalities or provinces would clearly raise such questions. The concerns of the Associations were strongly represented to the delegation and the rapporteurs would agree that consultation in relation to the provincial reforms such as those proposed prior to the end of 2012 (whether at the level of national Associations, the regional level councils, or at the level of individual authorities) would be required. At the municipal level, there were, during this period, no explicit proposals for the abolition or merger of council areas – there being instead an encouragement of municipalities working jointly through local associations – but there seemed to be an assumption that the merger of municipalities might arise at a later date, at which stage a strong requirement of consultation would similarly arise.
Article 6: Administrative structures
Article 6 – Appropriate administrative structures and resources for the tasks of local authorities
1 Without prejudice to more general statutory provisions, local authorities shall be able to determine their own internal administrative structures in order to adapt them to local needs and ensure effective management.
2 The conditions of service of local government employees shall be such as to permit the recruitment of high-quality staff on the basis of merit and competence; to this end adequate training opportunities, remuneration and career prospects shall be provided.
53. As mentioned, regional and local authorities in Italy are empowered to enact their own statutes governing their structure and organization. Until the 1990s, local authority staff in Italy formed one component of the national public service. The “privatization” of the service at that time, however, led to a general position in which employment contracts under private law are within the responsibility of individual authorities.
54. In the Congress report and Recommendation of 1997, a number of concerns were expressed. In particular, the fact that provincial and municipal secretaries were officials of the Ministry of the Interior was roundly criticized but that was a phenomenon subsequently removed. Secretaries are now employees of an autonomous agency 45 although they are answerable to the mayor/president. There is also a power to appoint (confined, since 2011, to cities of over 250000) “city managers”46 – an option taken up by the larger municipalities.
55. Another issue raised in 1997, however, remains an active concern and has indeed been a substantial problem recently. As a part of the Government’s downward pressure on expenditure, restrictions have been placed on local authority staff levels. In the course of the post 2008 cuts personnel numbers have dropped markedly. The delegation has been told of only one in four replacement appointments being made to fill vacancies. As “linear cuts”, the financial restrictions have, from a local authority point of view, had an arbitrary character and have been made in (apparent) contravention of Charter Article 6(1).
Articles 7 and 8: Exercising responsibilities and government supervision
Article 7 – Conditions under which responsibilities at local level are exercised
1 The conditions of office of local elected representatives shall provide for free exercise of their functions.
2 They shall allow for appropriate financial compensation for expenses incurred in the exercise of the office in question as well as, where appropriate, compensation for loss of earnings or remuneration for work done and corresponding social welfare protection.
3 Any functions and activities which are deemed incompatible with the holding of local elective office shall be determined by statute or fundamental legal principles.
Article 8 – Administrative supervision of local authorities' activities
1 Any administrative supervision of local authorities may only be exercised according to such procedures and in such cases as are provided for by the constitution or by statute.
2 Any administrative supervision of the activities of the local authorities shall normally aim only at ensuring compliance with the law and with constitutional principles. Administrative supervision may however be exercised with regard to expediency by higher-level authorities in respect of tasks the execution of which is delegated to local authorities.
3 Administrative supervision of local authorities shall be exercised in such a way as to ensure that the intervention of the controlling authority is kept in proportion to the importance of the interests which it is intended to protect.
56. The intrusive supervision of the decisions of provinces and municipalities by regional supervisory committees was criticised in the 1997 Recommendation but this has since been removed. Thus the decisions of local authorities are no longer reviewable on policy grounds but may be challenged in the administrative courts on constitutional or legal grounds only. Separately the spending and financial procedures of authorities fall under the scrutiny of the Corte di Conti. There are also systems of internal monitoring and audit.47 These were in the process of being strengthened by the Monti Government.
