Introduction to Italian Law

IDon Wallace, Jr.

es (1992)
)n 1993) Edited
195) by
>TI 1995)
5) Jeffrey S. Lena, Esq.
:ln 1996) California Bar
J8)
l)
Ugo Mattei
'evised edition 2002)
Professor ofCivii Law, University ofTurin, and

) Alfred and Hanna Fromm Professor oflnternational and Comparative Law,

U. C. Hastings

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CHAPrERTWO

Shifting Frames: Law and LegaI "Contaminations"

Professor P. G. Monateri & F. A. Chiaves l

I. Introduction
The aim of this chapter is to tIy to describe the two main turning points in the
modero history of Italian legaI culture. 2 The first was a transplant of French legaI
sources, and a generaI framing of the national law after a French pattero. The
second was a global shift toward German paradigms that had a dramatic influence
on legaI discourse, and the mode of approaching and utilizing legaI sources. In this
account, we maintain a criticaI and comparative view of the law in which formaI
sources are to be viewed as authorities to which the legaI profession attaches a
meaning, in which meaning is therefore not rooted in, but instead is produced by
the legaI community. In the process, we may observe how much a legaI system
may constitute not a coherent unit, but rather a bundle of foreign traits cobbled
together by lawyers.

l Pier Giuseppe Monateri, Professor of Comparative Law, University ofTurin; Dott. Riceratore
EA. Chiaves, University ofTurin.
Arecent masterful work that should be consulted in this area is P. Grossi, Scienze Giuridiche
Italiane - un profilo storico, Giuffrè Milan, 2001. The classic treatment of the materials
discussed in this chapter remains the triad by John Henry Merryman "The ltalian Style I:
Doctrine," 18 Stanlord Law Review 39 (1965); "The ltalian Style II: Law," 18 Stanlord Law
Review 396 (1966); 'The ltalian Style ID: Interpretation," 18 Stanford f...<:rn' Review 583 (1966).
These materials were republished in J.H. Merryman, The Loneliness 01 the Comparative
Lawyer, and Other Essays Foreign and Comparative Law, The Hague, Kluwer (1999).

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 CHAPTER1WO SHIFIlNG FRAMES: LAW AND LEGAL "CONTAMINATIONS"

II. Italian Legai Culture: A Portrait of Italy as a "Weak" Tradition the Italian states. 4 Certainly Piedmont, which enacted the forced unity of the country,
was largely indebted to French culture, and French was stilI spoken by the ruling
A. The Love Affair with the French elites as well as by tbe fOyal family, who were in fact of French origino
From the legaI perspective, the northwest adopted a Constitution (Statuto
This chapter sketches the formation of Italian legaI culture, which, from the early Albertino) in 1848 (that had been transplanted from the French Constitution of
nineteenth century forward, has evolved as a bundle of borrowed traits. 1830), which took the throne away from tbe Bourbons and handed it to Louis
In the first decades of the nineteenth century, Italy was taken over by the French Philippe d'Orléans. In 1861, the Statuto was subsequently extended to apply to all
army, and the French Civil Code of 1804 was introduced throughout the country: ofltaly.
the northwest (Pied.mont and Liguria) was annexed to France, and thus the French In 1865, tbe governrnent decided to entirely re-shape tbe legal features of the
Civil Code was directly put in force in those regions; the Kingdom ofItaly (northeast new Kingdom and the 1865 Act, stilI in force, tailored public adrninistration to the
and center) received an Italian translation of the French Code (1805), and tbe same French pattern.
occurred in the Kingdom of Naples , which comprised the southern regions (1808). In the fieid of public law there was, in our view, no real alternative to this French
After the collapseof the French adrninistration and the Congress of Vìenna model. First, the unity was achieved by Piedmont, which was within the French
(1815), Italy was divided into a number of small states, each witb its own legaI area ofinfluence, and which indeed became "Italianized" only after 1870. Secondly,
system, 3 for the first half of the century. These small states can be grouped into unity was achieved against the "others" (the Pope, the Austrians from Milan and
four main regions: the northwest, tbe northeast, tbe center, and tbe soutb. Venice, and the southem Kingdom of Sicily), and it would really have been
A slight revision of the French Code was maintained in tbe northwest (tbe inconceivable to adopt their "patterns." Finally, the French model was perceived
Kingdom of Sardinia, including Piedmont, Liguria, and Sardinia) (1837) and in as a "liberaI" model: France was the country of liberty and reform, and the elites
the south (the Kingdom ofSicily, including Naples and Sicily) (1819). The northeast, promoting the unlfication process alI shared this "liberal" culture.
in which Milan, Venice, and Trieste formed a single realm within the Austro­ In the field of private law, a choice existed among three possible alternatives: ..
Hungarian Empire, was governed by the Austrian Civil Code. The center of Italy the French Civil Code; the Austrian Code, which ruled the entire northeast, the
was split into two main states: Tuscany, under an Austrian Grand Duke, and the more economically advanced region of the new country; and the renewed Roman
Regions of Rome and Bologna, under tbe Papal adrninistration. After tbe French law, which was certainly felt to be rooted in a "national" legaI culture. A fourth
experience, both areas returned to the ius commune, a form of uncodified modern alternative could have been the elaboration of a newer "Italian" pattern.
Roman law based on Justinian's Compilation as developed in the case law. For the purpose of the above-sketched "strategic" model, we can consider tbe •
As a resu1t of the aggressive foreign policy of tbe Savoy fami1y, which ru1ed in adoption of a Code and the elaboration of a model, or the importation of such a
the northwest, Italy was unified in 1861, with its capital at Turin. This policy was complicated system as the case law system developed from Roman law, as separate
backed by the French government in opposition to Austria, which had formerly items. Because the purpose of the govemment was to frame national unity in tbe
possessed a prodigious influence in Italy. Later, however, Napoleon ID refused short term, the alternatives were, in reality, the French Civil Code and the Austrian
any further aid and decided to support tbe Pope in Rome to avoid a unification of Civil Code.
the country. Thus it was only in 1870, when the Germans defeated the French, that We maintain that this was a question of "self-definition," much more than a ti
tbe Italians were final1y able to conquer Rome and dethrone tbe Pope; in the matter of policy. Indeed, both of the above Codes had been designed to cape with
meantime, the Holy City became tbe capitaI of the Kingdom of Italy. a market-based society,5 and thus no peculiar political issue was at stake in choosing
There was a complex relationship of rivalry and friendship between France and one or the other. Both Codes were based on the following principles:

3 See S. Santoro Passare1li, "Dai codici preunitari al codice civile del 1865," in Studi A. Torrente, 4 See N. Valeri (ed.), Storia d'ltalia, IV, Utet, Turin (1965), pp. 89-191.

Giuffrè, Milan (1968), p. 1029.

5 See A. Gambaro, Codice civile, in 2 Digesto italiano 442, 4th ed., Turin (1988), at 447.

CHAPTERTWO SHlFfING FRAMES: LAW AND LEGAL "CONTAMINKfIONS"

l. Abolition of the caste system based on status, and the generaUegal capacity also translated into Italian: Duranton in 1852-54; Zachariae in 1862; Aubry and
of alI citizens (general citizenship) (art. 1 C.Nap.; para. 17, ABGB); Rau in 1841-49. Tbe last French work translated was tbe massive, multi-volume
2. Definition of property rights in land stated in "absolute" terrns, and abolition work of Baudry-Lacantinerie, translated in 1900. Tbe close of the century marked
of perpetuities and feudal incidents (arts. 537 and 544 French Civil Code; an end to the process of translation and also, as we shall see, to the impact of
para. 308, Austrian Civil Code); French culture on Italy. In the new century, the work:s of P1aniol, Josserand, Gény,
and so on were also studied, but never translated.
3. Freedom of contract and marketable property rights;
Thus, tbe Constitution, Codes, courts, legal education, and public adrninistration
4. Right of enclosures (art. 552, French Civil Code; para. 362, Austrian Civil were alI created on a French template, but the most influential formant was
Code); undoubtedly French doctrine. French case 1aw had been derived only through the
5. Egalitarian inheritance law coupled with freedom in the disposition of citations of professors in tbeir books;9 tbere was no direct knowledge of, nor real
property at death. interest in, French decisions. Italian books made reference to the conceptions of
French professors rather to than the French decisions themselves. As an example,
The Austrian Civil Code is indeed widely credited as being just as "liberaI" as the
we can examine a widely distributed law book of the period, Emilio Pacifici­
French. 6 But "French culture" was much more widespread than its Austrian
Mazzoni's work on wills: in the first fifty pages of the volume, Demolombe is
counterpart arnong thc ruling elites, and the choice was in fact imposed by the
cited sixty-eight times, followed closely by Marcadé, Aubry and Rau, and Toullier,
"winning state" over other Italian states. In much tbe same way, the Code of
whereas only one citation of a French case appears. This is quite interesting because
Commerce and the Criminal Code were tailored after French liberaI conceptions.
the role of case lav:, and in particu1ar the role of the Cour de Cassation, has been
Thus, cultural sentimenti played an important role in the choice: Italy had to become
overwhelming in France. Indeed, the Italian judicial style in writing opinions was
a "Latin sister" of France in southern Europe.
modeled after that of the courts of the old ius commune (mainly the courts of
Tbe adoption of a revised French Cod~ also implied the adaptation of French
Florence and Rome), and was not influenced by tbe concise style ofFrench judges,
legal methods and court organization. 7 The method of Italian lawyers was styled
who wrote opinions of just one sentence.I° From this standpoint there was a split
after the prevailing French "exegetic" schoo1. 8 The court system was arranged
between the "culture of judges" and the "culture of professors." Tbe literary style
according to French pattern of the Cour de Cassation, but because the Italian
of the former preserved a national pattern, whereas the style of the latter introduced
Peninsula had only been recently united, five Supreme Courts were created - in
French exegetics.
Turin, Florence, Naples, Palermo, and Rome. A unique Supreme Court was created
Tbus we can sèe that Italian legal culture borrowed much more from French •
only in 1923 (Act 601 (1923)), after the fascist regime carne to power.
legislation and French scholarship than it did from case law. Borrowing is a selective
Due to the lack of a unified case law, legal education played a major role in Italy
activity, and it would be quite mis1eading to say that the "French model" has been
and was based heavily on works and translations of French authors. We can measure
transplanted into Italy, because the transp1anted model happened to become quite
the impact of French legaI culture on Italy by the volume of translations of French
different from the originaI over time. Once again, it is the theory offormants that
law books. Merlin's Commentaries on the French Code were translated in Naples
assists us in understanding that "models" are made up of different traits, and that,
(1824-28), and even in Venice (1834-44), notwithstanding tbe fact tbat part of tbe
in the process of appropriation, original traits can be rnixed up and even twisted to
Peninsula was still ruled by the Austrian Code. The major French textbooks were
produce a different mode!. In fact, in transplanting tbe French model into Italy,
foreground and background exchanged positions, since the role of the courts
certainly became secondary to that of scholarship, to produce quitc tbc opposite of
6 See R. Sacco, Introduzione al diritto comparato, 5th ed., Utet, Turin (1992), at 224 & 256.
7 See A. Gambaro & A. Guarneri, "Italie," in La circulation du modele juridique francais, 14
Travaux de l'Association Henri Capitant 17, Litec, Paris (1993), at 78 ff. 9 See A. Gambaro &A. Guameri, supra note 5, at 82.
l See G. Tarello, "La scuola dell' esegesi e la sua diffusione in Italia," in Scritti per il XL della IO Writing a one-sentence opinion is the traditional French style, but the Circulaire du 3 I lanvier
morte di Bensa, Giuffrè, Milan (1969). 1977 allowed judges lo frame their opinions in two or more sentences (!).
 SHlFTING FRAMES: LAW AND LEGAL "CONTAMINiITIONS"
CHAPTERTWO

the French power relation between these formants. In the next section, we discuss the legal processo Once again, we can trace the translations of Gerrnan works to
how this increased role of intellectuals gave birth to a major shift fiom the French measure their impact. At rnid-century, Serafini and Colgiolo translated the immense
toward the Gerrnan "style" of legal thought within the legal profession. Gluck's Pandects. Vittorio Scialoja, in 1886, published a version of Savigny's
"System." Fadda and Bensa translated Windscheid's work between 1903 and 1905,
and it was subsequent1y reprinted in the thirties. All the major Ita1ian jurists of the
B. The "Coming of the Germans"
time adopted the German approach: Nicola and Leonardo Coviello; Francesco
In the previous section, we saw how the French model was received in Italy, with Ferrara Sr., Giuseppe Messina, Ettore de Ruggiero, Vittorio Polacco, and Giovanni
an emphasis on the role of intellectuals. Now we will examine how, after national Pacchioni.
unity was achieved in 1870, Italian universities were reorganized ll according to In order to contrast the old French approach with the newer Gennan style, it is
new standards. In particular, the law schools were entrusted to a "first generation" useful to cite a biographical narrative by one of the leading authors of the thirties,
.. of professional1egal scho1ars. 12 From the beginning, the best-developed department Giovanni Pacchioni:
within the new legal,academy was that of Roman 1aw. All the 1eading figures of [I] remember the teachings of my two main professors: Piero Cogliolo and
this first generation of scholars were professional Romanists. It is quite evident Pasquale Melucci. The latter, since he was a disciple of Pacifici Mazzoni,
that they were interested in theory and in Roman 1aw, and that they cou1d find both followed the French style, and that of Laurent in particular. The forrner having
in Gerrnany. In a few decades, Italy became one of the areas in which Gerrnan been a student ofFilippo Serafini followed the methods and theories of Savigny,
studies exercised a strong influence. 13 The shift away fiom French 1egal culture and of the other great German scholars as Windscheid, Brinz, Becker et al. ...
was widespread, and began because of the perceived prestige of German academic The two modes of teaching were strikingly opposed. Melucci was conducting
studies in the field of Roman law. 14 Italian professors began to borrow the Gerrnan classes on thè basis of an artiele of the code. He would construe the meaning
"theoretical" approach to law, which had a strong impact OD the 1aw schoo1s in of it, then through an exercise of logic, try to derive a11 the possible conse­
comparison with the now-discredited French method, and new lawyers and judges quences; when these were difficult to arrive at, his usual memento to the young
began to be educated in the new German mode. Thus, the "style" of legaI discourse students was: dura lex, sed lex.
15
changed dramatical1y, and a new 1egal jargon was styled after Gerrnan templates. On the contrary, Cogliolo gave lectures which began with old Roman law,
As we have Doted, the "professionalization" of Italian acadernia was a major reconstructing the historical evolution of legal conceptions up to the present
factor in this shift. The leading figure in this process was Vittorio Scialoja (1856­ ') Code, and discussing solutions on the basis of analytical as well as sociological
1933). Scialoja was a great mentor, with a number of disciples in alI acadernic doctrines .,. Even if I had been very young at the time, I could have easily
fields of law: Bonfante and Segré in Roman 1aw, Filippo Vassalli, and De Ruggiero perceived that the German approach was superior. Thanks to Filippo Serafini
in private law, and Chiovenda in civil procedure. He was also one of the most and Vittorio Scialoja, this approach has prevailed ... I could never suffer the
active borrowers of German legal culture, together with Filippo Serafini (1831­ dura lex sed lex. 16
97), Fadda (1853-1931), and Bensa (1858-1928). Professional acadernics found
German scholarship excellent fuel for their legitimacy within the schools and even This narrative captures the felt difference between "passiveinterpretism" and "active ..
theory" that was a key factor of the German success in Italy. The new German
approach placed intellectuals in a new context within the legaI processo Intellectuals
and professors of law, more than the judges, now had to lead the process, because
Il See N. Valeri, supra note 2, at 657-89. theory was the realm of intellectuals, and law was essentially conceived of as
12 See A. Gambaro & A. Guarneri, supra note 7, at 82.
13 Far German infiuences in America, see M. Reimann (ed.), The Reception oj Continental
1deas in the Common Law World, 1820-1920, Duncker & Humbaldt, Berlin (1993).
14 See R. Sacco, supra note 6. at 259-63. 16 G. Pacchioni, Il diritto civile italiano, I, Cedam, Padua (1937), vii. See also A. Gambaro & A.
Guarneri, supra note 7, at 86.
15 See id. at 261.
CHAPTERTWo SHIFTING FRAMES: LAW AND LEGAL "CONTAMINATIONS"

theory. The role of courts would have to become that of merely "applying" intellectuals lost their position of preeminence when split into different schools,
professors' theories to particular cases. Law had to be conceived as a bundle of each of which cultivated its own "system," while the judiciary, by contrast, was
conceptions, not rules. Rules were to be derived from the fonner, which were to be reorganized around one Supreme Court. Thus, from the standpoint of cultural
refined by professors. It was quite evident, in addition, that statutory provisions strategy, the overemphasis of "theory" and "brilliance" proved to be disadvantageous
could only have the meaning and scope pennitted them by academics. In the and led to a universal discrediting of intellectuals in favor of an increased judicial
beginning, the prestige of professors induced lawyers and judges to accept their role in the legal processo
roles and to imitate the academic way of writing; the "theoretical" tone of legal AlI this had a further impact when the fascist regime decided to adopt a new
discourse became a dominant paradigm even among practitioners. It is quite clear Code. This project was entrusted to law professors, but they were no longer the
that this strategy of dominance succeeded because Italy lacked a single Supreme "oracles" of a common legal culture, but rather the divided exponents of different
Court and a weak organization of the bar. schools. It was impossible to unify their disparate definitions, categories, and
The shift away from French culture became so prevalent that when, in the vocabularies. The story ended with a unified Code of private and cornrnerciallaw
twenties, the Italian and French governrnents decided to adopt a common code of enacted in 1942,19 and inftuenced in a limited mannerby the German Cìvil Code,20
contract, the project was aborted because of the opposition of academic elites to a mainly in the fields of corporations, partnerships, and the law of inheritance. 21
project based on "outdated" French patterns.J7 Consequently. the new Italian Code was by and large a rewording of the previous
The 1920s represented the height of German prestige in Italy. In the 1930s, a Codes. Indeed, not aH the major features of the German Code embodied in tbe
new generation occupied the chairs and began to ehallenge the German paradigm "Allgemeiner Teil" of the BGB were transplanted, because the querelles de chapelle
from within. Two leading authors, Fr. Ferrara, Sr., and G. Messina, fueled a new about "generaI conceptions" were too strong in the drafting committee. Thus, the
wave of"critique" ofthe prevailing German paradigm by way ofthe same Gerrnan French pattern of legislation resisted change because of the disharrnony within tbe
formalismo Salvatore Pugliatti and Mario Allara became the major representatives academy, engendered by the exaggerations of "theory and brilliance."
and proponents ofthis approach. In their view, "inteHectual honesty" almost always Once again, in borrowing legal concepts and methods, the Italian systemrealized
required a global re-thinking of the law to produce new theories, giving up received a unique amalgam of French and German patterns, unthinkable in its countries of
truths and categories to build new systems, and even developing a new vocabulary origino Italian legai culture is thus a product of "contamination" based on tbe peculiar
when needed. They cultivated "mere brilliance"18 as the proper academic standard selectivity of appropriation. From a broader perspective, such a "contamination"
and the proper apptoach to law. The unintended impact of their efforts .was that of legai cultures is the key feature of transplants and appropriations of legai patterns,
each professar engaged in developing new theories, with new attendant concepts, one which we shaIl try to sketch in the conclusion.
categories, and vocabulary. The "common enterprise" of the Gennan pandectists
became an individualistic effort to propose the "best" personal system of law.
Because this occurred when the different courts were unified into one Supreme III. Conclusion: Convergence, Divergence, and "Contamination"
Court, the unintended consequence was that the role of professors rapidly declined
Is there any theory to be drawn from the history here presented? We maintain, first,
while that of judges increased. The Supreme Court was entrusted to a leading
that the process of importing and exporting rules and institutions is an aImost
figure, Mariano D'Amelio, who succeeded in reorganizing the previous case law
"unconscious" process of plugging them into tbe ideology of tbe borrowing system.
in a coherent way, imposing the practice of stare decisis, which heightened the
Thus, the meaning of the borrowed institutions will depend upon tbe struggle among
impact of the Court. Having followed this history, we can see how academic
the legai elites of the receiving system, a struggle that will almost aIways produce

19 L. Ghisalberti, La codificazione del diritto in Italia, Bari (1985).

n R. Sacco. supra note 6, at 262.
20 P. Rescigno, "Fondazione," in Enciclopedia del Diritto, Giuffrè, Milan (1968).
18 See J. Gordley, Mere Brilliance: The Recruitment ofLaIV Professors in the United States, 41
Am J Comp L 367 (1993). 21 See A. Gambaro & R. Sacco, Sistemi Giuridici Comparati, Utet, Thrin (1996),381-383.
CHAPTER1WO

CHAJYIER 1lIREE
something different from the originaI. But we also believe that the ideology of a
system is very often not a product of local and inner developments, but rather a
contamination of different traits derived from the outside. In more general terms, Constitutional Law
the actuallegal world is to be seen more as a world of "contaminations" than a
world divided into discrete families. The widespread cross-diffusion of French
and German patterns 22 within the civillaw, and the transplant of American models
in the present,23 shape a similar legallandscape across the western world, with a
Mario Comba l
wide variety of local varìants. We do not think that these contaminations are
something new, or strictly linked to globalization. We think that, with the eventual
exclusion of peculiarly insulated legal systems, such as the old "classical" English
common law, rooted in a peculiar organization of the legal profession, nearly every
system, even in antiquity, has grown through "contarninations." We maintain that I. Introduction
the practice of borrowing has always been a normal practice and, above all, that it
has never been, nor will it be, the peculiar activity of "comparative" lawyers alone. This overview of Italian constitutionallaw outlines the main features of the constitu­
It is a purposeful practice, to be carried on by municipallawyers, and to be studied tional system and provides the reader with an up-to-date description of both the
especially from the perspective of "weak" borrowing systems, responding to inner political and legal situation in Italy. It also describes the main actors in the system
strategies of govemance and the need to legitimate legal elites, and involving the and their principal roles.
conventional process of blanketing cases with authorities, and producing meaning. After a brief historical sketch in part il, this chapter follows the divide in tbe
Notably, a "comparativist" is one who is not involved in these ideological Constitution itself between fundamental rights and the frame of govemment. In
processes, because the comparativist has made a "move out," to deconstruct and the Italian Constitution, after the fust 12 articles setting forth the Fundamental
critique. He is one who has decided to wander about. Principles, Part l (arts. 13-54) addresses Constitutional Rights and Duties, while
What a comparative lawyer can do is to reveal the unofficial, and to critique Part 2 (arts. 55-139) describes the Organization of tbe Republic. 2
those processes of meaning production as social and political realities, peculiarly Part l of the Italian Constitution divides the Constitutional Rights and Duties
in a world of "contarninations." into four categories: Civil Rights (arts. 13-28), Ethical and Social Relations (arts.
29-34), Economic Relations (arts. 35-47), and Political Rights (arts. 48-54). In
part ID of this chapter these rights were regrouped to follow the more familiar
distinction between liberty rights and welfare rights, leaving a specific sub-paragraph
for constitutional duties. The jurisprudence of the Constitutional Court has shaped
the definition and the level of protection of constitutional rights such that tbey are
now, in a certain sense, what the Constitutional Court wants them to be. This is
particularly true with respect to welfare rights, which the Constitutional Court has
held to be justiciable in some cases, but not others.
Part IV of this chapter focuses on the present Italian form of govemment, based
as it is upon the relationship between Parliament (rectius: the parliamentary

22 See A. Gambaro & R. Sacco, Sistemi Giuridici Comparati, Utet, Turin (1996), 367-370. l Professor of Public Comparative Law, University of Torino, Faculty of Political Sciences
23 See U. Mattei, "Why the Wind Changed: Intellectual Leadership in Western Law," 42 Am J ([email protected]Ùto.it).
Comp L 195 (1994). 2 AlI citations are to articles of the ltalian Constitution UIùess otherwise noted. _
 CONSTITUTIONAL LAW
CHAPTER 1lIREE

majority) and the Govemment expressed through Parliament's vote of confidence. procedure of the regional Statuti and by another, much deeper, Constitutional reform
Because the Constitution does not clearly speli out the procedure nor the substance (Constitutionallaw no. 3 of 18 October 2001, hereinafier "Constitutionallaw no.
of this bond, it is necessary to use other tools borrowed from political science and 3/01"), approved by Parliament in March 2001 and conformed by popular refer­
public choice analysis to understand the behavior ofpolitical actors (political parties, endum in October 2001, which has now completely changed the intergovemmental
politicians, interest organizations, and voters) in the game of govemment formation system in Italy.
and survival.
The centrality of Parliament to the Italian form of govemment also influences II. Historical Background
the system of the sources of law, which can be defined, according to the framer's
notion, as monistic. That is to say, only Parliament can produce national sources of The Kingdom of Italy was officially proclaimed in 1861, after the army of the
law or authorize others (such as the Executive) to produce them. Part V will describe Kingdom of Sardinia (realIy the Piedmont-based Savoia dynasty) had conquered
how this design is rooted in the Constitution, and how it was changed first with a alI of central and southem Italy except for the Papal State. The new Kingdom of
shift from monism to dualism - represented by the huge govemmental trend toward Italy, headed by Vittorio Emanuele TI, was eager to stress its continuity with the
issuing decreti legge (law decrees) and decreti delegati (delegated decrees) - and previous Kingdom of Sardinia, and that is why the Statuto Albertino, the Charter
then through the increasing importance of European sources of law (directives and granted in 1848 by Vittorio Emanuele's father, King Carlo Alberto, was retained. 4
regulations) for the Italian legaI system. The Statuto was a typicalliberal Constitution, strongly influenced by the French
As we broaden the picture to examine other institutions of the Italian constitu­ Charte granted by Louis xvnr in 1814 and thus following the British model. The
tional system, most lucid approach is to view alI of them as checks and balances document provided for the protection of life, liberty, and property as "sacred rights"
the framers placed upon the power held by the parliamentary majority in connection and tolerated religions different from Catholicism, though Catholicism was
with its Govemment. 3 From this perspective, part VI analyzes the Judiciary, the proclaimed as the official religion. As for the structure of the State, the Statuto was •
Referendums, the Constitutional Court, and the Regions as devices that counter­ quite ambiguous, leaving open the possibilities of a dualistic (King and Parliament)
balance the power of Parliament/Govemment. In fact, all of these institutions can or a parliamentary form ofgovemment. It provided, pursuant to art. 67, that ministers
manipulate existing sources of law with a certain degree of autonomy from the were responsible govemment officials, without specifying whether their account­
national Parliament and Govemment, whose centrality is therefore effectively ability was to the King or the Parliament. After a decade of uncertainty, the classic
limited and counterbalanced. parliamentary form of govemment came to be considered prevailing form around
Recent developments in Italian constitutional law are considered in part VII. 1870, and it performed reasonably well until fascism introduced the dictatorship
Due to space limitations, it was necessary to select only a few representative topics. during the 1920s. The right to vote, which was initially restricted on the basis of
The work ofthe Commissione bicamerale per le Riforme istituzionali (the Bicameral wealth as determined by real property holdings, was only extended to universal
Commission for Institutional Reform) appointed by Parliament in 1997, offers a male suffrage in 1912 (law no. 665 of 1912).
good opportunity for a complete overview to the most current proposals of When fascism broke down in July of 1943 and Mussolini was arrested, the
amendments to Part 2 of the Italian Constitution, which deals with the Organization Statuto was reapplied, and a new govemment under Pietro Badoglio, who was
of the Republic (the Bicameral Commission was not given the power to reform appointed by the King, was formed. From a constitutional point ofview, the King
Part l of the Constitution). After the failure of the Commission, however, the process acted legitimately, since the Statuto, stili in force, empowered him to dismiss the
of federalization was fostered by the approval of a Constitutionallaw (no. l of 22 Prime Minister. But since the Parliament was still strongly associated with the
November 1999, hereinafier "Constitutionallaw no. 1199"), which introduced the fascist party, it was dissolved by a decreto legge and new elections were called.
direct popular election of the Presidents of the Regions and modified the approval Most scholars consider this to have been unconstitutional. Thereafter, the Badoglio

J This approach follows the interpretation ofL. Paladin, Corso di diritto costituzionale, Padova, 4 See D. Sorace, "Introduction to Administrative Law," chapter 6, part I, this volume; see also
3rd ed. (1998), p. 485. A. Padoa-Schioppa, "Short Sketch of Legal History," chapter l, part V, this volume.
CHAPIER 11IREE
CONSTITUTIONAL LAW

government continued to issue decreti legge without any check or activity by the which Italy is bound on the basis of intemational1aw, such as the UN Declaration
Par1iament. The situation changed dramaticaliy on 8 September 1943, when the of 1948 and the European Convention ofHuman Rights of 1950. It shou1d, however,
King signed an armistice with the Allied forces. Thereafter, the Third Reich deemed be mentioned that the Charter of Fundamental Rights for the European Union,
Italy an occupied territory and proc1aimed the Repubblica di Salò, a Mussolini-1ed drafted on 29 September 2000 and proc1aimed in December 2000 at the Nice Con­
government based in Northem Ita1y and backed by the German army, as opposed ference, cou1d have a great influence on the decisions of the European Court of
to the Kingdom of Ita1y, which was then based in southem Ita1y, but was moving Justice and probab1y also on the National Constitutional Courts, even if not formaliy
northwards with the Allied army. inserted into the text of the European Treaties. The Charter devotes special attention
On 25 June 1944, decreto legge no. 151 was enacted by the govemment, calling to social rights and economic liberties, while confirming the protection of standard
for the e1ection of a Constitutional Assemb1y with the power to approve a new civi1liberties, often using the same wording as the European Convention on Human
Constitution and to decide whether the monarchy shou1d be abolished. Subsequently, Rights.
on 16 March 1946, anew decreto legge stated that the choice between a Monarchy Three important questions must be answered before we analyze individual rights.
and a Republic was to be made by a referendum which was calied for on the First, who is entitled to constitutiona1 rights? Article 2 provides that "[t]he Republic
foliowing 2 June. Decreto legge no. 151 of 1944 is considered a "bridge" between recognizes and guarantees the invio1ab1e rights of man, both as an individuaI and
the Statuto and Italy's new Constitution, which was approved on 22 December as a member ofthe socia1 groups in which one's personality finds expression." It is
1947 (and enacted on l January 1948), by the ConstitutionalAssemb1y elected on thus clear that not only the individuaI, but a1so the "socia1 group" is entitled to
2 June 1946, the same day in which the referendum abo1ished the Monarchy. constitutiona1 rights, according to the Italian Constitution. The typica1 example of
The new Constitution explicitly spelied out the parliamentary form of govem­ such a socia1 group is the family, which is defined in art. 29 as a "natural association
ment, stating that "[t]he Govemment must enjoy the confidence ofboth Chambers" founded on marriage," but loca1 governments (art. 5), 1inguistic minorities (art. 6),
(art. 94). It introduced three new institutions in the structure ofthe State: Regions, the Catholic Church and the other Churches (arts. 7 and 8), trade unions (art. 39),
the Constitutional Court, and the Referendum. The Constitution's Bill of Rights and po1itica1 parties (art. 49) are ali mentioned as well. Constitutiona1 rights do not
maintained ali the classical freedoms, but weakened the constitutional protection only invo1ve a question between the individual and the State. There is also an

of property and freedom of contract in order to promote we1fare rights like hea1th, intermediate tier (the social group) through which the individual realizes his or her

education, and socia1 assistance. constitutional1y protected 1iberty.

After the first general e1ections of 18 ApriI 1948, when the socia1-communist When the Constitution dea1s with individua1s, a distinction must first be made
alliance was defeated by the coalition 1ed by the po1itica1 party known as the between citizens and non-eitizens: some rights are given to alI persons, while others
Christian Democrats, the new Italian Par1iament was seated and the Constitution are accorded only to citizens. The wording of art. 2 suggests that the State must
was fuliy applied. (Notab1y, the Constitutional Court entered into force in 1957, provide a minima11eve1 of rights to everyone, citizen or non-citizen. Other rights _
the Referendum in 1970, and the Regional system only in 1977.) name1y, political rights and some we1fare rights - are 1imited to citizens. (Thus, for
examp1e, health and education are given to all, but social assistance only to citizens.)
III. Constitutional Rights and Duties In order to recognize Ita1ian citizenship, 1aw no. 91 of 1992 applies the so-eal1ed •
ius sanguinis (requirement that a person must be the son or daughter of an Italian
This section of the Constitution foliows the classica1 divide between liberty and citizen), but the ius soli (requiring regu1ar residence in Italy for five or ten years)
we1fare rights, though upon deeper ana1ysis this division emerges as deceptive1y can also be relied upon.
comp1ex. The classica1 example of this difficu1t divide is provided by freedom of Second1y, it is important to understand who is bound by rights afforded under
the presso Is freedom of the press mere1y a liberty right that provides everyone the the Constitution. Is it on1y the State (in the broad sense of alI the public bodies), or
right to publish what he or she wishes, or it is also cognizab1e as a we1fare right does this responsibility also extend to private corporations, where such corporations
that binds the State to offer everyone the opportunity to publish his or her thoughts represent the so-cal1ed poteri privati or "private powers" (e.g., 1arge corporations,
for free?
In this section it will not be possib1e to examine the Declarations of Rights to
CHAPTER THREE
CONSTITUTIONAL LAW

political parties, Churches, and so on)?5 Tbe matter is higWy controversial, but, as
with freedom of speech, the Constitutional Court has held that no entity, public or in detail. Tbe personalliberty afforded by art. 13 and tbe liberty ofpersonal dornicile
private, shall abridge an individual's constitutional rights (decision no. 122 of 1970). stated in art. 14 require a deep analysis of the system ofcriminal procedure, recent1y
From this perspective, social groups mentioned in art. 2 as possible beneficiaries reformed at a constitutional level with the amendrnent of art. 111 (enacted by
of constitutionalrights can also be perceived as potentially threatening to a person's constitutiona1law no. 2 of 23 November 1999). They have to be read in connection
individuaI rights, and these groups are thus also bound by tbem. with arts. 25 and 27, which provide for procedural guarantees in crirninal juris­
Thirdly, one has to deal with the problem of the interpretation of constitutionaI diction, as well as the general rules on judicial procedure set forth in art. 24. Articles
rights: can they be expanded by the ConstitutionaI Court, or is it necessary to 17 and 18, dealing with the right of assemb1y and freedom of association, are
adhere to the original meaning ofthe constitutional wording? In strict legaI terms, connected with those rights of social groups mentioned earlier, and, in particular,
the question is whether the "inviolable rights of man" mentioned in art. 2 are only with the constitutional regulation oftrade unions (art. 39) and political parties (art.
49). Because freedom ofreligion (arts. 19-20) and speech (art. 21) are common1y
those anaIytically described and protected in the subsequent articles of Part 1 of
tbe Constitution, or whether art. 2 is an "open formula," allowing for the "discovery" considered the core liberty rights in a liberaI democracy, they deserve a slightly
more thorough analysis.
ofnew fundamental rights by the Constitutional Court through a sort ofevolutionary
process, and assuming that the rights provided for in the Constitution are on1y l. Freedom 01Religion
those which were felt to be fundamental in 1948.
In its first phase, the Constitutional Court followed an interpretation based on Freedom of religion, which is considered the root of aH modero 1iberties and
the notion of"originaI intent" (such was the decision no. 29 of 1962): an extensive democracies, is a particularly hot issue in Italy due to Italy's deep link with the
construction of constitutional rights was adopted only when strictly necessary and Catholic Church. This link is based not only on the cultural and religious history of
stemming from the text. Tbe case of the right to life, not mentioned in the Constitu­ the Italian Peninsu1a but also on Italy's 1929 Lateran Treaty with the Holy See.
tion but presupposed by all other rights (decision no. 26 of 1979), and the case of Artide 19 provides that "[a]lI shall be entitled to profess their religious beliefs
sexual identity (decision no. 98 of 1979) provide two examp1es. But by tbe ear1y free1y in any form, individuaIly or in association with others, to promote tbem, and
1970s, tbe Constitutional Court had recognized a new right, the right to privacy to celebrate their rites in public or in private, provided that they are not offensive
(decision no. 38 of 1973). Even tbough it did so through the application of the to public morality." This language represents a significant shift towards a secular
European Convention of Human Rights, this neverthe1ess constituted an initial state when compared with art. 1 of the Statuto Albertino, which provided that
step towards an "open" interpretation of art. 2 protecting tbe "inviolable rights of "[t]he Catholic, Aposto1ic, Roman Re1igion is the on1y Religion of the State. Other
man," which has 1ed, among other things, to tbe recognition of a right to housing religions present1y existing are to1erated according to the Law."

