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Recommendation 35 (1997)1 on the implementation of the European charter of local self-government in Italy

The Congress, bearing in mind the proposal of the Chamber of Local Authorities:

1. Considering the European Charter of Local Self-Government;

2. Considering that the above international treaty was ratified by Italy on 11 May 1990 and entered into force there on 1 September that year, which means that the Charter prevails over the Italian domestic legal system, of which it is part, and must be taken into account in any legislative reform;

3. Considering Resolution 31 on guiding principles for the action of the Congress when preparing reports on local and regional democracy in member states and applicant states, adopted by the third session of the CLRAE in July 1996;

4. Considering Resolution 34 on monitoring the implementation of the European Charter of Local Self-Government, also adopted by the third session of the CLRAE in July 1996;

5. Having considered the report on the implementation in Italy of the European Charter of Local Self-Government submitted by the working group set up for this purpose by the CLRAE, the Rapporteur being Mr Claude Casagrande (France);

6. Thanking all those who enabled the report to be drafted, in particular the Italian Ministry of the Interior, the Italian Parliament, the Association of Italian Municipalities, the Union of Italian Provinces and the Italian Section of the Council of European Municipalities and Regions;

7. Taking note of Italian legislation and reforms in progress;

8. Noting with satisfaction that the reforms recently adopted and currently under way will increase compliance with the requirements of the European Charter of Local Self-Government, although they will not resolve all the problems of incompatibility of Italian legislation with the Charter;

9. Taking note with satisfaction of the implementation of the subsidiarity principle in the new Italian legislation, as defined in Articles 2 and 4.3a of Law No. 59 of 15 March 1997;

10. NOTES the following:

Status and role of municipal and provincial secretaries

10.1 Under sections 52 and 53 of Law N°142 of 8 June 1990, amended in part by Law N°549 of 28 December 1995, municipal and provincial secretaries in Italy (except in the municipalities in the Autonomous Region of Trentino-South Tyrol), being officials of the Ministry of the Interior, did not fall under the institutional hierarchy of the elected bodies of the municipalities and provinces;

10.2 The duties of municipal and provincial secretaries included reporting on the lawfulness of any draft decision submitted to the council and executive for which they worked;

10.3 The new Law N°127 of 15 May 1997 introduces a number of reforms in this area, including:

- the establishment of an independent agency to be responsible for awarding qualifications to municipal and provincial secretaries;

- the appointment of municipal and provincial seceretaries by the mayor and president of the province respectively, by selection from a national list;

- the right of the mayor and the president of the province to dismiss secretaries from office for breach of duty;

- removal of the obligation to ask for the secretaries' opinion on draft decisions submitted to municipal or provincial councils and their executive bodies;

- the possibility, for municipalities of fewer than 15,000 inhabitants, to appoint a director-general at the head of the municipal administration;

Supervision of local authority activities

10.4 Under the legislation in force until 18 May 1997, all decisions by municipal and provincial councils on matters within their competence were subject to preventive supervision of their lawfulness by a regional supervisory committee (CORECO);

10.5 Lawyers do not constitute the majority of the committee's membership;

10.6 In theory, this supervision only involved checking the conformity of the relevant decision by the local or provincial body with the regulations in force and with the statutory regulations of the body itself. In practice, however, the Committee's decisions often entailed supervision of expediency; under the new law, this supervision must only be concerned with legality (competence, form and procedure exclusively); however, in the case of the municipal and provincial budget the supervisory powers of CORECO remain much broader;

10.7 Although the municipalities and provinces are able to challenge the decisions of the supervisory committees through the courts, appeals of this kind are very slow and costly and prove ineffective in the case of budgetary supervision given the deadlines involved;

10.8 The purpose of the most recent legislative reform is to reduce the number of decisions subject to such preventive supervision of lawfulness, but will maintain supervision in the case of the budget;