57. Statutory powers remain available which enable the President of the Republic to dissolve municipal and provincial councils. Under Art 120 of the Constitution, the Government may act in substitution for regions, provinces and municipalities if they fail to comply with international law (or EU legislation) or in the case of grave danger to public safety and security or whenever action is necessary to preserve legal or economic unity and, in particular, to guarantee a basic level of civil and social entitlements. The law must ensure, however, that interventions are exercised in compliance with principles of subsidiarity and loyal co-operation. See also Law No 131/2003, Art 9.48 The 2000 Law also contains other powers of the Government to intervene to dissolve and suspend municipal and provincial councils in circumstances eg where the normal functioning of an authority has broken down or where mafia-type activities have been identified.49 A recent (October 2012) example has been the city of Reggio Calabria where the entire council was removed and replaced by commissioners. We are satisfied that, in the extreme circumstances which the threat of mafia infiltration presents, such interventions are justified.
58. In addition to measures which may be taken by the Government against authorities as a whole, the law provides for the suspension from office of councillors charged with/convicted of certain criminal offences.50 The Government recognizes that corruption remains a significant (although declining) problem in Italian public administration and we were told of many measures being introduced to counter this threat – and especially measures more precautionary and preventive than intervention to dismiss offenders after the event. Guidelines requiring authorities to adopt a specific plan, including a map of risks, the rotation of officials within authorities, restrictions on rapid movement of staff between the public and private sectors, and, above all, greater transparency of decision-making.
59. Separately, councillor allowances (Article 7.2) have been substantially reduced. This compels us to conclude that, whilst the requirements of other aspects of Articles 7 and 8 are generally met, there are doubts about Article 7(2) and we would urge action on that.
Article 9: Financial resources
Article 9 – Financial resources of local authorities
1 Local authorities shall be entitled, within national economic policy, to adequate financial resources of their own, of which they may dispose freely within the framework of their powers.
2 Local authorities' financial resources shall be commensurate with the responsibilities provided for by the constitution and the law.
3 Part at least of the financial resources of local authorities shall derive from local taxes and charges of which, within the limits of statute, they have the power to determine the rate.
4 The financial systems on which resources available to local authorities are based shall be of a sufficiently diversified and buoyant nature to enable them to keep pace as far as practically possible with the real evolution of the cost of carrying out their tasks.
5 The protection of financially weaker local authorities calls for the institution of financial equalisation procedures or equivalent measures which are designed to correct the effects of the unequal distribution of potential sources of finance and of the financial burden they must support. Such procedures or measures shall not diminish the discretion local authorities may exercise within their own sphere of responsibility.
6 Local authorities shall be consulted, in an appropriate manner, on the way in which redistributed resources are to be allocated to them.
7 As far as possible, grants to local authorities shall not be earmarked for the financing of specific projects. The provision of grants shall not remove the basic freedom of local authorities to exercise policy discretion within their own jurisdiction.
8 For the purpose of borrowing for capital investment, local authorities shall have access to the national capital market within the limits of the law.
60. It is probably in the field of the financing of regions, provinces and municipalities that the boldest provision was made by the constitutional reforms of 2001.51 It is also in this field, however, that the promise extended by the terms of the Constitution has been most severely compromised by a prolonged failure to enact the legislation necessary for the implementation of those terms and to produce actual change on the ground. And it has been the financing of regional and local bodies which has been hardest hit by the Government’s measures taken, since 2008, in response to the global financial crisis.