(decision no. 4040f 1988). Freedom of Religion is protected in all its facets - the right to promote it, the

right to change it, and tbe right not to be participate in religious activities at allo On

tbis 1ast point the Constitutional Court struck down clauses in the Codes of Crirninal

A. Civil Rights (Negative Rights)

and Civil Procedure requiring witnesses to swear "before God" before testifying

Civi1 rights are also referred to as diritti negativi, or "negative rights," because in court (decision no. 117 of 1979).
they prohibit the State from regulating or intervening in certain areas of private Artide 20, which protects re1igious associations, is a specification of art. 18, but
life. Tbese negative rights are listed in arts. 13 to 28 and are consistent with the its wording is constructed on1y in a negative sense: the re1igious nature of an
tradition of western liberaI democracies dating back at 1east to the French association cannot be considered a valid reason for burdening it with any kind of
Declaration of Rights of 1789. negative provision. The Constitution 1acks an explicit provision forbidding any
Space limitations prevent examination of each constitutional1y protected freedom "establishment" of religion, meaning any positive provision inlavar of a religious
association. This is probab1y due to a need to maintain harmony with arts. 7 and 8
of tbe Constitution, which allow the State to regu1ate its re1ationship with the
5 See G. Lombardi, Potere privato e diritti fondamentali, Torino (1967). Catholic Church (art. 7) and with other religions (art. 8) on the basis of special
agreements, tbus leaving open the possibility of more favorable trp."tmpnt f~~
 CONSTfI1JTIONAL LAW
CHAPTER TIlREE

law can be upheld, notwitbstanding the limitation imposed on the presso The most
religious associations that have signed those agreements. common countervailing constitutional value is that of a person's reputation and
The interpretation of art. 20 noted above, read together with tbe wording of art.
privacy. Rules set forth by tbe Italian Supreme Court (Corte di Cassazione, decision
33 para. 2 ("The Republic shall lay down generaI rules for education and shal1
no. 5259 of 1984) provide that a defamatory statement published in the press is
establish public schools ofal1 kinds and grades. Public and private bodies shall be
legitimate only if (l) tbe fact reported is true (and not merely likely to be true), (2)
entitled to establish schools and educational institutions without financial burdens
the fact is correctly described, and (3) tbere is a social interest in knowing tbe fact
on the State") (emphasis added) is at the core of one of tbe most striking debates
(e.g., the defamed person is a "public figure").
presently dividing constitutional lawyers and political parties over freedom of
Tbe real problem with art. 21 is that it is already obsolete in at least two respects.
religion in Italy. The question posed is whetber or how private schools will be
First, it does not mention radio or television (even though in 1948 radio was widely
financed (where "private" means not established by tbe State or any other public
used in Italy). After an uncertain constitutional case law, the issue is now regulated
body). Because private schools are in large measure Catholic, their public financing by law no. 223 of 1990 (substantially modified by law no. 206 of 1993, and by the
e
is commonly perceived as the funding of Catholic schools. The speciallanguag
decision no. 420 of 1994 of the Constitutional Court), which allows national
of art. 33 para. 3, "without financial burdens for tbe State," has been interpreted in
broadcasting only under State concession. Such concession cannot be granted if
various ways. It has been construed by the mainstream of constitutionallawyers to
the petitioner can control, in connection with the ownership of newspapers, more
mean tbat the State cannot spend money to finance private schools. It has also been
than 25 percent of the news market. This law also provides for special authority
construed to mean that the State cannot be forced to do so, but can if it wishes.
created to avoid trusts and monopolies in tbe field of information.
A similar hody debated problem deals with tbe teaching of Catholicism in State­
The second aspect of art. 21 's obsolescence is demonstrated by law 223/90 itself.
run schools. Law no. 121 of 1985, which changed a previous law dating back to
The present Constitution stilI treats freedom of tbe press as an individuaI right
1929, provides far tbe teaching of "religious culture" in State-run schools, on the
requiring protection from State interference. It is more correctly thought of as a
grounds that tbe Catbolic religion is an important part ofltalian culture. But students
"private power" which has to be limited by the State in order to protect citizens'
who do not wish to attend religious culture classes (or parents of students who are
freedom. 6 Tbat is precisely what law 223/90 aims to do. Tbe citizen has to be
minors) can avoid them by signing a declaration at the beginning of tbe school
protected not only against tbe State's interference through tbe production of news
year. infonnation, but also against the news's power over tbe citizen. For this purpose,
A problem lying at the border between freedom of religion and freedom of
tbe State must regulate and limit what was once called "Freedom of Speech."
speech which has recently come before the Constitutional Court is tbe question of
the crime of speech that offends the Catholic religion, a crime set forth in the
B. Welfare Rights ("Positive Rights")
Italian Criminal Code. Pursuant to decisions 440 of 1995 and 329 of 1997, the
Constitutional Court declared that this crime extends to speech offending every The constitutional foundation of social rights can be traced to art. 3 para. 2, which
religion, not only Catholicism. It is left to the legislature to define what "religion" is. states that "[i]t is the duty of tbe Republic to remove ali economic and social
obstacles which, by limiting the freedom and equality of citizens, prevent the full
2. Freedom ofSpeech development of the individuaI and the participation of alI workers in the political,
Article 21 protects tbe freedom of expression of everyone's thoughts, by any means economic, and social organization of tbe country." Welfare rights are tbus considered
of communication. It also provides that freedom of the press can be limited only a necessary instrument for tbe implementation of civil rights. Tbe Republic must
by subsequent seizure, and not by prior restraints like authorization or censorship. remove economic and social obstacles tbat may prevent citizens from fully enjoying
These limitations may be imposed only by judicial order and only in cases expressly civil rights like liberty and equality and, in particular, the right to participate in
provided for by the law regulating the press or for offense to public morality. those socia! organizations which are so crucial in the Italian Constitution's idea of
The jurisprudence of the Constitutional Court has expanded tbe substantial what "rights" are.
limitations of freedom of the press based on the principle of balancing constitu­
tional rights.lf a law in conflict with the principle of freedom of the press is rooted
6 See A. Di Giovine, I confini della libertà di manifestazione del pensiero, Milano (1988).
;n ,mother constitutional value and the balance weighs in favor of the latter, that
:HAJYfER 1HREE
CONSTITUTIONALLAW

Following a tradition that dates back to the 1919 Weimar Constitution and to
(art. 52), which was abolished with 1aw no. 331 of 2000, introducing volunteer
che 1946 Preamble to the French Constitution, the main welfare rights granted by
army model. The possibility of perforrning alternative social service constituting a
the Italian Constitution are health (art. 32), education (art. 34), and social assistance
significant contribution to the country's welfare was introduced under law no. 772
(art. 38). These are all "expensive rights," in the sense that in order to be granted, of 1972.
they require the appropriation of funds from the State budget.
Taxes have to be paid by everyone (not only by citizens) in re1ation to each
Health is defined as a fundamental right to be granted to anyone who cannot
person's economic capacity. The fiscal system is presently divided on a progressive
afford to pay for il. Law no. 833 of 1978 created the National Health Service,
basis with five tax rates, ranging from 18.5% to 45.5%. The Constitutional Court
providing health assistance to all persons, notwithstanding their wealth. Judicial
usually recognizes a presumption of constitutionality for tax laws but will strike
interpretation of art. 32 expanded it by awarding damages to a person for the
down those laws that are patently contrary to art. 53. Alaw may be deemed patently
violation of his constitutional rights to health, even if aetual damage was not proved. 7
contrary when it imposes unjust fiscal discrirnination between different categories
Education must be given to everyone for at least eight years. It is compulsory 8
of taxpayers. Only recently has the Constitutional Court recognized _ though not
and free. But the Constitutional Court has declined to broadly interpret art. 34,
in crystal-clear terms - a sort of principle of "confidence" in tax legislation,
holding that books and transport are not affected by art. 34 and therefore that the
according to which new tax legislation must be foreseeab1e, so that the tax code
State is not ob1iged to provide them to everyone for free (decision no. 7 of 1967).
does not unfairly blind-side persons who decide to invest their money in certain
Social assistance is twofold: it consists of social security payments to people
sectors of the economy that suddenly become subject to special tax treatment. 9
who are unab1e to work or who, for some reason, cannot make a living on their
Local taxes are a1so permitted, at the regiona1 level, and to some extent at the
own; it also consists of mandatory insurance for workers in order to pay for their municipal1evel.
retirement pensions, accidents, healthcare, and so ono The Constitutional Court,
while acknowledging statutory discretion of the law in defining the level of social
assistance, has stated that a rninirnum leve! of assistance must be granted by the IV. The Parliamentary Form of Government in Italy
State (decision no. 80 of 1971).
The cost of social rights is embedded in these same articles of the Constitution. As noted above, Italy is run by a parliamentary form of govemment. In its elassic •
Artiele 41 recognizes the freedom of contract, but it also says that such contracts definition, that is a form of govemment in which the Executive branch needs the
cannot be executed against the common good. Artiele 42 recognizes private property, vote of confidence of Parliament in order to take power, as opposed to the
but no longer considers it a fundamental right. On the contrary, private property presidential form of govemment, in which the Executive, like the Legislative branch,
is directly elected by the peop1e.
can be lirnited in consideration of its "social function." Artiele 43 allows the State
to expropriate private enterprises "of primary common interest that concero essential Among the parliamentary form of govemment, Ita1y was traditionally said to
pub1ic services or energy sources, or act as monopolies." Private property and follow the "consociative" model, as opposed to the Westminster mode1, due mainly
freedom of enterprise are thus subordinated to the social interest, an interest mainly to its multi-party political system and its proportiona1 electoral1aws. This situation
represented by the granting of social rights. is now changing under the pressure of a new majoritarian electoral1aw (1993) and,
more generally, as a consequence of a deep crisis of Italian politics which has led
C. Constitutional Duties Italy from the First to the Second Repub1ic (to adopt French terrninology used in

The main duties provided for in the Italian Constitution are (l) the duty to participate
in pub1ic expenditures through the payment of taxes (art. 53); (2) the duty to be
faithfu1 to the Repub1ic (art. 54); and (3) the "sacred" duty to defend the Republic. & See R. Lupi, Corso di diritto tributario, Milano, Giuffrè, 5th ed. (1998), p. 18.
This 1ast has unti! quite recently ineluded compu1sory rni1itary service for men 9 See Decision no. 315 of 1994, which upheld an ex post facto tax on takings compensation
because it was widely advertised by the press before its enactment, and contra, decision no.
111 of 1998, which struck down a law regulating the Tax Court and imposing short terms for
7 Cass., decision no. 796 of 1973; Corte cost., decision no. 88 of 1979. petitioners without prior notice.
 CONS1ITUTIONAL LAW
CHAPTER TIIREE

always remained the same over the last 50 years. Rather, it has depended on different
the Italian media).lO
political situations (higher or lower levels of coherence among coalition partners)
and on the President's willingness to intervene. But it has reached certain peaks,
A. The Formation of Government: The Vote of Confidence
sometimes even imposing minority goveroments. 12
Artiele 92 para. 2 of the Constitution states that "[t]he President of the Republic This role of the President of the Republic has decreased to some extent since
appoints the President of the Council and, on his advice, the ministers," while art. 1994, when the new majoritarian electorallaw of 1993 was fust applied. That law
94 para. l states that "[t]he Governrnent must enjoy the confidence of both did not reduce the number of political parties, but it forced them to deelare the
Chambers." That artiele goes on to say that within ten days of its appointment, the coalition be/ore the election, with the reSUlt that the voter knew who would be the
Govemment shall appear before each Chamber to obtain its vote of confidence, Council President if a certain coalition were to win. That is what happened in the
and that any single Chamber can approve a no-confidence vote. Artiele 88 gives cases of Silvio Berlusconi, leader of the political party Forza Italia after the 1994
the President of thc Republic the power to dissolve the Chambers, though it does elections, Romano Prodi, then leader of /' Ulivo, after the 1996 elections, and Mr.
not provide a elear indication of when and why he can do so. Berlusconi a second time, after the elections of 200 l.
Notwithstanding the relatively generaI language used by the Constitution to The President of the Republic, in contrast, retains his power when a govemment
describe judicial powers, the Constitutional Court has never been asked to intervene crisis occurs because a party of the originaI coalition has stepped down. In such
to interpret it. The procedure of the formation of govemment has thus remained a cases, the President of the Republic is again in a situation similar to that which
field modeled mainly by political actors, primarily political parties. As a result, it existed prior to th~ new electorallaw, because the President has to nominate a new
has undergone significant changes since the beginning of the 1990s, when the new Council President without elear direction from the electorate. Thus, he is required
electorallaw reshaped the party system. to either attempt to form a new coalition, or to decide that a new coalition cannot
When a govemment resigns, the President ofthe Republic must find a candidate be achieved, and dissolve Parliament. President Scalfaro did just that in 1995,
for Presidente del Consiglio, or "Council President," who is likely to win a when he appointed Lamberto Dini as Council President following the crisis of the
confidence vote in both the House of Deputies and the Senate. In order to do so, he Berlusconi governrnent caused by the withdrawal of the Lega Lombarda from the
begins the so-called consultazioni by meeting with all the leaders of political parties coalition. President Scalfaro dissolved Parliament again in 1996, and a third time
represented in Parliament as well as other people influencing Italian politicallife in 1998 whenhe appointed Mr. D'Alema afterthe crisis inMr. Prodi's governrnent
(trade union leaders, speakers of the two Chambers, former Presidents of the caused by the exit of Rifondazione Comunista, the new communist party headed
Republic, and so on). The power of the President is increased if he has a wider by Mr. Bertinotti. Current President Ciampi found hirnself in this situation when he
range ofpossible choices. Since the first general elections under the new Constitution appointed Mr. Giuliano Amato as Council President in 2000, since Mr. D'Alema
(held in April1948), the President of the Republic has always played an important resigned after his party's loss in the regional elections of May 2000.
role in the choice of Council President. ll Coalition goveroments have always been
the rule; even when only one party has goveroed, it has never enjoyed a parliament­ B. Political Parties, Electoral Laws and Public Financing of Political Activity
ary majority, so it has always needed to seek the backing of other parties in Parlia­
ment, thus leaving the President of the Republic with the power to choose which Political parties, which are so central to running the Italian govemment lik:e modero
coalition to try fust. Of course, the power of the President of the Republic has not democratic States (so-called Parteienstaat), are usually not given much space in
modero Constitutions. The Italian Constitution only regulates them in art. 49. Article
49 ofthe Italian Constitution is located in Part l, Title IV (on political rights). The
\O Literature in English about the crisis of Italian political system is not difficult to find: See, same ambiguity (or obsolescence) conceming freedom of speech also exists in art.
inter alia, S. Z. Koff & S. P. Koff, ltaly. from the first to the second republic, London and 49, because what should be perceived as a power (the political party) is instead
New York, Routledge (2000); S. Gundle & S. Parker (eds.), The New Italian Republic, London
and New York, Routledge (1996); C. Mershon & G. Pasquino (eds.),Italian Politics: Ending
the First Republic, Boulder, Westview (1995). 12 See K. Strom, Minority Governments and Majority Rule, Cambridge (1990) p. 132-188.
11 See id., S. Z. Koff & S. P. Koff, p. 140.
CHAPTER 1llREE
CONSTlTUTIONAL LAW

constitutionally protected as a liberty right. Article 49 states, in fact, that "alI citizens Parliament was forced to approve two new electorallaws: law no. 276 of 1993 for
shall have the right to associate freely in political parties in order to contribute by the Senate and law no. 277 of 1993 for the Chamber of Representatives.
democratic means to the deterrnination of national policy." However, it is silent The new electorallaw for the Chamber provides for a mechanism by which 75
about the role of political parties in the forrnation of governrnent and in the electoral percent of the Representatives are elected in single member districts and 25 percent
procedure. 13 are elected with proportional representation, but only political partiesd with more
The relationship between political parties and electoral procedure is ambiguous. than 4 percent of the vote at the national level can win seats. Each voter has two
Political scientists often stress the reciprocal influence of the electoral process on votes, which can be split, one for the proportional representation constituency and
political parties: majoritarian election yields a two-party system, while proportional the other for one's electoral district. For the election of the Senate, the same
election produces a multi-party system. On the other hand, a two-party political proportion between the majoritarian and representative systems is retained (75 to
system is more likely to prefer a majoritarian electorallaw, while single parties in 25), but every voter has only one vote, which can thus be used only in favor of one
a multi-party system find the proportional electorallaw more suitable. 14 party. Another difference between Chamber and Senate electorallaws is that in the
In Italy, the gridlock of a multi-party system would never have approved a Senate, there is no minimum percentage of votes required in order to gamer seats
majoritarian electoral law because that would have meant self-destruction was in the proportional part of the election.
solved only by extemal intervention. A referendum was called on 9 June 1991 on The new electoral laws of 1993 have been applied three times - once in the
the initiative of two different groups, one headed by a Christian Democrat back­ 1994 election (won by Mr. Berlusconi's center-right coalition), a second time in
bencher named Mario Segni, and another by a leading Adrninistrative Law professor 1996 (won by Mr. Prodi's center-left coalition), and lastly in 2001 (when Mr.
and forrner Socialist minister, named Severo Gianini. These groups were substan­ Berlusconi won again). But they have only partial1y attained the scope for which
tially isolated in the political world and backed by the so-called "civil society." they were approved. The Italian political system has not shifted to a two-party
The referendum was approved and, while the consequence was limited in legaI model. On the contrary, the number of political parties has increased. But it has, in
terrns to the abolition of the multiple-choice preference vote, it was politically effect, moved toward bipolarization through the creation of two coalitions, each of
devastating because it showed that the people could actively intervene and express them headed by a recognized leader declared be/ore the generaI elections, so that
their distrust of the political system as a whole. the direct investiture of the Council President can now be deemed a reality. Of
The referendum of 1991 did not significantly modify the Italian electorallaw course, one must consider that such pre-electoral coalitions are unstable and that
based on the proportional system, but its political consequences, coupled with their composition can change, with the consequence that the Governrnent is forced
other factors,15 produced an upheaval in the 1992 generaI elections.I6 A new to resign (as was the case for each of Mr. Berlusconi's and Mr. Prodi's Governrnents).
referendum called on 18 April1993, which proposed changing the current electoral Upon receipt of resignation the President of the Republic is compelled to appoint
law into a quasi-majoritarian system via the elimination of single articles or portions a new Council President not originally known to the electorate.
of articles, was overwhelmingly approved. On the basis of the referendum results, The two coalitions on the scene in the year 200 l, before the political elections,
were the center-right, headed by Mr. Berlusconi and formed by three parties (the
new Berlusconi-centered Forza Italia, the post-fascist Alleanza Nazionale, and
13 On the contrary, one notes that art. 21 ofthe German Grundgesetz (1949) on politica! parties the Catholic CCD), and the center-left, organized around the forrner Communist
is inserted not in the section related to fundamental rights, but in the section on the organization
party (now DS and PdCI) and composed of eleven other parties, including the
of the form of govemment.
Catholic PPI, the socialist SDI, and the Green Party. A number of other small
14 M. Duverger, L' infiuence des systèmes électoraux sur la vie politique, Paris, A. Colin (1950);
parties (often one-man parties) are scattered along the parliamentary spectrum,
G. Sartori, Comparative Constitutional Engineering, MacMillan, 1994.
further contributing to Italian political instability.
[5 More generally, for the causes ofItalian crisis from 1992 onwards, see Ginzborg, "Explaining
If the foregoing illustrates a classical use of the referendum as a tool in the
Italy's Crisis," in S. Gundle & S. Parker, supra note lO.
hands of "the people" in order to impose their will on the political parties (or, at
16 See S. Parker, "Electoral Reforms and Politica! Change in Italy, 1991-1994," in S. Gundle & least, in order to force the parties to do something), a different tale of the law
S. Parker, supra note lO, pp. 40, 42.
regarding the public financing ofpolitical activity, shows how political parties can
 CONSTITUTIONAL LAW
CHAPTER THREE

in the end overturn the popular will expressed in the referendum. It also shows that V. Sources of Law
perhaps the system of public financing of political activity is more vital to political
parties than are the electorallaws themselves. A. Monistic System
The Italian law on the public financing of political activity dates back to 1974.
It provides for partial reimbursement of electoral costs to candidates and for a The Italian system of the sources of law can be traced in the Constitution only in
contribution to the regular activity of political parties. The second type of public its general design. In order to find specific rules solving the conflicts between dif­
financing (to parties for their non-electoral activities) was challenged in 1979 by ferent sources, one must look elsewhere. The Constitution describes the organization •
referendum. It survived by strict majority, but was overwhelmingly abolished by of the Republic as centered on the Parliament, which is the only body empowered
another referendum in 1993 (the same referendum which modified the electoral to make legislation (art. 70), with the two exceptions of the Govemment and
Regions. While it is true that the Govemment and the Regions would seem to be
system).
Law no. 515 of 1993 enacted a new generaI regulation of electoral campaign, exceptions, both may still be said to act under the "supervision" of the Parliament.
modifying the rules regarding reimbursement of candidates' and parties' electoral Statutory law in a civillaw system is the master of the sources of law which might
expenses, and introducing limits on electoral spending and the use of media (the be seen as a political decision rooted in the Constitution. But the actual functioning
so-called par condicio), as well as the duty to disclose the donors' identity. With of a system of sources of law requires a precise set of rules about how to solve
law no. 2 of 1997, the public financing of parties for non-electoral activities was conflicts between different sources; such a set of rules cannot be found in its entirety
practically reintroduced, disguised as the taxpayers' voluntary decision, to be in the Constitution. ,
expressed every year on the tax remrn. The Constitutional Court upheld the law, The simpler model of the "three" Italian sources of law follows a hierarchical
notwithstanding its infringement on the referendum's results (decision no. 9 of pattern: the Constitution, followed by the national statute, and finally the national
1997). But the application of law 2/97 turned out to be very time-consuming (or, adrninistrative regulations. Thus, when a law is in conflict with the Constitution, it
as one observer noted, steeply cutting party budgets); thus, law no. 146 of 1998 is invalido A regulation in conflict with a law is sirnilarly invalido The invalidity,
was enacted, whose art. 30 states that, for the year of 1998 only, a fund of 120 however, operates differently in the two cases. In the case of an unconstitutional
billion lira is to be divided among parties for their non-electoral activity, independent law, it is the Constitution itself that affords the Constitutional Court the power to
from the result of taxpayers' choices. Eventual1y, law 157/99, whi1e regulating declare that it "ceases to have effect" (art. 136), while for an illegal govemment
public financing of campaign spending anew, has extended (in art. 7) the temporary administrative regulation, the Constitution is silent, and a determination of the
provision of law 146/98 until the year 2002. A new referendum held in May 2000 rule 's validity is found in the machinery of the Judicial control over Administrative
was called in order to abolish law 157/99, but the result was invalid, since 1ess than Activity.17
50 percent plus one of voters cast their ballots, hence not receiving the minimum From a procedural point of view, the Constitution can be amended only by the
procedure provided for in art. 138: a double vote by the two chambers, and an
tumout required by the Constitution.
Analysis of the behavior of political actors must take into consideration another absolute (50 percent plus l) majority required for the second vote, with the
element that is presently one of the hottest political issues in Italy: the legislative possibility that the members of the Chamber could calI a popular referendum on
regulation of a candidate's electoral campaign financing and spending (even where the amendment if it has not been approved by a two-thirds majority in the second
that spending involves use of a candidate's own money), and regulations imposed vote. A special procedure for an organic amendment to the Constitution was
on media (primarily television and newspapers) in order to guarantee the same introduced by Constitutionallaw no. l of 1997. 18
amount of advertising to each candidate or party. Known as the par condicio, law The procedure for the approvaI of a national statute is set forth in arts. 70 to 74. •
515/93 introduced such rules for the first time. These rules were modified by several Acertain number of citizens (50,000 electors) can propose a law, but only in practice
law-decrees issued in 1995, but never approved by Parliament, and the par condicio
was not renewed after the 1996 election.
17 See D. Sorace, "Adrninistrative Law," chapter 6, this volume.
18 See part VII, infra.
CHAPfER 1lIREE
CONS1ITUTIONAL LAW

the Govermnent and, to a lesser extent, single Representatives or Senators have

The chronological criterion is not applied when a conflict arises between two &I
the chance to have their proposals approved. InternaI Chamber or Senate
sources of law with the same hierarchical position but within different jurisdictional
Committees are widely used for the discussion and approval of bills, while the
ambits. In this situation, the competence criterion is employed. The most important
Italian Constitution does not provide far bicameral commissions in order to eliminate
case is that of regional concurrent legislation, which are enacted by regions only in
differences between the twoChambers. Once approved by the two Chambers, each
specific matters (listed in art. 117, para. 2). They are, however, subject to the
by a simple (50% plus one vote) majority, a law stilI has to be promulgated by the
Constitution and to generaI principles set forth by nationallaws. But nationallaws
President of the Republic, whose refusal must be accompanied by a reasonable
cannot regulate the fields reserved to the regional concurrent legislation by art.
explanation and may in any case be overtumed by a second approval of both
117, para. 2 in detail. If a conflict arises, the interpreter has to determine whether it
Chambers, again with a simple majority. The promulgated law is ultimately
concerns a matter covered by art. 117, para. 2, in which case the regionallaw
published in the Gazzetta Ufficiale and enters into force 30 days after publication.
prevails (ii it does not attempt to set general principles). If art. 117 does not apply,

When one deals with the Govermnent's acts, the "tree" of Italian sources of law
the regionallaw is unconstitutional (the approval procedure of regionallaws will

has to be broadened. The Govermnent can, in fact, issue both acts located at the be discussed in part VI D, "The Regions," infra).

same hierarchicallevel of the statute and acts under that level. The latter category
is that of administrative regulations, issued by the Govermnent following the
B. The Breach of Monism: The Increasing Role of the Executive Branch

procedure set forth in law no. 400 of 1988, art. 17 (the Constitution only says that and the European Sources of Law

they are issued by the President of the Republic pursuant to art. 87 para. 5).
Adrninistrative regulations are always subject to the rule of law, except for the The system of the sources of law rooted in the Italian Constitution, as thus far

controversial case of the so-caHed delegated regulations designed in order to foster described, is typically positivistic and it pretends to be complete. Every legaI

deregulation. The first category is that of decreti legislativi (art. 76) and decreti controversy must be resolved by the direct or indirect will of Parliament, and this

legge (art. 77). Both have the same force as parliamentary law, but the Constitution resolution must cover every possible conflict between sources. In this sense,

provides that they need prior (decreti legislativi) or subsequent (decreti legge) officially it is hermeneutically closed. But in reality, the sovereignty ofParliament

approval by Parliament in order to be enacted or keep their force. Thus, in both has been undermined in at 1east two significant respects.

cases the principle of the sovereignty of Parliament is preserved. The first is the increasing role of govemment legislative activity. Decreti •
Decreti legislativi are delegated legislation used in technically complex fields legislativi and especially decreti legge were originally intended as legislative tools
(e.g. taxation, or procedural codes) where a sophisticated system of coordination to be used in exceptional circurnstances. Notwithstanding this original constitutional
is needed: the Parliament enacts a delegating law setting the basic principles and intent, decreti legge quickly became a common legislative tool used by govemment
the time required, and the Govermnent issues the actual delegated decree. Decreti to ensure that its bills would be quickly discussed by the two Houses ofParliament.
legge may be issued by the Govemment only in "exceptional cases of necessity When they were not discussed in time, or even when they were rejected, the
and urgency" and they have to be immediately transmitted to Parliament, which govemment would issue a new decreto legge with the same content, so that the
can approve them in 60 days; otherwise, they "lose effect as of the date of issue." constitutionallimit of sixty days for decreti legge was regularly violated in practice.
The hierarchical criterion cannot be applied, obviously, if a conflict arises between In fact, when the trick was used continuously, the govemment could renew the
two sources of law belonging to the same category (e.g. two laws, or a law and a decreti legge every sixty days for long periods - even years - thereby avoiding
decreto legge, or two administrative regulations, and so on). In this case, the inter­ parliamentary oversight and thus practically acting as a legislator.19
preter has to apply the rule of lex posterior priori derogato That is, the subsequent The Constitutional Court fmally declared this situation unconstitutional in 1996 •
source of law modifies the preceding source if they both occupy the same
hierarchical position. The new source of law can only set dispositions for the future,
unless it is explicitly retroactive, but ex post facto laws are forbidden in criminal 19 In 1993,259 decreti legge were issued by the governrnent, and in 1994 the number rose to
law (art. 25 Const.) and limited in tax law (argued ex art. 53 Const.). They are 336, while in 1993 only 177 laws were approved, and in 1994 only 163; see L. Paladin, Le
fonti del diritto italiano, n Mulino, Bologna (996), pp. 245-46. Examples of this practice in
permitted in aH other cases.
relalÌon lo takings of private property are discussed in chapter Il, this volume.
 CHAPTER 1lIREE
CONSTlTUTIONAL LAW

(decision no. 360 of 1996), thus drastically reducing the number of decreti legge. and every judge has to apply them, even if they are in confiict with nationallaws
But since a quasi-legislative activity by the Executive seems unavoidable (it is a (Constitutional Court decision no. 170 of 1984). These regulations have an inter­
general modern tendency), from 1996 onward the Italian Government has been mediate position in the hierarchical scale of Italian sources of law, standing between
finally accorded an impressive degree of legislative power. To cite one example, the Constitution and the national law. They cannot modify the Constitution, but
the entire reform of the adrninistrative system (the so-called riforma Bassanini) they always preempt the nationallaw.
was enacted through decreti legislativi, as was a complete renovation ofthe taxation
system.
• lì is evident that this shift of legislative power from the Legislative to the VI. Checks and Balances on Parliamentary Government
Executive significantly alters the original constitutional design, since the Govern­
ment not onlyexecutes the will of Parliament, but increasingly takes the initiative, The sovereignty of Parliament is severely challenged by the European sources of
law, but it is also limited by internaI counter-powers, explicitly provided for in the
leaving to Parliament a role of subsequent check over the final product. Of course,
one has to consider that the Govemment represents the majority of Parliament; but Constitution which can interfere with parliamentary (and govemmental) sources
of law. Some of them have aIready been discussed above in a different light. I will
the classical constitutional framework elaborated in 1948 reserved every decision
to Parliament in arder to give the opposition a chance to infiuence legislative now describe them more carefully, and assess their various counterbalancing roles.
outcomes. To the extent decisions are made by the Government, however, the
A. The Judiciary
opposition is unable to participate in the processo
• The second aspect of the Parliament's undermined sovereignty may be traced to
The Italian judiciary follows the French model: judges are recruited by competitive
the introduction of sources of law produced neither by the Italian Parliament, nor
examinatìon on a technical basis and not appointed by the Executive, as in the
by the government, but instead by the organs of the European CommW1Ìty to the
Anglo-Ainerican modeL They are career civil servants. Their autonomy from the
Italian legaI system. 20 Italy's participation in the EEC, and the signàiure of all
Executive is guaranteed by the constitutional declaration that they "shall be subject
other treaties, up to the Treaties of Maastricht and Amsterdam, has been
only to the law" (art. 101 para. 2) and by a special body, the Superiar Council of
constitutionally justified by the Constitutional Court (decisions no. 14 of 1964 and
the Judièiary (arts. 104-107). The Council is presided over by the President ofthe
no. 183 of 1974) with art. 11, which says that Italy "shall agree, on conditions of Republic and its composition is two-thirds judges, elected by judges, and one­
equality with other states, to such lirnitations of sovereignty as may be necessary
third experts, appointed by Parliament. The Superior Council shall have "the sole
to allow for a legaI system that will ensure peace and justice between nations." right to appoint, assign, move and promote members of the judiciary, and to take
Article Il was originally approved in order to let Italy participate in NATO, but its disciplinary action against them, in accordance with procedures laid down by the
meaning was extended so that the Italian Constitution has not been amended, as laws on the organization of the judiciary" (art. 105).
occurred in other European countries, to constitutionalize the participation in the
The Italian Constitution guarantees the principle of the "sole judiciary": "[n]o
EEC, the EC, and most recently the EU. extraordinary or special judge shall be established" (art. 102.2). But it also recog­
The EC Council of Ministers can issue directives and regulations. Directives nizes the distinction between ordinary judges (civil and criminal) and adrninistrative
need to be implemented in every single legaI system. In Italy, in each year since judges, who deal with litigation where public actministration is involved.2!
1990, a speciallaw (the so-called legge comunitaria) is approved which confers
The constitutional rules on the independence of the Judiciary have probably
upon the Govemment the power to issue decreti legislativi in order to have EC contributed to what has been labeled the "legal revolution"22 of mani pulite ("clean
directives executed: directives are thus transformed into pieces ofltalian legislation. hands"), which was one of the main factors in the Italian crisis of 1992-94. The
Regulations, on the other hand, are immediately applicable in every member State

