Addendum of the report on the implementation of the European Charter of Local Self-Government in Italy - CPL (4) 4 Part II addendum
Rapporteur: Claude CASAGRANDE (France)
A few days before this 4th Session of the Congress and after the last meeting of the Working Group on the Implementation of the European Charter of Local Self-Government, the Italian Parliament passed two Bills directly affecting the local self-government system in Italy. This Addendum sets out the main novel provisions of the two Acts (known as "Bassanini 1" and "Bassanini 2") which have a bearing on the content of the report.
The first Act, an extract from which is appended to this Addendum, is known as "Law No.59 of 15 March 1997 on the delegation of powers to the Government in respect of the assignment of duties and tasks to the regions and the local authorities, the reform of the authorities and administrative simplification".
As a result of this outline law, the Italian Government is empowered to promulgate, within 9 months of the law's adoption, legislative decrees transferring to the regions and local authorities duties and tasks which previously rested with the state. The law in question explicitly refers, for the first time, to the principle of subsidiarity. The definition of the principle that has been adopted matches that adopted by the CLRAE in Article 4 , paragraph 3, of the European Charter of Local Self-Government.
The second Act is known as "Law No.127 of 15 May 1997 on administrative activities and decision-making and supervisory procedures" and concerns several problems raised by members of the Working Group. Because this new law was passed, it was necessary to table amendments to the draft recommendation in order to adapt certain paragraphs to the new provisions.
Law No.127 of 15 May 1997 gives wider-ranging autonomy to the local authorities and appreciably reduces state supervision of, and involvement in, the decisions of elected municipal and provincial bodies.
The main new provisions are as follows:
- in future, mayors will be sworn in before the municipal council and not before the prefect, and they will be allowed to appoint a Director General in municipalities with over 15,000 inhabitants;
- nation-wide collective bargaining over the working conditions and pay of local authority staff will still be carried out by a state agency, but the agency will first have to reach an agreement with the representatives of the national Association of Italian Municipalities and the Union of Italian Provinces;
- local and regional authorities will have more flexibility when it comes to buying and selling property for themselves and the state;
- the ombudsman will have wider-ranging powers;
- as a rule, preventive scrutiny of the legitimacy of the decisions of local bodies may be exercised solely in respect of statutes, rules of procedure, budgets and balance sheets, except where otherwise requested by the deliberating body or a proportion of the electors in matters concerning staff management and calls for tenders. Moreover, under the new legislative provisions, scrutiny of legitimacy must be confined to matters of procedure, form and competence;
- the role of municipal and provincial secretaries, which was discussed in detail by the working group, will in future be confined to co-operation with, and assistance to, the municipal and provincial councils and their respective executives; furthermore, municipal and provincial secretaries will no longer have a power of scrutiny over the legitimacy of the deliberations of these bodies; they will be appointed and may be removed from office by the mayors or provincial presidents; they will lose their status of civil servant at the Ministry of the Interior, and they will be answerable in future to a national agency set up under the same Law No.127 of 15 May 1997. Henceforth municipal and provincial secretaries will be subordinate, for "functional" purposes, to the head of the administration, but the problem of who has the power to discipline them has yet to be settled.
In conclusion, some of these new legislative provisions are in keeping with the wishes expressed by members of the Working Group at its bilateral meetings with the Italian governmental authorities, elected local and provincial councillors and the other parties concerned.
As far as the conclusions which the Working Group reached at its last meeting are concerned, some provisions of Law No.127 of 15 May 1997 bring the general system of local and provincial authorities further into line with the spirit of the European Charter of Local Self-Government, although they do not solve all the problems raised and they throw up other issues. It is only through the implementation of the Act or through case-law that it will be possible to settle these questions, in particular the problem of relations between municipal secretaries and directors general.
Moreover, the plan for constitutional reform being examined by the committee representing the two chambers of the Italian Parliament is likely to make for further major changes to relations between the state and local and regional authorities. The situation with regard to the implementation of the European Charter of Local Self-Government in Italy is therefore set to change further.
Selected articles from: Italian Law No. 59 of 15 March 1997
AUTHORITY TO THE GOVERNMENT TO CONFER DUTIES AND POWERS ON THE REGIONS AND THE LOCAL AUTHORITIES AND REFORM AND SIMPLIFY THE ADMINISTRATION
(published in Ordinary Supplement No. 56/L to issue 63 of the Official Gazette, 17 March 1997)
The Chamber of Deputies and the Senate of the Republic have approved and the President of the Republic promulgates the following law:
1. The Government is hereby empowered to issue, within nine months from the entry into force of the present law, one or more legislative decrees aimed at conferring on the regions and local authorities, within the meaning of Articles 5, 118 and 128 of the Constitution, administrative duties and powers in conformity with the principles and guidelines set out in this law. For the purposes of this law, to "confer" means to transfer, delegate or attribute duties and powers, and the expression "the local authorities" means the provinces, municipalities, mountain communities and other local authorities.