61. Although the Constitution does not itself use this terminology, the aim behind Art 119 has been to establish what has been called in Italy “fiscal federalism”, a concept identified by the key features of the Article which are to provide for “revenue and expenditure autonomy” at all levels – municipal, provincial and regional; and that all levels “shall have independent financial resources”. All are to set and levy taxes and collect revenues of their own and to share tax revenues related to their respective territories. In order for the objective of fiscal federalism to be attained, it is necessary to specify in ordinary legislation the means by which the autonomy and independent financial resources of the authorities are to be secured – resulting ideally in the consequential abolition (equalization apart) of State transfers. For many years this project was not pursued but, eventually, in 2009 an important step was taken with the passing of the Law on Fiscal Federalism.52 The Law was a bold move in the direction of the implementation of the constitutional provisions but one which needed substantial additional measures to be taken. In the first place, the Law on Fiscal Federalism was itself only an enabling measure. Art 2 of the Law provided that, within 24 months of its entry into force, the Government should make one or more legislative decrees to implement Art 119 of the Constitution by setting out the fundamental principles for the coordination of public finances and the tax system, and the definition of tax equalization, as well as the harmonization of accounting systems. And secondly, it has become apparent that, before such implementation can have real effect, a second project, consequential upon the enactment of the new Title V of the Constitution needs to be undertaken – the specification of the functions to be undertaken at each level of government. In the words of the Charter, financial resources must be commensurate with responsibilities and responsibilities must be defined.
62. Pending its implementation by subsequent legislative measures, the Law on Fiscal Federalism laid down some principles according to which that implementation should proceed.53 The principles take two forms. Some (items (a) to (z) and then (aa) to (ll) as listed in Art 2.2 of the Law) are described as general guiding principles and criteria. Others, called specific guiding principles, are addressed, in the main, to issues specific to one or more of the levels of government. Some are specific to regions and address, for instance, their legislative competences; some are specific to the provinces, municipalities (and metropolitan cities).54 The general guiding principles touch on a great range of issues which include: accountability; institutional loyalty; rationality, consistency, simplification, transparency; curbing tax evasion; determination of standard costs and the gradual substitution of the historic spending criterion; and many others.
63. Explicitly described as part of the project further to implement the aims of the Law on Fiscal Federalism was another parallel legislative project which was slowly proceeding in the Italian Parliament.55 This was to enact what was called “La Carta delle autonomie locali” (the Charter of Local Autonomy). The Bill took its name from one particular provision (Art 13) which delegated to the Government the power to adopt a systematic code. The Bill as a whole had very ambitious objectives. These included the definition of the fundamental functions of provinces and municipalities; the promotion of coordinated working; and the promotion of streamlining and efficiency generally. More specifically, it contained provisions which could lead to the “rationalisation” and suppression of smaller municipalities. The fundamental/basic functions were specified in some detail. The provisions on joint working were designed to avoid complexity and duplication. The Government would have been required (within nine months of the passing of the Law) to make substantial further provision to specify additional functions of authorities. The Law also required considerable ancillary provision for e.g. the transfer of property and other resources consequential upon the definition of the new responsibilities. The enactment of a new Charter of Local Autonomy appeared to be one element in a very large process of rationalising (ten years after the enactment of the new Ch V in the Constitution) the law across the whole field of local self-government. It was apparent that this would take a huge investment of reforming resources. There were also powers enabling the Government to rationalise and reorganise territorial State administration. And there were, in addition, provisions enabling regions to abolish the “mountain communities”; in relation to decentralisation within municipalities and the abolition of consortia; and substantial modification and expansion of procedures for ensuring the internal control of local authority decision-making. To a more limited and less ambitious degree, the Carta project has been pursued instead in separate legislation including Art 19 of the Spending Review (Decree Law No 95 of 2012) which has provided a preliminary listing of the fundamental functions of municipalities.
64. Overall, the intention was that authorities at all levels should be funded by a combination of their own taxes and resources and other revenues, participation in the proceeds of national tax revenues, and the benefits, as appropriate of equalisation. Equalisation is a vital aspect of the arrangements as a whole. The current operation of local and regional funding in Italy reveals sharp disparities between some regions and others, and especially between those in the north and those in the south. Generally regions in the south generate a lot less funding of their own compared with amounts received from the State. The Constitution makes equalisation an exclusively State responsibility.