21 On this point, see D. Sorace, "Administrative Law," chapter 6, this volume.

20 On this point. See L. Antoniolli-Deflorian's contribution to this volume, "Italy and the European 22 D. Nelken, "A Legai Revolution? The Judges and Tangentopoli," in S. Gundle & S. Parker
Union," chapter 4. this volume. (eds.), supra note lO, p. 191.
CHAPfER 1HREE
CONSTlTUTIONAL LAW

prosecutor's office in Milan began an investigation on kickbacks in a home for the to repeal it in part and retain part of il. In addition, the Constitutional Court decided
elderly in early 1992; this investigation quickly mushroomed and carne to involve not to allow proposed referendums which, if approved, would have created a
the illegal financing of almost alI Italian political parties. This was probably one of legislative vacuum in vital sectors of democratic life (e.g. it is not possible to
the reasons for a massive turnover in the 1994 elections that swept away most request repeal of the entire electorallaw by referendum). On the other hand, the
Italian political parties. It has been noted that in the regional elections of 1995, not Court has allowed referendums that introduced new pieces of legislation, thus
one single party was on the baliot that was in the previous regional election of violating the repealing-only nature of the referendum of art. 75. Such is the case
1990. The Milan prosecutor's office was accused offostering political goals through for referendums on the electoral system, and in particular of the 1993 referendum,
its judicial activity, and this critique was extended to the Judiciary as a whole. In which was formaliy consistent with art. 75 because it only asked for the repeal of
reaction, some amendrnents to the Code of Crirninal Procedure were proposed in different parts of the law (ofien single words), but was practically intended to
order to reduce the investigative power of the prosecutor's office, and eventualiy, construct a new electoralsystem, as in fact it did. 23
in November 1999, an arnendment to art. 111 was approved. (See E. Grande, Over the past thirty years, the role of the referendum has significantly changed
"Criminal Justice: The Resistance of a Mentality," chapter 8, this volume.) in Italian politicallife. Most importantly, the number of proposed referendums has
drastically jumped, from the first and onlyreferendum (on divorce) held in 1974to
B. The Referendum the twenty-one proposed in 2000 (of which only seven were deemed legitimate by
the Constitutional Court). But the referendum's meaning has also undergone
The referendum was introduced in the Constitution by art. 75, but it was not
significantmodifications. It was intended to let "the people" spontaneously express
implemented untillaw no. 352 was enacted in 1970. In order for a referendum to
their will on matters of crucial importance for defining their shared values (for
be called, a particular procedure must be followed. The procedure is described
example, divorce or abortion), but it has been subsequently used by parties as just
partly in art. 75, partly in law 352/70, and partly in the jurisprudence of the
another tool in the Italian political game. In 1992 and 1993 the referendum system
Constitutional Court. The process is initiated by at least five Regional Councils, or
took on a new role as a real counter power to political parties and the Parliament
500,000 voters, who can approve a proposal seeking the total or partial repeal of a
and appeared to be an alternative approach to reforming the otherwise blocked
law or of a government act with the force of law. The proposal is reviewed by the
Italian institutional system. This new role of the referendum is probably inconsistent
Supreme Court (Corte di Cassazione) for its procedurallegitimacy, and then sent
with the original intent of the Constitution, because to some extent it changes the
to the Constitutional Court, which is in charge of verifying whether or not the
form of govemment itself by reducing the centrality of Parliament as a legislative
referendum abides by the terrns of art. 75's prohibition ofreferendums on "tax or
organo According to some constitutionallawyers, for this reason it is a potentially
budget laws, amnesties or pardons, or laws authorizing the ratification of
dangerous alteration of the original constitutional design.
international treaties." Once the proposed referendum is declared constitutional, it
The danger seems to be decreasing on its own, given that ali seven referendums
is set forth as a decree of the President of the Republic.
held on May 2000 were considered invalid for lack of quorum (1ess than 50 percent
In order for the referendum to be valid, at least 50 percent of the voters plus one
plus one voter cast their ballot), thus giving the impression that the Italian people
must cast their ballot. In order for the law to be repealed, the majority of voters
were beginning to be fed up with the multitude of referendums.
must vote for the proposal of repeal. If the votes against it prevail, a new referendum
against the same law cannot be proposed for at least five years.
C. The ConstitutionaI Court
The Constitutional Court has broadened its power, stating that the limits set in
art. 75 have to be considered only as a minimum, to be increased by the Court Unlike the Statuto Albertino, the Constitution of 1948 is a "rigid" Constitution. As
itself every time a proposed referendum turns out to be contrary to the Constitution such, it provided for a Constitutional Court with the power of judicial review of
for other reasons (decision no. 16 of 1978). The Court has thus declared the legislation (arts. 134-137), following the Austrian model of constitutional
unconstitutionality of proposed referendums that were deemed ambiguous, stating
that they forced the voters to decide the repeal of a complex law - or even an entire
code - with a single yes-or-no vote, when the voters might perhaps have preferred 23 See, in particular, decision no. 5 of 1999.
CHAPIER THREE
CONSTITUTIONAL LAW

adjudication reserved to a special judge, as opposed to the American model, in accused of acting in favor of, not against, the Legislative and Executive power if it
which the power to interpret the Constitution is diffused throughout the judicial does not approve a high number of referendums, thus avoiding the possibility of
system. The Court only began its work in 1956 because it had to wait for the popular repeal of Parliamentary laws. In its judicial review, the Constitutional Court
passage of regulations governing procedure, and to grant judicial independence to can also be very respectful of the Legislative power, as in the field of taxation,
judges, as provided for by art. 137, Constitutionallaws no. l of 1948 and no. l of whi1e in other cases the Constitutional Court has actually acted as a real anti­
1953, and by national1aw no. 87 of 1953. majoritarian power, especially in relation to welfare benefits, issuing decisions
The Constitutional Court is composed of fifteen judges who are appointed to which practically condemned the State to pay enormous amounts of money in
nine-year terms that are not subject to renewal. Five are 1aw professors or 1awyers pensions and other welfare benefits increases (e.g. decision no. 240 of 1994).
with twenty years or more of experience who are elected by Par1iament, five are Decisions of the Constitutional Court have force of law and are binding on ali
appointed by.the President of the Republic, and five are judges e1ected by judges. other courts of law. The Court's opinions are officially pub1ished. Opinions are
Besides judicial review and control over referendums, the Constitutional Court always rendered per curiam and dissenting opinions are not permitted.
has the power to decide on conflicts arising over the allocation of powers between
branches of government within the State, between the State and the Regions, D. The Regions
between Regions, as well as on accusations raised against the President of the
Republic. Italy was deemed to be (at least until October 2001, when the Court reform was
The Constitutiona1 Court can pass judgment on the constitutiona1ity of national approved by popular referendum) a "regional" State. It is not a unitary State like
laws, regional1aws, and government acts having the force of law. It cannot pass France, nor is it a federal State, like the United States or Germany. lt was something
judgment on administrative regulations, whose constitutionallegitimacy is 1eft to in the middle, not unlike Spain. The Italian Regioni have a constitutionally recog­
ordinary and administrative judges. Cases can be brought up to the Constitutional nized status, but do not play a role in the national po1itical process, even when
Court in two ways. The first and most common is called ricorso in via incidentale. amendment of the Constitution is at stake.
When a case is discussedin a Court, the parties or the judge can raise the question The Italian regional system has undergone a complete upheaval with the
of the constitutionality of a law that must be applied in the case. If the judge decides Constitutional law no. 1/99 (about the regional Statuto and about the regional
the question is relevant to the case and has good grounds, he or she must send the electoral system) and then, even more deeply, with the Constitutionallaw no. 3/01
question to the Constitutiona1 Court and at the same time suspend the proceedings (about the legislative, administrative and tax power ofthe Regioni).
until the Court has decided that preliminary questiono The Constitutional Court We will try to describe the past and present system, in order to show the most
can reject or sustain the questiono In the latter case, the law is deelared unconsti­ significant changes even if the new system has not yet become "law in action" and
tutional and can no 10nger be applied. The second mode is called ricorso in via it is therefore very difficu1t to assess it properly.
principale. Rere the Constitutional Court can be used by either the national Govern­ Part 2, Title V of the Constitution regulates Regions. There are twenty Regions,
ment, when it wants to challenge the constitutionality of a regionallaw before it of which five are "special" and fifteen are regular. AlI of them have a regional
enters into force (see part VI D, "The Regions," infra), or by the Region, when it council, elected by the people, a regional govemment (called the Giunta), and a
wishes to maintain that a national1aw infringes upon its jurisdiction. regional President who, following constitutionallaw no. 1/99, is directly elected
It is not easy to assess the counter-power role of the Constitutional Court because, by the people.
like every other Constitutional Court, it cannot avoid having both a technical and The regular Regions have their own Statuto (a frame of govemment for the
a political nature. Judicia1 review of legislation may strike down laws of Parliament region), approved by the national Parliament but proposed by the regionalAssembly,
in violation of the Constitution, and it is thus intended to be a limit on Parliament's which regu1ates its internaI organization. Constitutiona1law no. 1/99 has changed
sovereignty. But the ltalian Constitutional Court's most "political" decisions are art. 123 of the Constitution such that the Statuto must now be approved on1y by the
those on the constitutionality of referendums,24 in which it can be - and often is­ regional Council, and the national Government may challenge it before the
Constitutional Court within thirty days of its approvalo Artiele 117 ofthe Constitution
24 See G. Zagrebelsky, "La Giurisdizione costituzionale," in Amato & Barbera (eds.), Manuale listed the seventeen different fields in which regu1ar Regions had legislative
di ~Hr;ttfl nuhh/irn "\th pn Mil~n{\ Il QQì\ n .1\11
CHAPTER 1HREE
CONS1TfUTIONAL LAW

autbority; tbese were, however, always "within tbe limits of fundamenta! principles" remains uncertain who, and under which rules, will decide if it is necessary to
set forth in national laws. A regionallaw was approved by tbe regional Council transfer the power to higher tiers of government other than Municipalities.
and tben sent for approval to the national Govemment. The national Govemment As for taxing power, the new art. 119 states that local govemments (not only
could eitber approve it, say nothing for thirty days (which was deemed an approval), Regions, but also Municipalities, Provinces and Metropolitan Cities) should pay
or reject it, in which case the law went back to the regional Council. li it was for all their activities only witb their Own taxes, even if special funds are established
approved by an absolute majority again, tbe Govemment could only challenge it for poorer local govemments.
before the Constitutional Court (see part VI C, "Tbe Constitutional Court," supra). The Constitutional Law no. 3/01 has not changed the legal regime of the five
As for the administrative authority, art. 118 stated that ordinary Regions had special Regions, wlùch do not have a common regulation in the Constitution,
executive authority in the same fields in which they had legislative functions, but because art. 116 states tbat each of them has a special Statuto, approved witb tbe
tbe State could, by law, delegate to Regions otber administrative functions - which procedure of art. 138 (tbe same required far amending the Constitution). Tbe
it had done recently in a massive way (see part vn, infra). legislative and adrninistrative authority of a special Region are set forth in its Statuto,
Constitutionallaw no. 3/01 has now changed art. 117, introducing the mIe of which has constitutional force. Tberefore, every special region has a different
residual power to tbe Regions: it now lists tbe seventeen fields in which the State amount of legislative and administrative authority, according to its Statuto. But, as
has exclusive legislative authority and another list of eighteen fields in which tbe a practical matter, tbere is no great difference between the five Statuti.
State and Regions have concurrent authority. Any otber field is subject to exclusive In order to comprehend the role of Regions, it is important to understand the
legislative power of Regions. political system, which is tbe same at tbe regional and nationallevels. The typical
It has been noted that the Italian "concurrent legislation" is completely different cursus honorum of a politician has its first stage at the laeal (regional or municipal)
from that of art. 72 and 74 of tbe German Constitution: in Italy tbe Regions have level, foliowed by a promotion to the nationallevel. This is why a political analysis
concurrent legislation in the sense that they can legislate, but subject to the of Italian regionalism leads one to conclude tbat, however the constitutional system
"fundamental principles" set by State law in the field; in Germany, the Lander can may have provided for formaI devolution of power, relevant political decisions are
legislate in the fields listed by art. 74 of tbe Constitution only as far as tbe Bund stili made in Rome and then transmitted to the laeal offices of political parties,
decides not to intervene itSelf (i.e. subsidiarity principle "à l'allemande"). Tbe last from which tbey are proposed and approved in tbe regional Assembly or in tbe
paragraph of the new art. 117 gives to Regions also tbe power to sign agreements regional Govemment. This explains why Regions have thus far not played a
witb States, in tbe fields where tbey have legislative autbority and in tbe cases and significant role as counter-power to tbe national Parliament and Govemment. In
following tbe procedures set by a nationallaw. fact, they have often been a kind of local replay of the national political scene, up
Constitutional law no. 3/01 has also changed the procedure for approvaI of . to tbe point that tbe regional govemment coalition has often foliowed tbe same
regionallaws, elirninating any prior control by the national Govemment: tbey are pattem as the national coalition, and has been changed when tbe national coalition
now voted by tbe regional Council and enter into force after publication on the has changed.
regional Bulietin. Tbe national Govemment, if it wishes, can chalienge tbe regional The situation is now changing both from the political and from tbe legal point
law with the Constitutional Court, not later than sixty days after publication; of view. After the shock that struck the party system over tbe period of 1992-94,
sirnilarly, the Region can challenge the nationallaw with the Constitutional Court, new parties organized on a strong local basis (for example, the xenophobic Lega
not laterthan sixty days after the publication. The control ofthe national Govemment Lombarda, rooted in the northem part of Italy)25 have emerged, and old parties
over Regions is now performed through the mechanism of "substitution": the new have been reshaped, giving space to local sections. At the same time, the regional
art. 120 allows the national Govemment to substitute Regions, exercising directly electorallaw, which was completely based on proportional representation, has been
their power, if they fail to perform their fundamental tasks, thus creating a situation changed witb law no. 49 of 1995 into a partially majoritarian law (for 20 percent of
of grave national danger.
As for the administrative authority, the new art. 118 introduces the principle of
subsidiarity, stating that ali administrative authority is vested in Municipalities, 25 See I. Diamanti, "The Northem League," in S. Gundler & S. Parker (eds.), supra note lO, p.
unless it comes out that it is necessary to give it to Regions or to the State. It 113.
CHAP1ER THREE
CONSTlTUTIONAL LAW

the seats), which strengthens the position of the President of the regional It is nevertheless worthwhile highlighting some relevant points of the new Part
Govemment (the Giunta). Constitutionallaw no. l of 22 November 1999 changed 2 of the Constitution as proposed by the Bicameral Commission in November
the Constitution, stating that every Region can have its own electorallaw - until 1997, for two main reasons. First, it proposes a would-be Part 2 of the Constitution
now, the regional electoral law has been a national law - and, unless otherwise upon which a large majority of the political forces did eventually agree, even if
provided in the Statuto, the President ofthe Region is directly elected by the people. they did not proceed with it due to a subsequent breach of the agreement. In other
The new majoritarian electorallaw, which was applied in the regional elections words, since the D'Alema Commission was not onIy a Commission for study, but
held in May 2000, has further strengthened the position of the President of the actualIy voted - several times - on its project, it shows us what a possible reform
Region, thus giving him the possibility to claim a certain amount of autonomy of the organization of the Republic rnight look like. Secondly, after the political
trom the national parties. The process of "political regionalization" could be .failure of the Bicameral Commission, the amendment process of the Constitution
significantlystrengthened also by the consequences of Constitutionallaw no. 3/ was not blocked. On the contrary, some importantreforms were enacted (especialIy
Ol, which has impressively increased the legislative, adrninistrative and tax power those fostering federalism) which were originally agreed upon in the project of the
of the Regions, thus giving to the Presidents of Regions a good chance to test their Commissiono
political autonomy. The Bicameral Commission proposal would have transformed Italy into a federal
State, granting regions a stronger constitutional status, with self-approved statutes,
an autonomous taxing power, the power to appoint a quota of constitutionaljudges,
VII. Recent Developrnents: The Commissione Bicamerale per le
and a residuallegislative power on alI matters not reserved to the national State.
Riforme Istituzionale and its Afterrnath
As regards the form of govemment, the Bicameral Commission proposed the
Since 1948, the Italian Constitution has undergone several minor changes. Three popular election of the President of the Republic, and the appointment of the Prime
Parliamentary Commissions have been convened (in 1983-85, 1992-94, and 1997­ Minister by the President of the Republic. It was a French-style system, with a
98) in order to draft a major revision of the Constitution, but none of them achieved strong President of the Republic (so long as he enjoyed a parliamentary majority),
its goal. It is particularly interesting to our project to highIight the works ofthe last and power shared by the President ofthe Republic and the Prime Minister (the so­
bicameral commission, also known as the Commissione D'Alema, after its president, calIed French cohabitation) if the Parliament's majority party was not that of the
Massimo D'AIema. President. The bicameral system was transformed into one in which the House of
The Commissione D'Alema, composed of thirty-five senators and thirty-five Deputies was the only "political" House, while the Senate became a "guarantee
representatives, was created by Constitutionallaw no. 1 of 1997, and was charged chamber," with the power to appoint investigation commissions, to consent to
with amending Part 2 of the Constitution through a procedure different trom that govemment appointments (or to appoint directIy when it is the case), and to legislate
of art. 138, intended to guarantee a unitary design of amendrnents and a quicker (with the representatives) onIy on certain matters, among which would have been
result at the same time. At the end of the procedure, a referendum was required in the status of Regions. FinalIy, regarding the Judiciary, it was proposed that the
order for citizens to approve or reject alI the proposed amendments. The Commission single judge principle be reinforced, raising the status of adrninistrative judges to
adopted a text in June 1997, then forwarded it to Parliament, which discussed it the same level as ordinary judges and dividing their jurisdiction only based on the
and sent it back to the Commission with suggestions. The Commission approved a subject matter of the case, and no longer on the diritto soggettivo/interesse legittimo
new text, after consideration of Parliament's suggestions, in November 1997. This divide. 26 As for crirninal procedure, the Bicameral Commission proposed constitu­
text was due to be approved by a double vote (twice in each Chamber, separated by tionalizing the due process principle and creating a distinction between the careers
an interim period of three months) in Parliament and then subrnitted to a popular of the judge and of the prosecutors (which are now interchangeable in Italy).
referendum. But the political agreement between the leftist majority ofMr. D'Alema The failure of the Bicameral Commission did not signify that alI of its proposals
and the rightist opposition of Mr. Berlusconi, upon which the Commission proposal were failures.
was based, eventualIy collapsed and Parliament did not even reach discussion of
the proposal.
26 See D. Sorace, "Administative Law," chapter 6, this volume.
CHAPTER 1lIREE
CONSlITUTIONAL LAW

On the contrary, some of tbe projects relating to the Judiciary and, above all, to even expanding, a common core of fundamenta! rights to be shared in the European

Federalism, were subsequently fostered by constitutionallaws approved with tbe context, and at the same time reforming the local govemment in order to apply tbe

normal procedure of art. 138, as well as, where possible, by ordinary laws. subsidiarity principle and tberefore shift tbe governing power - and the political

As for the Judiciary, tbe amendment of art. 111, approved witb Constitutional accountability - closer to people.

law no. 2/99 (see part VI A) introduced into the Constitution the principle of due
process, with particular reference to criminal procedure, while ordinary Law 2051
00 gave to the exclusive jurisdiction of tbe Adrninistrative judge, without any IX. Bibliography
distinction between interesso legittimo and diritto soggettivo, significant areas of
The text of tbe Italian Constitution, translated into English and continuously brought
administrative law like public procurements, public utilities and zoning.
up-to-date by Prof. Carlo Fusaro of tbe University of Florence, can be found at tbe
As for Federalism, the project of the Commissione Bicamerale was in great part
internet site: http://www.uni-wuerzburg.de/law/it; decisions of the Constitutional +­
realized in two steps: Constitutional law no. 1/00 modified the regional electoral
Court are published in Italian at the site: http://www.giurcost.org. Other information
system and tbe regional Statuti, while Constitutionallaw no. 3/01 modified the
relative to constitutional research may by obtained by consulting "How to Find
otber parts of title V of the Constitution (as described in part VI D). li one compares
the Law," chapter 18 of this volume. It is not easy to find works in English
the final draft of the Commissione Bicamerale (dated November 1997) witb the
about Italian constitutional rights and duties. One of tbe most interesting issues _
present title V of the Italian Constitution, it is possible to notice the similarity of
freedom of the press through television and radio - is deaIt with, alongside the
tbe underlying design of federaI State, of tbe constitutional architecture, even if a
French and British situation, in Rachael Craufurd Smith, Broadcasting Law and
lot of changements have been made.
Fundamental Rights, Oxford, Clarendon Press; New York, Oxford University Press
(1997).
VIII. Conclusion The Italian fOlTIl of govemment has often been studied by English-speaking
scholars, especially after the crisis of 1992-94. See J. Newell, Parties and Demo­
It is quite difficult to draw any certain concIusions regarding the present situation cracy in Italy, Ashgate, (2000); S. Z. Koff & S. P. Koff, Italy,from the first to the
in Italian constitutionallaw, since almost alI the principal sectors are undergoing second republic, London and New York, Routledge (2000); S. Gundle & S. Parker
major changes. But we can identify at least three fields in which more profound (eds.), The New Italian Republic, London and New York, Routledge (1996); C.
and structural modifications will take pIace. Mershon & G. Pasquino (eds.),ltalian Politics: Ending the FirstRepublic, Boulder,
If one focuses on fundamental rights, great uncertainty arises as to the role that Westview (1995); G. Pasquino & P. McCarty, The end ofpost-war politics in Italy:
the Charter of Fundamental Rights for the European Union will play, and in the landmark 1992 elections, Boulder, Westview press (1993). For information
particular tbe future result of the interplay between the European Court of Justice about the Italian political system before tbe 1991-94 crisis, see G. Pasquino, "Party
and the national Constitutional Courts in defining and protecting fundamental rights. Govemment in Italy: Achievements and Prospects," in R. S. Katz (ed.), The Future
Secondly, if one looks at the form of govemment and the party system, after almost ofParty Government, Vol. 2, Party Governments: European andAmerican Experi­
seven years and three generaI elections with a (three-quarters) majoritarian electoral ences, Walter de Gruyer, Berlin, New York (1987), p. 202. Political data àbout
law, it is not yet clear if Italy is heading towards a two-party system, or if tbe multi­ Italian elections and govemment composition and formation are published yearly
party system still applies. Thirdly, with respect to the structure of the State, after in the PoliticalData Yearbook issue of the European J ournal ofPolitical Research,
the constitutional reforms of November 1999, and of October 2001, tbe Regions commented upon by P. Ignazio The sources of law are extensively dealt with in ...
are now changing shape, almost moving towards the role of member States. Thomas Glyn Watkin, The ltalian LegaI Tradition, Ashgate, Dartmoutb (1997).
The first and the third phenomena are apparently contradictory: the tendency The referendums are studied in Michael Gallagher & Pier Vincenzo Uleri, The
toward harmonization of fundamental rights is coupled with a strong form of Referendum Experience in Europe, Basingstoke, MacMillan (1996). The Italian
regionalization, shifting towards federalismo Constitutional Court, apart from the classic studies of Mauro Cappelletti & John
This can be perhaps considered the most difficult challenge presently faced by ClarkeAdams,Judicial Review ofLegislation: European Antecedents and Adapta­
the Italian constitutional system (along with other European States): keeping, and tions, Cambridge, The Harvard LaF_E.eyiew_AssociationJL9n6'Lh~"TL""f'~~O~
CHAPTER THREE

studied by Mary Volcansek, Constitutional Politics in Italy: The Constitutional CHAPTER FOUR
Court, New York, St. Martin's (1999). The Italian regional system is briefly
described in Danie1J. Elazar, Federal Systems ofthe World: A Handbook ofFederai, Italy and the European Union
Confederai and Autonomy Arrangements, Harlow, Longman (1991), while the
Italian local governrnent system is described in Robert D. Putnam, Making
Democracy Work, Civic Tradition in Modern Italy, Princeton (1993).
The works of the Bicameral Commission can be found in Italian on the web at:
Luisa Antoniolli Dejlorian I
http://www. camera.itL bicamerali! nochiosco.asp?pagina==Ldati/leg13/lavori/
rifcost/home.htm

1.lntroduction

Italy has participated in the process of European integration from the start, being
one of the founding member States of alI three European Communities (ECSC,
EEC, Euratom). It has also co-operated from the start in the difficult process that
has led to the establishment of the internaI market through the Single European
Act, the creation of the European Union through the Maastrlcht Treaty, and its
strearnlining by the Amsterdam and the Nice Treaties.2
In spite of this long-Iasting loyalty, the relationship between the Itaiian legai
system and the Community legai order has been complex and often controversial.
It could hardly have been otherwise, since Community law has progressively
absorbed wide areas and competencies that were traditionaliy considered to be
part of the core of national sovereignty. This process has required wide-ranging
and complex institutional and legaI modifications by ali the member States. In
fact, the European Union is considered by economists, political scientists, and

1 Associate Professor of Private Comparative Law, University ofTrento.

2 From a technical point of view, the European Union (EU) is the wider "umbrella" organization
which comprises the three European Communities (the European Economie Community,
now the European Community (EC); the European Coal and Steal Community (ECSC), and
the EuropeanAtomic Energy Community (Euratom)), plus the so-called "intergovemmental
pillars," which are a hybrid between Community and intemationallaw (common foreign and
security policy; cooperation in the field of justice and domestie affairs), and whose content
and procedures have been introduced by the Maastricht Treaty and subsequently reformed by
the Amsterdam Treaty (which has transformed the pillar on justice and domestic affairs into
a new one on police and judicial cooperation in criminal matters). By far, the largest legal
impact on national legal orders derives trom EC law, and therefore in this chapter we will
simply refer to Community law or EC law.
CHAYIERFOUR
ITALY AND THE EUROPEAN UNION

lawyers to be one of the most effective and successful patterns of regional according to which internationallaw can become part of the nationallegal system
integration, building a unique model that is distant both from traditional international only if it is absorbed through a nationallegal instrument. 4
organizations and federal States.
The dual theory has had important consequences for the relationship between
In this chapter, I try to analyze the effects that the interaction with the Com­ the European Union and the Italian legaI system, particularly because the Italian
munity and European Union has had on the Italian system, organizing the data legislator has determined that the form of the incorporation orders which adopt
according to two factors: the temporal dimension, and the vertical and horizontal Community treaties shall be legge ordinaria (ordinary statutes), which is a sub­
dimensions. The first relates to the fact that the Community's legaI system has constitutional source of law. 5 This reliance on ordinary statutes as the mechanism
undergone profound modifications in its institutional setting and even more in the for incorporation of Community rules has proved to be a less than suitable solution,
ever-increasing range of substantive areas it undertakes to cover. This broadening . because it has rendered difficult the reconciliation of the status of Community­
of institutional and substantive power has had a deep impact upon Italy's internal derived laws, which take the statutory form but at the same time must prevail over
legal system. The second group of effects involves the interaction of two distinct ali conflicting internaI rules. A more systematic approach might have been to amend
dynamics, one between the Community and Italy as a whole, and the other between the Constitution, or to ratify European treaties through special constitutional acts,
the centraI and local components of the Italian national legaI system. 3 This as this would have avoided a number of practical difficulties in the application of
dimension, which I calI the "vertical-horizontal" dimension, is particularly important Community law within Italy. The competent Parliamentary commissions, along
because the integrating (and sometimes disintegrating) effects of EC law are the with many scholars, suggested during the ratification of the Maastricht Treaty that
result of the interaction of a plurality of legal formants (statutes, case law) and a new "European clause," explicitly acknowledging the participation of Italy in
actors (Community institutions, national Govemment, Regions, courts) that work the European Union, be inserted in the Constitution, particularly in view of the
according to different but related rules, and in pursuit of a variety of interests. widespread consequences of the new Treaty for national sovereignty. Despite its
merits, this effort was ultimately unsuccessful. In fact, Italy is now practicaliy
II. The Relationship Between the Community and the Italian alone in its failure to accord an explicit constitutional status for the European Union:
Legai Order
4 LegaI scholars have proposed different theories. According to some, "generaIly recognized
International agreements are generally introduced into the Italian legal system by principles of intemationaIlaw" aIso include the principle pacta sunt servanda. According to
an incorporation order (ordine di esecuzione). The constitutional basis for this this theory, treaties would become part of the nationaIlegaI order automatically, without the
measure is provided by art. lO of the Italian Constitution, which states that "Italy's necessity of further action, and would have constitutionaI status. Others argue that art. lO
legaI system conforms with the generally recognized principles of international Const. does imply a legaI obligation to transpose treaties into the nationaIlegaI system, but
law." This provision is generally taken to imply that generaI principles and customs this does not happen automatically; it requires appropriate legaI action. Attractive as these
theories may seem trom a 10gicaI and practicaI point of view, they have never been accepted
of international law are automatically valid in the Italian legal system, but that by lawmakers or by the judiciary. See M. Cartabia, I.H.H. Weiler, L'Italia in Europa, Bologna,
treaties require an incorporation arder which must take the appropriate form (i.e. 2000, ch. 5 (pp. 129-138).
constitutional act, ordinary statute, or regulation) in order to introduce the changes 5 In particular, the Treaty on the European CoaI and Steel Community, signed in Paris in 1951,
required to become internallaw. After this execution order, the rules of international was ratified by l. 25-6-1952, no. 766 (Suppl. Ord. GU 12-7-1952, no. 160); the Treaties on
origin become part of the nationallegal system and they are treated as national the European Economic Community and the European Atomic Energy Community, signed
rules. This mechanism reflects the prevalence in Italy of the so-called "dual model," in Rome in 1957, were ratified by l. 14-10-1957, no. 1203 (Suppl. Ord. GU, 23-12-1957, no.
317); the European Single Act, signed in Luxembourg in 1986 (01 L 169 of 29-06-1987) was
ratified by l. 23-12-1986, no. 909 (Suppl. Ord. GU 29-12-1986, no. 300); the Treaty on the
European Union, signed in Maastricht in 1992 (01 C 191 29-07-1992) wasratified on l. 3-1 1­
] The mechanisms of interaction within the national level are termed "horizontal" in order to
1992, no. 454 (Suppl. Ord. GU, 24-11-l992, no. 277); the amendment to the Treaty on the
contrast them with the trans-national "verticaI" relationship of the EC with the member States;
European Union, signed in Amsterdam in 1997 and entered into force on I May 1999, was
nevertheless, strictIy speaking they are also verticaI, since the various nationaIlevels often
ratified by l. 16-6-1998, no. 209 (Suppl. Ord. GU 6-7-1998, no. 155). The amendment to the
work according to a hierarchicaI relationship.
treaty on the Eurpean Union, signed at Nice on 26 Feb. 2001 has not yet been ratified.
CHAPIERFOUR
ITALY AND THE EUROPEAN UNION

most member States eventually amended their constitutions to tak:e into account view, this kind of judicial action covers approximately half of the judgments of the
the peculiarities of Community law with respect to internationallaw. Court of Justice, whose number has steadily increased. Moreover, this instrument
Stili, this must be our point of departure in describing the history of the evolution has had important substantive effects, marking the cooperation between the Court
of the Italian legal system. Its main consequences have been that Cornrnunity rules, of Justice and national courts (which operate as decentralized Community courts
promulgated both as Treaties and as secondary EC law, could not conflict with in applying Cornrnunity rules), crucial in establishing a common legaI culture.
rules that had a superior status in the hierarchy of the sources of law. Secondly, Prelirninary rulings have been the main source of generaI principles that have
accarding to the maxim lex posterior deroga t priori, internally generated rules shaped the legal system created by the Treaties and updated it to new European
contained in statutes that were passed after adoption of an EC rule prevailed over needs. Among the fundamental ones, the following must be mentioned: the definition
the previously adopted EC rules. This was, of course, totally unacceptable from a of the Community as a sui generis internationallegal system, distinct but coordinated
Community point of view, since it would have impaired the uniformity of EC law with the systems of member States, which have given up part of their national
application. Therefore, a solution had to be elaborated which would ensure that sovereignty;7 the supremacy of Community law over contrasting national rules;8
EC law would prevail over conflicting internal provisions. The legai basis for a the creation of a judge-made "Bill of Rights" for the protection of fundamental
solution was found in art. Il of the Italian Constitution, which provides that "Italy human rights;9 the enlargement of direct applicability of Community rules from
... agrees, on conditions of equality with other states, to such limitation of sover­ the self-executing provisions of the Treaties lO to the unconditional and precise rules
eignty as may be necessary for a system calculated to ensure peace and justice of directives that are not implemented correct1y or in a timely manner; II the extension
between Nations; it promotes and encourages international arganizations having of the national bodies bound to apply Community rules from the legislative to the
such ends in view." This provision had originally been inserted in the Constitution l2
judicial and adrninistrative organs. 13 In short, the Court of Justice has defined
in arder to permit Italy to become a member of the UN, and the limitations of some ofthe basic characteristics ofthe Community legaI system (aims, limits, and
sovereignty were understood in the classical sense of lirniting Italy's powers in its relations with the national systems), deriving them through an innovative synthesis
international relations with other States. Despite the lirnited original intent of the leading to the creation of a peculiar forrn of "Constitution" for the EC system,14
language, it was felt that this rule could be expanded to cover participation to the guaranteeing both its validity and uniforrnity of application.
European Cornrnunities as well, and this position was finally accepted by the The phenomenon of the failure of States to comply with and adapt to Community
judiciary. law has always been one of the major problems of the Community system. This

III. The Application of EC Law in National Legai Systerns a court or tribunal of a Member State against whose decisions tbere is no judìcia1 remedy
under national1aw, that court or tribuna1 shal1 bring the matter before the Court of Justice."
The most significant element in the evolution of the relations between the Com­ 7 Van Gend en Loos, C-26/62 [1963] ECR l.
munity and national legaI systems, consisting of a sharp break: from traditional i Costa v. ENEL, C-6/64 [1964] ECR 585.
patterns of internationallaw, is the increased participation of individuals, who can
9 See, e.g., Nold v. Commission, C-4{73, [1974] ECR 491.
act in various ways in order to protect their Community rights both at the Community
and nationallevels. In this way they have enhanced their position as Community lO Van Gend en Loos, supra note 7; Costa v. ENEL, supra note 8; Rewe, C-120{78 [1979] ECR
649.
subjects, through the working of the so-called "iron triangle" composed of Com­
munity citizens, the European Commission, and the European Court of Justice, 11 Costanzo, C-103/88 [1989] ECR 1839; Marleasing, C-106/89 [1990] ECR 1-4135.
which ensures the widest application and effectiveness of Community law. In this 12 Simmenthal, C-35176 [1976] ECR 1871; Factortame, C-221/89 [1991] ECR 1-3905;
process, the preliminary reference procedure, established by art. 177 EC (now art. Francovich, C-6, 9190 [1991] ECR 1-5357.
234),6 has proven to be of paramount importance. From a quantitative point of 13 See Costanzo, supra note 11.
14 See opinion 1/91 [1991] ECR 1-6079. For a cbal1enging study of the role of case 1aw in the
Community context, see A. Stone Sweet, Governing with Judges - Constitutional Politics in
6 Artiele 177 (now art. 234) EC: "Where any sucb question is raised in a case pending before Europe, Oxford, 2000.
CHAPrER FOUR
ITALY AND THE EUROPEAN UNION

problem has been solved through several institutionaI arrangements. Through its Community rule, it can give rise to tort liability in the nationallegal system;20 in
decisions, the Court of Justice has progressively enlarged the effectiveness of this way State liability also covered infringements that were not declared by a
Community rules, simultaneously guaranteeing judicial protection of individual decision of the Court of Justice. Some ftaws remained, stemming from the fact that
rights. Already by the 1960s, the Court had recognized that certain Treaty rules not the rules governing this kind of liability were national, and that the application of
only bind the States, but also confer individuaI rights that are self-executing upon Community law therefore lacked homogeneity. The leading case Francovich,
citizens of the member States. That is to say, these rights can be invoked in national decided in 1990,21 created common requirements for the rise of State's liability,
courts, as occurred in the leading cases Van Gend en Loos of 1963 15 and Costa v. leaving only the procedural aspects of the claim to national rules. 22 The conditions
ENEL of 1964. 16 In the following decade, the notion of direct effect was gradually for State liability have been further specified in later cases, such as Brasserie du
extended to rules contained in unimplemented EC directives that are precise and Pecheur,23 Dillenkofer,24 andHedley Lomas,25 according to which liability depends
unconditional (i.e., rules that do not require any specification or further elaboration on the degree of discretion left to the nationallawmakers and the c1arity or ambiguity
through internal measures ).17 Adoption of this rule avoids the risk that the failure of the Community rule that has been breached. Thus, if the State has manifestly
of a member State to implement an EC directive could impair individual rights and greatly disregarded the limits of its discretion, thereby causing a sufficiently
afforded by the directive. This development has unquestionably solved a wide serious breach of clear Community rules, it is liable for damages suffered by
range of problems, but any rule insufficiently defined or unconditional- as is often individuals as a consequence of its act or omission. 26
the case with EC directives setting general aims - is not self-executing and therefore In spite of the far-reaching evolution of the doctrine of direct effect, there is stili
does not become part of the nationallegal order until it is formally transposed. one area of rights that remains unprotected in case of non-implementation or mis­
The Court of Justice has therefore created new rules to cope with these problems. implementation of directives. The case law of the European Court has concentrated
The most relevant one is the imposition of tort liability on States that infringe upon its efforts on the field of "vertical effects," i.e., effects that stemmed from relations
fundamental Community obligations. This is an indirect way of protecting individual between public entities and private parties. The concept of public bodies has been
rights, but it can be very effective since the financiaI burden imposed can be ex­ interpreted in an extremely broad way, so as to encompass not only public powers
tremely heavy. The Court started by acknowledging that failure by a State to conform that are entrusted with institutional functions, but also every body structuraliy
to ajudgment declaring an infringement 18 could give rise to individual tort action connected to a public interest (e.g. public corporations). Nevertheless "horizontal"
against the State according to national rules. 19 It then extended the rule in theRusso
decision, according to which if a damage stems from a State's violation of a
20 Russo v. AlMA, C-60(75 [1976] ECR 45.