Supervision of elected bodies

10.9 The President of the Republic has the power to dissolve municipal or provincial councils on a proposal from the Ministry of the Interior, which must consult parliament. In certain cases, prefects may order provisional suspensions. Although some of the grounds for dissolution set out in the legislation could be regarded as being relatively generic and vaguely defined, only a very small number of dissolutions are actually carried out on such grounds (8 over the period from 1990 to 1994);

10.10 On a proposal by the Ministry of the Interior, the President of the Republic may also remove local elected representatives from office. The prefect has the power to order provisional suspension in cases of serious and urgent necessity. As above, the legislation includes some grounds for dismissal which could be regarded as generic and vague. 288 local elected representatives have been removed from office since 1990;

10.11 Under the anti-mafia legislation (Law No. 221 of 22 July 1991), which lays down exceptional measures to combat organised crime, a total of 90 municipal councils were dissolved between 1991 and 1996 on the grounds of involvement with the mafia or similar organisations.

10.12 Under Laws Nos. 55 of 19 March 1990 and 16 of 18 January 1992, criminal convictions, even those for minor offences or which are non-final, lead to local elected representatives being removed from office and deprived of the right to stand for election;

10.13 Article 39 paras. 1b and 3 of Law No. 142 of 8 June 1990 establishes a causal link between the removal of the mayor (or the President of the Province) and the dissolution of the municipal (or provincial) council, which entails the appointment of a commissioner responsible for managing the authority until an election is called;

Autonomy of local authority staff management

10.14 Legislative Decree No. 504 of 30 December 1992 limits the resources which local authorities may spend on staff to 50% of their budgets, and requires municipalities which fail to comply with this limit to apply for State authorisation to recruit additional staff;

10.15 Law No. 549 of 1995 prohibits increasing staffing expenditure beyond the level at 31 August 1993, although the reform law has lifted this restriction in all municipalities which do not have a "structural deficit";

10.16 Employment and salary conditions for local authority staff are still negotiated by a central State agency, which receives guidelines from the Prime Minister's Office, although these guidelines are produced in agreement with the national associations of local authorities and provinces;

Local financial autonomy

10.17 The share of Italian municipalities' revenues made up by their own resources grew steadily from 1991 (38% of total) to 1994 (57% of total);

10.18 This is partly due to the State's gradual disengagement from the funding of local authorities;

10.19 Local taxes in Italy are not "diversified and buoyant" as requested in the European Charter of Local Self-Government;

10.20 Local authorities are only empowered to determine the rates for minor local taxes;

10.21 There is a growing discrepancy between local authorities' responsibilities and their financial resources, especially since their workload is liable to increase as Law No. 59 of 15 March 1997 is implemented;

10.22 Own resources accounted for only 7.7% of the provinces' revenues in 1994, and the excessively high level of earmarked subsidies seriously limits their ability to dispose freely of their resources. Nevertheless, a new provincial road tax was instituted under Law No. 662 of 23 December 1996;

10.23 In addition, local authority budgets are subject to a priori supervision by the regional supervisory committees (see above), which actually entails de facto supervision of expediency;

11. With regard to the compatibility of Italian legislation and administrative practices with the Charter, IT IS BELIEVED that:

11.1 There is still a risk of municipal and provincial secretaries constituting a technical or administrative authority on a par with the political authority of the local elected representatives; the professional agency to be responsible for administering the order of municipal and provincial secretaries should be fully subject to the control of local elected representatives; furthermore, the relationship between the municipal secretaries and the new directors-general is not clearly defined, which could be a source of conflict in the future;
11.2 Insofar as the current legislation entails a priori supervision of the expediency of local authority budgets, it is incompatible with the European Charter of Local Self-Government, Article 8 of which prohibits supervision of the expediency of local authority activities and Article 9 which sets out the right of local authorities to dispose freely of their resources within the framework of their powers;

11.3 The law is too vague in defining generic or public-order grounds for disbanding councils and dismissing elected representatives; this can seriously affect the elected representatives' right to "exercise their functions freely" (Article 7.1 of the Charter);

11.4 It is also contrary to Article 7.1 of the Charter to dismiss an elected representative or to ban him from standing for office because of petty offences on the grounds of a non-final criminal sentence.