65. Although the Government assured us that an experimental pilot project to introduce equalisation was underway (see Legislative Decree No 88 of 2011), there is no general scheme in operation yet and this continues, therefore, to be a huge gap in the arrangements still to be made for the implementation of fiscal federalism. That implementation (perhaps from 2014 but there remains much uncertainty) necessarily involves the completion of two technical (but vital) and complementary projects. Both are currently under development in the Ministry of Finance. The first is a project to establish a scheme of “standard costs” for the delivery of services, an essential prerequisite for assessing rights and duties under equalisation rules is the fixing of objective measures of the costs of service delivery. Such “standard costs” will replace the use of an “historic costs” basis for the distribution of State resources which, until abolished, continue irrationally to perpetuate many of the regional distortions in territorial funding. A contribution to the technical task of determining standard costs is currently being made by the Corte di Conti. The second essential technical project within the Ministry is that of developing a system of standardising the measurement of local capacity to raise funds by the authorities. With a standardised and objective approach to the calculation of both incomes and required expenditures, an equalisation scheme is in the making. An important qualification has, however, to be entered. The equalisation process as the basis for the distribution of State funding and an essential element in the achievement of fiscal federalism has, like all other aspects of local and regional government, been absorbed into the overriding project in post-2008 Italy which is to cut public sector expenditure. Instead of being a vehicle for the implementation of fiscal federalism and a fair system for the distribution of State funds, equalisation has also become a part of the system of cuts. Necessary though this may be thought to be, it risks the distortion (and perhaps destruction) of the project as a whole.
66. Moving on to the reform of the actual funding of local authorities, an important step was taken by the enactment of Law 23 of 14 March 2011 (in force from 7 April). This provided for the allocation to local authorities of a portion of national taxes to compensate for certain State transfers which had been abolished. Local authorities have been allocated a share of national VAT equivalent to 2% of personal income tax (IRPEF). In addition, a local municipal tax (IMU) has been introduced. This is a property tax modelled on the former housing tax (ICI). The new tax has been the cause of some popular disquiet.56 From the authorities’ point of view, it offers quite a sophisticated source of revenue, as a tax on the notional rental value of both main and subsidiary houses. Authorities have the discretion to vary (within small margins) the levels of tax to be levied within their areas and there are a range of discretionary discounts to meet cases of hardship. Only in its first year, the overall effect and benefits of the tax cannot yet be assessed. One feature of the regime which has attracted sharp criticism from authorities and their associations is that a significant proportion of the tax take is diverted not to the authority but directly to the State. In the light of the foregoing, the rapporteurs were told that, of 21 bn euros raised, 9bn will go to the State. However as of the 1st of January 2013 and in accordance with art.1, c. 380 of the Law of 24 December, n 228 (c.d. legge di stabilità) the reserve designated to the state will be eradicated.57 According to this recent amendment only taxes levied from properties held for productive use (i.e. warehouses, factories) will be directed to the state reserve58 Once again, local authorities may deliberately augment the standard rate of 0.76% by a maximum of 0,3%. It is expected, that the state’s revenue from the aforementioned property types will roughly equal 9 billion euros for the period of 2013-2014.59 In addition, a local solidarity fund (fondo di solidarietà communale) is to be set up and entirely covered by a share of the local authorities’ revenue retained from the IMU. In accordance with the information provided to the rapporteurs, the initial amount of the solidarity fund will be set at 4.717,9 million euros for the year 2013 and 4.145,9 million euros for 2014. Other tax sources available to municipalities include a tax on the collection and disposal of waste; a supplementary (local) income tax; a publicity tax; and a tax on the occupation of public space.
67. From a rather different quarter has come another form of financial discipline. The EU Stability and Growth Pact has given rise in Italy, since 1999, to an Internal Stability Pact (PSI) which is enacted annually and has the primary objective of constraining the net debt of the local and regional authorities – although, in the case of the regions, the impact is reduced because the regime does not apply to health and public transport. Inevitably this has a substantial effect on the capacity of authorities to fund projects. This is a discipline which has recently be extended to the municipalities of under 5000 population – in a move of doubtful overall economic effect but with potentially severe consequences for the affected authorities. Paradoxically, it is the case that, even those authorities which have access to funds which might normally be available for spending are subject to the constraints of the PSI and are compelled to suffer financial penalties if prescribed limits are exceeded.