15 See supra note 7. 21 See supra note 12.

16 See supra note 8. 22 These rules stem from previous case law of the European Court, which has progressively
enhanced the judicial protection of individuai Community rights, and has culminated in the
17 Van Duyn, C-41(74 [1974] ECR 1337; Ratti, C-148(78 [1979] ECR 1629; Becker, C-8/81
Faetortame decision (supra note 11), in which the Court stated that in order to effectively
[1982] ECR 53; Costanzo, supra note Il; Marleasing, C-I06j89 [1990] ECR 1-4135 (duty to
protect Cornrnunity rights, nationaI judges may have to devise new remedies (in this case, the
interpret internai rules so as to conform as much as possible to rules contained in un­
European Court required that interirn reliefbe extended aIso to proceedings against the Crown,
implemented directives). aIthough this was not possible under English common law rules).
18 Artic1e 169 (now art. 226) EC: "If the Comrnission considers that a Member State has failed 23 Brasserie du PecheurlFactortame III, C-46,48/93 [1996] ECR 1-1029.
to fulfil an obligation under this Treaty, it shall deliver a reasoned opinion on the matter after
giving the State concemed the opportunity to submit its observations ... If the State concerned 24 Dillenlwfer,C-178, 179/94,C-188, 189, 190/94 [1996] ECRI-4845.
does not comply with the opinion within the period laid down by the Commission, the latter 25 Hedley Lomas, C-5/94 [1996] ECR 1-2553.
may bring the matter before the Court of Justice."
26 The implication of this doctrine has been that in a few cases, like Denkavit (C-283, 291,292/
19 See decision 17-6-1987, C-154/85 [1987] ECR 2717; see also decision 20-2-1986, C-309/84 94 [1996] ECR 1-5063) andBritish Telecom (C-392/93 [1996] ECR 1-1631), liability for rnis­
[1986] ECR 599; decision 7-2-1973, C-39(72 [1973] 101 (aIl these decisions concemed cases implementation has been denied because the Community rules were not sufficiently c1ear
of infringements by ItaIy). and precise and their interpretation was made in good faith.
CHAPTER FOUR
ITALY AND THE EUROPEAN UNION

relations - i.e., those between private parties - are not covered. In the 1994 Faccini clash carne when the Constitutional Court stated that, in cases of contrast between
Dori 27 case, the Court stated that direct effect cannot be pleaded in these cases; if Community and internal statutory rules, Italian judges were compelled to ask the
Community rights cannot be protected through an interpretation of internaI rules Constitutional Court for judicial review according to internal standards. 33 This clash
compatible with Community law, the only remedy is to ask for damages from the became manifest in 1978 with the Simmenthal decision,34 in which the European
State, according to the Francovich ruling. The doctrine was reaffirmed two years Court stated that member States have an obligation to protect Community rights,
later in El Corte Ingles,28 and is currently considered settled law. This ftaw is and this implies that national judges must apply Community rules having a direct
particularly serious, because Community law increasingly interferes with private effect, even when this involves a conftict with, and non-application of, internaI rules
law matters (such as consumer contracts, labor relations, and product liability, to which would otherwise have been the law ofthe case. A solution was found only in
mention just a few), and the lack of protection of iridividual rights in private legal 1984 with the Constitutional Court decision in Granital,35 where it was finally
relationships.has severe negative consequences. In spite of widespread criticism, settled that Italian judges can autonomously refuse to apply internal rules that
it seems unlikely that the European Court of Justice will change this doctrine in the confiict with EC law, without seekingjudicial review by the Constitutional Court.36
near future. 29 At the same time, the Constitutional Court has enlarged the areas of Community
rules having direct effect, moving fromregulations 37 to unimplemented directives38
and to decisions by the Court of Justice. 39 A parallel extension has involved the
IV. The Case Law of the Italian Constitutional Court
typology of national bodies that are responsible for ensuring the correct application
Italian case law has also progressively ensured and enlarged the application of of Community law, from the legislative bodies to judicial and executive ones.40
Community law, although the evolution has not been synchronous with the European The evolution in case law conceming the relationship between Community and
Court of Justice. In the beginning, the main task ofthe Italian Constitutional Court nationallaw that we have just sketched has been complex and far from coherent.
was to justify the limitations to national sovereignty deriving from the participation Basically, we can distinguish two periods: the first one, beginning in the mid­
in the European Community,30 through an extensive interpretation of Const. arts. 1960s, expresses the idea of dualism held by the Italian Constitutional Court, and
lO and Il. 31 It then worked on the definition of the relationship between the Italian marks a sharp contrast with the contemporary case law of the European Court of
and the Community systems, coming close to the construction of separate but Justice; the second, commencing in 1984 and continuing to the present day, moves
coordinated systems given by the European Court of Justice.32 A period of serious closer to the idea of a "coordinated system" which is totally different from the
relationship between internallaw and traditional internationallaw. We will briefty
review the most important decisions in order to highJight the major changes that
27 Faccini Dori, C-91/92 [1994] ECR 1-3325. have taken pIace.
28 El Corte Ingles, C-192/94 [1996] ECR 1-128I.
29 In some recent cases, the Court has come to a SOft of"incidental horizontal direct effect," i.e.,
to an interpretation of the provisions of unimplemented directives that directly affect rights 33 See decision 98/1975; decision 183/1973; decision 232/1975; decision 205/1976.
stemming from private relations; see CIA Security International, C-194/94 [1996] ECR 1­
34 Simmenthal, C-70n7 [1978] ECR 1453.
2201; Ruiz Bernàldez, C-129/94 [1996] ECR 1-1829; Panagis Pafitis, C-441/93 [1996] ECR
1-1347; Unilever Italia, C--443/98 [2000] ECR 1-7535. This case law points to a blurring of 35 Granital, 170/1984.
the distinction between "vertical" and "horizontal" direct effects, and to a complex interaction
36 See decision 113/1985, BECA v. Presidente del Consiglio, in Foro it. I, 1985, 1600-1604.
with the principle of interpretation. See. P. Craig, G. de Burca, EU Law - Text, Cases and
Materials, Oxford, 1998, pp. 206-211. 37 Decision 183/1973; decision 232/1975; decision 205/1976; decision 170/1984.
30 Judicial review is regulated in the Italian legaI system by art. 134 Const.: "The Constitutional 38 Decision 168/199I.
Court decides: on controversies conceming the constitutional legitimacy of laws and acts 39 Decision 113/1985 (direct effect of rules deriving from ECI decisions on prelirninary rulings
having the force oflaw, emanating from central and regional govemment ..." ex art. 177 EC), decision 389/1989 (direct effect of alI rules contained in ECI decisions).
31 See decision 14/1964; decision 98/1965; decision 183/1973. 40 Decision 232/1975; decision 205/1976; decision 170/1984; decision 389/1989.
32 See decision 183/1973; decision 232n5.
 ITALY AND TIffi EUROPEAN UNION
CHAPTERFOUR

A. The Supremacy of Community Law European Court of Justice works in accordance with the guiding principles of the
Italian legal system, implying the compatibility of the two systems. In this way,
In the first important decision, Costa v. ENEL,41 which gave rise to one of the the problem of coordinating the relations of Community to internallaw in a logically
leading cases ofthe Court of Justice,42 the Constitutional Court had to consider the correct and practically efficient way was merely avoided by an escamotage, which
validity of an Italian statute which nationalized electricity. The plaintiff maintained exposed a flaw in the logical construction offered by the Constitutional Court.
that this statute was contrary to several provisions of the EEC Treaty, and this After a few years of silence, this issue was raised again in Frontini. 45 The case
indirectly implied its contrast with art. Il Const., which implemented the EEC concerned the compatibility of art. 189 EC, listing the types of legaI acts in the
Treaty in the nationallegal system. The court held that the statutes ratifying the Community sphere, with art. 70 Const., which provides that the legislative function
Community treaties did not have constitutional value, and therefore a subsequent is exercised by Parliarnent. This time the Court did not rely upon the argument of
statute could derogate them. This contrast on1y implies the liability of the Italian the separation of the two legal systems, but adopted the wide interpretation of the
State at the internationallevel, but it does not touch upon the internal system. The "lirnitation of sovereignty" clause of art. Il Const. According to this approach,
decision reflects the dualistic theory of relations between international and national Community treaties become part of the Italian legal system not only through the
law, and the corresponding idea that there is no intermingling between Italian and ratification statutes, but also through the constitutional coverage of art. Il.
Community sources of law: the latter on1y becoming part of Italian law if they are Commencing with Frontini, the construction of Community law as incorporated
incorporated through national provisions, as are other sources ofinternationallaw. into the Italian legal system through the lirnitation of sovereignty provided for by
This result was heavily criticized, and set off an enduring conflict on the point with art. Il has remained unchallenged. 46 In this way, the Treaties acquire constitutional
the Court of Justice, which rendered an entirely different decision on the sarne status, and therefore prevail over conflicting national statutory provisions enacted
case, in which the principle of supremacy was established for the first time. 43 both previous and subsequent to the Treaties.
Shortly thereafter, another case44 raised the question of the constitutionality of This solution constituted a significant improvement over the approach exempli­
ECSC provisions giving the power to the European Court of Justice to impose fied by Costa, but in fact it had a corollary which had lasting negative effects: by
fines according to Const. arts. 25 and 102, which provide that Italian citizens have being incorporated into the Italian legal system through a specific norm of the
the right to have their cases tried by the natural judge established by the law, banning Constitution, Community provisions could prevail over conflicting national statutory
the establishment of special courts. The Constitutional Court rejected the claim, 0'0 rules on1y through judicial review by the Constitutional Court itself. Notwith­
holding that the Community legal system is totally independent from the Italian standing the fact that this task was specifically entrusted by the Treaties to the
system, and that it could not, therefore, be evaluated according to internal consti­ European Court of Justice, this meant a duplication of control by the Constitutional
tutional standards. On1y in an obiter dictum did the court briefly state that the Court in order to ensure a uniform interpretation and application of Community
law. Below the surface of a strictly technical problem lurked a clash of power:
41 Costa v. Società ENEL, Edison Volta, 7-3-1964, no. 14, in Foro it. I, 1964,465; Giur. cast., which of the two courts should control the compatibility of the nationallegal system
1964, I, 129. with Community law? Obviously, the Italian Constitutional Court (like its German
counterpart, the Bundesveifassungsgericht) was reluctant to give up its powers of
41 See supra note 8.
control over the national legal system. On the other hand, it was clear from the
43 Costa v. ENEL, supra note 8: "the 1aw stemming from the Treaty, an independent source of
start that any choice which did not honor the primacy and direct effect of Community
1aw, cou1d not, because of its special and original nature, be overridden by domestic 1egal
provisions, however frarned, without being deprived of its character as Community 1aw and law as well as the consequent entrusting of its control to the European Court of
without the 1egal basis of the Community itse1fbeing called into questiono The transfer by the
states from their domestic 1egal system to the Community 1egal system of the rights and
obligations arising under the Treaty carries with it a perrnanent limitation of their sovereign 45 Frontini c. Amministrazione delle Finanze, 27-12-1973, no. 183, in Foro it., I, 1974,314
rights, against which a subsequent uni1ateral act incompatible with the concept of the (note by Monaco); RDI, 1973, 130 (note by Mengozzi); Giur. cast., 1973, l, 2401.
Community cannot prevail." 46 The same interpretation was used in order to give a constitutiona1 basis to other intemational
44 Decision 27-12-1965, no. 98, in Foro it., 1, 1966,9 (note by Catalano); Giur. cast., 1965, I, organizations, such as GATT and NATO.
1322.
CHAPTERFOUR
ITALY AND THE EUROPEAN UNION

Justice would have severely undennined the coherence, uniformity, and validity be considered the province of internal legal sovereignty. Nevertbeless, the rule
of this legal system. This was made clear in the landrnark case of Simmenthal. remains valid: 50 the Constitutional Court reserves the power to guarantee the protec­
This doctrine was applied again in the /C/C case in 1975. 47 There, the Consti­ tion of fundamental principles and human rights against possible infringements by
tutional Court held that Italian judges could not refrain from applying national Community law, although such control is considered exceptional,51 Originally,
rules that conflicted with previously enacted EC rules. These rules, therefore, either according to the Constitutional Court, the power of judicial review was limited to
had to be repealed by Parliament or declared unconstitutional by the Constitutional incorporation orders, and the Court could not review individuaI Communìty
Court itself. Moreover, the Constitutional Court in that case also held that Com­ provisions directly applicable in the nationallegal system because judicial review
munìty regulations cannot be reproduced in internal acts, even if their content is concerns national statutory rules, not Community measures. If the Constitutional
identical, unless they require an internal measure in order to be directly applicable. Court were actualIy to find some contrast between Community rules and national
This was necessary because an internaI act reproducing the regulation delays its constitutional fundamental principles, the consequences would be extremely serious,
entry into force, which according to art. 189 EC is directly applicable in alI member possibly involving Italy's opting out of the EC. This hardly seems a practicable
States, and it furthennore obliterates the jurisdiction of the European Court of solution in the EU context, which has a much higher level of irreversibility than
Justice to interpret it and adjudicate its validity, as established by art. 177 (now other international organizations. 52 In fact, the Constitutional Court overruled this
234) EC. doctrine in 1989,53 when it decided that it can verify the compatibility of every rule
There was a shift in the case law of the Constitutional Court48 in 1977, when it contained in the EU Treaties, as interpreted and applied by EU institutions, with
held for the first time that if a conflict arose between a Communìty provision and a the Italian constitutional order through judicial review based on the execution order.
previously enacted internaI rule, the judge could decide not to apply it without According to this doctrine, if the Constitutional Court finds that a Community rule
asking for judicial review to the Constitutional Court, because Communìty law
had implicitly repealed it.
50 See Granital, 8-6-1984, no. 170, in Foro it. 1,1984,2062 (note by Tizzano).; case 21-4-1989,
B. The Limit or HumanRights and Fundamental Constitutional Values no. 232, infra note 53.
51 Cf the position of the German Constitutional court, which in the Solange I decision of 1986
In Frontini, the Constitutional Court also considered another fundamental question: stated that it would refrain from the internal judicial review of Community 1aw as long as the
could the constitutional provisions that affinn fundamental legal principles and 1atter respected fundamenta! rights as defined in the Basic Law (Grundgesetz). The competence
basic guarantees of human rights be overridden by Communìty rules, or did they of the Bundesverjassungsgericht to guarantee fundamental rights has been reaffirmed in the
amount to a minimum core that prevailed in any case? According to the Court, this important so-cal1ed "Maasticht Urteil" of 1993, where it upheld the compatibility ofthe new
Treaty with the Grundgesetz.
core of fundamental principles (the so-called controlimiti) could not be violated,
and it was the Court's task to ensure that it was protected from any infringement, 52 After the "clashes" between the Court of Justice and national constitutional courts in the
both internaI and externa1. 49 Nevertheless, the Court also stated that the problem 1970s, the problem seemed to be mere1y theoretical. On the contrary, recent litigation decided
by the European Court and the German Bundesverjassungsgericht conceming the protection
seemed to be merely theoretical, because it deemed it extremely unlik:ely that Com­
of fundamental rights of national exporters (the so-called "banana litigation") has shown that
munity law would touch on sodal and political questions. Time has shown that there is an actual possibility of clash between nationa1 and Community fundamental rights;
this forecast was incorrect and that, in fact, Community law increasingly impinges see Craig, De Burca, EU Law: Text, Cases and Materials, 2nd ed. (1998), pp. 275-76.
upon signìficant sodal and political aspects of the internallife of Italy that used to Fragd v. Amministrazione delle finanze, 21-4-1989, no. 232, in Giur. cast., 1989, 1,1001;
53
Foro it., 1990, I, 1855 (note by Daniele); the Constitutional Court has considered the
compatibility with art. 24 Cost., providing the right to judicial protection, of art. 177 (now
47 Industrie Chimiche Italia Centrale (ICIC) v. Ministero del commercio con l'estero, 30-10­art. 234) EC on pre1iminary ru1ings, in its aspects conceming the temporal effects ofjudgments
1975, no. 232, in Foro it., I, 1975,2661. on the validity of Community Acts; it final1y decided that the issue was not re1evant in the
48 Unil.it. v. Amministrazione delle finanze, 29-12-1977, no. 163, in RDI, 1978, 337. case at hand, and that in any case, Court of Justice case law was not yet sett1ed on the poinl.
See also Zandonà C. Inps, 18-12-1995, no. 509, in Foro it. I, 1996, 784 (note by Barone).
49 In fact, the Constitutiona1 Court has considered these limits to app1y to constitutiona1
amendments in general.
CHAPTER FOUR
ITALY AND TIIE EUROPEAN UNION

clashes with fundarnental rights, it merely avoids its application, without touching over conflicting internaI statutory rules. 55 A further step carne in 1989 with the
upon the whole Community legal system. widening of the direct applicability of rules contained in decisions of the Court of
Justice other than prelirninary rulingS. 56 The Constitutional Court also specified
C. Direct Effect of Community Law that the duty to enforce direct1y applicable Community rules over contrasting
internaI rules concerns not only the judiciary, but aB public bodies entrusted with
A complete revirement from the previous case law of the Constitutional Court on
the application of the laws, particularly the administrative entities.
the issue of the relationship between Community and Italian law, implying a close
In 1991, the Constitutional Court adhered to the doctrine of direct effect of rules
approximation of the position taken by the European Court of Justice, carne several
of unimplemented directives,57 whereby if States fai! to implement Community
years later with the Granitai decision. 54 According to GranitaI, through art. 11
directives properly or in a timely manner, their citizens can stili rely on their
Const. and the statutes ratifying the Community Treaties, the Community legaI
provisions and request protection of the rights granted by them, provided that they
system has gained control over some sectors of national sovereignty that have
are sufficient1y specified in the directive. It must be noted that the Italian legal
been assigned to it, according to a functional division of competencies. It follows
system has also adapted to the European case law in the field of horizontal direct
that Italian courts need not refer a case to the Constitutional Court if they find a
effect: although many lower court judges have protected Community rights derived
contrast between Italian and Community rules; instead, they must enforce the
from unimplemented directives in actions between private parties, the Italian
prevailing EC provisions. Judges may also exercise this rule without referring the
Supreme Court (Corte di Cassazione) has continued to adhere to the doctrine
case to the European Court of Justice, unless a problem of interpretation or validity
announced in Faccini Dori, and has held that direct effect for unimplemented
of a Community rule arises.
directive rules can only be invoked against public bodies. 58
Although the practical results of this decision correspond to the ones foreseen
Even if Community rules do not become part of the national legal systems of
by the European COuTt, there remain some relevant differences in the theoretical
the member States, the Constitutional Court could stili intervene if it believes that
frarnework underpinning them. The Court of Justice adheres to the monist theory,
the national rule clashes with Community law. For example, if a national statutory
according to which Community law becomes part ofthe nationallegal system and
provision contradicts a fundarnental principle ofEC law, this amounts to an indirect
enjoys primacy over it, preventing the coming into force of conflicting internal
rules, no matter what their status in the internal system of sources of law may be.
This marks a difference from the Italian Constitutional Court which, faithful to the 55 Beca v. Ministero delle finanze, 23-4-1985, no. 113, in Giur. cast., 1985, I, 694; Riv. dir. agr.,
dualist idea, considers the Community legal system as autonomous and separate, 1987, II, 330.
although coordinated with the Italian one. Community rules are direct1y applicable 56 Provincia di Bolzano v. Presidente del Consiglio dei ministri, 4-11-1989, no. 389, in Riv. it.
by the Italian judges, but in this case they act in a "Community capacity." This dir.pubbl. com., 1991, 1065; Giur. cast. 1989, I, 1757. The case originated from aclaim of
implies that contrasting internal rules remain part of the nationallegal system, but the autonomous province of Bolzano that a govemmental decree concerning the access of
do not apply where Community law prevails. This arnbiguity in the construction European citizens to public funding for housing infringed on its powers. The Court rejected
of the relationship between the Community and the Italian legal systems is stili this argument, considering that the decree merely recalled obligations derived from the
provisions of the EC Treaty conceming freedom of establishment, and therefore did not impose
present today, even though its practical consequences have increasingly lost any new obligation on the Province.
significance.
57 Giampaolo v. Ufficio del registro di Ancona, 18-4-1991, no. 168, in Giust. cast. 1991, I,
The scope of direct1y applicable Community law was gradually enlarged beyond 1409; Foro amm., 1992, 1837; Foro it. 1,1992,660 (note by Daniele).
regulations and direct1y applicable Treaty rules. In 1985, the Constitutional Court
58 See Cass., I sez. civ., 21-7-1981, no.4686, Smithett v. Terruzzi, in Mass. Foro it., 1981; Cass.,
stated that decisions on pre1iminary rulings by the European Court of Justice prevail
II sez. civ., 27-6-1994,27-2-1995, no. 2275, Recreb v. Capillo, in Giur. it., 1996, l, 1,100
(note by Scannicchio); Cass., I sez. civ., 19-1-1995, 15-5-1995, no. 5289, Recreb v. Rosta
Cappadonna, in Guida al dir., 17-6-1995,46; Cass., sez.1av., 1995, no. 1271, in Giur. it.,
54 Granital v. Amministrazione delle finanze, 8-6-1984, no. 170, in Foro it., IV, 1984,2062
1996, I, l, 110 (note by Jannarelli); Casso sez.1av., 20-11-1997, no. 11571, Forin c. TI UNO
(note by Tizzano). The case concemed a statutory mIe that refrained the State from asking for
s.n.c., in Riv. il. dir. pubbl. com., 1998, 1391 (note by Faro). For a different position see
reimbursement from exporters which were afforded by a Community mIe.
Cass., 3-2-1995, no. 1271, in Nuova giuro civ., 1995, 837 (note by Calò).
CHAPTERFoUR ITALY AND TIIE EUROPEAN UNION

violation of art. Il Const., and can therefore be held unconstitutiona1.5 9 by constitutional judicial review, since Community rules would prevail in any case.
This case was also important because it declared, although in obiter, that the The Court rejected this argument, stating that the function of judicial review in
Constitutional Court can decide to refer a case for a preliminary ruling to the Court such a case is to avoid the coming into force of the regional statute, thereby
of Justice. Once more, this was not only technically important (since it ensured a preventing the conflict with Community law and guaranteeing legai certainty.
higher degree or certainty and uniformity of the law), but it also signaled the In a subsequent case, the Constitutional Court had to decide again whether some
development of an attitude of mutual trust between the two judicial bodies. It must regional rules were in contrast with Community law. 63 Once again, the Court
nevertheless be noted that in a later decree (ordinanza) of 1995,60 the Court has underscored the fact that even if it were true that EC rules would prevail against
overruled this decision, stating that it is not to be considered as a court for the incompatible internal rules without the necessity of a constitutional judgment, this
application of art. 177 (now art. 234) EC, since its competence concerns judicial situation was unsatisfactory because it created uncertainty as to which rule applied
review, as dìstinct from alI other Italian courts. This argument raises some doubts, and did not guarantee the correct fulfillment of Community obligations.64 The
since the determination of which bodies constitute a court according to art. 177 novelty of this case is that the Court extended this rule to national statutes as well,
(now 234) EC is an issue which must ultimately be determined by the Court of although only in obiter. In this way the role of judicial review was significantly
Justice and not by national courts, not even Constitutional Courts. This doctrine extended, because even though it is Dot a prerequisite for the applicability of Com­
might therefore spur contrasting decisions in the future. munity law, it can be invoked every time a contrast between a Community rule and
a national statutory provision (both regional and national) can be established.65 It
D. Regional Statutes and Community Law is not clear, though, whether regions must wait for a decision by the Constitutional
Court, or whether they can simply apply Community rules having direct effect
The foregoing discussion has focused on conflicts between Italian national statutes
and EC rules. But Italy is also divided into regìons that have the power to pass
statutes relating to regional matters. Thus, the question arises: what happens when
within the period established for approvalo When the Regional Council approves it again by
a regional statute generated within the Italian legal system conflicts with a Com­ an absolute majority of its members, the Goverrunent of the Republic may, within fifteen
munity law, and what guarantees the timely and effective application of Community days of communication of the fact, subrnit the question of its legitimacy to the Constitutional
law in the Italian legal system? Court .. ."
In 1994, the Italian governrnent took a case61 before the Constitutional Court 63 Commissario di Stato per la Regione Sicilia c. Regione Sicilia, 30-3-1995, no. 94, in Giur. It.,
because it considered that a regional statute was contrary to Community law. 62 The 1996, I, 73; Giur. cast., 1995,789.
Region took the position that even if such a conflict existed it could not be cured The argument of the Constitutional Court is similar to that employed by the European Court
64
ofJustice in Commission v. Italian Republic, C-l 68/85,[1986] ECR 2945: in an action brought
by the Commission against Italy conceming some Italian statutory provisions that limited the
59 Pulos, 23-12-1986, no. 286, in Giur. cost., 1986, 1,2309. See also Toso v. Regione Friuli­ rights of Community citizens to exercise certain professions Uournalists, tour guides, and
Venezia Giulia, 3-6-1998, no. 196, in Riv. it dir. pubbl. com., 1998, 1061, in which the court pharmacists), Italy maintained that since Community law prevailed against any contrasting
deemed constitutional a regional statute that bans the transportation of waste from other internal mIe, there was no need to amend or repeal them, being sufficient to circuIate
regions for disposal, because it corresponds to the aim of environmental protection mandated administrative directions recalling Community obligations. The Court of Justice forcefully
both by Italian and Community law. disrnissed this c1aim, stating that "the rights of individuals to rely on directly applicable
provisions of the treaty before national courts is only a minirnum guarantee and is not sufficient
6() Soc. Messaggero v. Ufficio registro Padova, 29-12-1995, no. 536, in Foro it., I, 1996,783 in itself to ensure the full and complete implementation of the Treaty" [because] "this creates
(note by Barone); Riv. it. dir. pubbl. com., 1996,777, an ambiguous state of affairs by keeping the persons concerned in a state of uncertainty as to
61 Presidente del Consiglio v. Regione Umbria, 7-10-1994, no. 384, in Foro amm., 1996,377 the possibility of relying on Community law." The consequence is that "maintaining such a
(note by Caranta); Giur. costo 1994, I, 3449. provision in force therefore amounts to a failure by the State in question to comply with its
obligations under the treaty" (no. Il).
62 According to art. 127 Const., "The Goverrunent of the Republic, when it considers that a law
approved by the Regional Council exceeds the competence of the Region or conflicts with 65 The Court has relied on this mIe in a later decision, Regione Sicilia v. Presidente del Consiglio,

the interest of the Nation or with those of other Regions, returns it to the Regional Council 28-12-1995, no. 520, in Giur It., 1997, 1,269.
CHAPTERFOUR
ITALY AND 1HE EUROPEAN UNION

while disregarding contrasting national statutory provisions. heterogeneous omnibus statutes. 68 In order to achieve these results, Parliament has
Summing up this case law, we can say the Italian Constitutional Court has made wide use of delegated powers to the Govemment, through which it has enacted
followed a complex pattern in order to coordinate Community law with the national numerous measures necessary to adapt the national legaI system to Community
legaI system and guarantee the highest degree of implementation to the former. obligations. 69 The problem with this method has been that it was often implemented
This process has been strongly propelled by the action of lower court judges, who when Italy was already failing to fulfil its duties, and the tasks at hand were often
have been very active in promoting the application of Community law through so numerous and diverse that Parliament could hardly set meaningful guidelines
internal judicial review and requesting preliminary rulings by the Court of Justice. for the exercise of these powers. In order to remedy these drawbacks, Parliament
passed the La Pergola statute in 1989.70 This act compels Parliament to enact a
v. The Implementation of Community Law in the Italian Legai Community Act (legge comunitaria) each year, through which Italy fulfils ali of its
pending Community obligations (transposition of directives, specification of regu­
System
lations, and application of judgrnents by the Court of Justice).
In contrast to the stance of the Italian judiciary, which has gradually but steadily The implementation of Community law can take different forrns. First, it can be
moved towards acceptance of Community law, the legislative and executive powers accomplished directly by the Community Act, though this option is not frequently
have always openly proclaimed complete support for il. The actual application has employed. Secondly, the Community Act can provide that matters that were
nevertheless been far from either complete or flawless. In fact, their stance has previously regulated by statutory provisions, but are not constitutionally required
been schizophrenic because the proclaimed approval has often clashed with the to be regulated by statute (which are commonly referred to as subjects outside the
practical failure to duly implement EC law. These difficulties have derived both riserva di legge, i.e., not covered by a saving clause), will be disciplined through
from a lack of awareness of the peculiarities and needs of Community law and regulations. This option, which is called delegificazione, has the advantage of
from internal complexities in the lawmaking machinery.66 Many measures of permitting swifter action by assigning the task of fixing guidelines and criteria to
Community law require some implementing intervention of the member States in Parliament.7 1 Thirdly, Community obligations can be implemented through
order to become applicable in their legal systems; directives are a particularly regulations in alI subjects that are not covered by a saving clause, as is frequently
significant example, but other acts require national action as well. Community law the case. Finally, the most common procedure is to give delegated powers to the
does not impose any procedure, leaving it to member States to develop their own Govemment, controlled by the principles and criteria fixed by Parliamenl.72
processes, according to the characteristics of their legal systems.
Italy's compliance with Community obligations has been characterized by 68 For example, act 42/87 implemented 97 directives and act 183/87 100.
persistent and widespread delay.67 This delay, which was often condemned by the
69 Statutory decrees (decreti legislativI) are regulated by art. 76 Const: "The exercise oflegislative
Court of Justice in enforcement actions (art. 169, now 226 EC), was remedied by functions may not be delegated to the Governrnent save by the laying down ofprinciples and
throwing together alI of the unimplemented Community measures in huge and criteria and only for a limited period of time and for defined objects"; art. 77 Const.: "The
Governrnent may not, unless properly delegated by the Chambers, issue decrees having the
value of ordinary laws ..." Some of the most important of such delegating acts in Community
matters are: 1. 14-10-1957, no. 1203; l. 13-7-1965, no. 871; 1. 13-10-1969, no. 740; 1. 9-2­
1982, no. 42; 1. 16-4-1987, no. 183.
66 A comprehensive reform of the organization of Governrnent in 1988 has also touched upon
the issue of implementation of Community obligations by entrusting specific powers to the 70 Act 9-3-1989, no. 86 (Norme generali sulla partecipazione del/' Italia al processo normativa
Council of Ministers and its President, and by creating a special ministry for the coordination comunitario e sulle procedure di esecuzione degli obblighi comunitari), in GU 10-3-1989,
of Community policies (Ministro senza portafoglio per il coordinamento delle politiche no. 58.
comunitarie); act 23-8-1988, no. 400, GU 12-9-1988, no. 214, S.O, arts. 2(3)(h). 5(3), 9. The 71 This mechanism was previously established by act 16-4-1987, no. 183, Suppl. Ord. GU 13­
coordinaÙng role of the President of the Council of Ministers has been strengthened by 5-1987, no. 109, which has also established a rotation fund (Fondo di rotazione) in order to
legislative decree 30-7-1999, no. 303, in Suppl. Ord. GU 1-9-1999, no. 205. guarantee a proper use of the funding coming from Community insÙtutions.
67 In 1992,78 directives were unimplemented. 72 According to art. 76 of the Constitution, delegated legislation must confirm to the directing
principles and criteria established by Parliament in the dele~atim! act (Sei' .~unrn not" 09) In
CHAPTER FOUR ITALY AND TRE EUROPEAN UNION

According to a 1999 statute, responsibility for Italy's participation in the European for infringement of Community obligations.76
Union and the process of European integration is given to the President of the The introduction of Community Acts has significant1y improved the record of
Counci! of Ministers (who acts through a special Department in the Council of Ita1y's compliance with Community obligations in recent years.7 7 Nevertheless,
Ministers' Presidency73), while decisions of the main Iines of action in EU matters drawbacks and defects exist: bringing alI Community measures together is some­
are entrusted to the Counci! of Ministers. The powers of the Prime Minister are times a hindrance because modifications of the complex ones delays implementation
generally delegated to the Minister coordinating Community matters (ministro of the simpler ones. Besides, the delegation of implementing powers to the Govern­
competente per il coordinamento delle politiche comunitarie). The Community ment is often so broad and general that its actions can hardly be said to be effectively
Act for 1995-1997, enacted in ApriI 1998,74 increases the Prime Minister's powers. constrained by Parliamentary criteria, and this implies a shift of power in the con­
He or she has the task of transrnitting the measures enacted by the European stitutional balance.
Community to Parliament and checking the conforrnity of the Italian legal system
and of govemmental policies with them; every year the Minister must present the
bili for the Community Act to Parliament before the end of January, and must also VI. Tbe Role of tbe Italian ParIiament
identify each directive for which transposition deadIines have expired and which
The graduaI enlargement ofthe areas influenced by Community law has increased
is not inserted in the bili, with a statement of reasons therefore. 75 This trend has
the role of Government in areas that were traditionally entrusted to Parliament.
been confirrned by the Community Act for 1998, enacted in February 1999, which
This process is particularly relevant because its effects combine with two other
empowers the Govemment to establish special crirninal and administrative sanctions
phenomena: the first is a generaI trend in Western countries, particularly evident in
Italy, to shift powers from democratic assemblies to executive bodies - either
govemmental or independent agencies - in order to cope with numerous problems
of an increasingly technical character. Secondly, the Community legaI process is
characterized by a strong prevalence of executive bodies: the Commission, which
the case of the implementation of EC law, these criteria must be found in the EC rules enjoys a monopoly over legislative initiative, is composed of independent members
themselves, as well as in the delegating Community Act and in the nationaIlegislation relevant selected by the national govemments.78 The Counci! is composed of ministerial
for the area of law affected. This has been recently confinned by the ConstitutionaI Court,
which has determined that both Community and national criteria and principles must be
taken into consideration and coordinated: see Predieri v. Banca d'Italia, 4-3-1999, no. 49, in 76 Act 5-2-1999, no. 25, in Suppl. Ord. GU 12-2-1999, no. 35. Article 7 of the Act empowers
Riv. it. dir. pubbl. com., 1999,909; Foro it., 2000, 1,29; decision 10-11-1999, no. 425 (direct the govemment to coordinate and collect the rules implementing Community Acts through
action by the Region ofEmilia-Romagna), in Gazzetta giur., 1999,46,58; decision 27-11­ the enactment of "testi unici," i.e. consolidating statutes (taking the form of decreti legislativi).
1998, no. 83, in Foro it., 1999, I, 32; Riv. it. dir. pubbl. com, 1999, 251 (concerning the Similar rules aIso appear in the Community Act for 1999 (act no. 522 of 1999) and 2000 (act
constitutionaI admissibility of a statute that gave the Ministry of University and scientific no. 422 of 2(00).
research the power to fix a numerus clausus for university adrnissions; the Court decided that
the question was irrelevant, since the numerus clausus was mandated in some faculties by 77 See the Community Acts for 1990 (29-12-1990, no. 428),1991 (19-2-1992, no. 142), 1993
Community directives harmonizing rules concerning certain diplomas and professions). (22-2-1994, no. 146), 1994 (6-2-1996, no. 52); 1995-1997 (24-4-1998, no. 128); 1998 (5-2­
1999, no. 25); 1999 (21-12-1999, no. 526); 2000 (29-12-2000, no. 422).As can be seen from
73 Legislative decree 30-7-1999, no. 303, in Suppl. Ord. GU 1-9-1999, no. 205. The main powers the dates, a Community Act was not passed by Parliament every year due to delay.
of the President of the Counci! of Ministers concem the relations with EU institutions, the
coordination of govemmentaI action both in the elaboration of EC measures and in their 7& Under the new art. 214(2) EU (previously art. 158 EU), introduced by theArnsterdam Treaty,
implementation, and the relationship between the Govemment and Parliament. the Govemments of the member States nominate the person they intend to appoint as President
of the Commission by common accord, and this nomination must be approved by the European
74 Act 24-4-1998, no. 128, in Suppi. Ord. GU 7-5-1998, no. 881L. Parliament. The Govemments of member States then nominate, together with the nominee
75 In its yearly report to Parliament, the Govemment must provide information on the conformity for President, the persons selected as Commissioners, and aIl of them are subject to approvai
of the Italian legai system with Community law, and give notice of any infringement action by the European Parliament. The procedure will be changed, granting greater power to the
conceming Italy. President of the Commission in the selection of the commissioners, if the amendrnents to the
EC treaty voted by the European Council of Nice (see infra note 81) enter in force (see art.
?1<1 {?\\
CHAITER FOUR
ITALY AND THE EUROPEAN UNION