11.5 It does not seem necessary to appoint a caretaker to manage a local authority after the dismissal of the mayor or president of a province insofar as the council could continue to work and adopt provisional measures until an election is called;

11.6 The exceptional forms of administrative supervision of local bodies provided for in the anti-mafia legislation extend beyond the field of local self-government and are more an issue of human rights and the rule of law. The Congress therefore does not wish to comment upon them, especially since Italian local government associations consider the measures necessary under the present circumstances,

11.7 In contrast, the measures taken to limit expenditure on staff would not appear to be incompatible with the Charter provided that they are imposed by law, are temporary and reasonable in nature and do not involve any discrimination in relation to state authorities,

11.8 Although it has improved since 1990, the Italian local authorities' financial autonomy is not yet in conformity with the following paragraphs of the Charter, insofar as:

a) local government's financial resources are not commensurate with the new duties assigned to it by recent legislation (Article 9.2);

b) local government's right to determine the rate of local taxes is not sufficiently guaranteed (Article 9.3);

c) local government's financial resources are neither sufficiently diversified and nor of a sufficiently buoyant nature (Article 9.4);

11.9 The low share of own resources in provincial budgets and the high proportion of earmarked subsidies seriously undermine provincial autonomy and are incompatible with Article 9 of the Charter;

12. Wishing to help strengthen local democracy in Italy and to provide advice on bringing Italian legislation and administrative practices more closely into line with the principles of the European Charter of Local Self-Government, RECOMMENDS that the Italian government:

12.1 With regard to Law No. 142 of 8 June 1990 and Law No. 127 of 15 May 1997:

12.1.1 ensure that the professional agency of municipal and provincial secretaries is not given any functions in relation to the State, other than the administration of the order of secretaries,

12.1.2 ensure that municipal and provincial secretaries in future hold no additional status in their dealings with the State to that of any other municipal or provincial officials;

12.1.3 pending debate at domestic level about the regional supervisory committees provided for in Article 130 of the Constitution,

12.1.3.1 remove the a priori supervision of local authority budgets which these supervisory committees exercise under Section 17 paragraph 33 of Law No. 127 of 15 May 1997,

12.1.3.2 take all the necessary steps, including revising their membership, to ensure that, in practice, these committees rule solely on the lawfulness of the decisions by local elected bodies submitted to them,

12.1.3.3 take all the necessary steps to make court appeals by local authorities against the decisions of the Regional Supervisory Committees more flexible and less expensive,

12.1.4 replace the generic reasons of public order cited in Sections 39.1.a) and 40.1 as grounds for dismissing local elected representatives or dissolving local elected bodies by a list of more clearly defined grounds,

12.1.5 in the event of the mayor's resignation, disqualification, removal from office or demise, associate the elected representatives to the provisional management of the local authority rather than appointing a caretaker;

12.2 with regard to Laws Nos. 55 of 19 March 1990 and 16 of 18 January 1992, apply penalties of suspension and deprival of the right to stand for election solely to local elected representatives convicted of serious offences in final court judgments against which no appeal lies (apart from any provisional measures which the courts may order);

12.3 with regard to Law No. 549 of 1995, remove, as far as possible, the ceiling imposed on expenditure on staff;

12.4 adopt all necessary measures to ensure:

12.4.1 that local authorities' financial resources are commensurate with the new responsibilities assigned to them by law;

12.4.2 a better guarantee on the right of local authorities to determine the rate of local taxes,

12.4.3 a greater degree of diversification and buoyancy in the system governing local authorities' resources;

12.5 bring the financial autonomy of the provinces into line with Article 9 of the Charter, in particular by reducing the proportion of earmarked subsidies.

1 Debated and approved by the Chamber of Local Authorities on 4 June 1997, and adopted by the Standing Committee of the Congress on 5 June 1997 (see doc. CPL (4) 4, Recommendation, presented by Mr C. Casagrande, Rapporteur).

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