68. Overall, there is considerable resentment among authorities on the level of cuts and the manner in which they are imposed. Despite government assurances that cuts are targeted in such a way as not to impact on frontline services, we were given credible accounts of the impact of services such as school transport, school buildings and public health. There is the arbitrary and insensitive effect of “linear cuts” which fail to take account of local circumstances, which remove the democratic input from local decision-making, which fail to acknowledge the relative prudence and good management of individual authorities or classes of authority, and which, in some circumstances, impose an inappropriate degree of centralised decision-making are imposed as a part of the cutting process eg where specific centrally-decided bed capacities are imposed in a process of hospital closures. Another overriding cause of resentment is that, whilst local and regional authorities are bearing the brunt of the public sector cuts, State expenditure is being reduced by a much lower percentage. This is a charge which was rebutted by the representatives of central departments who claimed that they have to bear the weight of the external debt and that once that is taken into account, levels of cuts of recurrent expenditure are very similar.
69. The rapporteurs have to conclude that there are substantial reasons for doubting Italy’s compliance with Article 9 of the Charter. They understand the difficult financial conditions being experienced in the country but the rapporteurs cannot accept, in particular, that the financial resources of local authorities are “adequate” or “commensurate” with their continuing responsibilities. Equalisation is not functioning. Consultation with authorities has been inadequate.
Article 10: Right to associate
Article 10 – Local authorities' right to associate
1 Local authorities shall be entitled, in exercising their powers, to co-operate and, within the framework of the law, to form consortia with other local authorities in order to carry out tasks of common interest.
2 The entitlement of local authorities to belong to an association for the protection and promotion of their common interests and to belong to an international association of local authorities shall be recognised in each State.
3 Local authorities shall be entitled, under such conditions as may be provided for by the law, to co-operate with their counterparts in other States.
70. Charter Art 10 has two principal aspects. It protects the right of local authorities to form and join associations “for the protection and promotion of their common interests” and also the right to co-operate and to form consortia with other local authorities in order to carry out tasks of common interest.
71. As to the formation of associations, there is no doubt that, in Italy, that right is respected. Associations flourish. In particular, provinces are represented by the Association of Italian Provinces (UPI), and municipalities by the National Association of Italian Municipalities (ANCI). There are also associations representative of sub-groups of those bodies. There is the National Association of Municipalities and Mountain Communities (UNICEM). There is no formal association of the regions, but see the Conferences (below) which, as a means to bring together the regions, serve a similar purpose.
72. The associations are active in the promotion of their members’ interests and generally, it seems, the associations are in a good position to influence the decision-making of Government. However, there have also been points of difficulty. It was, for instance, a complaint to us that associations were inadequately informed about the reform proposals hurriedly made by the Government in the summer of 2011. There is also a sense that consultation does not result in a change of view by the Government.
73. It is appropriate to mention at this point in the report a very important phenomenon in the conduct of inter-governmental relations in Italy. This is the existence of the highly influential bodies which bring together the interests of the different tiers of government. These are the three “Conferences” which are the manifestation of the principle of loyal co-operation in the Italian Constitution.60 They are the Conference for Provinces, (Metropolitan Cities) and Municipalities (founded in 1996 and comprising representatives of both the State and the three local authority associations), the Permanent Conference for Relations between the State, the Regions and the Autonomous Provinces of Trento and Bolzano (founded in 1997) and made up of representatives of the three elements), and the Joint Conference which brings together members of both the other organizations. In the case of all three, the point is to encourage dialogue and co-operation between their respective levels of government. The Conferences have ensured very strong rights to consultation and have enabled political influence. It has, for instance, been said61 that, whilst no Conference has asserted a right to veto a relevant legislative bill, such a bill has, in practice, rarely been adopted against the advice of a Conference. There has been a strong regional influence on national policy-making62 – although a greater skepticism is developing, as the State has become less amenable to differences of view as the rigours of the financial situation have increased. And a point often made to us was that the Conferences are the only institutions available. Although the language of federalism is used in Italy, there is no regional representation in the central Parliament of the country. There is no territorially-based Senate.