2. The following responsibilities are hereby conferred on the local authorities, in accordance with the principle of subsidiarity as set out in Article 4 para. 3 (a) below and within the meaning of Article 3 of Law No. 142 of 8 June 1990: all administrative duties and powers required for protecting the interests and promoting the development of the various communities, as well as all administrative duties and powers currently exercised in the individual territories by a central or peripheral State body or department or through a public authority or other public body.
3. Duties and powers relating to the following fields are excluded from the ambit of paras. 1 and 2 above:
a. foreign affairs and foreign trade, as well as international co-operation and activities promoting the national interest abroad;
b. defence, the armed forces, weapons and munitions, explosives and strategic equipment;
c. relations between the State and the religious denominations;
d. protection of cultural assets and the artistic and historic heritage;
e. supervision of civil status and the registry office;
f. nationality, immigration, refugees, political asylum, and extradition;
g. elections, franchise, eligibility, electoral canvassing, and all but regional referenda;
h. currency, monetary systems and financial equalisation;
i. customs, protection of national and international borders;
l. public order and public security;
m. administration of justice;
n. post and telecommunications;
o. social welfare, temporary or structural overstaffing;
p. scientific research;
q. university education, organisation of schools, curricula, general organisation of school education and the legal status of staff;
r. supervision of labour and co-operation.
4. The following are also excluded from the ambit of paras. 1 and 2 above:
a. regulatory and supervisory powers already attributed to special independent bodies under national legislation;
b. powers relating to the planning, execution and maintenance of major infrastructures classified in legislation as being of national interest;
c. national powers relating to civil defence, protection of the land, environmental and health protection, policies, events and programmes in the entertainment sector, and research, production, transport and distribution of energy; in order to identify responsibilities of national importance, the draft legislative decrees are subject to prior agreement with the Standing Conference on Relations between the State, the Regions and the Autonomous Provinces of Trento and Bolzano; in the absence of an agreement, the Council of Ministers will give a final reasoned decision, on a recommendation from the Prime Minister;
d. responsibilities independently exercised at the local level by chambers of commerce, industry, crafts and agriculture, and by universities;
e. co-ordination of relations with the European Union and powers relating to the national implementation of the obligations arising out of the Treaty on European Union and other international agreements.
5. The regulations on the national statistics system will remain in force, inter alia for the purposes of compliance with the obligations arising out of the Treaty on European Union and other international agreements.
6. Promoting economic development, enhancing production systems and encouraging applied research are prime public interests which will be ensured by the State, the regions, the provinces, the municipalities and the other local authorities within the limits of their respective powers and in accordance with the requirements of health, public safety and environmental protection.
1. The regulations laid down in this law on the duties and powers conferred on the latter apply to the latter in respect of the fields set out in the first paragraph of Article 117 of the Constitution. The regions are empowered to legislate in any other fields, in accordance with the second paragraph of Article 117 of the Constitution.
2. In all cases the regulations on the organisation and development of the administrative duties and powers conferred under Article 1 shall be devised by the regions and the local authorities within the limits of their jurisdiction and various standard-setting powers.
1. The legislative decrees mentioned in Article 1 shall:
a. set out binding regulations on the duties and powers to be retained by State departments, within the meaning and limits of Article 1;
b. indicate, for each field, the duties and powers to be conferred on the regions, inter alia for the purposes of Article 3 of Law No. 142 of 8 June 1990, in keeping with the principle of subsidiarity as set out in Article para. 3 (a) of the present law, or to be conferred on territorial or functional local authorities within the meaning of Article 128 and the first paragraph of Article 118 of the Constitution, as well as the criteria for the consequent appropriate attribution and distribution among the regions, and between the latter and the local authorities, of financial, human, practical and organisational resources; the duties shall be gradually conferred over a maximum period of three years, guaranteeing the effective exercise of these duties;
c. establish the linking procedures and instruments, including permanent ones, allowing for the possibility of amending or replacing the methods of structural and functional co-operation among local authorities, regions and the various levels of Government; moreover, arrangements should be made for possible support mechanisms for local authorities in the event of non-fulfilment of the administrative duties conferred upon them, as well as individual or joint intervention by State, regional and local representatives in the various structures needed for carrying out the linking, guiding, co-ordinating and supervisory functions;
d. abolish, transform or standardise the central or peripheral structures affected by the conferral of duties and powers in accordance with the arrangements laid down in Article 7 para. 3, keeping each individual region and intact and safeguarding access by local communities to supra-regional structures;
e. establish the procedures for transferring State personnel, without increasing expenditure from public finances;
f. lay down the conditions under which the Government can use regional and local offices for dealing with national interests, in agreement with the authorities concerned or with their representative organisations;
g. identify the conditions under which appropriate organisational structures can be assigned duties and powers the nature of which does not require them to be exercised exclusively by the regions or local authorities;
h. set out the procedures and conditions for providing individual citizens temporarily absent from their usual residence with any services to which they wish or ought to have access.
2. The legislative decrees mentioned in Article 1 shall make special provision for the municipality of Campione d'Italia in view of its geographical isolation and its consequent institutional, socio-economic, currency, customs, fiscal and financial specificities.