representatives of national governrnents. Although recent amendments to the elaborating a complete scheme for reforrn. 82 Among the many issues that were
Treaties (the European Single Act, Maastricht Treaty, Amsterdam Treaty and the dealt with in the cornrnission's final November 1997 report was the participation
Nice Treaty) have increased the role of the European Parliarnent in the lawmaking of Italy in the European Cornrnunities and the European Union (arts. 114-116).
process through the introduction of new procedures (cooperation and co-decision79), The report arnended the text of art. Il Consl. to provide for an explicit constitutional
it is nevertheless true that executive bodies remain dominanl. The interaction of basis for the European unification process, such that Italy can participate on an
these factors is surnrned up by a terrn now widespread in the European debate: equal basis with aH other member States83 - provided that the basic principles and
"democratic deficit." The expression, reflecting the changes that have taken pIace fundarnental human rights which are part of the Italian constitutional order are
in the last two decades, implies the need for new instruments that guarantee that respected, together with the principle of subsidiarity and the democratic character
the integration process will not be a bureaucratic enterprise, but will be guided by of the institutions of the European Union. The report also created a special
and be accountable to bodies representing the peoples of Europe. lawmaking procedure for the incorporation of the European Treaties into the Italian
The Italian legal system is stilI far from having found a comprehensive solution legal system, in order to strengthen democratic control. 84 This aim was also pursued
to the problem of democratic control, but there are some signs of change. Just by increasing Parliarnent's role in the definition of European policies and in the
before the 1989 election for the European Parliarnent, the Italian Parliarnent passed appointment of Italian representatives to the EU institutions. Finally, the new
a Constitutional Act announcing a referendum which concerned the empowerrnent institutional architecture also enhanced the cooperation of Regions, both in the
of the new European Parliarnent to transform the European Cornrnunity into a forrnation and application of Community law. Mter fierce political battles arnong
European Union by means of a Constitution creating a European Governrnent the left and right-wing parties, the whole proposal for revision was finaHy dropped,
accountable to il.80 The vote produced an overwhelming majority of 88 percent in and the destiny of constitutional reforrn in Italy in the near future remains unclear,
favor of this proposal, demonstrating once again the fundamental acceptance of although it is likely that further action will depart from the Commission's report.
the European Union ideal by Italian citizens. But, except for a generic reinforcement Currently, severa! statutory rules have reinforced the system for keeping Parlia­
of the integration process, nothing carne of it, either on the Italian or on the ment inforrned regarding governrnental activity in EC matters. Every year, the
Community side. 81 Ministry for Cornrnunity matters presents a report concerning Italy's participation
In the past few years, Italian politicians and scholars have forcefully debated in the European integration process, which is then discussed in both Charnbers.85
the possibility and the direction of a comprehensive constitutional reforrn of the At a lower level (though one that has significant practical effects), the Italian
Italian system. A special parliarnentary commission (Commissione bicamerale per Parliarnent's role in the Community lawmaking process has been enhanced by
le riforme costituzionali) was established in 1997 and entrusted with the task of modifying the rules of procedure of both the Charnber of Deputies (in 1990 and
1996) and the Senate (in 1988). Through these changes, the Commissions competent
for EU matters (the Commissione politiche dell' Unione Europea in the Charnber
79 Artiele 251 EC (forrnerly art. 189b) (co-decision) and art. 252 EC (forrnerly art. 189c) of Deputies and the Giunta per gli affari delle Comunità europee in the Senate),
(cooperation).
80 Act 3-4-1989, no. 2, in GU 6-4-1989. The referendum posed difficult legai problems because
82 Constitutional act 1997, no. I, in GU 28-1-1997, no. 22.
the ltalian Constitution does not provide for advisory or directing referenda (referenda
consultivi o di indirizzo), but onIy for abrogating ones (see art. 75 Const.). Since nothing 83 The originaI text of art. Il Const. refers to the reciprocity of obligations among States, not to
carne out of the vote, the problem remained moot. equality.
81 This siluation has not been fundarnentally altered by the decisions taken at the European 84 The act should be passed by an absolute majority of the members of each chamber. If one
Council of Nice, held on 7-9 December 2000, at which the govemments of the member third of the members of each charnber, or 800,000 citizens, or five regional assemblies, should
States voted a charter of fundarnental rights for the EU and several important reforrns to the make a request within three months of the passing of the act, it should be submitted lo a
institutional machinery of the EU (weighing of votes in the Council, majority decisions, popular referendum, which would succeed if it received a majority of votes.
structure and powers of the Commission, etc.). These reforrns must now be approved by alI 85 The yearly report on EC matters was fusI established by the La Pergola Act (act. no. 86 of
member States according to their internai procedures, as alI arnendments to the European 1989, art. 7) and subsequently reforrned by act no. 128 of 1998, act no. 25 of 1999, art. IO,
Treaties. and act no. 526 of 1999.
CHAPTERFOUR ITALY AND TIIE EUROPEAN UNION

which mirror the political composition of Parliament, have acquired important These constitutional provisions have long remained a dead letter, and a
new powers forreceiving inforrnation from the Governrnent, subrnitting proposals comprehensive shift of competencies to the Regions took pIace only in the late
and opinions to it, and controlling its action. In addition, according to act no. 183 l 970s. 91
of 1987, as amended by act no. 128 of 1998,86 all Community proposals for In March 200 l, Parliament passed a constitutional reform conceming the powers
regulations, directives, and recommendations must be communicated to Parliament, of regions, which was subsequent1y approved by popular referendum in October
in order to facilitate its tasks of proposal and oversight. 2001. After this reform (to which the current conservative Govemment has been
Although technically effective, these mechanisms have not significantly increased opposed), the State has exclusive powers in a limited number offields, concurrent
the input of Parliament in the Community lawmaking process. 87 In fact, some powers with the regions in some others, while regions have residual powers in all
scholars think that while, unti! the 1980s the "invisibility" ofParliament in European other areas.
issues was due to the lack of legal instruments, today its marginal role can mainly Many of the competencies that are now vested in the Regions are relevant to
be attributed to its inability to make sound use of the legal instruments at its disposal, Community law, and it is therefore necessary to define the respective spheres of
as well as to a lack of a "European consciousness" among ltalian parliamentarians.88 action of the Community, the State, and the Regions. This issue has two dirnensions:
the first concerns regional intervention in the creation of Community rules that
affect their powers. The second, which has been given greater attention by the
VII. The Role of Regions lawmaker, deals with the problem of implementation at the nationallevel through
The Italian Constitution of 1948 created a State structure divided among the State, the Regions. Although the Constitution vests extensive powers in the Regions, the
Regions, Provinces and Comuni (municipalities), and now, as of March 2001, State has historically been reluctant to recognize them. Forrnally, this choice was
Metropolitan Towns. According to art. 115 Const., "[t]he Regions are constituted due to the fact that at the Community level, as in other international organizations,
as autonomous territorial units with their own powers and functions according to the responsibility for the fulfillment of obligations is reserved to the State,92 and as
the principles established by the Constitution."89 Article 117 Consto then enumerated a consequence of its liability for any failure by the sub-State levels, it retained firrn
the subjects in which Regions can legislate, provided that such legislation did not control over their actions. This, however, does not fully explain the reluctance and
conftict with the interests of the nation and of other Regions. These competencies delay, since history shows that the holding of those powers by the State has not
were wide-ranging and included health care, vocational training, town planning, overcome the fundamental problem of failed implementation of Community
tourism, local transport, agriculture, and artisanship. More extensive powers were obligations, and most of all it does not justify the lack of instruments for ensuring
given to five Regions that have social and historical peculiarities, and therefore the participation of Regions in the elaboration of Community rules relevant to
enjoy broader autonomy (the so-called autonomous Regions).90 them. In fact, it is only by giving them a proper role at the adoption stage that
correct implementation can follow.

86 See also Community Act for 2000, art. 6; for Regional Acts, see infra.
with special statutes adopted by constitutionallaw, are attributed to Sicily, Sardinia, Trentino­
87 A report of1991 following a Senate enquiry on the issue ofltalian participation in the creation Alto Adige, Friuli-Venetia Julia and the Valle d'Aosta. The autonomous Provinces of Trento
and implementation of Community law has underlined the scant role of Parliament. and Bolzano enjoy wide competencies similar to those of the other special Regions.
88 M. Cartabia, "L'ordinamento italiano e la comunità europea," in B. Beutler, R. Bieber, J. 91 DPR (Decree of the President of the Republic) 24-7-1977, no. 616, in Suppl. Ord. GU 29-8­
Pipkorn, J. Streil, J.H.H. Weiler, L'Unione europea - Istituzioni, ordifUlmento e politiche, 1977, no. 234, which has carried out the delegation of art. 1 of Act 22-07-1975, no. 382
Bologna, 1998, 121. (Norme sull' ordifUlmento regionale e sulla organizzazione della pubblica amministrazione),
89 In the first part of the Constitution, devoted to basic principles, art. 5 states: "The Republic, in GU 20-8-1975, no. 220.
which is one and indivisible, recognizes and promotes local autonomy; it applies the fullest 92 See Constitutional Court, 24-7-1972, no. 142, in Giur. cost., 1972, I, 1432; Presidente del
measure of administrative decentralization in services dependent on the State and adjusts the Consiglio v. Provincia autonoma di Bolzano, 18-10-1996, no. 343, in Regioni, 1997, 189
principles and methods of its legislation to the requirements of autonomy and decentralization." (note by Camerlengo); Presidente del Consiglio v. Provincia autonoma di Bolzano, 23-12­
90 According to art. 116 Const., particular fonns and conditions of autonomy, in accordance 1997, no. 428, in Riv. it. dir. pubbl. com., 1998,241; Foro it., 1998, I, 706.
CHAPTERFOUR ITALY AND TIIE EUROPEAN UNIO

A. The Role of Regions in the Implementing Process Tbe meehanism was first modified by act no. 183 of 198797 and was furthe
refined by the La Pergola Act of 1989, wbich empowered Regions in fields o
With the new Constitutional refonn, Regions have a generaI power to impiement shared competencies to apply directives after the eoming into force of the firstl
EU acts and international agreements in tbeir fields of competence, tbough tbe Community Act following tbeir notification. Tbis meant tbat if the State did not act
State retains the power to intervene following inaction by the regions. Still, in in a timely fashion, Regions could transpose EC directives autonomously to remedy
order to understand tbe developments tbat have taken pIace, we must look at tbe the inaction. Conversely, the State retained the power to intervene if Regions failed
previous phases of legaI development in tbis area. According to art. 6 of tbe DPR to do so, and tbis double mechanism ensured the widest degree of compliance with
616/1977, Regions have adrninistrative powers for the applicatibn of Community Community obligations. 98
law in tbe field of jurisdiction granted to them;93 tbey can directly apply Com­ Tbe Constitutional Court intervened on tbis issue in an important 1996 decision
munity regulations, whereas for tbe transposition of directives they must follow in wbich it confinned tbat ltaly ,s participation in the process of European integration
the principles established by a corresponding State act. li Regions fai! to take must be coordinated with its fundamental constitutional structure, of wbich regional
action, the State act is applicable. li this failure involves the breach of Community autonomy is a founding element.99 According to tbis scheme, Regions retain primary
obligations, tbe Govemment can act in the pIace of tbe Region tbrough tbe so­ competence in matters that are reserved to them by the Constitution, and the State
called intervento sostitutivo ("substituting intervention"). Tbe Constitutional Court can only intervene in order to supplement or substitute them when the correct
has ruled several times on tbis issue. In 1979 it held tbat the division of powers implementation of Community obligations is at risk. Tbis would imply that the
between State and Regions in the sphere of Community obligations, as outlined in Constitutional Court must ensure the respeet of regional competencies not only by
the relevant statutory provisions, is coherent with the constitutional structure;94 in the State, but also by tbe European institutions, which can directly interfere with
198795 it further stated that tbe State can act whenever tbis is required to ensure tbe tbe internaI divisions of nationallegal systems. lOO Nevertheless, in this decision
timely and correct implementation of Community obligations, as well as the
preservation of unitary State interests. Tbe interpretation was very extensive, and
has frequently justified interventions by the State so detailed as to leave to the inteIPreted the power of State intervention broadly. See Provincia autonoma di Bolzano v.
Regions virtuaIly no room for action. 96 Presidente del Consiglio, 16-7-1991, no. 349, in Giur. cost., 1991, I, 2787; see also Provincia
autonoma di Trento v. Presidente del Consiglio, 17-7-1998, no. 273, in Riv. it. dir. pubbl.
com., 1998, 1067.
93 The firstdevolution ofpowers to the Regions was made in 1975 in the field of agriculture: act 97 Act 16-4-1987, no. 183 (Coordinamento delle politiche riguardanti l'appartenenza dell' Italia
9-5-1975, no. 153, in GU 26-5-1975, no. 137; act 22-7-1975, no. 382, in GU 20-8-1975, no. alle Comunità europee ed adeguamento dell' ordinamento interno agli atti normativi
220. comunitari), Suppl. Ord. GU, 13-5-1987, no. 109.
94 Regione Friuli-Venezia Giulia v. Presidente del Consiglio, 26-7-1979, no. 86, in Giur. costo 98 The intervention by the Governrnent., which must first receive the opinion of the competent
1979, I, 646. Some of the Regions had made a claim of unconstìtutionality of DPR 616/1977, Parliamentary commissions and of the Region involved, must fix a deadline for the Region to
because by reserving to the State the power to set framework rules, it permitted its interference fulfil its obligations; the Governrnent intervene only after there ìs no action by the regìon
with regional powers, and also because the act did not provide for any mechanism with when the deadline is up.
which to remedy possible State inaction.
99 Provincia autonoma di Trento v. Presidente del Consiglio, 24-4-1996, no. 126, in Giur. cost.,
95 Provincia autonoma di Trento v. Presidente del Consiglio, 30-9-1987, no. 304, in Giur. costo 1996, 1062 (note by Anzon); Riv. it. dir. pubbl. com. 1996, 1250 (note by Marzanati). See
1987, I, 2484. alsoRegione Velleto v. Presidente del Consiglio, 11-12-1998, no. 398, in Foro it., I, 5, where
96 Autonomous Regions have similar limits on concurrent powers; where they are vested with a series of national rules concerning the allotment to the Regions of milk production quotas
exclusive powers, they must only comply with fundamental principles, but not with the special mandated by EC law were considered unconstitutional because the Regions had not been
guidelines fixed by the State for the implementation of Community rules. The La Pergola consulted.
Act of 1989 widened the room for action for exclusive powers: according to art. 9, these 100 See e.g. the Integrated Mediterranean Programmes and the mechanism of structural funds
Regions can inunediately transpose EC directives, without having to wait for State intervention, introduced by the European Single Act which inslituted a partnership among European
and when this latter occurs, they only have to conform to il as required by constitutional Regions, avoiding the State leve!. More frequently, though, Community action entrusts specific
principles. The Constitutìonal Court has intervened on this provision, and it again has tasks to the States.
CHAPTERFOUR ITALY AND THE EUROPEAN UNION

the Court explicit1y stated that Community law can depart from the national Some important changes involving the substantial devolution of power from
constitutional framework, as long as it does not infringe upon fundamental the State to the Regions have been achieved through ordinary legislation. In 1997,
constitutional principles. 101 It has reaffirmed this doctrine in a decision of 1997,102 the so-called Bassanini Act l06 revolutionized the previously existent division of
stating that if a modification of the constitutional division of competencies between adrninistrative powers between the State, the Regions, and local govemmental
State and RegiOli is produced by a Community measure, this is not subject to entities (enti locali), devolving the majority of competencies to the lower levels,
judicial review by the Italian Constitutional Court. This development could prove and retaining for the Govemment the crucial task of co-ordination and supervision.
dangerous for the preservation of regional powers, since Regions do not participate Administrative functions and tasks are vested in comuni (townships), province
ful1y in the lawmaking process on European issues either at the Community or at (provinces), and mountain communities (comunità montane), reserving to the
the national level; besides, they do not have direct access to Community judicial Regions only those tasks that require unitary activity (art. 3). This model transposes
protection (i.f!. they cannot go to the European Court of Justice to have their the principle of subsidiarity (according to which decisions must be made as dose
competencies protected),103 so the only instrument left is the Constitutional Court, as possible to the communities that they regulate) to the nationallevel. The content
which may intervene in order to guarantee the constitutional division of powers. ofthis important act was then specified by several govemmental decrees. Although
The abandonrnent of this control is a serious threat to the State-Regional balance, a complete analysis of this new system is beyond the scope of this chapter, we can
particularly because there is no clear-cut delimitation of the Community's sphere mention a few rules that concem the issues with which we have been dealing. A
of intervention. decree of August 1997107 has significant1y expanded the tasks of the Permanent
This system has been amended by the Community Act for the years 1995-1997, Conference.for the Relations between State and Regions (Conferenza permanente
enacted in ApriI 1998,104 which abolishes the requirement of a previous national per i rapporti tra lo Stato e le Regioni).108 This consultative body lacks legislative
Community Act in order to transpose EC directives where they have concurring power, but ensures the distribution of proper information to the Regions, and
powers (art. 9) for all Regions, both ordinary and autonomous. Regions can therefore functions as the core institution for the coordination between goveming levels, not
take action independent1y from the State, and acquire a wider ambit of discretion. 105 only for Community matters, but also respecting all those competencies devolved
to sub-State levels. Another decree of March 1998, devolving adrninistrative
functions to the Regions and lower bodies,109 explicit1y defines the coordinating
101 AB in all previous case law on point, the judgment did not define the content of these principles. role of the State in relations with the European Union; this also implies the task of
102 Regione Umbria v. PresidenJe del Consiglio, 11-4-1997, no. 93. in Riv. it. dir. pubbl. com., ensuring the enforcement of Community obligations and a unitary representation
1997,718 (note by Marzanati). The case concemed a Community programme for employment at the intemationallevel (art. 2). The result of the wide devolution is that Regions
and training which created a partnership between the Commission and the State, obliterating
and lower levels acquire broad powers, but the State retains an important
the constitutional competencies ofthe Regions in this fields.
coordinating and directing power (potere di indirizzo e coordinamento) (art. 4), as
103 The final report of the Parliamentary Commission for the Constitutional Refonn of 1997
contains a rule that empowers Regions to challenge the legitimacy of Community measures
that infringe upon their competencies through the action of Govemment.
104 Act 24-4-1998, no. 128, in Suppl. Ord. GU 7-5-1998, no. 88/L.
105 Regional acts must contain the title and number of the directive they transpose, and Regions regional measures which prevail over the national ones (although they muSl comply with the
must give notice of them to the Govemment. See art 2·bis of act no. 86 of 1983, as amended guiding principles).
by art. 6 of community act for 2000 (act 29-12-2000, no. 422 in Suppl. Ord. GU 20-1-2000, 106 Acl 15-3-1997, no. 59, Suppl. Ord. GU 17-3-1997. no. 63.
no. 16). On the other hand, the Govemment can determine the guiding principles that cannot
107 Legislative decree 28-8-1997, no. 281, in Suppl. Ord. 21-4-1998, no. 92.
be derogated by regional acts and prevail against contrasting regional rules. Il can also enact
detailed rules transposing EC measures in fields reserved to the Regions, but these remain in 108 The Conference was established in 1988 by act 2-8-1988, no. 400, Suppl. Ord. GU 12-09­
force only as long as Regions do not pass regional statutes on the same issue: see Constitutional 1988, no. 214.
Court, decision 1O-1l-1999, no. 425, in Gazzetta giur., 1999,46,58, according to which if 109 Legislative decree 31-3-1998, no. 112 (conferimento di funzioni e compiti amministrativi dello
Govemment implements EC rules in fields pertaining to the Regions (in the case rules for the Stato alle regioni ed agli enti locali, in attuazione del Capo / della legge /5 marzo /997, no. 59).
protection of the natural environment), the latter can regain their competence by passing
 ITALY AND TIIE EUROPEAN UNION
CHAPTER FOUR

weli as an extensive power of substitution (poteri sostitutivi)110 where the nominaliy ment in the relationship between the European Union and the member States, but
competent bodies have failed to implement Community obligations, or when the within the national legaI systems as well. In fact, the special Parliamentary
Commission established in 1997 for the comprehensive constitutional reform of
national interest may be damaged (art. 5).
TIris devolutionary model is also adopted by the Constitutional reform of March the Italian legal system placed among its central issues the decentralization of the
200 l, which assigns the adrninistrative function to municipalities, except where, State in favor of the lower levels, either through a truly federaI structure or through
for unitary reasons they are assigned to the Region or the State. Regulatory functions a far-reaching devolution. This has been partially accomplished by the Constitutional
belong to the State only where it enjoys exclusive power. In ali other areas, they Reform of March 200 l, which has significant1y strengthened the legislative powers
of Regions, and the adrninistrative powers of ali subnationallevels, according to
belong to the Regions.
the subsidiarity model.
In the Italian legal system, any contact between the Regions and Community
B. The Roleof Regions in the Elaboration of Community Law
institutions was initially filtered through the intervention of the national ministries,
The situation regarding the role of Regions in the elaboration of Community rules whose action was to be coordinated by the Foreign Office, following the traditional
is stili far from satisfactory, although some improvements have been made in recent model of internationallaw. l13 Community proposals for legisiation initialiy had to
years. be communicated to the Regions in the fields in which they had enumerated
At the Community level, the Maastricht Treaty has introduced a new body into powers.n 4 A significant change came with the La Pergola Act of 1989, according
the legaI process calied the Committee of the Regions. 111 This body represents to which matters of interest to the Regions must be discussed in the Permanent
regional and local entities at the European level in order to include their voices in Conference for the Relations between State and Regions. According to the 1989
Community decisions concerning them. It must be consulted by the Commission statute, the President of the Council of Ministers had to convene the conference
and the Council when the Treaty so specifies, and it may be consulted, even direct1y every six months in order to discuss Community matters relevant to regional
by Parliament, in any instance deemed necessary. Every State can appoint a certain competencies (art. lO). The Community Act for the years 1995-1997 enacted in
number of members based on its size (although formaI appointment is made by the April1998 modified the procedure, extending the power to convene the Community
Council); and it can decide which of its internaI subdivisions are to be represented. session of the State-Regions Conference to the Regions as well, and explicit1y
TIris reflects the differingpatterns of organization of member States, but it produces entrusting to them the power to give their opinions on the Bili for the Community
the negative result of a highly heterogeneous composition, which can sometimes Act (art. lO). The same act provides that regions can send proposals to the
hinder the Council's performance. Government in their fields of competence, in order to influence the content of
Another relev ant feature is the principle of subsidiarity, which has been inserted national regulations implementing Community acts. Finaliy, the Community act
as one of the centraI features of the new European system created by the Maastricht of 2000 compels the Government to transmit to Parliament and the Regions ali
Treaty and consolidated by the Amsterdam Treaty. According to the subsidiarity projects related to EC and EU acts. In this way Regions can also intervene
principle, political and economic decisions must be made as close as possible to proactively, without having to wait for governmental input.
the people,1I2 pointing not only to the strengthening of the lower levels of govern­ The 1998 Act also modifies a rule concerning the composition of the Italian
permanent delegation (rappresentanza permanente) at the European Union, and
adds one more member appointed by the Conference of the Regional Presi­
110 Although substituting powers were already present in the Italian legal system, art. 5 enlarges
and modifies them as a necessary counterbalance to the significant increase of competencies
of the lower levels.
achieved by the Member States and can therefore, by reason of the scale or effects of the
III Article 263 EC (formerly art. 198A-C).
proposed action, be better achieved by the Community."
112 Article 2 EC (formerly art. B): "The objectives of the Union shaH be achieved .. , respecting
the principle of subsidiarity"; art. 5 EC (formerly art. 3B): "In areas which do not faH within 1I3 Decree of the President of the Council of Ministries, 11-3-1980.
its exclusive competence, the Community shall take action, in accordance with the principle 114 Act 16-4-1987, no. 183, supra note 97.
of subsidiarity, only if and insofar as the objectives of the proposed action cannot be sufficiently
CHAPIERFOUR
ITALY AND TIIE EUROPEAN UNION

dents. 1I5 Furthennore, the Minister of Foreign Affairs, in giving directions to the respective spheres of competence of Community and internaI law, streamlining
pennanent delegation at the EU, is bound to take into consideration the topics that the inevitable areas of interaction. After a period of divergence from the Court of
the State-Regions Conference has pointed out as particularly relevant to regionaI Justice, the ConstitutionaI Court aCknowledged the primacy of Community law,
interests.
eliminating the requirement of judiciaI review, and entrusting alI judges (and later
FinalIy, Regions can set up offices for relations (uffici di collegamento) with alI public entities) with the task of guaranteeing the application of Community law
European institutions, either separately or along with other Regions or European
in pIace of conflicting internaI rules. The last area of intervention, which was
bodies, in order to favor trans-border cooperation and international agree­ developed simultaneously by the Italian and the European judges, was the
ments. 116 This new rule marks a break with the old idea ll7 that Regions could not
enlargement ofthe body ofCommunity rules having direct effect, which has entailed
manage relations with foreign entities by themselves, since this amounted to inter­
the strengthening of the role of individuaIs, who can ask for the protection of their
nationaI activity reserved exelusively to the State. 118 According to the new version
rights at both levels, indirectly favoring a broad and unifonn application of
of art. 117 Const., folIowing the March 2001 ConstitutionaI refonn, regions can
Community law. This change has been driven forcefulIy by lower court judges,
make agreements with foreign States or with subnationaI entities of foreign States.
who have made extensive use of both judiciaI review and preliminary reference
Thus, the rule acknowledges that Regions may play an active and significant role procedures.
in the process of European integration.
The role of the Italian Parliament displays some ambiguity because, aIthough it
has always demonstrated a very favorable stance toward the European integrating
VIII. Concluding Remarks process, its.performance both in the definition of Community policies and in their
implementation in the nationaI legaI system has often been unsatisfactory. The
FolIowing the two dimensions of development outlined above - time and the problem of the ascending phase (i.e. the formulation of policies at the Community
vertical-horizontaI dimension - we can now suggest a few conelusions. level) has been tackled by increasing the flow of infonnation from the Government
The first period - roughly the 1960s through the 1970s - was marked by a (which is the leading internaI actor in the Community), to Parliament, and by en­
search for a solid foundation upon which to ground ItaIy's participation in the trusting the competent Parliamentary commissions with greater powers of proposal
European process of integration and the subsequent devolution of powers. This and control over govemmentaI action.1n spite of their technicaI accomplishments,
process was led by the Constitutional Court which, in spite of the weakness these institutionaI devices do not seem to have a significant practical impact. The
stemming from the transposition of the Treaties through ordinary statutes, managed descending phase, i.e. the implementation of Community measures in the national
to find a suitable constitutionaI basis through a broad interpretation ofArtiele 11 of legaI system, has been characterized in its first decades by sporadic and unsystematic
the ItaIian Constitution. The succeeding phase centered on the definition of the intervention. The frequent failure of implementation has led to the creation of new
mechanisms in the late 1980s, the most relevant being the Parliament's obligation
to pass a yearly Community Act implementing aIl pending Community measures
and obligations. This new framework has proved rather successful, but it entails a
115 The rule was part of the Community Act for 1994, passed in 1996 (Act 6-2-1996, no. 52, art. significant shift of power from Parliament to the executive branch, since in most
58 (2»; it added some regional representatives to the rappresentanza permanente at the EU.
cases the fonner only establishes guidelines, while actuaI implementation is left to
116 See act no. 128 of 1999, art. 13, c. I. delegated legislation and regulations.
117 DPR 31-3-1994. According to the decree, Regions can have direct relations with Community The ItaIian Constitutional structure is based on a division of competencies
institutions and bodies for information and preparatory activities. This implies, for the first between the State and lower levels, of which Regions are the most important. This
time, a differentiation of the legai regime between Community matters and other intemational division of powers, which has been marked by a graduaI increase of regionaI tasks
relationship.
from the internaI point of view, has been significantly affected by Community law,
118 See Constitutional Court decision 9-4-1963, no. 49; Presidente del Consiglio v. Regione Puglia, which often intervenes in areas that falI within areas of local competence
22-5-1987, no. 179, in Foro it., 1989, I, 2121; Presidente del Consiglio v. Provincia autonoma
(agriculture, environrnentaI protection, tourism, vocation training, etc.). The process
di Bolzano, 23-12-1997, no. 428 in Riv. it. dir. pubbl. com., 1998,241 Foro it., 1998, 1,706.
of integration has pushed in an opposite direction with respect to the internaI one;
CHAPlER FOUR ITALY AND THE EUROPEAN UNION

the State whieh is the on1y subjeet responsible for the perfonnanee of obligations G. Gaja, "New Developments in a Continuing Story. the Relationship between
at the Community level has tended to eentralize the management of alI Community EEC Law and Italian Law," in CMLRev (1990), 83.
issues. In the 1980s and 1990s, several statutes have been passed to guarantee
A. La Pergola, P. Del Duca, Community Law, International Law and the Italian
regional eompetenee both in the ascending and descending phases. While the role
Constitution, in AmJIntL (1985) 598.
of Regions in defining Community policies remains marginaI (due in part to their
lack of institutional representation in the EC), some signifieant progress has been F. Musio, Comunità europea, Stato e Regione, Milano (1994).
made on the issue of the implementation of Community measures.
P. Perlingeri, Diritto comunitario e legalità costituzionale. Per un sistema italo­
The integration of the Community and the Italian legal systems is a dynarnic comunitario delle fonti, Napoli (1992).
process, and it is difficult to foresee its evolving patterns. Evolution will depend
upon different political, economie and social variables. Yet there is one element R. Petriccione, "Italy: Supremacy of Community Law over National Law," ELRev
that will surely be central in future developments: at both Community and national (1986), 320.
levels, the deepening integration has resulted in a gradual yet significant concen­ H.G. Sehenners, D. Waelbroek, Judicial Protection in the European Communities,
tration of powers in bodies lacking direct democratic legitimacy (such as the 5th ed., Deventer (1992).
Commission and Council of Ministers at the Community level, and Goverrunent,
local administrations, and ageneies at the State leve}). No redefinition of the A. Stone Sweet, Governing with Judges: Constitutional Politics in Europe, Oxford
European institutional framework has counterbalanced the loss ofpower by national (2000).
Parliaments. In this sense, the increased role of the European Parliament, although G. Tesauro, "Procedura di adeguamento al diritto comunitario: problemi antichi e
positive, is on1y a partial solution. What we need is a new model of interaction nuovi propositi," in Riv. it. dir. pubbl. com. (1992),385.
between the EU, the member States, and their internaI subdivisions capable of
organizing a system of relations that has moved a long way from the originai system. A. Tizzano, "L'articolazione del diritto comunitario e di quello interno," in Riv.
dir. euro (1994),651.
The core of this development could probably be centered around the principle of
subsidiarity, with its flexible division of competencies among ali institutionallevels.

IX. Bibliography
G. Benacehio, Diritto privato della Comunità europea - Fonti, modelli, regole,
Padova (1998).
M. Cartabia, Principi inviolabili e integrazione europea, Milano (1995).
M. Cartabia, "L'ordinamento italiano e la comunità europea," in B. Beutler, R.
Bieber, I. Pipkorn, I. Streil, I.H.H. Weiler, L'Unione europea-Istituzioni, ordina­
mento e politiche, Bologna (1998), 111.
M. Cartabia, I.H.H. Weiler, L'Italia in Europa - Profili istituzionali e costituzionali,
Bologna (2000).
P. Craig, G. de Burca, EU Law - Text, Cases andMaterials, 2nd ed., Oxford (1998).
F. Donati, Diritto comunitario e sindacato di costituzionalità, Milano (1995).
G. Falcon (ed.), Lo Stato autonomista, Bologna (1998).
CHAYfER FIVE

Machinery of Justice

Vincenzo Varano 1

I.Introduction
The structure of the adrninistration of justice in Italy is rather typical of the civil
law approach. With regard to the organization ofcourts, like most civillaw countries,
Italy is characterized by a plurality of court hierarchies, as opposed to common
law countries, in which Court organization is based on the principle of a single
court hierarchy. In Italy, one finds the ordinary courts on one side dealing with
civiI and criminal matters, and the adrninistrative courts on the other side dealing
generally with public law disputes. We shalllimit our description of the machinery
of justice in Italy to these two sets of courts, which are undoubtedly its most
important components. However, the reader should be aware that besides the
Constitutional Court, which is dealt with extensively in other chapters ofthis book,
there are several other courts dealing with special subjects.2 The other feature which