74. Related to the Conferences at the national level is the constitutional requirement (Art 123) that, in each region, there must be a consultative body between the region and its local authorities. The delegation is aware of the functioning of such an institution in e.g. Lombardy but we understand that that is not the position throughout Italy eg in Puglia. However, informal consultative fora are used – and have been important in relation to the recently planned reorganization of the provinces within regions.
75. Turning now to the other dimension of co-operation, it has already been mentioned (cf. infra) that, because of the very small size of most Italian municipalities and yet the very strong municipal tradition in Italy and the role of municipalities as a natural cultural unit of identity which leads to a rejection of voluntary mergers, local co-operation for service delivery has been a widespread practice. Earlier legislation had encouraged the use by small municipalities of local unions but Art 32 of the 2000 Law is a provision of general application and the number of unions rose rapidly between 2000 and 2005.
By then, 251 unions represented 1108 municipalities and 3.5m inhabitants. Information supplied to us indicates that recent years have seen a further steady increase in the number of local “associations” of municipalities and indeed Art 19 of Decree Law 95 of 2012 has made service delivery by associations compulsory in the smallest municipalities (of under 5000 population). Across Italy as a whole 20% of municipalities are members of associations – with the highest numbers of associations to be found in the regions of Lombardy, Piedmont and Sardinia.
76. There is a very strong general case for expanding the use of inter-municipal co-operation in Italy. Italy is a country where the historic existence of municipalities has a very high priority in the country’s culture and it is unlikely that the merger of municipalities – the other way of achieving administrative units of a size capable of handling the responsibilities formally allocated to the municipalities – would be achieved with the consent of the affected municipalities and their populations. Compulsory mergers would be very deeply resented. But, as in many other European countries,63 an expanded use of local authority co-operation would be a substantial part of the answer.
77. Such expansion of that provision would also enable the curtailment of local consortia established for the purpose of local service delivery. In Italy, such consortia take a wide variety of forms – from wholly public-controlled bodies to the use of private companies. There can be nothing inherently wrong with the contracting out of some service delivery to such consortia but we have gathered the very strong impression (from both local and central government sources) that the huge extent of their current deployment raises acute questions of accountability and potential impropriety. One particular local authority complaint is that there is currently a use by regions of the creation of agencies to perform administrative functions which ought to rightly be performed by the provinces or municipalities. In their view, the regions should not take on these administrative (as opposed to legislative) functions.
Article 11: Legal protection of regional and local authorities
Article 11 – Legal protection of local self-government
Local authorities shall have the right of recourse to a judicial remedy in order to secure free exercise of their powers and respect for such principles of local self-government as are enshrined in the constitution or domestic legislation.
78. There appears to be no problem in Italy with public authorities vindicating their rights, as necessary, in the administrative courts. If, however, a constitutional challenge is envisaged, then it is only the regions (and not the provinces or municipalities) which have the right directly to commence proceedings in the Constitutional Court. As already mentioned,64 there has been a substantial amount of litigation in that Court about the division of legislative powers between the regions and the State. As also mentioned,65 the Charter can be directly invoked and there has been a limited number of cases in the Constitutional Court where this has occurred,66 although in none has the Charter yet been determinative of the issue at stake. Reliance has instead been placed on the terms of the Italian Constitution itself. It is understood that the administrative courts have rarely (or perhaps never) been invited to apply the Charter.