1. In the fields set out in Article 117 of the Constitution, in accordance with the various regional systems, the regions shall confer on the provinces, municipalities and other local authorities all the duties which do not have to be carried out jointly at regional level. The regions shall confer such duties in consultation with the local authorities' representatives. Furthermore, if local authorities' representative organisations have been set up under regional legislation, they may also be consulted.
2. The other duties and powers set out in Article 1 para. 2 above shall be conferred on regions, provinces, municipalities and other local authorities by means of the legislative decrees mentioned in Article 1.
3. The conferral of powers as set out in paras. 1 and 2 above shall be effected in conformity with the following basic principles:
a. the principle of subsidiarity, the bulk of the administrative duties and powers being attributed to the municipalities, provinces and mountain communities in accordance with their individual size and organisation, apart from duties which are incompatible with these latter criteria; public responsibilities vis-à-vis promoting the discharge of duties and powers of social importance for families, associations and communities should also be attributed to the authorities which are geographically and operationally closest to the citizens concerned;
b. the principle of complementarity, whereby the regions are attributed the administrative duties and powers which are not assigned as per para. (a) above, as well as planning powers;
c. the principle of efficiency and cost-effectiveness, which includes abolishing redundant duties and powers;
d. the principle of co-operation between the State, the regions and the local authorities, inter alia in order to guarantee appropriate participation in European Union initiatives;
e. the principles of accountability and singleness of government, which entails attributing practical and complementary linked powers and duties to one single body, and the principle of ensuring that one individual or body is identifiable as being responsible in each administrative department or activity;
f. the principle of homogeneity, taking particular account of duties already being discharged by attributing the same type of duties and powers to the same level of government;
g. the principle that the authority in question must have the appropriate organisational resources to ensure the discharge of the duties conferred, inter alia in partnerships with other bodies;
h. the principle of differentiated allocation of duties depending on the specific features of the authority in question, including associative, demographic, geographical and structural aspects;
i. the principle that financial resources must be available to cover the cost of discharging the administrative duties conferred;
l. the principle of the organisational and statutory independence and accountability of the local authorities in discharging the administrative duties and powers conferred upon them.
4. In the legislative decrees mentioned in Article 1 above, the Government shall also:
a. delegate to the regions planning and administrative powers in the field of regional and local public transport services; empower the regions to define, in agreement with the local authorities, the minimum level of services qualitatively and quantitatively sufficient to satisfy citizens' demands, the cost of which services shall be covered from regional budgets and the cost of any other services over and above this minimum level borne by the local authorities providing them; ensure that the Minister for Transport and Navigation and the regions conclude prior planning agreements before the latter actually receive their powers and the relevant resources, whereby the said agreements must be updated by 30 June 1999;
b. ensure that the regions and local authorities, within the limits of their respective powers, organise the provision of services in the most appropriate manner and form, by granting a franchise as set out in Articles 22 and 25 of Law No. 142 of 8 June 1990 under the public service contracts provided for in Articles 2 and 3 of EEC Regulation No. 1191/69 and EEC Regulation No. 1893/91, thus securing adequate financial guarantees and budget cover and ensuring a ratio of at least 0.35 between transport revenue and operational costs by 1 January 2000, net of infrastructure costs in pursuance of Council Directive 91/440/EEC of 29 July 1991 relating to regional and local rail transport; provide incentives for the removal of monopolies on the running of urban and rural transport and introduce rules on competition in the regular attribution of services; define arrangements enabling the regions to become parties, by 1 January 2000, to the public service contract between the State and the State Railway Company in respect of local and regional services, with specific independent regional service contracts;
c. use the principles and criteria set out in para. 3 of this Article, Article 12 para. 1 and Articles 14, 17 and 20 para. 5 to redefine, reorganise and rationalise, identifying standard decision-making bodies where possible, the regulations on economic and industrial activities, particularly in connection with supporting and developing enterprises operating in the fields of industry, trade, crafts, the agro-industrial sector and production services; in connection with European Union regional, structural and cohesion policies, including intervention in depressed areas of the national territory, applied research, technological innovation, promotion of the internationalisation and competitiveness of enterprises on the world market and promotion of rationalisation of commercial networks, inter alia with a view to controlling prices and securing efficient distribution systems; in connection with co-operation in production sectors and support for employment; in connection with activities relating to the construction, launch, expansion, restructuring and conversion of industrial installations and the creation, restructuring and enhancement of environment-friendly industrial areas, with particular regard to amenities for protecting the environment and public health and safety.
5. For the purposes of implementation of Article 3 of Law No. 142 of 8 June 1990 and of the principle of subsidiarity as set out in para. 3 (a) of this Article, each region shall, within six months from the issue of each legislative decree, adopt a law specifying the duties transferred or delegated to the local authorities and those remaining under the responsibility of the region. Where the region fails to adopt such legislation within the aforementioned time-limit, the Government is empowered to issue, within the following ninety days and having consulted the region in question, one or more legislative decrees apportioning the duties between the region and the local authorities, the provisions of which shall be applicable until the corresponding regional law comes into force.