1 Professor of Comparative Law, University of Florence. This chapter is updated to 31 May

2001.
Among the various special courts, three are particularly worthy of mention. First, there are
the juvenile courts (tribunali per i minorenni) attached to each court of appeal; these courts
have broad civiI and criminaljurisdiction whenever minors are involved. The tribunali per i
minorenni adjudicate as a mixed bench of professional judges and two social workers - one
male, one female. The tribunali per i minorenni are regulated by royal decree no. 1404 of 20
July 1934, as arnended. Secondly, cases involving public water rights are heard by regional
tribunals of public waters (tribunali regionali delle acque pubbliche) which are attached to
some courts ofappeal and adjudicate in panels ofthree judges, one ofwhom is an expert. The
superior tribunal ofpublic waters (tribunale superiore delle acque pubbliche) is the appellate
tribunal. This tribunal sits in Rome, is chaired by a high ranking judge of the Corte di
Cassazione (Supreme Court) and is composed of five ordinary judges, four administrative
judges, and three experts. Cases are heard by panels of five or sevenjudges depending on the
circumstances. These tribunals are regulated by arts. 138-210 of royal decree no. 1775
CHAPTER FIVE
MACHINERY OF JuSTICE

lta1y shares with other civillaw countries is that the core of its judiciary is made up
of antiquated machinery. On the one hand, the reforrns emphasize the role and the
of career judges.
contribution of a non-professional judiciary. I refer to the new justices of the peace
This traditional picture, which has remained practically unaltered in its basic (giudici di pace, see part TI A, below), with jurisdiction over minor civiI and criminal
features since the political unification of Italy in 1861, underwent profound changes cases; and to the so-called sezioni stralcio (see part TI B, below), which are special
in the late 1980s and 1990s due to a number of reforrns, some of which are still temporary divisions ofthe "tribunali," introduced to deal with the civiI proceedings
underway. Some of the reforrns deal with procedure. Foremost among them is the
pending onApril30, 1995, and which are chaired by professional judges but staffed
new Code of Crirninal Procedure, enacted by legislative decree no. 447 of 22
by honorary judges appointed from among lawyers, notaries, and law professors.
September 1988 and effective since 24 October 1989. It replaced the previous On the other hand, the reforrns rationalize the adrninistration of justice in the first
1930 Code based on a judge-dominated trial with a more adversarial procedure,
instance by merging the "preture" and the "tribunali" into one court of first instance
but on the whole it cannot be said that the reforrn has been entirely successful,
of general dviI and criminal jurisdiction. The "tribunale," normally sits as a single­
given that the Code has been repeatedly modified by numerous decisions of the judge court, with only the most serious dviI and crirninal cases being reserved to a
Constitutional Court and amending statutes. Also very important is law no. 353 of three-judge pane!. Last but not least, the selection process of ordinary judges has
26 November 1990, effective since l May 1995, which enacted "emergency also been recently reformed.
measures for civil procedure." Other reforrns, which are of more immediate concem
here, deal with the adrninistration of justice, and are mainly the result of the bank­
ruptcy of the system of dviI and criminal justice in Italy, which is plagued by II. Organ~zation or Ordinary Courts
intolerable delays and which results in a real denial of justice. 3 The reforrns do not
change the basic features of the adrninistration ofjustice sketched above - a plurality Following the reforrns which have been enacted in the last few years, and those to
of court hierarchies and career judiciary remain fixed features ofthe Italian system. which we referred in the preceding paragraph, the system of civil courts in Italy is
But the reforrns are a significant contribution to a comprehensive project of renewal presently based on the following pattem: the justices of the peace are at the bottom
of the hierarchy; the tribunale is the court of first instance of general jurisdiction;
the appeals court ("corte d'appello") is the court of appeal at the intermediate
of Il December 1933. TIlirdly, mention should be made of the tax courts (commissioni level; and finally, the Italian Supreme Court (Corte di Cassazione) is the court of
tributarie), which are very important and sit as first instance provincial courts and appellate
last resort for non-constitutional controversies. The criminaljustice system follows
regional courts, presided over by ordinary or administrative judges, and composed of people
who have an adequate legal or economie qualification. The most important reform introduced the same pattem. The justices of the peace will begin to exercise their criminal
by legislative decree nos. 545 and 546 of 31 December 1992, is that appeals from the decisions jurisdiction on January 2, 2002, according to law no. 163 of 3 May 2001.4
of the regional tax courts are taken to the Supreme Court on the grounds indicated by art. 360
para. I CPC. A. The Justices of the Peace
J For some statistical data, see II. E. infra. The level of delay reached in ltaly has given rise to
many complaints to the European Court of Human Rights for violation of art. 6 para. l of the Law no. 374 of21 November 1991 replaces the old conciliatori with 4,700 justices
European Convention for the Protection of Human Rights and Fundamental Freedoms, of the peace (art. 3), distributed over 828 offices. According to some commentators,
according to which "in the determination ofhis civil rights and obligations or of any criminal the new justices of the peace have succeeded in relieving the ordinary courts of
charge against him, everyone is entitled to a fair and public hearing within a reasonable time first instance of about one fourth of their present workload.5
... " [italics added]. As to the cases decided by the Strasbourg Court against ltaly, see, e.g.,
The new justice ofthe peace is an honorary, rather than a career judge, appointed
Capuano V. Italy (1991), 13 EHRR 271; Santilli V. Italy (1992), 14 EHRR 421; Massa v. Italy
(1994), 18 EHRR 266; Paccione v. Italy (1995), 20 EHRR 396. The Consiglio Superiore by the Consiglio Superiore della Magistratura (Superior Council of the Judiciary,
della Magistratura, i.e. the goveming body of the judiciary (see III B infra), has recently
published a volume on the problem of delay: La durata ragionevole del processo (2000). The
principle of "reasonable delay" is now expressly mentioned in art. 111, para 2 of the 4 On the criminal jurisdiction of the justiees of the peace, see Tonini, Manuale di procedura
Constitution as an essential component of the guarantee of due process oflaw (giusto processo) penale 3rd ed. (2001, forthcoming), ch. III.
introduced by Constitutionallaw no. 2 of 23 November 1999.
5 See Proto Pisani, Lezioni di diritto processuale civile 3rd ed. (1999), p. 17.
CHAPIER FIVE MACHINERY OF JUsnCE

discussed below at ID B) for a term of four years, renewable only once. He or she is no right ofappeal agaìnst a justice of the peace's equitable decisions (i.e., decisions
is a law graduate, at least thìrty years old, and receives compensation based upon where the amount at stake is not higher than two millìon lire - art. 113 CPC).
the amount of work done. The position is not compatible with any private or public These can only be attacked before the Supreme Court (see art. 360 para. l CPC).
employment; justices of the peace who are practìcing attomeys cannot appear before Although it may still be too early to assess the success of the reform introducing
the office at which they must discharge their judicial functions. Ali this suggests a the justice of the peace for civil cases, the overall impression is positive, and it has
conception ofthe office as a full-time job, radically different from the conciliatore, been confirmed authoritatively by the General Prosecutors attached to the Supreme
a lay judge whose office was without pay. Court in their Reports on the Admìnìstration of Justice for the last three years. As
The civil jurisdiction of the justìce of the peace extends to controversies over a matter of fact, the workload is so substantial that there are signs of a troublesome
movables up to five rnillion lire (roughly US$ 2,5(0), as well as controversies for growth of backlog and delay.IO
the recovery of damages arising from the circulation of motor vehicles and motor
boats up to the amount of thirty millìon lire (roughly US$ 15,(00). The justice of B. The Giudice Unico di Primo Grado (The Merger of Preture and Tribunali
the peace also has an interestìng subject-matter jurisdiction over neighborhood­ and the Institution of Single-Judge Courts)
related controversies (including cases of nuisance), not to mention a broad extra­
judicial conciliatory function which, however, based on the experience of the As already anticipated, legislative decree no. 51 of 19 February 1998, pursuant to
conciliatore, may very well turo out to be a failure. 6 The criminal jurisdiction of enablìng law no. 254 of 16 July 1997," finally introduced the single-judge court of
justìces ofthe peace extends to minor offenses, where the sentence does not provide fust instanc~ - a long-advocated reform whose purpose is to favor a more rational
for imprisonrnent. 7 distribution of judicial resources by merging the offices of the pretori and the
The procedure before the justices of the peace is not as informal as many would tribunali. Also conducive to the reform of 1998 is the fact that the 1990 reform,
have expected, and as had been recornrnended. Especially as far as the proof-takìng besides increasing the civil jurisdiction of the pretori to controversies up to fifty
activity is concemed (which remains modeled on that before the higher courts), it million lire (roughly US$ 25,0(0), leaving untouched the cases where they had
is bound to be long, non-concentrated, formalistic, and inefficient. It is probably unlimited subject matter jurisdiction,12 had set the principle that the tribunale sits
also for this reason that the partìes are required to be assisted by a lawyer if the normally as a single-judge court in civil matters, subject to a lìmìted number of
amount at stake exceeds the relatively paltry sum of one millìon lire (roughly
US$ 5(0).8
The judgments of the justices of the peace may be appealed to the tribunali. 9
Nonetheless, art. 339 of the Code of Civil Procedure (CPC) establìshes that there IO See, e.g., the lasl report by the General Prosecutor Francesco Favara, Relazione sull'
Amministrazione della Giustizia nell'Anno 2000 (Rome, 12 January 2001), p. 50. For some
statistical data, see II E, infra. The same report, however, underscores that, though the new
6 The jurisdiction of the justice of the peace is spelled out in art. 7 of the Code of Civil Procedure, honorary magistracy can boast good productivity, the workload is increasing, and is bound to
as refonned by art. 17 oflaw no. 374 of 1991. As to the extra-judicial conciliatory function of increase even more as of 2 January 2002, when the justices of the peace will begin to hear
the justices of the peace, see art. 322 of the CPC, as refonned by art. 31 of the law no. 374. crirninal cases also. It is worrisome that the average duration of civil proceedings has already
For doubts on the effectiveness of the latter provision, see Comoglio, Ferri & Taruffo, Lezioni moved upwards from 241 days in the year 1999 to 269 days in the year 2000. The Report of
sul processo civile, 2nd ed. (1998), p. 142. Judge Favara can be viewed at http://www.giustizia.it/studierapporti/ag200l/cass200lindex.
7 See Tonini, supra note 3. htm.

8 See art. 82 para. l of the CPC, as amended by art. 20 oflaw no. 374 of 1991. Para. 20fthe Il On 15 July 1996, the Superior Council of the Judiciary published its annual Report to
same art. 82 provides that the justices of the peace may allow the party to appear in person Parliament on the state of the administration of justice, advocating this refonn; see Giudice
beyond the limits indicated in para. l, in consideration of the nature of the case and the unico di primo grado e revisione della geografia giudiziaria (1996). The Govemment approved
amount at stake. an analogous refonn proposal and submitted il to Parliament, which quickly enacted the
law.
9 See art. 9 of the legislative decree no. 51 of 19 February 1998, instituting single-judge courts
in first instance. 12 See art. 8 of the CPC, as refonned by art. 3 of law no. 353 of 1990.
CHAPIER FIVE MAClUNERY OF JUSTICE

exceptions, concerning cases considered to be more complex. 13 The reforrn became Sìnce the 1998 reforrn took effect, Italy has had 164 tribunali and 218 branch
effective on 2 June 1999 as far as civil cases are concemed, while decree law no. sections, replacing an equal number of preture and old branch sections. This
145 of 24 May 1999 had delayed the coming into effect of the reform with respect guarantees that the tribunali extend throughout Italy, and that they are as close to
to criminal cases until 2 January 2000. In order to have a full understanding of its the citizens as the old preture.
impact, it may be useful to offer to the reader a very concise summary of the Secondly, the reforrn of 1998 extends the idea that the first instance court sits, as
jurisdiction of the old pretori and tribunali. a rule, as a single-judge court for criminal proceedings (art. 14).14 Articles 56 and
The pretori, who have always sat as single judges, had criminal jurisdiction 169 of the 1998 legislative decree amended the Codes of Civil and Criminal
over certain minor crimes (art. 7 of the Code of Criminal Procedure, CCrPr), and a Procedure, and indicate the cases in which the tribunale is required to sit in panels
wide civiljurisdiction over cases up to fifty million lire (insofar as they did not fall of three judges. In general, it can be said that jurisdiction is vested in the three­
within the subject matter jurisdiction of the justices of the peace), and over certain judge panel when the questions involved are more serious or technically com­
other matters specifically indicated by law (art. 8 CPC). Particularly important plicated. The reader should also bear in mind that in criminal matters, there is a
areas of jurisdiction had been vested, in recent years, in the pretori, especially in special section of the tribunale, the so-called corte d'assise, which hears the most
the fields of the protection of workers' rights in connection with their trade union serious cases (e.g. crimes leading to a sentence of 1ife imprisonment; see art. 5
affiliations (law no. 300 of20 May 1970, especially arts. 18 and 28) and individual CCrPr). This Court has been left untouched by the reforrn. The corte d'assise sits
labor and welfare benefits disputes (arts. 409-447 CPC as modified by the law no. with two ordinary judges (one of whom has the status of a court of appeals judge
533 of 11 August 1973). The offices of the pretori (called preture) had been and presides over it) and six laymen acting as popular judges. Contrary to what
reorganized by law no. 30 of l February 1989, so that on the eve of the 1998 happens in a common 1aw jurisdiction when cases are heard by a judge and a jury,
reforrn there were 165 of them. judges and laymen decide together on the facts as well as the law. A majority vote
The tribunali, of which there were 164, were the courts of first instance ofgeneral convicts, and a tied vote acquits.
jurisdiction over civil (art. 9 CPC) and criminal (art. 6 CCrPr) cases, and had Concerning the new tribunali, mention should also be made of arts. 8 and 21 of
appellate jurisdiction against the judgments of the justices of the peace and the legislative decree no. 51 of 1998, which institute, although on a temporary basis
pretori in civil cases (art. 341 CPC). In both capacities, the tribunali used to sit as (art. 245), the honorary judges of the tribunali and the honorary prosecutors attached
three-judge panels; after the reform of 1990, they sit as single judges when deciding to them. The rules governing their appointment, their terrns of office, their duties
most civil cases in the first instance. and rights, and the professional incompatibility rules they are subject to are
The first important idea of the 1998 reforrn was to create a single professional analytically spelled out and are largely modeled on the rules established by law no.
court of first instance by abolishing the offices of the pretori and the prosecutors' 374 of 1991 for the justices ofthe peace. Article lO ofthe decree provides that the
offices attached to them, and transferring their jurisdiction and functions respectively honorary judges can hear cases when ordinary judges are missing or unavailable.
to the tribunali and the related prosecutors' offices (arts. l and 2 of legislative Furtherrnore, the same provision, together with art. 23 of the decree, provides that
decree no. 51 of 1998). Consequently, the tribunale became the court of first instance certain cases cannot be dealt with by honorary judges and prosecutors. These include
of general jurisdiction over criminal, civil, labor, and social security matters, and cases conceming provisional or possessory remedies, or cases which may lead to a
at the same time the court before which appeals are brought from the civil sentence of over four years of imprisonrnent.
decisions of the justices of the peace (art. 9 of legislative decree no. 51 of 1998). Another reforrn, which has particular bearing on the adrninistration of civil justice
by the tribunali, was introduced by law no. 276 of 22 Ju1y 1997. This statute must

13 See art. 48 of royal decree no. 12 of 30 January 1941, as reforrned by art. 88 of law no. 353
of 1990. On the aspiration to generalize single-judge courts in the first instance, see
14 It is fair to say that the reforrn has not been well received as far as criminal cases are concemed.
Denti, "Giudice onorario e giudice monocratico nella riforma della giustizia civile," 33
Criticisms are mainly directed toward the seriousness of the sentence - up to ten years'
Rivista di Diritto Processuale 609 (1978), 622-30; Cappelletti, Giustizia e società (1972), imprisonrnent - which the single-judge court is empowered to impose. See, e.g., Tonini,
pp. 119-20. Manuale di procedura penale 2nd ed. (2000), pp. 75-77.
CHAPTER AvE MACHINERY OF JUSTICE

be seen in connection with the above-mentioned law no. 353 of 26 November (art. 38 of legislative decree no. 51 of 1998).
1990, enacting "emergency measures for civil procedure," pursuant to which the The right of appeal has no constitutional basis in the Italian legal system, though
proceedings pending on the effective date were to be decided according to the old it is so deeply rooted in tradition as to be considered, as in other civillaw countries,
procedural rules. The law eventually went into effect on 30 April1995, on which a part of the fundamental guarantee of a fair hearing in both civil and criminal
date a record of almost three million proceedings were pending, compared with cases. 17 As arule, appeal involves a full review ofthe whole case and is not limited
the 1,700,000 pending at the end of 1989. Such a backIog could have nullified any to questions of law.
beneficial effect of the procedural reform at its very outset. Law no. 276 of 1997 With particular reference to civil appeals, mention must be made of the trend,
airns at solving this problem by instituting special divisions in each tribunale to inaugurated by law no. 533 of 11 August 1973, concerned with individuallabor
deal exc1usively with the backIog. The peculiar feature of the sezioni stralcio is disputes, and culminating in the general refonn brought about by law no. 353 of
that they are. chaired by a professional judge and staffed with honorary judges 1990, regarding the limitation of the scope of appeal and the revaluation of first
(called giudici onorari aggregati) selected for a five-year tenn from among retired instance proceedings. Artic1e 345 CPC, as amended by law no. 353 of 1990, confirrns
judges, law professors, attorneys (provided they practice in another district), and that new c1aims cannot be introduced on appeal- and if introduced, they must be
notaries. It is assumed that these special divisions, which began to function on Il dismissed by the court on its own motion, unless they are limited to interests,
November 1998 and which decide cases as a single-judge court, should dispose of rents, profits, and the lik:e, which mature after the rendering of the judgment below
the backIog in five years, after which they are to be dissolved. 15 (along with the recovery of damages consequent to it). However, contrary to the
previous system, new defenses and new evidence cannot be introduced, with a few
C. The Intermediate Appellate Courts minor exceptions. New defenses can be employed if they could also be raised ex
officio - such as in the lack of jurisdiction ofthe ordinary courts on the case (art. 37
There are twenty-six courts of appeal in Italy. Each of them has jurisdiction over a para. 1 CPC) or the nullity of a contract (art. 1421 CPC). In turn, new evidence can
district which general1y corresponds to a region of the country. However, there are be introduced, if either the court considers it indispensable to deciding the case, or
regions in which there is no court of appeal (such as Valle d'Aosta, which fal1s ifthe party shows that he could not introduce it through no fault ofhis own. Artic1e
within the district of the court of appeal of Turin in Piedrnont), and others in which 282 CPC as amended provides, by extending the principle accepted for the first
there are several districts (Lombardy, Puglia, Calabria, and Campania have two time by law no. 533 of 1973, that the first instance decision is now immediately
court-of-appeal districts, while Sicily has four). . enforceable, subject to the possibility for the court of appeal, upon request of the
The courts of appeal sit in three-judge panels, according to law no. 532 of 8 interested party, to suspend the enforcement for serious reasons. In time, the two
August 1977. Until then, panels had been composed of five judges. The courts of refonns should reduce that peculiar phenomenon of the Italian system of civil
appeal decide over appeals against civil and criminal judgments rendered by the procedure which has been defined as a "devaluation of proceedings of the first
tribunali in their capacity ofcourts of first instance (art. 341 CPC; art. 596 CCrPr).16 instance and a glorification of attacks."18
Labor proceedings, which are now brought before the tribunali in the first instance, With particular regard to criminal appellate proceedings, which in general follow
are reviewed on appeal by special divisions instituted in each court of appeal the same pattern as civil appellate proceedings, it is interesting to note that when
the appeal is made by the accused only, the appellate court cannot impose a more

15 According to the General Prosecutor attached to the Court of Cassation, in his Report quoted
supra, note lO, at p. 49, the success of the special divisions is uneven throughout ltaly, due 17 The guarantee of a double degree of jurisdiction was introduced by art. 131 of the Project of
especially to the difficulty of recruiting enough honorary judges. Law no. 276 of 1997 provided Constitutional Revision of the Commissione Bicamerale per le Riforme Costituzionali,
for the appointment of 1,000 judges; the divisions began to operate with roughly on1y 300 published in November 1997, which, however, did not have any legislative sequel. On the
judges. Another 400 were appointed in the year 2000. works of the Commissione, see Caretti (ed.), La riforma della Costituzione nel progetto della
bicamerale (1998); and Costanzo et al., La Commissione bicamerale per le riforme
16 Prior to the reform introducing the single-judge court of first instance, appeals against crirninal costituzionali (1998).
judgments of the pretori were also brought before the courts of appeal.
18 Cappelletti, supra note 13, at 116-17.
CHAPTER FlVE MACHINERY OF JUSTICE

severe penalty (art. 597 para. 3 CCrPr). Also noteworthy is that appeals from the Unlik:e appeal, review by the Supreme Court has a constitutional basis in art.
corti d'assise l9 go to a special criminal court, called corte d'assise d'appello, 111 para. 2 Const., according to which "recourse shall always be allowed to the
composed oftwo professionaljudges, a judge of the court of appeals, six lay judges, Corte di Cassazione, on the ground of violation of law, against judgments as well
and a judge having the status of judge of the Supreme Court, who presides over il. as rulings affecting personalliberty, whether pronounced by courts of ordinary or
of special jurisdiction." This does not mean, however, that review does not suffer
D. The Italian Supreme Court (Corte di Cassazione) from anachronisms. First of all, this provision has been interpreted extensively by
the Court itself, which has held that not only formal judgments, but also other
The Supreme Court, which sits in Rome, is the highest court in civiI and criminal rulings (ordinanze, decreti) that have a decisive effect and are capable of attaining
matters, and reviews only errors of law (art. 360 CPC; art. 606 CCrPr). Only a res judicata effect are included in the guarantee.22 Secondly, the grounds for
appellate judgments can be reviewed by the Supreme Court, or judgments which review of judgments specified by art. 360 CPC, or by art. 606 cCrPr exceed the
may not be appealed either by law (such as judgments based on equity; see art. 339 constitutional requirement that provides review of judgments on account ofviolation
CPC; for criminal cases, see art. 593 CCrPr) or by agreement of the parties (art. of law, and some of them have actually opened the door to review of questions of
360 para. 2 CPC; for criminal cases, see art. 569 cCrPr). fact. The classic exampIe is given by art. 360, no. 5 CPC, which allows recourse
The function of the Supreme Court is not only that of reviewing appellate or for ornissions, or for insufficient or contradictory reasons for the decision of an
non-appealable judgments. According to art. 65 of the royal decree of 30 January essential point of the controversy, which has been raised by the parties, or which
1941, which is the basic law on court organization, the Court, "as the supreme could have been raised by the court below on its own motion. Clearly, this wording,
court of justice, ... assures the exact observance and the uniform interpretation of which was introduced in the Code by law no. 581 of 14 July 1950, reflects the
the law, the unity of nationallaw ... " aspiration of some scholars, and above all of practicing lawyers to transform review
The Supreme Court is divided into three civiI and six crirninal divisions, each into a third instance. 23 In fact, this clause, abused by practicing lawyers, authorizes
sitting with five members (seven priorto the law no. 532 of 8 August 1977, art. 3). the court to review findings of fact in the attacked judgment when the explanation
A labor division was introduced by the law no. 533 of 8 August 1977. Following given for them has been ornitted, or is insufficient or contradictory. Article 360,
the legislative decree no. 545 of 31 December 1992, effective from April1996, the no. 5 clearly paves the way for the Court to review the evidence, both from the
first civiI division of the Court was vested with jurisdiction over appeals from the point of view of violation of the rules governing its relevance and adrnissibility,
decisions of the regional tax courts (commissioni tributarie regionali).20 To give and from that of its evaluation.24 Even if the Court has shown that it is prepared to
the reader an idea of the work1oad caused by this extension of jurisdiction, 4,210 quash the attacked judgment only when the inadequacy and logical inconsistency
such appeals were pending on 30 November 1998, 3,172 of which were filed during
1998. 21
In certain cases, especially when there is a conflict between different divisions
22 This is the interpretation inaugurated by the Court in its judgment no. 2593 of 30 JuIy 1953,
of the court, or in dviI cases when the case involves a question of particular 78 Foro it. I, 1240 (1953).
importance, the decision is rendered by a plenary session (sezioni unite), sitting as
23 The originaI wording of art. 360, no. 5 of the CPC only allowed omission of expIanation as a
a nine-judge panel (fifteen priorto law no. 532 of 8 August 1977; arts. 374 and 376 ground for review; see Cappelletti & PerilIo, Civi/ Procedure in 1taly (1965), p. 276, fu. 150.
CPC; art. 618 CCrPr). The Code of Criminal Procedure contains provisions to the same effect (see, e.g., art. 606
para. le), which also aUows control over the expIanation given by the Iower court. See Tonini,
supra note 14, at pp. 623-26. In addition, one must consider that the presumption ofinnocence
operates in the ltalian legaI system unti! a final decision has been rendered (art. 27 para. 2
19 See part Il B, supra.
Const.), whìch in most cases means ajudgment by the Supreme Court. This provides another
20 See supra note 2. incentive to recourse due to the possibility of benefiting from the statute of 1imitations, or
21 For these data, see A. La Torre, "Relazione sul!'amministrazione della giustizia nel!'anno from an amnesty.
1998" (Rome, 9 January 1999), at p. 5. They have not been updated in the Iatest "Relazione" 24 For further discussion, see Proto Pisani, supra note 5, at 557-61; see also Comoglio, Ferri &
by Judge Favara, supra note lO. Taruffo, supra note 6, at 842.
CHAPIER F1VE
MACHINERY OF JUSTICE

of the reasons is so serious as to amount to a cIear injustice of the decision, art. reasons for the decision, as prescribed by art. 111 para. l Const. 28 Secondly, and
360, no. 5 is much criticized today as being at least in part responsible for the contrary to the practice in common law countries, separate opinions - whether
heavy workload of the Supreme Court. 25 dissenting or concurring - are not announced. In other words, appellate decisions
The Italian Supreme Court is based on the French model introduced after the appear as unanimous and anonymous decisions of the Court. 29 Thirdly, decisions,
Revolution of 1789. This means that it either affirms the judgment from below, even if issued by the plenary session of the Supreme Court, do not bind lower
which then becomes final, or quashes it. In the latter case, the Court cannot normally courts, as would be the case in a common law jurisdiction, although they do enjoy
render a judgment of its own, but must remand the case for a new decision to a a strong persuasive authority. As a matter of fact, previous decisions, especially if
different court, on the same level as the court that rendered the judgment that has consistently sanctioned by the Supreme Court, will usually be followed by the
been quashed. 26 Supreme Court itself. Departure from them, even if legitimate in theory and correct
The guarantee of art. 111 Const. - a peculiar feature of the Italian legal system in practice, must be carefully explained. 30
- and its expansive interpretation, as well as some of the grounds for review indicated
by the procedural codes, have flooded the Court with several thousand applications E. Workload and Delay
every year, and resulted in a dramatic rise in the average duration of the proceedings
before the Court. However, the introduction of such filters as the American certiorari Certain available statistics produce a more complete view of the excessive duration
or the British leave to apply would not only require a substantial departure from ofcivil and criminal proceedings which has often been referred to, and complained
our legal tradition, but perhaps a constitutional amendment as well. This does not about, as al). intolerable feature of the adrninistration of justice in Italy, especially
seem foreseeable, at least in the near future. 27 for the poorer and weaker sections of the community.
As to the style and authority of appellate judgments, and in particular those of Unless otherwise indicated, the statistics reIate to the year 1999, and are the
Supreme Court judgments, first they must state, as in any other judicial ruling, the

25 See, generally, Comoglio, Ferri & Taruffo, supra note 6, at 84lff. For some statistical data 28 On tlIe guarantee of a reasoned decision, which "represents the ultimate development of a
concerrùng tbe workload of tbe Supreme Court, see part II E, infra. principle which has been solemnly affirmed by tbe French revolution '" and insures a basic
26 A recent innovation concerns art. 384 CPC as amended by law no. 353 of 1990, according to tool for review ofjudicial action by appellate courts," see Cappelletti & Vigoriti, "Fundamental
which tbe Court, when it reverses tbe judgment for violation or misapplication of rules oflaw Guarantees of tbe Litigants in Civil Proceedings. Italy," in Cappelletti & Tallon (eds.),
(i.e., tbe ground provided for by art. 360 para. 3 of tbe same Code), can decide tbe case Fundamental Guarantees of the Parties in Civil Litigation (1973), pp. 556-57; Taruffo, La
witbout remanding it to tbe lower court, if no otber findings offact are deemed to be necessary. motivazione della sentenza civile (1975), pp. 319-470.
A more recent reform, which expands the jurisdiction of tbe Supreme Court to decide in 29 For criticisms, and suggestions of abolition of tbe secrecy of judicial decisions, see Denti,
chambers, has been brought about by law no. 89 of 24 March 2001, modifying art. 375 oftbe "Per il ritorno al voto di scissura nelle decisioni giudiziarie," in Mortati (ed.), Le opinioni
CPC. dissenzienti dei giudici costituzionali ed internazionali (1964), p. l; Cappelletti, Merryman
TI The debate on tbe Corte di Cassazione and its reform, so as to allow it to better perform the & Perillo, The 1talian Legai System (1967), pp. 129-30, fu. 80, and accompanying text; Anzon
function spelled out in art. 65 of the law on judicial organization, has been extremely lively in (ed.), L'opinione dissenziente (1995) (this volume collects the contributions to a seminar
the last decade or so; see, e.g., tbe contributions collected in Per la Corte di Cassazione, 112 organized by the Italian Constitutional Court in November 1993). The Project of constitutional
Foro it. V, 205 (1987); La Cassazione civile, 113 Foro it. V, l (1988); La Cassazione penale: revision drafted by the Commissione Bicamerale per le Riforme Costituzionali, supra note
problemi di funzionamento e di ruolo, id. at 441ff. See also Denti, "Commento all' art. 111," 17, art. 136 para. l, provided that tbe decisions of the Constitutional Court could be
in Commentario alla Costituzione a cura di G. Branca, La magistratura, IV, arts. 111-113 accompanied by dissenting opinions.
(1987), at l; Mannuzzu & Sestini (eds.), 11 giudizio di Cassazione nel sistema delle 30 On the role of precedents in the ltalian legaI system, see Cappelletti, Merryman & PeTillo,
impugnazioni (1992). An interesting proposal was included in art. 131 of the Project of the supra note 29, at 270-74. For a wider perspective on the real role of precedents in tlIe Civil
Commissione Bicamerale per le Riforme Costituzionali, supra note 17, which would have Law world, see Cappelletti, "The Doctrine of Stare Decisis and the Civil Law: A Fundamental
left to tbe legislature tbe right to indicate tbe grounds for review and, consequently, to limit Difference - or no Difference at Ali?" in Bemstein, Drobnig & Koetz (eds.), Festschrift fur
review by the Supreme Court, even radically. Konrad Zweigert (1981), p. 381.
 MACIDNERY OF JUSTICE
CHAPTER FIVE

31 III. Ordinary Judges and Prosecutors: Selection and Tenure

latest available on the website of the ltalian Ministry of Justice.
As for civiI justice, the number of actions instituted in first instance before all
courts in 1999 was 1,536,233, as opposed to the 1,451,833 actions instituted in 1998. A. Selection of Judges and Prosecutors
1,480,147 cases were disposed ofin the same periodo At the end of 1999, a total of
3,575,000 cases were pending before the courts of first instance. This figure shows There are presently rougWy 8,000 ordinary judges in Italy, over 5,000 ofwhom are
a slight increase as compared to the previous year 's total of 3,200,000 cases. Appel­ assigned to the administration of criminaljustice.34 This number includes the public
late courts had a backlog of 76,000 cases and the Supreme Court had 49,984 cases. prosecutors (pubblici ministeri), who are part ofthe judicial organization according
The figures for the year 1999 indicate that an average of 269 days were needed to the Italian Constitution. Tbe prosecutors, who have the duty of prosecution in
to dispose of a case before the justices of the peace, and 824 before the preture. criminal proceedings (art. 112 Const.), are grouped into prosecutorial offices which
Cases before the tribunali as courts of first instance required 1,343 days; cases are attached to every court level. Tbere is a Procura della Repubblica attached to
before the courts of appeal required 952 days, while proceedings before the Supreme each tribunale, a Procura Generale della Repubblica attached to each court of
Court took as long as 829 days. Therefore, it can be safely said that an average of appeal, and a Procura Generale della Repubblica attached to the Supreme Court.
roughly ten years is needed for the fina1 determination of a civil dispute through There is no career separation between judges and prosecutors; actually, it is not
first instance, appeal, and Supreme Court. totally uncommon for a judge to move from judicial to prosecutorial duties and
As for criminal proceedings, as of 30 June 1999, there was a total of 5,913,557 VIce versa.
cases pending in alI judicial organs of the country, ineluding both adjudicatory As mentioned at the beginning of this chapter, one of the features which Italy
bodies and prosecutorial offices where criminal complaints are filed. As to the shares with the rest of the civillaw world is that ordinary judges are career judges.
number of crirninal actions instituted between l July 1998 and 30 June 1999, there Access to the judiciary is open to law graduates who must pass a difficult, highly
were 8,895,840; in the same period 8,579,147 criminal actions were disposed of. competitive national examination. Successful candidates then must go through a
As to the average duration of criminal proceedings in their trial stage, the figures period of apprenticeship as uditori giudiziari which, in theory, lasts two years.
are as follows: 443 days in the tribunali, 370 days in the corti d'assise, 601 days in Afterwards, they become full judges and advance in their career as judges and/or
the courts of appeal, and 245 days in the corti d'assise di appello. As for the Supreme prosecutors, substantially on the basis of seniority. Tbe Constitution assures ordinary
Court, 51,133 new recourses were filed between 1 Ju1y 1999 and 30 June 2000; judges very strong guarantees of independence (see arts. 101-110 Const.).
51,334 were disposed of, and 23,501 were pending on June 30, 2000, with an It is worth exarnining the various relevant points in greater detail:
average duration of 167 days.32 1. Artiele 106 para. 1 Const. affinns the traditional rule that judges are appointed
This data, which indicates a worsening situation throughout the years, explain by competition - a mIe which is designed to assure that the selection is based only
why delay is the most frequent ground for the growing number of applications to on the ascertainment of technical skills and is immune from political considerations.
the European Court of Human Rights, where decisions against Italy for the violation The Constitution itself provides for a couple of exceptions. First, art. 106 para.
of the right to a reasonable duration of proceedings, provided for by artiele 60fthe 2 Consto states that honorary judges may be appointed, or even elected, to discharge
European Convention, are now countless. "Every day," according to Judge tbe functions of single-judge courts, and this has been the case for the justices of the
Margherita Cassano of the Supenor Council of the Judiciary, "at least four to five peace and the sezioni stralcio, both mentioned above. 35 Artiele 106 para. 3 Const.
decisions are delivered against Italy."33

by the state of the right "to a fair and public hearing within a reasonable time" guaranteed by
art. 6.1 of the European Convention.
31 http://www.giustizia.it/misc/mgweb2bis.htm
34 For these figures, see Prato Pisani, supra note 5, at 17-19. Tbe number of judges has been
32 Favara, supra note 9, at pp. 59-60.
increased by 1,000 following the enactment of law no. 48 of 13 February 2001.
33 Cassano. Introduction. in CSM. supra note lO, atp. 13. Law no. 89 of24 March 2001 provides
for a fair recovery ("equa riparazione") far damages suffered as a consequence of the violation 35 See parts II A and II B, supra (last full paragraph), respectively.
 MACHINERY OF JUsnCE
CHAJYfER FIVE

provides, in tum, that for outstanding merit, law professors and attomeys with at they can take the exam to become judges. The law makes attendance at the school
least 15 years of experience may be appointed as judges of the Supreme Court - a compulsory for judicial candidates who will have enrolled as first-year law students,
method of appointment which also existed prior to the enactment of the Constitution beginning wìth the 1999-2000 school year. The other important feature ofthe newly
(although it had been resorted to very rarely). The provision of art. 106 para. 3 instituted schools is that they are to be open to potential attorneys and notaries as
Const. also remained a dead letter for fifty years, until it was implemented by law welI, so that, hopefully, ìt will be possible to recover some sense of unity within
no. 303 of 5 August 1998. Since then, a handful of such appointments have been the Italian legal profession, whose members - attomeys, judges, and notaries ­
have been traditionally accustomed to thinking of themselves as belonging to
made.
The competition to become a judge is based on a national examination held in separate professions. 38
Rome, normally held once a year, for a number of vacancies which fluctuates 2. The candidate who passes the examination is appointed uditore giudiziario and
between two and three hundred positions annually. It is adrninistered by a Commis­ is assigned to a court of first instance or to a prosecutorial office to begin a period
sion appointed by the Consiglio Superiore della Magistratura - the goveming of apprenticeship which in theory lasts two years. In practice, after six months, the
body of the judiciary, which is discussed below, and composed largely of judges. uditori giudiziari may perform judicial functions, so that a1l available energy can
The examination is very difficult and is largely theoretical. It consists of three be directed to the tremendous work1oad and reducing the back10g of the Italian
written essays on private, criminal, and administrative law. Candidates who have administration of justice.
successfulIy passed the essay portion are then expected to take oral examinations FolIowing a number of statutes enacted between 1966 and 1979, advancement
in those subjects as welI as a number of other subjects. This method of judicial in the career is based largely on seniority. Promotion is granted unless there are
selection, which dates from the end of the nineteenth century, has been severely reasons to refuse or postpone it. Thus, the uditore giudiziario is eligible for promo­
criticized, and is presently undergoing a process of reform. The main criticism is tion to the status and salary of judge of tribunale two years after the appointment;
that the field, and thus the exam, is overcrowded, due to the enduring prestige of as a judge of tribunale, he or she may be appointed to serve as judge in a tribunale
the judicial career (a record number of more than 7,000 candidates participated in or as a prosecutor attached to a tribunale. After eleven years in this position, the
the 1994 examination),36 that it takes too long for an examination to be completed judge may apply to the position of appellate court judge; after seven additional
(possibly more than two years),37 and that it is not well-suited to the selection of years, the appellate court judge may apply for the position of judge in the Supreme
the best possible candidates. Court. After eight years in the latter position, the judge may aspire to become the
Recent1y, lawno. 127 ofl5May 1997, art. 17,paras. 113 and 114, as implemented head of a higher judicial office.
by legislative decree no. 398 of 17 November 1997 (as amended by art. 17 oflaw Two remarks should be made respecting the career of judges. First, promotion
no. 48 of 13 February 2001), has laid down the foundations for a radical reform of to a higher position means that the judge is entitled but not obliged to perform the
the methods ofjudicial selection. First, a computerized multiple-ehoice pre-selection higher level functions. According to the Constitution, judges may not be removed,
procedure has been introduced, which will admit a number of candidates no higher and cannot be transferred to other offices or functions without their consent (art.
than five times the number of positìons to be filled to the actual examination. This 107 Const.). Therefore, a judge may have the status and the salary of an appellate
is clearly animportant measure, though it is intended merely to ratìonalize the court judge, but may prefer to continue and serve as a judge of the tribunale, and is
existing selectìon procedure, rather than to assure a better preparation for prospective indeed alIowed to do so. As has been rightly pointed out, "[t]here are in alI some
judges. This is the purpose of the second and more important reform, introduced eight thousand magistrates in Italy and, given a retirement age of seventy, hundreds
by the above-mentioned statutes, which have instituted post-graduate schools where have the status of office superior while a couple of thousand enjoy the status of
law graduates will receive theoretical and practical training for two years before judges of Cassazione."39

36 See Giunta, Il concorso per uditore giudiziario: l'esperienza di un commissario, 122 Foro It. 38 See Merryman, The Civil Law Tradition, 2nd ed. (1985), p. 102, and in generaI the whole of
V, 255 (1997). at 256. chapter 14 of this volume.
37 Id. at 258. 39 See Watkin, The Italian Legai Tradition (1997), p. 117.
CHAPTER FIVE
MACHINERY OF JUSnCE