79. The Constitutional Court has been actively involved in disputes over the recent reforming legislation, sometimes controversially as in its decision of 6 November 2012 to defer a substantive resolution on the constitutionality of the laws under challenge.67
4. CONCLUSIONS AND FURTHER STEPS OF THE MONITORING PROCEDURE
80. There is no doubt that, from a Charter point of view, Italy offers a constitutional approach to territorial government which encompasses a bold distinctiveness and a deliberate strategy of compliance. It is expressly and proudly autonomist in its philosophical commitment. The Constitution, since amendment in 2001, is not, however, perfect. It contains many ambiguities. Perhaps, in retrospect, the extent to which the Constitution left so much implementation work to be done was unfortunate. Nevertheless, the amendments of just over a decade ago did set Italy well down the road to Charter compliance – at least, on paper.
81. On the other hand, the Constitution did indeed require much further work to be done to ensure its complete implementation, including the readjustment of pre-existing ordinary law - much of it contained in the 2000 Law and in continuing effect. This is a process which has, by no means, been fully realised. There was the early programmatic “La Loggia” Law of 2003 and then a very long wait for the Law on Fiscal Federalism in 2009 which itself was largely a document for the promulgation of principles. Both of those measures required further implementation and a start has been made. The other principal legislative contribution – the “Charter Law” – remains unpassed and is making only very slow progress in Parliament.
82. But now, and most challenging of all, we have the potentially devastating impact of measures taken and yet to be taken by the central Government in response to the domestic, EU, and international financial crisis. The danger now looming is that the fragile process of implementing the fully functional system anticipated by the Constitution may be paralysed and indeed wholly derailed by the emergency response to the financial situation.
83. Of course, some measures are inevitable and must be adopted by the Government. But, in Charter terms, abrupt cuts in the funding of the systems of territorial government may have the effect of breaching not only Art 9 (financial resources) but also Arts 3 and 4 (scope of functions discharged), Art 3 again (quality of democratic representation), Art 5 (abolition or merger of authorities and consultation), Art 6 (administrative structures and the impact on them of arbitrary staffing restrictions) and others.
84. Thus, funding cuts and other abrupt interventions carry the risk of damaging very greatly the quality of local and regional democracy. In these circumstances, it is not for the Congress (or the Council of Europe generally) to interfere by presuming to micromanage the crisis. The Congress cannot decide on particular outcomes. What the rapporteurs can do, however, is to offer:
a. An appeal to the Italian authorities at all levels, despite all the pressures under which they have now to operate, not to take a narrow, one-dimensional view at the cost of losing all other relevant perspectives, including standards of human rights, democracy, and constitutionalism. Commitments to those standards should not be arbitrarily sacrificed. The response to the crisis should be seen to be taking them into account at the point of decision-making and should be proportionate. A repeated claim made to the rapporteurs by the regions and local authorities has been that many of the Government’s measures so far have placed a disproportionately heavy burden on them, when compared with the less destructive burdens imposed on the Government itself and indeed upon Parliament. There should, in any event, be a consensus that there be no unthinking pandering to populist “anti-bureaucratic” invective.
b. And secondly, the Charter itself ( a text to which Italy is, of course, already bound in international law) – a document capable of offering reliable standards in bad times as much as in good times – as the source of the criteria necessary to guide decision-making judgement.
84. As it has turned out, the fall of two Italian Governments during the period of our monitoring process has left progress towards a resolution of the competing demands of financial constraint and the maintenance of the qualities of governance wholly unresolved. There is an agenda, already sketched out in the course of earlier initiatives, yet to be pursued. Although such a condition of uncertainty provides the rapporteurs with a difficult environment in which to make their contribution, it is also one in which such a contribution becomes self-evidently relevant.