Secondly, promotions based on seniority certainly foster the internal independ­

participation in the CSM by the head of state and by lay members elected by
ence of judges, who untiI the mid-1960s depended for their career on senior judges
Parliarnent serves as a link between the judicial power and the other powers of the
(who were essentially expected to evaluate their writtenjudicial opinions). On the state.
other hand, it is unanÌrnously acknowledged that the present system of negative
Judges are appointed, promoted, disciplined and, in general, supervised by the
selection is unsatisfactory. In fact, it is quite uncommon for a judge not to be
CSM. This assures that they are independent from outside pressures. In particular,
promoted, or to be dismissed from office for inability prior to the age of mandatory
disciplinary action can be initiated either by the Ministry of Justice (actually only
retirement. 40
by h, according to art. 107 para. 3 Const.) or by the General Prosecutor attached to
the Supreme Court (according to art. 14 of law no. 195 of 24 March 1958), and it
B. The Independence of Judges and Prosecutors can lead to sanctions such as removal from office or transfer to other offices or
functions. Jurisdiction over disciplinary action is vested in a special section of the
The Constitution guarantees the independence of the judiciary as a whole - which
is defined, pursuant to the idea of separation of powers, as "an autonomous order CSM and, on appeal therefrom, in the plenary civiI session of the Supreme Court.
independent of any other power" (art. l 04 para. l Const.) - as well as the independ­ According to art. 107 para. 4 Const., public prosecutors enjoy the guarantees
ence of individuaI judges. The Constitution subjects the judges "only to the law" established for them by the rules governing the judicial organization. Notwith­
(art. 101 para. 2 Const.), and prohibits the appointment of extraordinary or special standing this wording, which might allude to a lesser degree of independence for
prosecutors as opposed to judges, they have come to enjoy substantially the same
judges (art. 102 para. 1 Const.); it establishes, as we have seen, thatjudges will be
guarantees as the other judges. Since law no. 511 of 31 May 1946, public prosecutors
appointed by competition (art. 106 para. 1 Const.); it requires that they shall be
no longer work under the direction of the Ministry of Justice, but rather under its
differentiated only by the diversity of their functions (art. 107 para. 4 Const.); and
supervision. This means that there is no longer any hierarchical subordination of
it states that they shall not be removed without their consent either from office (art.
the various prosecutorial offices from the Ministry or from a higher office sub­
107 para. 1 Const.) or from the functions they exercise (art. 107 para. 2 Const.).
The bulwark of judicial independence, well beyond the proclarnations which can ordinated to the Ministry. Today, the prosecutorial functions are exercised by a
number of separate offices independent from each other and from any other
be contained in a written text, is the Consiglio Superiore della Magistratura (CSM),
authorities. Within the offices, however, the structure is still hierarchical, though
which is the governing body of the judiciary.
The CSM was established by the Constitution of 1948, art. 104, but h only art. 53 of the new Code of Criminal Procedure provides that the prosecutor conducts
the trial with "full autonomy."
began to function ten years later, after the enactment of the implementing statute
(law no. 195 of 25 March 1958). The CSM is chaired, at least formally, by the In any event, prosecutors are subject to the CSM, and therefore they have come
President of the Republic. It is composed of two other ex officio members, the to achieve very much the same arnount of independence as any other judge. This
has been demonstrated especially in the last decade or so by a number of
President of the Supreme Court, the GeneraI Prosecutor attached to that Court, and
thirty elective members. Twenty of them are from the Magistratura (i.e., judges prosecutorial offices and prosecutors who have launched a massive attack against
and prosecutors), elected from their own ranks to serve on the CSM, while the organized crime and its political connections, and against political corruption. Some
remainder are attorneys of at least fifteen years' experience or law professors, elected of them, like Giovanni Falcone and Paolo Borsellino, have paid with their lives for
their battles against the Mafia. Others, arnong whom the most farnous is Antonio
by the two Houses of Parliament in joint session. A vice-president, who in practice
Di Pietro, have become "folk heroes "41 for pursuing their war on corruption (known
functions as the president, is elected from among the lay members of the whole
CSM. The elective members sit on the Consiglio for a non-renewable four-year as the mani pulite, or "clean hands," operation). This movement has practically
effected the removal from the political scene of an entire political ruling class, but
term. Due to the fact that the magistrates prevail over the lay members, the CSM
has also, and not unexpectedly, caused a strong reaction against an allegedly
clearly has the authority to represent the judicial power. On the other hand,
excessive, uncontrolled, and unaccountable prosecutorial power. Its outcome,

4() See Pizzorusso, L'organizzazione della giustizia in Italia, 2nd ed. (1990) pp. 203, 208. 41 I bOITOW this expression from Watkin, supra note 39, at 119.
 MACHINERY OF JuSTICE
CHAPTER FIVE

was only in 1859, by royal decree no. 3708 of 8 November, that the Sardinian
however, is stili uncertain, though it is well known that the center-right coalition, Council began to take on judicial functions. These were strengthened in the post­
which won the generaI elections on 13 May 200 l, has marked the "problem of unitarianConsiglio di Stato by law no. 5982 of 31 March 1889, which instituted an
justice" as a priority on its agenda. ad hoc section IV for adrninistrative justice.
Current1y, the Council of State continues to be both an advisory and a judicial
body, sanctioned by art. 100 para. 1 Const., which states that "the Council of State
IV. 'l'be Administrative Courts acts as a legal-adrninistrative body concemed with safeguarding justice in the
Chapter 6 of this book deals with the machinery of judicial control of administrative adrninistration." There are now two more judicial sections of the Council in addition
action andthe criteria of its distribution between the ordinary courts, which have to section IV: section V, instituted by law no. 62 of 7 March 1907, and section VI,
jurisdiction over violations of "subjective rights" by the adrninistration, and the created by law no. 6421 of 5 May 1948. Sections I, n, and ID are advisory. Law no.
adrninistrative courts, which have jurisdiction over violations of "legitimate 1034 of 6 December 1971, implementing art. 125 para. 2 Const., introduced a
interests" by the adrninistration. In that chapter, the origins of this dichotomy are network of regional administrative tribunals. Since then, the Council of State has
also discussed, along with the difficult borderline problems which, in an increasing exclusively been an appellate court, while adrninistrative justice in the first instance
number of cases, have led the legislator to vest jurisdiction exc1usive1y in the is handled by the TAR. The judicial functions of both courts are dealt with by art.
adrninistrative courts. Rere, we will deal briefly with the organs of adrninistrative 103 para. 1 Const., stating that "[t]he Council of State and the other organs of
justice, i.e., the Consiglio di Stato (Council of State) and the Tribunali amministrativi adrninistrative justice have jurisdiction to protect legitimate interests and, in
regionali (hereinafter TAR, i.e., regional adrninistrative tribunals, instituted in particular matters indicated by law, subjective rights against the public
1971).42 Both of them have constitutional dignity because a number of articles of adrninistration." According to art. 111 para. 8 Const., decisions of the Council of
the Constitution expressly recognize the Consiglio di Stato and the TAR, while a State can be attacked before the Supreme Court only on grounds of jurisdiction
transitional provision annexed to the Constitution, art. VI, imposes a duty upon the (e.g. when a certain matter, not vested exc1usively in the adrninistrative courts,
legislature to review alI special courts with the exceptio n of the Council of State, involves a "subjective right" or a "legitimate interest").
the Court of Accounts,43 and the rnilitary tribunals. Each judicial section of the Council is composed of two presidents and at least
As noted in chapter 6, the origins of the Council of State are French, and it was twelve judges (called consiglieri di stato, or "councillors of state"), and decides
that model which was first instituted in 1805 in the Kingdom of Italy and in 1806 together with one of the presidents and four councillors. A plenary session may be
in the Kingdom of Naples. In 1831, a Consiglio di Stato was introduced in the convened in order to solve confticts among the sections or answer questions of
Kingdom of Sardinia which is the immediate ancestor of the present institution. particular interest. It is normally chaired by the President of the Council, and is
The main function of aH these antecedents to the Council of State was advisory. It composed of twelve councillors, four from each section. The councillors attached
to the Council as judges number 72, while there are 15 councillors with the status
of presidents.
42 Until then, cases against Iocal administrative organs were decided by judicial divisions of the The TARs sit in each Region's capitaI, although sections of them may sit in
giunte provinciali amministrative (provincial administrative committees), and subject to appeal other cities in a given Region. Each TAR has a president, assisted by a varying
to the Council of State. The composition of the Giunte was such that their independence number of other judges. The personnel of the TARs consists of 310 judges and 22
could be seriously questioned. In fact, they were declared unconstitutional by judgment no. presidents. They adjudicate in three-judge panels.
30 of the ConstitutionaI Court of 22 March 1967.90 Foro it. I, 681 (1967).
The govenùng body of the adrninistrative judiciary that oversees its operation,
43 The Corte dei Conti (Court of Accounts). which has supervisory and advisory as well as
as well as the career and independence of the judges, is the so-called Consiglio di
judicial functions, is concemed with the handling of public money. It has jurisdiction over
cases against public officials involving their management of public funds. Six of its eight Presidenza. It is chaired by the President of the Council of State, who is assisted
divisions are concemed with pension claims. Appeals may be taken to the plenary session of by the two senior presidents of the section, ten judges elected from among the
the court. while issues of jurisdiction may be taken to the Supreme Court, pursuant to art. 111 councillors of state, and the judges of the TARs, of which there are six.
para. 3 Const. See generally, Correale, "Corte dei Conti," in Digesto delle Discipline Access to the adrninistrative judiciary is characterized by the fact that it is not
• •• """ 1'1 (\0[\\ "Y" '11"
CHAPfER FIVE
MAClllNERY OF ]USTrCI

open to law graduates, as is the case with the ordinary judiciary, but rather is the ordinary judges and the public prosecutors, they were to constitute an autonomo
restricted to persons who have gained experience in other careers. In fact, 50 percent ous order, independent from any power; as the ordinary judges, they were subjecl
of the counciliors of state are appointed from the ranks of the judges of the TARs only to the law. Finally, the project introduced a Superior CounciI of the administra.
with at 1east twelve years of service, upon recommendation of the Consiglio di tive judiciary, the governing body of administrative judges, and the watchdog of theu
Presidenza. One quarter of them are appointed by the govemment, upon the advice independence, modeled on the governing body of ordinary judges and prosecutors.
of the Consiglio di Presidenza, from among certain categories (1aw professors,
attomeys with at least 15 years' experience, ordinary judges, and high-ranking
civiI servants). The remainder are appointed on the basis of a competitive exam­ v. Concluding Remarks
ination open to members of other careers, including ordinary judges with at least
four years ~ service. In tum, access to the TARs requires passing a competitive In Italy today, the most serious problem in the administration of both civiI and
examination open to civiI servants, attomeys, and ordinary judges. criminal justice is delay. The data suggest an intolerab1e situation. This is so much
As to the independence of administrative judges, article 100 para. 3 Const. the case that art. 111 of the Constitution has been amended by law no. 2 of 23
requires that they shall be assured independence from govemment. Law no. 186 of November 1999 in order to include the guarantee of "due process of law" (giusto
27 ApriI 1982 attempted to achieve this goal, but the administrative judges stili processo), and to proclaim the principle of no reasonable delay as a principle that
seem to enjoy less independence than the ordinary judges, or at least they seem to contributes to its existence. On the other hand, nothing practical has been done to
be much too close to the govemment. ameliorate the situation for decades, although some of ltaly's best scho1ars have
A look at some statistical data shows that the Italian system of administrative denounced this state of affairs for years, and warned that the system is bound to
46
justice suffers from the same troubles which plague civiI and criminal justice deteriorate. Some steps toward a solution, however, seem to have been taken in
the last few years.
systems. It should suffice to mention here that the average duration of proceedings
before the TARs has increased steadiIy from 1,347 days in 1977 to 4,274 days Measures aimed at speeding up and re-evaluating first instance civiI proceedings
(11.7 years!) in 1997, that an average of 989 days is needed to dispose of a case have been enacted, but they do not seem to have been particularly successful.
before the CounciI of State, and that 818,744 cases were pending before the TARs However, this is not the pIace to deal with those measures.47
44
at the end of 1997. With respect to administrative justice, the Bicameral Commis­ As to the administration of justice, in the last few years a number of important
sion made some interesting proposals. I refer in particular to the fact that the Con­ refonns have been enacted - often in the face of opposition and criticism _ which
siglio di Stato remained only as an advisory body, while the adjudicatory function indicate that the attitude of govemments towards the crisis of civil and criminaI
in administrative matters is entrusted to a distinct Court for Actministrative Justice. justice is ebbing. As mentioned, justices of the peace have been introduced and
The Court, together with the regional tribunals of the first instance, was expected seem to work satisfactorily;48 it is to be hoped that they can begin to function as
to adjudicate "homogeneous subjects indicated by law conceming the exercise of criminal judges without further delay, that their offices wil1 be properly staffed,
public powers." This move seemingly does away with the distinction between and that se1ection procedures will continue to improve so as to assure a highly
rights and legitimate interests, and alI the consequent problems of demarcation. qualified 1ay bench. The merger of preture and tribunali and the generalization of
There is a wide consensus on this point among commentators. 45 Last but not least, single-judge courts of first instance is a refonn long overdue49 that rationalize the
the administrative judges appeared to gain in terrns of independence: together with
46 See Cappelletti, Procédure orale et procédure écrite (1971), pp. 65-66.
44 For these data, and some interesting reflections thereon, see TI Sole-24 Ore del Lunedi, 22 47 See chapter 7, this volume. See also, Varano, "Civil Procedure RefonTI in Italy," 45 AmJCompL
657 (1997).
February 1999, p. 23.
45 See Sorace, Diritto delle amministrazioni pubbliche. Una introduzione (2000), at pp. 394-97; 48 See part IlA, supra.
Proto Pisani, "Intervento breve per il superamento della giurisdizione amministrativa," 46 49 See Denti, supra note 13, esp. at 622 ff, where the author, one of the leading Italian
Rivista di diritto civile 775 (2000). proceduralists, reports that attempts to introduce single-judge courts date back to 1912, while
other projects were drafted in 1920, 1937, and 1939.
CHAPTER AvE
MAClllNERY OF JUSTICI

distribution of judicial manpower over the territory on the one hand, and reduce establishing that the public prosecutor is under a duty to prosecute in criminal
the luxury of having a panel on the other. The pretore, whose jurisdiction has been proceedings (art. 112 Const.). The problem at hand is to at 1east reduce the degree
steadily increased since 1973, has demonstrated that sing1e-judge courts can work of discretion which the prosecutors are inevitably forced to exercise in view of the
very well in our 1egal system, as they do in many others, and that pane1s, if needed, workload of every prosecutorial office. 52 The objective should be to render the
can be reserved to adjudicate particu1ar1y important matters. duty to prosecute effective, so as to assure the princip1e of equality of the citizens
It is also noteworthy that 1egislators have tumed their attention to the crocial before the criminallaw.
question of judge se1ection. The system which had been in force for a century or so It is to be expected that the Govemment that was formed after the general
was no 10nger suited to recroit the best possib1e magistrates, but simp1y decimated elections of 13 May 200 1, and is now led by Mr. Berlusconi, the founder of the
thousands of candidates through an examination very much 1eft to chance in order conservative party Forza Italia, will pursue its long-advocated reform proposals.
to filI two ,or three hundred vacancies per year, a goal that has occasiona11y not At the time of writing, it is too early to predict the lines of the reform processo
even been reached. The new post-graduate schools, which shou1d be functioning However, it is not difficult to imagine that the center-right coalition will pIace
by 2000, are intended toform new magistrates, as well as new attomeys and notanes, particular emphasis on the separation of the careers of judges and prosecutors, on
rather than mere1y training candidates to survive the se1ection procedure. the subjection of prosecutorial discretion to guidelines indicated every year by
The other issue conceming the administration of justice that has been the subject parliament, and on the status, independence, and accountability of judges and
of a very hot and ongoing political debate in the 1ast few years regards the status of prosecutors. Besides reforms dictated by differences in the conception and
the judge, and, more particularly, the independence and accountability of public philosophy of justice in a modero democracy, it is to be expected that the new
prosecutors. lt is fair to say that much of the discussion about the reform of the Govemment will also pursue goals of efficiency and effectiveness through structural
Constitution of 1948, which led to the appointment of a Bicamera1 Commission and procedural reforms.
for Constitutional Reforms,50 originated in the questione giustizia, that is, the
"prob1em of justice." In the end, the proposals of the Commission did not find their
way through parliament, so that the Constitution has remained unaltered, with the VI. Bibliography
exception of art. 111, which has been amended to explicit1y include the principle
Chapters on the administration of justice are contained in the major introductions
of due process (giusto processo).
to the Italian legaI system published in English. I refer in particular to M. Cappelletti,
There are certainly problems concerning the excessive activism of a few magis­
J. Merryman & Perillo, The Italian Legai System (1967); G. Certoma, The Italian
trates, especia11y prosecutors; there are also problems conceming the accountability
Legai System (1985); and T. Watkin, The Italian Legai Tradition (1997). M.
of magistrates, given that they are stilI practically immune from civilliability and
Cappelletti & Perillo, Civil Procedure in Italy (1965) pIace special emphasis on
the mechanisms intended to subject them to disciplinary responsibility do not seem civil justice.
to work effectively.51 There are certainly problems with the article of the Constitution
Among the many publications in Italian, I refer the reader to A. Pizzorusso,
L'organizzazione della giustizia in Italia, 3rd ed. (1990), which is the most complete
50 The Commission, which has been quoted several tirnes over the course of this chapter, was
treatise on the ordinary judiciary. The treatises on civil procedure, criminal
set up following the enactment of constitutionallaw no. l of 24 Ianuary 1997, which authorized procedure, and administrative justice normally dedicate one or more chapters to
parliament to derogate from the procedure for constitutional amendment provided for by art. the organization ofthe courts and the judges. See, e.g., L.P. Comoglio, C. Ferri &
138 Const., in order to reform the who1e of Part 2 of the Constitution. The proposa1s of the
Commission, especially those concerned with the adrninistration ofjustice, have raised negative
comments by some authoritative scholars. See, e.g., Pizzorusso, La costituzioneferita (1999), 52 That the prosecutors also have to exercise some discretion in legaI systems where they are
and the short comments by another leading constitutionalist, the late Paolo Barile, in his not supposed to enjoy any discretion, or, in any event, discretion comparable to their common
Introduction to the book edited by Caretti, supra note 17, at xiv-xvi. law counterparts, was underlined in a seminal articIe by Goldstein & Marcus, "The Myth of
51 See my heading "Responsabilità del magistrato," in Digesto delle Discipline Privatistiche, Iudicial Supervision in Three 'Inquisitorial' Systems: France, Italy and Germany," 87 Yale
Sezione civile, voI. XVII (1998), p. 111. U 240 (1977).
CHAPTER FIVE

CHAPTERSIX
M. Taruffo, Lezioni sul processo civile, 2nd ed. (1998); P. Tonini, Manuale di
Procedura penale, 2nd ed. (2000; the 3rd edition will be published in the course of
the year 2001); Nigra, Giustizia amministrativa, 4th ed. (1994), Cardi, (ed.).
Administrative Law

DomenÌl:o Sorace 1

I. Introduction
This chapter outlines the basic systems and functions of adrninistrative law in Italy
with atlention to its historical development, the relationship between ordinary and
adrninistrative court jurisdictions, and recent modifications in the area of admini­
strative law.
Some preliminary remarks will facilitate the reader's understanding ofthe subject.
To begin with, notwithstanding the large number of statutes dealing with admini­
strative matters, the general principles that govern them are mainly a product of a
long and well-established tradition of judge-made law and of legislative self­
restraint. As will be seen later, the most important generai statutes governing judicial
review date back to the first decades after the establishment of the Italian State in
1861. However, the first organic statute containing generaI rules, mainly procedural
in nature, on administrative action was enacted only in 1990.
The case law in this area has some features that will not be at all farniliar to
common lawyers. First, it is not produced by common law courts but mainly by a
separate judicial hierarchy of adrninistrative courts. Moreover, given that any
aggrieved subject is entitled to bring a complaint up to the highest courts without
any leave, and given the lack of a rule of stare decisis, there are a tremendous
number of judgments fiom which it is almost impossible to single out realleading
cases. Thus, legal scholarship plays an important rale in identifying leading cases.
Therefore, one must acknowledge the key function of case law and yet also
keep in mind the civillaw context in which those cases are decided.
It is worth bearing in mind that both scholarly and judicial approaches to admini­
strative law problems are mainly formalistico A primary reason for this, as will be

l Professor of Adrninistrative Law, University ofFlorence.

 ADMINISTRATIVE LAW
CHAPTERSIX

seen, is the centraI position that the highly fonnal distinction between "subjective and then the coming of fascism 3 prevented the development of truly democratic
rights" (diritti soggettivi) and "legitimate interests" (interessi legittimi) plays, or at ideologies. However, it may also be said that in the Republican era and after the
enactrnent of the new Constitution in 1948 (which provides in its first artiele that
least has played, in adrninistrative law unti! very recent1y.
Finally, it is worth noting the copious and widespread refonns of administrative "the sovereignty is vested in the people"), the idea that administrative power could
law that are now being undertaken. This is also because, to an ever increasing stem only from the legislature hardly expanded. Indeed it is fair to say that some
authoritarian views about public administration have not yet been completely
degree, Italian bureaucracy (like those of the other member states of the European
Union) is working, as a sort of indirect adrninistration, on behalf of the European eradicated.
It should also be kept in mind that in 1865, four years after the proelamation of
Union. the Kingdom ofItaly, when the organization of the new State was to be deterrnined,
This reality renders the current administrative law as a kind of transitionallaw.
the proposal to choose a quasi-federal form (grounded in the Regions) was defeated.
The new State was therefore modeled on the centralist French pattem, with a weak
II. Some Features of the Italian Administrative State local govemment. Only the Constitution of 1948 provided that regional govemments
with legislative powers should be created. But it was necessary to wait until1972
before the "regionalization" began - and only began - to be put into effect.
A. Historical Background As for individual rights, only the Constitution of 1948 enacted a real Bill of
The following can be recognized as the earrnarks of the historical development of Rights (see Const. art. 3 para. 1 and arts.13 to 24). Besides civil and political
Italian state adrninistration. freedoms and rights, the new Charter also asserts the so-called social rights, inelu­
First, it should be stressed that the Italian state administration originates from ding the right to education (art. 34), health (art. 32), and welfare and social security
the bureaucracies of the Piedrnont kings restored to their thrones after Napoleon's (art. 38), and it also recognizes the right to work (art. 4). Furthennore, "it shall be
defeat. In fact, until1948, the Italian Constitution was Piedmont's Statuto, which the task of the Republic to remove obstacles of an economic or social nature which,
was not enacted through popular representation, but was rather granted, octroyée, by restricting in practice the freedom and equality of citizens, prevent the full
by King Carlo Alberto in 1848 and preserved by the new Italian State. development of the human personality and the effective participation of aH workers
The Statuto provideq for a parliament with legislative powers, bicameral in in the political, economic, and social organization ofthe country" (art. 3 para. 2),4
fonn, and featured an elected chamber of deputies. Through the Parliament, the The Constitution also recognizes the freedom of trade and industry (art. 41 para.
bourgeoisie increasingly acquired real power during this early period, so that the l), but aHows extensive State intervention in the area of the economy when justified
exercise of the bureaueratic authoritative powers had to be authorized by statutes; by social goals (arts. 41-47).
in this sense it can be said that the mIe of law was thereby established. With regard to the latter, from the 1930s until very recent1y, regulatory inter­
However, given the origin ofthis Constitution, the king, and not the representa­ vention steadily grew; public enterprise also grew until very recent1y in the last
tives of the people, could be seen as the real source of power. This is particularly century. Through the latter, public utilities industries were managed, according to
the case with respect to discretionary adrninistrative power,2 which could not be the notion - also quite developed in France - that the modem State must be
viewed as delegated by the legislature, much less the people. legitimated through the production of both social (i.e. education, health, welfare)
On the other hand, franchise and eligibility were severely restricted, principally and economic (i.e. utilities) services for the citizens. Yet banks, insurance companies,
on the basis of a citizen's wealth. Both voters and eligible citizens were very few
until 1911, when aH male citizens gained the right to vote; female citizens had to 3 During the fascist era (1923-1943), the freedom to vote was greatly hampered and, in the
wait unti! 1947 to acquire the same rights. Of course, even universal male suffrage end, the Italian Parliament based upon universal suffrage was abolished entirely.
had significant effects on the real distribution of power among the state organs,
4 This, and the following translations of Constitutional articles, are adapted from the translations
increasing the role of the parliament. But first the problems of the First World War appearing in Appendix A of M. Cappelletti, 1.H. Merryman, & 1.M. Perillo, The ltalian Legal
System - An lntroduction, Stanford University Press, Stanford (1967), and in Blaustein &
Flanz, Constitutions of the Countries ofthe World, Oceana, Dobbs Ferry, New York, 1971.
2 Article 5 of the Statuto provided that "The King alone is the holder of the executive power,"
CHAPIERSIX ADMINISTRATIVE LAW

and factories producing alI manner of things were also included, particularly when Authorities were nearly unknown at the time. 5 A very large number of persons
private enterprises began to fall apart after the world crisis of 1929. worked in the public service sector, and their labor rights and duties were all
grounded in public law.
B. At the Threshold of the 1990s Along with the regulatory functions, a number of entrepreneurial tasks were
also perfonned by the State. As mentioned above, the State managed the major
As a consequence of this historical experience, the following may be delineated as public utilities industries: e.g., postal services and telecommunications, railroads,
the main features of the Italian administrative state at the threshold of the last electric power, and gas. To this end, public organizational fonns were used; earlier
decade of the twentieth century. they were particular branches of the state enjoying some degree of autonomy
Even with the establishment of regional govemments and the devolution of (aziende autonome), and later they were public commerciaI bodies with legal
some administrative tasks and powers from the central government to the regional personality, acting like private bodies (enti pubblici economici). Similar kinds of
governments in 1972 and 1977, public administration remained highly centralized. activities, from waste services to local transportation, were also managed by local
Notwithstanding the acknowledgment of the legality principle and the great number authorities through similar organizational fonns.
of laws enacted by parliament, public administration was stili frequent1y thought While other kinds of economie activities, such as banking and insurance services,
of as endowed with some inherent enforcement powers over the citizens, and were carried out in organizationally similar ways, in several other public
therefore not in need of any legislative delegation of powers. undertakings (ranging from the production of candy to cars) the private joint stock
Despite its identity as the administration of a democratic state, its decision­ company forro was usually utilized. These were only fonnally private companies,
making process was frequent1y insulated from both the participation ofthe citizenry since their shares were held by the State,6 so that in 1956,7 a Ministry was set up
at large, as well as from those individually affected, to whom the right to be heard with jurisdiction over the policies to be carried on by the State as a shareholder
upon an issue of personal importance was granted only in particular cases (such as (Ministero per le partecipazioni statali).
the issue of sanctions or the repeal of a permit). Neither citizens at large nor indiv­ Finaliy, it is worth noting that, even ifItaly was one ofthe founding States ofthe
iduals affected had rights of access to administrative records, except after having European Economie Community, the "Europeanization" of its administrative law
demanded judicial review of a particular decision. was not yet significant, both because implementation of the European Directives
A large number of private activities needed to be authorized before they could was ordinarily delayed (if not avoided entirely), and because the actions taken by
be commenced, which meant that the authorizations could be denied and the the European institutions unti! that time had not yet had upsetting effects on Italian
activities could therefore be forbidden. The alleged aim of this previously required public administration.
mass of permits was to ensure that these activities were not directed against the
"public interest." That meant, for instance, that they should not disturb the peace C. Receot Developrneots
or that they should meet sanitary, safety and environmental requirements, or that
they had to adhere a pIan of orderly town expansion. Some major administrative refonns have taken pIace (or have at least been planned)
In particular, almost ali economic activities required authorization to be per­ in the 1990s with respect to various matters, including the reorganization of centraI,
fonned, from taxi driving or retail trading in the smallest shops to conducting regional, and local govemments, agency access to records, participation in and
banking activities. In tbis case the aim, more or less openly declared, was to restrict
economic competition. In fact, any legislation sirnilar to the Shennan Act in the
United States was lacking. 5 Only the Ba,nca d'Italia could be perhaps ascribed to this organizational pattem. The
Abiding by the numerous regulatory requirements imposed upon them, the Commissione nazionale per le società e la borsa -CONSOB, when established in 1974, was
citizens were also burdened by a lot of time-wasting red tape. Ali regulatory tasks, not independent at alI.
in any field and for whatever purpose, were carried out by offices of ministries and 6 Directly or through public holdings,like the Istituto per la ricostruzione industriale - IRI and
other public agencies in which tasks and duties of the politicians and the profes­ the Ente nazionale per gli idrocarburi - ENI.
sionals were confusingly mixed. And entities similar to the Independent Regulatory 7 See law no. 1589 of 22 December 1956.
CHAPTERSIX ADMINISTRAfIVE LAW

simplification of administrative procedures, and the new economic regulations. 2. Access to Agencies' Records
These reforrns are linked with the liberalization and privatization of public enter­
New regulations have been enacted regarding access to agency records. Before
prises.
this reforrn, aH adrninistrative acts of centraI, regional, and local govemments (and
l. The Reformation of Centrai, Regional, and Local Governments also of some agencies endowed with similar powers) having regulatory power
(such as the regolamenti) had to be published, just like laws, before becoming
It is worth quickly mentioning the reforrns of central, regional and local govern­ effective,14 even when they had only organizational content. The publication may
ments. take pIace in different official journals such as the Gazzetta Ufficiale l5 for State
In 1990,8 a new organic legislation was passed regarding the reciprocal tasks acts, the Bollettino Ufficiale for regional acts, or in reserved places open to the
and jurisdictions of the municipalities (comuni) and counties (province), which public such as the Albo for municipalities.
together fonn the first two tiers of the local govemment. 9 More recently, the By contrast, an order had to be noticed to the addressees, but it was not clear
executive has been empowered by the legislaturelO to devolve new powers to the whether this kind of act could or could not be exarnined by other persons. Also in
regional and loeal governrnents, so that almost alI administrative functions will be doubt was the existence of a right of access to the records of the procedure, even if
perfonned by loeal governrnents. This process is still ongoing. ll the person seeking them was the party directly affected by the final adrninistrative
Some new rules coneerning internaI management also deserve mention.? First, decision. Given this ambiguous law, the officers usually invoked their claimed
an effort has been made to clearly establish the division of the reciprocal tasks and duty to keep official secrets and denied everyone aceess to official records. 16
duties of politicians and professionals. To the fonner is given the power to detennine FoHowing thé refonn pursuant to statute no. 24111990, public agencies must
policies and issue directives, instructions, and regulations, and to the latter is now publish guidelines, instruetions, programs, and every kind of act which eontains
reserved the authority to issue ali kinds of orders,13 together with aH managerial generaI provisions concerning the organizations, tasks, objeetives, or procedures
jobs. Secondly, the labor relations of the employees, from the lowest clerks to the of a public ageney, or which state the construction of legal rules or give directions
top managers, will no longer be a public law matter (therefore, the labor contro­ for the implementation of them (art. 26 para. l).
versies no longer fall under the jurisdiction of the administrative courts), except Moreover, according to the new law, whoever is interested in examining the
for the competitive procedures needed, as a rule, for the hiring of personnel. administrative documents to proteet a legal interest has a right of access to them
(art. 22 para. 1). Any graphic, photographic, film-based, electromagnetic, or other
type of representation of the contents of acts made by the administrative agencies
(or in any case employed in the course of administrative aetions) is regarded as an
administrative document (art. 22 para. 2). Notably, the statute makes clear that the
8 See law no. 142 of 8 lune, now consolidated, together with others subsequent statutes, in the records concerned are those kept by any kind of state agency, public eorporation,
Local Govemment Code: "Testo Unico delle leggi sul/' ordinamento locale," Legislative or private corporation as well, when such a private corporation operates public
Decree (Decreto Legislativo) no. 267 of 18 August 2000. utilities or other public services through a franchising agreement.
9 However, within the municipalities (except the smallest) there are a kind of borough councils, The right of access to the records is recognized in order to guarantee the trans­
named consigli di quartiere or consigli di circoscrizione. parency of administrative actions and promote their unbiased making (art. 22,
lO Law no. 59 of 15 March 1997. para. 1).
Il See Legislative Decree no. 112 of 31 March 1998.
12 This matter is dealt with by Legislative Decree no. 29 of 3 February 1993, which implements 14 See art. lO Civil Code Disposizioni sulla legge in generale.
the de1egation given by lawno. 421 of 23 October 1992. The Decree is now conso1idated,
15 See law no. 839 of Il December 1984 and Decree of the President of the Republic (DPR) no.
together with several subsequent amending laws, in Legislative Decree no. 165 of 30 March
1092 of 28 December 1985.
2001.
16 The 1aw on the office secrets, as modified by art. 28 oflaw no. 241 of 7 August 1991, now
13 In the meaning of the definition given by APA, 5 USC, ch. 5, para. 551.
makes clear that there is no duty of secrecy in cases in which a right of access can be claimed.
 ADMINISTRATIVE LAW

CHAPTERSIX
within thirty days and is empowered to order the agency to produce any improperly
This right is not given to "busybodies," since a "legal interest" must be shown withheld records (art. 25, paras. 5 and 6).
in order to have access to the records. However, given the purposes stated in tbe
statute, it can be maintained that this interest must be construed more broadly and 3. Participation in the Administrative Procedure andAgreements
cular
vaguely than that required for judicial standing in a parti matter.
The Italian Constitution does not contairl any "due process" c1ause. According to
The right to access is not provided for ali kinds of records. The exceptions are in
case law, however, some sanctions could not be imposed without first allowing the
part similar to those stated in the United States Adrninistrative Procedure Act (APA)
interested party to express his or her view. In any case, most scholars have advocated
paragraph 552. They concern, fust of all, records affected by state secrecy, according
a generallegislative regulation of adroinistrative procedure aver the years.
to the relevant statute,n or by other legaI duties of secrecy or non-disclosure. Law no. 241/1990 contains this advocated regulation. This law is really just a
Moreover, access is prec1uded in cases provided for by regulations made by agencies kind of mirlirnal regulation without the detailed requirements of the APA, but it
according to ~he generaI rules and requirements set forth in a national executive applies without the need of any extemal reference.
order implementing the statute. Information is safeguarded with respect to national The agencies are obliged to inform the irlterested parties of the beginning of a
security and defense, foreign relations, currency policies, tbe preservation of law procedure. With the exception of cases in which very rapid administrative action is
and order, the prevention and repression of crime, and the privacy of third parties required, notice of the start of a procedure must always be given to the interested
(comprised of individuals, groups, and corporations). However, access to some of parties who are the objects of an administrative decision and to the parties who are
these records may nevertheless be obtained in cases where the knowledge is needed obliged to take p;;ut in the procedure. Others who might suffer detrirnental effects
by the applicants for purposes of judicial defense of their legai interests (art. 24, from the decision must also be informed if they are either identified or are easily
paras. 2 and 4), except that, when privacy about health or sexual behavior is at identifiable. However, in any case, the agency is free to take provisional measures
stake, the access is allowed only for purpose of defense of "a right of equal dignity before having given the notice due (art. 7).
to that of tbe interested people."18 The interested persons are to be informed of tbe subject matter of the procedure,
In addition, access to certain records can be deiayed (but not prohibited) where the agency which has jurisdiction over the matter, the department, the officer
the information, if disseminated, would prevent or seriously hamper administrative personally in charge of the procedure, and finally tbe pIace where the records can
actions. This is always deemed to be the case witb regard to documents pertaining be located and examined (art. 8 para. 2). The communication is to be given by
to procedures airned at making legal rules or general regulations, as well as pIan or personal notice or, when this is not possible or would entaH too heavy a burden on
program decisions not yet concluded (art. 24 para. 6). the adrnirlistrative agency (in case, for example, a large number of interested
An application for access has to be addressed to the agency which made the persons), by suitable advertisement (art. 8, paras. l and 3).
document or which holds it permanent1y. The records can be freely inspected. 1'0 The generaI duty to inform is not provided for with respect to the procedures
obtain copies, the requesting party must pay the costs of duplication and certain aimed at issuing legaI rules or generaI regulations and plans or program decisions,
fees (art. 25, paras. l and 2). nor does it apply to taxation procedures. 1'0 these only the particular norms, if any,
The law provides that denials, delays, and other limitations to access must be apply, provided for by the statutes and procedures that regulate these matters (art.
explained. Any application to which a reply is not made within 30 days is deemed 13).All those to whom notice ofthe start ofthe procedure has to be given may take
refused (art. 25, paras. 3 and 4). If the right to access is denied, or if there is a part in the procedure. That means that they may inspect the relevant records (witb
failure by the adrninistrative agency to reach a conc1usion in the time prescribed, the exceptions mentioned above) and submit documents and written arguments
the applicant can complain before the regional adrninistrative court (Tribunale (art. IO). Aside from these subjects, any subject bearer of private or public interests,
Amministrativo Regionale - TAR), which must decide the question, in camera, or bearers of diffuse interests who have formed into associations, may take part irl
the procedure, with the same powers (arts. 9 and lO).
An interesting feature of this 1aw is the attempt to give a public law regulation
to the well-known practice of informal and hidden agreements between tOO agencies
17 Law no. 801 of 23 August 1988.
and the individuals, giving them legaI effect when they comply with procedural
18 See art. 22, para 4, oflaw no. 675 of 31 December 1996.