APPENDIX 1 – INFORMATION ON HUMAN RIGHTS PROVIDED TO THE DELEGATION DURING THE MONITORING VISITS TO ITALY
85. One particular issue was brought to our attention as a substantial human rights issue of concern to local authorities. The south of Italy is one of the areas of Europe most vulnerable to the reception of refugees and inevitably questions about how best to receive, process and decide on what should happen to the new arrivals arise. In administrative terms, this requires an integrated and sensitive approach. What we found in Puglia, however, was that the role of the State institutions in receiving refugees and doing the initial processing is not at all well integrated with the discharge by municipalities of their obligations to provide social care for those admitted to the country. There is an absence of information passed on from the central to the local authorities, thus denying the possibility of an integrated and, more importantly, a humane service for the new arrivals. Our very strong perception is that early steps must be taken to review the overall treatment of these migrants to the European Union with a view to its improvement.
ITALY: HUMAN RIGHTS AND LOCAL AUTHORITIES
Refugees and asylum seekers
With more than 5 000 000 regular migrants residing in the country Italy has (together with Spain) the highest growth rate of migrant presence in the European Union. For the year 2012, the UNHCR registered more than 58, 000 refugees and 13,525 asylum seekers in the Republic of Italy. Most recently, the political changes in the Arabic world lead to a massive influx of individuals arriving at the shores of south Italy, of which a considerable amount turn out to be (unaccompanied) minors. Whereas it generally remains within the responsibility of national authorities to secure the compliance with international legal obligation in regard to refugees, local authorities will eventually bear the mostly economic burden of effective inclusion of the latter. Particularly in light of the uneven distribution of migrants arriving between the northern and southern regions a clear framework on integration and a concurrent cooperation between local and regional authorities is essential in order to safeguard Italy’s legal obligations and provide a viable inclusion of migrants in local communities. In the light of the foregoing, the main challenge for local authorities in Italy lies within the reception and consequent integration of refugees in the respective communities.
In this regard it appears necessary to examine the efforts made on local level in Italy. Starting in 2001 the Ministry of Interior – Department of Immigration and Civil Liberties, the National Association of Italian Municipalities (ANCI) and the United Nations High Commissioner for Refugees (UNHCR) signed an agreement for the establishment of the “National Asylum Programme”.68
With the engagement of central and local institutions, aimed at sharing liabilities between the Ministry of Interior and local authorities, the foundation for the first national system for the reception of asylum seekers and refugees was set. In consequence, Law No.189/2002 made official those organised reception measures, by providing for the creation of the System of protection for asylum seekers and refugees (SPRAR). At the same time, the Ministry of Interiors established the coordinating organisation of the system – the Central Service for Information, Promotion, Advice, Monitoring and Support to Local Bodies – by entrusting ANCI of its management. SPRAR consists of a network of local authorities that set up and run reception projects for people forced to migrate. Within the limits of available resources, those projects draw upon the National Fund for Asylum policies and services managed by the Interior Ministry and included in State Budget legislation. At a local level, the local bodies, together with civil society movements ensure “integrated reception” activities that go far beyond the mere supply of accommodation and meals. Indeed, they provide for complementary activities allowing migrants to receive information, assistance, support and guidance through the definition of customised pathways to socio-economic inclusion. In addition, activities are conceived to facilitate the learning of Italian, adult education, access to schools for minors subject to compulsory education, further legal guidance activities on the procedure for the recognition of international protection and on the duties and rights of the beneficiaries according to their status. Local authorities and bodies, in partnership with the third sector, set up and operate reception projects in their areas, applying SPRAR guidelines and standards while taking local factors and conditions into account. Local authorities can, depending on the type, capability and level of competence of local actors as well as on the resources available to them, choose the type of reception facilities they can offer and the sort of persons they can best take responsibility for. For this reason projects can be aimed at individual adults and two parent families (the so-called "ordinary category"), or at single parent families, unaccompanied minors seeking asylum, victims of torture and those persons in need of constant care or with physical or psychological problems (classified as "vulnerable categories"). Special projects are provided for those people whose vulnerability results from problems of mental health. In any case, all those being cared for under the scheme are accepted on a temporary basis, and this is fundamental given that the ultimate objective is to give them self- autonomy and integrate them in society.