CHAPTERSIX ADMINIS1RATIVE LAW

requirements. To this end, the new law provides that whoever takes part in a examinations suited to the case are to be carried out (what Italian administrative
procedure may also submit proposals to reach an agreement on the discretionary lawyers cal1 "technical discretion"). Central Executive regulations list the acts of
content of the decision to be made by the agency. The agency can sign the proposed this sort. 22
agreements for public interest purposes and without prejudicing the interests of On the other hand, a different Executive regulation23 lists the cases in which an
any third party's interest. The principles of the law of contracts apply to these application for authorizations, licenses, and the like are deemed as granted if the
agreements when they are compatible with the public interest, except in cases agency does not refuse it within sixty days. Here, the agency's silence functions as
when different legaI provisions exist. But the agency has the power to withdraw if an agreement (called "assent-silence") whereas before, in principle, the agency's
new reasons implicating the public interest arise. In this case, however, an inactivity was deemed a disagreement ("refusal-silence"). However, if the
indemnification is to be paid that takes into account possible damages to the authorization deemed as given by silence turns out to be illegal, it can be annulled
counterpart (art. 11, paras. 1,2, and 4). by the agency itself, but only if this is required by the public interest.
Furthermore, law no. 241/1990 opens the way to legislation aimed at avoiding
4. The Simplification ofAgency Procedures
overly complicated and time-wasting procedures. In its first article (para. 2), the
The reform of procedurallaw brought about by statute no. 241/1990 may perhaps law states as a general rule that departments and agencies cannot increase the number
be viewed as "customer oriented," not so much because of the opportunity given steps required for the conclusion of a procedure, except when extraordinary and
to the interested parties to have a say in the procedure, but rather because of the wel1-founded needs arise in the proof-taking stage.
attention focussed on protecting citizens against bureaucratic vexation. The law It is then established (art. 2, paras. 2, 3, and 4) that every department and agency
makes an attempt both to alleviate their bureaucratic burdens and to set out the must fix deadlines (to be published) for the conclusion of their procedures. For
bases for the recognition of new kinds of rights against the agencies. those cases in which they must receive official advice from an extemal advisory
As for the former, its target is cal1ed the "simplification" of procedures. The organ before making the final decision, the agency, after the expiration date, can
reform presents two main novelties in this regard. As mentioned above, one decide without waiting any 10nger.24 Moreover, subsequent laws have revised long
frequently needs some sort of previous authorization (or license, permit, approval, lists of procedures with the goal ofeliminating non-essential steps, and it has recently
or other sirnilar agency consent) to begin a private activity. According to law no. been decided that a list of procedures must be "simplified" annually.25 Similarly,
241/1990,19 normally it is now only necessary to give prior notice to the competent when several agencies take part in a procedure and the agency wishes to shorten its
agency,2° asserting the conformity of the planned action to the conditions provided length, the agency responsible for the final decision can, instead of waiting for the
by the law,21 together with a self-certification of the results of the needed tests or assent of each, calI all of them to a meeting (conferenza di servizI) in which all
examinations, if any. The onus is on the agency to check all the circumstances and, must decide together. 26
if necessary, to enjoin the applicant, and within a 60-day mandatory period, to Among these simplification measures, it is worth stressing the importance of
cease any operation, and to undo the effects of the illegal operations. certain laws and regulations. On the one hand, they provide that citizens cannot be
The new procedure cannot apply when there are a fixed number of authorizations asked to give evidence of facts, personal status, or titles the evidence for which can
that can be granted. Nor does it apply when the issue depends on the evaluation of
circumstances which entails the exercise of some discretion, even if such discretion
only regards the choice of the technical rules according to which the tests or
22 See Table A attached to DPR no. 411 of 9 May 1994.
23 See art. 20 law no. 241/1990 and Table C attached to DPR no. 300 of 26 April 1992, as
19 Article 19, as amended by art. 2 para. 10, law no. 537 of 24 December 1993. amended by the Allegato 2, attached to DPR no. 407 of 9 May 1994.
24 See also art. 17 for the cases in which an expert evaluation is needed.
20 Except for the planning permits and some authorization aimed at the protection of the
environment, landscape, or historical buildings. 25 See art. 20 para. 1 of law no. 59 of 15 March 1997 and the first yearly law no. 50 of 8 March
1999.
21 The false declaration of circumstances is considered a crime and prevents any advantageous
effect for the applicant. See art. 21. 26 Article 14, as subsequently amended, also establishes the rules for the functioning of the meeting.
CHAPTERSIX ADMINIS'fRPJIVE LAW

be drawn from records held by any public agency.27 On the other hand, when citizens the speakers of the House of Deputies and the Senate. 1lùs new agency joins the
are required to provide documentation of such facts as age or pIace of birth they Commission for the Regulation of the Stock Exchange (Commissione nazionale
are allowed to execute declarations on their own behalf on these matters and other per le società e la borsa - CONSOB), set up in 1974 and updated in 1985,33 whose
matters relating to personal data.28 jurisdiction34 was widened to nearly all kinds of financial markets in the last decade. 35
Finally, it is worth mentioning another novelty pertaining to an agency's Moreover, in the 1990s, a decision was reached to sell most public enterprises
management field that tries to make these reforms more effective. It is provided in order to both obtain liquidity (or at least to alleviate the losses suffered by some
that for each procedure an officer must be named who is personally in charge of of these entities) and to eliminate some open or hidden public monopolies. The
the procedure (the responsabile del procedimento) and whose name, as noted above, first move to this end was the transformation of public enterprises in the form of
has to be made known to the interested parties at the beginning of the procedure. public corporations into joint stock corporations (making it possible to sell shares
This officer has the task of carrying out the proof-taking stage of the procedure in the companies),36 and the abolition of the Ministry of the State shareholdings
with maximum promptness. Re must also assist the interested persons by, for (Ministero delle partecipazioni statalt).37 The subsequent steps, for those enterprises
example, indicating any problems or faults with their applications that they need producing common goods, ought to take the form of sales of the shares on the
to address in arder for the application to be successfup9 market,38 where the competition is to be protected by the new independent antitrust
authority.
5. Privatization and the Regulatory Independent Authorities
For public utilities, the aim could not simply consist of their sale to private
The recent major developments, largely resulting from the impact of European entrepreneurs, because public monopolistic ownership is aimed at satisfying the
Community law, concem economic regulations and public enterprises. The needs of public interest, which could not be fulfilled through the market. Moreover,
acceleration of the European integration process brought about by the 1986 Single the EC Treaty states that "undertakings 39 entrusted with the operation of services
European Act 30 and by the 1992 Treaty on European Union31 compelled a revision of generaI economic interest ... shall be subject to the rules contained in this Treaty,
of the attitude of the Italhm State towards the economy. in particular to the rules on competition, insofar as the application of such rules
Law no. 287 of IO October 1990 contains rules similar to those of arts. 81 and does not obstruct the performance, in law or in fact, of the particular tasks assigned
82 ofthe EC Treaty that prohibit agreements between competitors and the activities to them."40 Therefore, it was decided that shares could not be sold in these kinds of
that constrain competition, or the abuse of a dominant position in the market, even enterprises before independent agencies with the power to fix tariffs and control
when the European rules do not apply.32 The enforcement of these rules is the
burden of the Authority for the Defense of Competition and the Market (Autorità
per la garanzia della concorrenza e del mercato), an independent regulatory
33 See Law Decree no. 95 of 8 ApriI 1974, converted into 1aw no. 216 of 6 lune 1974 and
commission (antitrust authority) whose members are appointed by agreement of updated by 1aw no. 281 of7 lune 1985.
34 Sometimes exercised jointly with the ItaIian CentraI Bank (Banca d'Italia).
27 See art. 18 of 1aw no. 241/1990. It is a duty of the officer responsib1e for the procedure to 35 See, for the 1atest 1egis1ation, the Legislative Decree no. 58 of 24 February 1998.
collect these records. 36 Which was allowed or direct1y decided upon by the Executive, for public banks, public
28 See art. 47 fI, ofthe DPR no. 445 of28 December 2000, code ofthe adrninistrative documenta­ ho1dings, and other public entities. See 1aw no. 218 of 30 lu1y 1990, and Legislative Decree
tion. no. 356 of 20 November 1990, and Law Decree no. 333 of Il lu1y 1992, converted into 1aw
29 See arts. 5 and 6 of 1aw 241/1990.
no. 359 of 8 August 1992.

30 The Sing1e European Act stated the end of 1992 as the deadline for the comp1etion of the 37 See Law Decree no. 118 of 23 ApriI 1993, converted into 1aw no. 202 of 23 lune 1993.
European internaI Market. 38 The saIes are still going on: until now, the amount of money obtained is over US$ 15 billion.
31 Common1y referred to as the "Maastricht Treaty." 39 Which the EC Treaty does not ask to be necessarily private1y owned; see art. 86 para. l and
art. 295.
32 That is, when they do not affect the trade between Member States of the EC, but on1y the
Italian market. 40 Artiele 86 para. 2 of the EC Treaty.
CHAPIERSIX ADMINIS1RATIVE LAW

the quality of services were set Up.41 Accordingly, unti! now, these questions have of the seventeenth century,46 the result was fully achieved during the French Revolu­
been settled by two other independent authorities, one with jurisdiction over the tion,47 or at least after 1799,48 when Napoleon established the Conseil d'État (which
electric power and gas industries, and the other with jurisdiction over the may be viewed as the heir ofthe Conseil privé ofthe king ofthe Ancien Régime)49
telecommunications indUStry.42 Meanwhile, some European Directives have been as the prominent advisory body on adrninistrative, legislative, and contentious affairs
enacted to harmonize the partial liberalization in these fields,43 and their imple­ regarding the central govemment.
mentation is imminent. Subsequently, a citizen could sue the govemment before a court solely to obtain
compensation for expropriation, damages, or breach of contract, but only provided
that no specific public interest was at stake. By contrast, a complaint against the
III. The Machinery of the Judicial Control of Adrninistrative order to do or not do something, or against the refusal of a license, could be made
Action on1y through an adrninistrative appeal (usually a hierarchical appeal), which was
decided by the govemment, very frequently on the advice of the Conseil d'État.
A. French Origins This sort of adrninistrative self-made justice, labeled as the system of the "content­
ieux administrative" or "adrninistrative justice," was later, following the fortunes
Unlike England, Italy belongs to that group of European countries in which, after ofNapoleon, exported to other European countries, including the old Italian States. 50
the Middle Ages, the idea of administration was sharply separated from the idea of The reason given for establishing this kind of system was to guarantee that
judicial jurisdiction, to the point where even the name of the administrative authority adrninistrative.discretion was not hindered by undue court intervention; this brought
(which is called "competence" and never "jurisdiction") and the administrative the principle of the separation of governrnent powers into effect,51 But it is
decision (which is called "administrative measure" and, more generally, "administra­
tive act," and never "adjudication") lost any resemblance to those of judicial
authority and decision. (For purposes of this chapter, an "administrative act" may % See the prohibition against the Parliaments (which were the judiciary) to prendre connaissance
be defined as a decision concluding an adrninistrative procedure.) des affaires d'état et d'administration, settled by the Saint Germain Edict in 1641.
With particular regard to the French experience, it is important to note that, 47 See Law 16/24-8-1790, art. 13, "Les juges ne pourron troubler, de quelque manière que ce
during the ancien régime,the administrative bureaucracies of the kings experienced soit, les opération des corps adminstratifs ni citer devant eux les administrateurs à raison de
increasing growth separate from the judiciary.44 And, at a certain point, it was no leursfonctions."This prohibition would be confirmed in 1794: "Défenses itératives sonfaites
aux tribuTUlux de conTUlitre des actes d'administration, de quelqu'espèce qu'ils soient, aux
longer necessary to have the legality of their authoritarian measures (by which we
peines de droit."
mean acts impinging upon the freedom and property of individuals) ascertained by
By the Constitution of 22frimaire a. VIII (13 December 1799). In the same vrn year (17
the judiciary before being enforced against the addressees. 45 48

February 1800) the Conseils de Prefecture were established in the Provinces.

It is unclear when exactly the last novelty in this area occurred. However, it is
certain that after the long struggle against parliament initiated during the first half 49 The whole organization of the Conseil du Roi of Louis XIV can be seen in P. Fanachi, La
justice administrative, 3rd ed., Paris (1992), p. 7, fu. 1. A Conseil d'Etat which gathered the
Ministries of the King together was reestablished by a Law of 27 April- 25 May, 1791.
50 The competence of the French Council of State expanded to Piedmont in 1800, to Parma in
41 See art. Ibis of Law Decree no. 332 of 31 May 1994, converted into law no. 474 of 30 July 1802, to Liguria in 1805, to Tuscany in 1808, and to Latium and Umbria in 1809. When the
1994. forma11y independent Napoleonic Reign oflta1y was founded, which inc1uded alI ofNorthern
lta1y, something similar to the French Council of State had been established there in 1805. A
42 See law no. 481 of14 November 1995, and no. 249 of 31 July 1997. Council of State was established in 1805 in the Reign of Naples, as well. See V. Wright,
43 To which must be added the postal services. "Conseil d' Etat e Consiglio di Stato: le radici storiche della loro diversità," in Y. Meny (ed.),
Il Consiglio di Stato in Francia e in Italia, Bologna (1995), p. 31.
44 L. Mannori, "Diritto amministrativo dal Medioevo al XIX secolo," in Digesto - delle discipline
pubblicistiche, voI. V, UTET, Torino (1990), p. 172ft. In fact, the first words of the above-mentioned Law of 1790 (see supra note 47) were: "Les
45 Id. at p. 179, fn. 43. fonctions judiciaires sont distinctes et demeureront toujours séparées des fonctions
administratifs."
CHAPTERSIX ADMINIS1RATIVE LAW

indisputable that, at the sarne time, the public adrninistration could be seen as B. Italian History
freed, unlike the common people, from the obligation to respect the ordinary law.
This was the well-known criticism leveled against the Droit Administrative by Corning now to the particular history of Italian adrninistrative law,56 it is important
A.V. Dicey in the wake of A. de Tocqueville's first remarks. 52 to note that the Italian State was the result of the unification of several pre-existing
However, one cannot underestimate the fact that decisions by the governrnent States in Italy. The steps prior to the unification were the annexations of the other
playing a quasi-judicial role usually had to be taken on the advice of the Conseil States by Piedmont, followed by the proclarnation of the Kingdom ofltaly in 1861,
d'État. The govemment always conformed to this advice (even if, theoretically, and the enactment of the so-calied Unification Laws of 1865, which replaced the
such conformity was unnecessary), so that it can be said that the decisions carne different statutes in force in the pre-unification States.
substantially from the Conseil d'État. In fact, perhaps because it could act as an Many of these States - above all the Kingdom of Piedrnont, to which the Kingdom
hierarchical .superior,53 the latter was able to develop a range of specific legal of Italy was first heir - had been influenced by the French adrninistrative reforms
principles to confine the exercise of discretionary powers (contentieux d'excés de brought by Napoleon and his armies. After the "restoration" that followed the fali
pouvoir). Through such powers, the rule of law was, after all, imposed with perhaps of Napoleon, the old monarchies maintained or re-established French-style
more efficacy than was attained by the English Courts, for instance (as Dicey hirnself institutions, which included the previously discussed system of adrninistrative
appears to have partialiy acknowledged).54 justice. For instance, a Council of State had been established in Piedmont in 1831,
Also, since 1872 the Conseil d'État was given the formaI authority to directly along with similar institutions in other States.
decide appeals. This new authority was in addition to its continuing duties to advise However, having to decide on the new national system for protecting individuals
on adrninistrative and legislative affairs of the governrnent. In any case, it was against the governrnent adrninistration, the new Italian parliarnent decided to depart
already understood at this time as performing a judicial task, and was actually from the adrninistrative justice system and try to build a new system by enacting
regarded as a judge, or as just one of the so-called adrninistrative jurisdictions that law no. 2248 of 20 March 1865. This statute (Appendix E of which is stilI in force)
were established in the second half of the nineteenth century in other continental gave on the one hand (per art. 2) ordinary courts the competence to protect the
European States as weli (as, for instance, in some German States)55 where they "civil or political rights" of the citizens (by and large respecting franchi se and
were not,however, also advisory bodies of the govemment on adrninistrative affairs. eligibility, personal and contract freedoms, and property). On the other hand,
hierarchical appeals 57 could be brought against the adrninistrative acts concerning
affairs which involved legitimate interests other than "civil or political rights" (art.
3). Furthermore, per Appendix D, citizens who exhausted their hierarchical appeals
were allowed to bring an "extraordinary" appeal to the king, who had to decide, as
a rule, in conformity with the advice of the Council of State. 58
In order to comply with the principle of the division of powers, the annulment
ofunlawful administrative acts was precluded to the ordinary courts, which having
52 See the passages of A. de Tocqueville, Democracy in America, quoted by A.V. Dicey,
Introduction to the Study oj the Law oj the Constitution, 8th ed. (1914), repr., Indianapo1is ascertained violations ofthe rights protected, could only make ajudgment against
(1982), p. 233. the administrative agencies for darnages, but could not in any case annuI the
53 See Yves Gaudemet, "Pouvoir discretionnaire de l'administration moderne," Landesbericht administrative measure inducing the act.
Franckreich, in M. Bullinger (ed.), Verwaltungsermessen in modernen Staat, Baden Baden
(1986),p.113ff.
54 See "Rule of Law compared with Droit Administratlf," in Introduction to the Study oj the 56 See M. Nigro, Giustizia amministrativa, 5th ed. (E. Cardi, A. Nigro eds.), Bologna (1994),
Law oj the Constituition, supra note 52, at 213 ff. pp.51-87; A. Travi, Lezioni di giustizia amministrativa, 4th ed., Torino (2000), pp. 15-30.
55 See WaIter Leisner, "Legai protection against the State in the Federai Repub1ic of Germany," 57 Which were to be decided after having heard the opinions of advisory bodies (art. 3).
in Aldo Piras (ed.), Administrative Law - The problem oj Justice, voI. ID, Milano 1997, p. 58 The Piedrnont Council of State was preserved: its members were named, and cou1d be recal1ed
149ff· by the king on the proposaI of the Minister of Home Affairs.
CHAPfERSIX ADMINISTRXIlVE LAW

Finally, the Council of State was made judge of the complaints of the public judgments for darnages against the adrninistrative agencies, but they could not
adrninistration about alleged infringements of the boundaries of their jurisdictions annuI the adrninistrative measures. On the other hand, when the litigation concemed
by the courts. However, the Italian Supreme Court (Corte di Cassazione) replaced "legitimate interests," the adrninistrative courts, which had limited proof-taking
it in this role of "judge of conflicts," sitting in joined divisions (Sezioni Unite), powers, could only annuI adrninistrative acts, and could not give judgments far
constituting the highest tier of the system of the ordinary courts of justice. 59 darnages.
In spite of a number of scholarly analyses of this legislation,60 it is not yet clear Until very recent1y, the system did not undergo any substantial reform.
whether the legislative intent was to enhance the guarantees of citizens or to limit It is worth recalling that two more jurisdictional divisions of the Council of
them. In any case, the courts - and, above all, first the Council of State and then the State (the 5th62 and 6th63 sections) and the Regional Adrninistrative Courts (TAR)
Italian Supreme Court in their role as "judge ofconflicts" - narrowly construed the with general jurisdiction in the first instance had also been established. Also worthy
arnbit of jurisdiction over "civil and political rights." As a result (according to the of mention is one provision of a law passed in 1923 for the extension of the
allegations of opponents to this law), a number of legitimate interests lost the competence of adrninistrative courts to complaints involving subjective rights,
protection previously received through the system of adrninistrative justice. including public employment litigation. This "exclusive jurisdiction" has been
Therefore, some bills were proposed on the matter, and in 1898 a statute was extended over the years and, as we will see, it is the basis of a recent major reform.
passed61 creating a new 4th section (N sezione) of the Council of State, before Finally, it may be recalled that the system of adrninistrative courts also includes
which an adrninistrative act could be challenged if it impinged upon the interest of the Court of Accounts (Corte dei Conti).66
an individual or a juridical person, in order to have it quashed on the grounds that Without l~gering to discuss its historical origins (which are similar to those of
it was unlawful "for incompetence for excess of power or for violation of law." the Council of State), we will note that the responsibility of this court is to check
However, the Council of State in this case had power of annulment over acts, but the legality of the acts of govemment, perform crocial auditing tasks,67 and carry
not the power of condemnation for darnages. It could not collect evidence through out the task of prosecuting public officials and employees who darnage the State or
exarnination of witnesses or by expert reports. Even though the statute did not other public bodies (so-called adrninistrative liability).68
define the new division of the Council of State as a judicial organ, the view of it as
such carne to prevail soon afterwards. . C. The Constitution
It can be said that since that time Italy has had two separate judicial hierarchies,
one composed of ordinary courts and another composed of adrninistrative courts. The Constitution of 1948 itself confirms the typical features of the system. It
As a result, there were two venues for citizens to obtain judicial protection against guarantees, always and to all people, the judicial protection of both subjective
administrative agencies. They had to complain before the ordinary courts for rights and legitimate interests (arts. 24 para. l and 113 para. 1) and, in any case,
infringement of "subjective rights" and before the administrative courts when full judicial protection against alI adrninistrative acts (art. 113 para. 2).
"legitimate interests" were at stake. And, as we have seen, there were also two
different kinds of judicial protection in the two different cases. On the one hand,
when "subjective rights" were at stake, the ordinary courts could only give 62 Law no. 62 of 7 March 1907.
63 Law Decree no. 642 of 5 May 1948.
64 Law no. 1034 of 6 December 1971.
59 In fact, in the first period, before there was only one Supreme Court, the task was entrusted to .65 Law no. 2840 of 30 December 1923.
the Corte di Cassazione of Rome: Act no. 3761 of 31 March 1977.
66 The Corte dei Conti of the Italian Reign was instituted by 1aw no. 800 of 14 August 1862.
60 See Aldo Piras, "Trends of administrative 1aw," in Aldo Piras (ed.), supra note 55, at 237 ff,
fu. 7. 67 Roughly comparab1e with the functions of the US GeneraI Accounting Office.

61 Law no. 5992 of31 March 1898. Another Act of the same year estab1ished in every Province 68 See arts. 81, 82, and 83, Royal Decree no. 2440 of 18 November 1923, and arts. 18 and 19
the Giunte Provinciali Amministrative, to which 1aw no. 6837 of l May1890 gave firstinstance DPR no. 3 of lO January 1957. The damages can also come from having he1d the agencies
jurisdiction over 10cal govemment adrninistrative acts. liab1e for damages to third parties.
CHAPIERSIX ADMINISTRtU'IVE LAW

First, it preserves both the ordinary and the adrninistrative courts. But, with funds) or certain top-Ievel fiduciary appointments (e.g., the appointment of the
regard to the latter, it adds to the already existent "organs of adrninistrative justice" presidents of some public agencies).
(art. 103 para. 1) (Le. the Council of State and the Court of Accounts) "organs of It must also be bome in mind that the review of regulations enacted by the
administrative justice" to be established in the Regions (art. 125 para. 2). Secondly, central and laeal govemments, which have a legislative, even if secondary, character,
it preserves the role of the Council of State as the main legaI and administrative falls under the jurisdiction of the adrninistrative courts (whereas it is within the
advisory body to the government adrninistration (art. 100 para. 1).69 1birdly, it exclusive jurisdiction ofthe Constitutional Court to review the constitutionality of
divides judicial jurisdiction between ordinary and adrninistrative courts, as a rule, State and regionallaws, as well as other acts having the same force, such as decreti
on the grounds ofthe subjective position (either "subjective rights" or "legitimate legislativi and decreti legge, see supra, chapter 3, p. 52).
interests") whose infringement is alleged by the citizen. However, the Constitution However, it is stili a commonly held belief that the constitutional TUle ofjudicial
allows the legislator to give the adrninistrative courts jurisdiction over litigation of review of administrative actions has to be reconciled with the separation ofpowers
subjective rights (art. 103 para. 1) in particular matters and, on the other hand, to principle. Therefore, whereas no problem arises when the action is completely
authorize, in certain cases, the annulment of administrative acts by the ordinary bound by law, this reconciliation is problematic when the law grants discretionary
courts (see art. 113 para. 3, for implication). Fourthly, it maintains the Court of powers to the adrninistrative agencies.
Accounts both as an organ with competence over the preventive control of the On the other hand, in some cases it could prove a somewhat difficult task to
legality of govemment acts and subsequent control of the management of the budget establish whether or not an agency has such discretion; and yet the distinction is
(art. 100 para. 2), and as a judicial organ with jurisdiction over matters of public highly important in the Italian system, where, as described below, such a distinction
accounts and such other questions as are specified by law (art. 103 para. 2). Finally, could stili be centraI in many cases to overcoming the difficulty of drawing the line
the Constitution states that the law ensures the independence of the judges of special between the jurisdictions of ordinary and adrninistrative courts.
courts (art. 108 para. 2), among which are included the administrative courts. According to the current doctrine, both the principies of reviewability and
separation of powers mentioned above are met when review by the courts is confined
D. At the Beginning of the 21st Century to reviewing the legality, and not the merits, of the administrative action. Yet when
.an adrninistrative act is attacked on the grounds of a so-called excess of power - a
1. Judicial Review and Administrative Discretionary Powers subject addressed below - the borderline between legality and merits becomes
blurred.
The judicial review of adrninistrative acts is the main task of what is called adrnini­
strative justice; the other is formed by the administrative appeals, the importance As for the distinction between discretionary and non-discretionary administrative
of which is far less relevant in practice. The greater importance of judicial review actions, according to the prevailing view, an agency has adrninistrative discretionary
now results also from the above-mentioned constitutional rules. It is important to powers when different interests, whether public or private, have to be taken into
note that the combination of constitutional and legislative provisions and judge­ account and balanced. In this view, a discretionary decision, even if it can be viewed
made law brings to an end the principle that the whole of administrative action is as always intended to enhance the public interest, actually must reconcile different
subject to judicial review. interests if possible, or to choose among them.
The class of political or govemmental acts, which are in principle not review­ However, under certain factual circumstances, an agency is often bound to issue
able, as opposed to administrative acts, has been increasingly narrowed by judge­ only a certain act. But the existence of such circumstances can be disputable, as
made law. Exempted from judicial review are only the acts issued by the Executive when, for example, its proof depends on divergent scientific or technical opinions.
conceming relationships with foreign countries or the definition of the main lines Suppose, for instance, that an agency for environmental protection must order a
of a policy (e.g., the establishment of criteria and plans to distribute special strategic mill to cease its activity because waste water flowing from the mill into a river
contains some kind of toxic substance. Suppose also that there are several technical
methods of testing the toxicity and quantity of the substances, which produce
fB According to which the tasks of the Counci! of State include safeguarding justice within the differing results. In this case, it is unclear whether the courts can condemn the
public adrninistration. agency's choice or must defer to it (apart from a review on questions of legality,
CHAPTERSIX ADMINISTRiITIVE LAW

such as reasonableness, or consistency of the decision-making process, both Some examples of this include the legal obligation not to disturb Ms.
discussed below). According to the case law, the second solution must be followed White in the enjoyment of her property, or the contractual obligation of
on the ground that in this case, as maintained by some legal scholars, the agencies giving something or paying an amount of money to Ms. White.
enjoy a "technical discretion" (as contrasted with the "adrninistrative discretion," b) By contrast, when Ms. White clairns to have a specific interest (which is
which could after alI be political in nature). lawful and distinguishable from that of the general public) and another person
does not have a corresponding specific obligation to satisfy that interest, but
2. Rights, Legitimate Interests, and Standing
has the power to choose among a number of courses of action, just one of
As we have seen above, the Constitution states that judicial protection against which would satisfy the interest of Ms. White, a "legitimate interest" arises
adrninistrative acts must always be accorded - as an absolute right, not subrnitted if he who has the power to choose has the duty to comply with certain legaI
to any previous screening or leave, and exempt from any ousting whatsoever ­ standards in making the decision (so that the latter is, for instance, not only
before the ordinary or adrninistrative courts. Again, the Constitution assigns the lawful but also reasonable, unbiased, or at least not capricious, etc.). In this
general protection of legitimate interests to the jurisdiction of the Consiglio di case, Ms. White may demand that a court check the compliance with these
Stato and of the other adrninistrative courts of first instance. This excludes particular legal standards (and to set aside the decision if the standards are not complied
subject matters, where the laws may give adrninistrative courts exclusive jurisdiction with).
(giurisdizione esclusiva).70 lt is irrelevant in these cases ifthe issue involves rights For example: a laeal authority may have the power to decide to give (or
or legitimate interests. not to 'give) Ms. White the taxi-driver's license that she requires. Or the
As a rule, jurisdiction belongs to the ordinary courts if the issue concems adrninistrative authority in certain circumstances may also decide (or not)
"subjective rights" (diritti soggettivi) and to the adrninistrative courts if the issue to expropriate Ms. White 's land, which rnight be needed to widen a town
concems "legitimate interests" (interessi legittimi). Tbe kind of entitlement, the square. In these cases, Ms. White has a merely "legitimate interest," not a
protection of which is sought before the judge, sets forth the criterion for the "right" to acquire this privilege, or better this "new property"71 (in the first
distribution of jurisdiction between the two kinds of court. case), or to preserve the property (in the second case).
Given these circumstances, when the subject matter does not fall within the c) Finally, there is neither a "subjective right" nor a "legitimate interest" if the
exclusive jurisdiction of the adrninistrative courts, the crucial question faced by law may be construed as neither imposing an obligation of behaving in the
anyone seeking judicial protection is how to distinguish "subjective rights" from specific way which meets Ms. White's interests nor as establishing some
"legitimate interests" and the latter from other legally irrelevant interests which legal standards to be followed when it is to make a decision that can interfere
(even if they possibly constitute matter for the political process) fall outside any with these interests.
jurisdiction. However, the boundary between the second and third categories can
be uncertain (take, for example, certain diffuse interests), and the issue can emerge To conclude, from a legaI relation with any other natural or legaI person there may
as not easily distinguishable from that of standing (see below). originate, in the abstract, either a right or a legitimate interest. However, the latter
Roughly speaking, and without specific reference to the public administration, may be more easily and normally found when there is a relation with public agencies,
we can say, using a hypothetical subject, that: due to the principles that govem their activity and, more specifically, their discretion­
a) Ms. White has a "right" when another person or alI persons, according to ary decisions, according to the rule of law.
the law, ought to behave in a specified way that would satisfy a specific Therefore, in administrative law relations, a simple way of describing the
interest held by Ms. White. In this case, Ms. White may demand the full and difference between subjective rights and legitimate interests is to say that:
specific satisfaction of her specific interest before a court. a) a person is entitled to a "legitimate interest" if the adrninistrative agency
has a discretionary power (subject to legal standards) to decide ifhis Or her
specific interest should or should not be satisfied;
70 However. we will see below that the exclusive jurisdiction of the adrninistrative courts has
been expanded recently to include very broad and important new fields. See C. A. Reich, "The New Property," 72 Yale U 733 (1964).
CHAPTERSIX ADMINISTRmVE LAW

b) a person has a "subjective right" when the law does not accord any power of problematic if and when judiciaI redress can be sought for unlawful infringement

choice to the agency, but directly establishes the conditions under which his of diffuse interests. Some statutes provide that certain private associations may

or her specific interest must be satisfied by the adrninistration. aIways bring an action before the courts to review adrninistrative actions in order

to protect environrnentaI or consumer interests,?5

However, according to the traditional doctrine72 stilI folIowed by the courts, we

should aIso speak oflegitimate interest (and not of right) when an agency is legaIly 3. Tasks, Powers and Procedures ofthe Ordinary Courts and the Administrative

bound to behave in a way that actualIy satisfies the interest of a person, provided Courts

that this obligation of the agency has to be construed as aimed to the satisfaction
not of the individuaI interest, but of the public interest, so that the satisfaction of It is worth pointing out that the protection given by the two different judiciaI
the individuaI interest should be seen as a mere consequence of the satisfaction of hierarchies against the unlawful behavior of adrninistrative agencies differs, not
only with respect to the different kinds of entitlements for which the protection is
the public interest.
Nevertheless, it is easy to see that when no "right" (in the above-described strict sought, but also with regard to the tasks, powers, and procedures of each hierarchy.
sense) is at stake, it can be uncertain if an interest must be seen as a "legitimate Things now seem to be undergoing substantiaI change, both because of the
interest" or merely as an interest without any judiciaI protection. To be "legitimate," widening of the exc1usive jurisdiction of the adrninistrative courts and the narrowing
an interest needs to be protected by law, which means that it must be within the of the differences between the powers of the two types of jurisdictions. However,
the dual system has been preserved.
zone of interests to the protection of which a statute or other source of law is
designed. a. Tasks
From the American point of view, legitimate interests can sometimes be compared
to "privileges," and sometimes the distinction between "legitimate interests" and The traditional task ofthe ordinary civiI courts was to protect subjective rights (as
mere interests may be seen as an issue of standing. By contrast, from the Italian distinct from the protection of personaI freedom that is mostly the business of the
point of view, the problem of standing is now73 seen as a different issue. The criminaI courts), as contrasted with legitimate interests. Thus, their jurisdiction
applicant must show both that he or she is the bearer of the "legitimate interest" at traditionalIy covers (and is confined to) controversies over rights against public
stake and that the remedy sought could be truly useful in redressing the aIlegedly adrninistration. However, since, as we shall see, not alI kinds of ordinary judgments
unlawful infringement of his or her interest. This should help avoid public actions are admitted where an adrninistrative agency is a defendant, it was mainly up to
(azioni popolari) that are merely aimed at preserving the lawfulness of officiaI the ordinary courts to adjudicate complaints grounded on contract or tort law.
actions, which are alIowed by some statutes only in very few cases. On the other hand, there are now a great number of controversies over rights
Moreover, the interests that can be given judiciaI protection must belong to a that fall within the exc1usive jurisdiction of the adrninistrative courts.
"person" (either a naturaI or a legaI person).74 Therefore, establishing it may be As for contract-related litigation, even though the agreements regarding the ­
discretionary content of an adrninistrative decision are governed in principle by
ordinary contract law,76 these controversies faIl within the exc1usive jurisdiction of
the adrninistrative courts.
72 Even if it is now suffering criticism by some scholars as a doctrine whose results are not as
certain as they should be in order to operate as a criterion for distributing the jurisdiction. In As for torts litigation, it should first be noted that in principle, the generaI tort •
any case, to retum to a problem noted above, following this approach, even when il is denied law applies. And yet, according to long-established case law, compensation could
that the judges must defer lo the agencies about their technical choices or, in other words, that p.ot be awarded for alleged damages c1aimed on the grounds of the infringement
the agencies have a "technical discretion," the jurisdiction would stilI belong to the
adrninistrative courts.
73 Actually, according to ancient doctrines, the "legitimate interest" was in fact substantially
the equivalent of standing.
See art. 18 oflaw no. 349 of 8 July 1989, and art. 3 oflaw no. 281 of 30 July 1998.
74 Seeart. 26 ofRoyalDecreeno.1054 of26June 1924, andart. 2 oflawno. 10340f6December '";}i

1971. . 76' Part II B 3, supra.

CHAPTERSIX ADMINISTRATIVE LAW

not of a "right" but of a "legitimate interesl."77 Indeed, these precedents have been which are usually deemed to be in the public interest. An adrninistrative act is seen
overruled by a recent judgment of the Unified Sections of the Italian Supreme as flawed by diversion of power when it is turned to an improper purpose, i.e.
Court (no. 500/1999),78 which asserts that an individual can claim before an ordinary towards a goal (a private or public interest) different from the peculiar public interest
court the right to be indemnified for an illegal infringement, not only of a subjective upon which the power to act was given by the law (e.g., when a prohibition to cut
right, but also of a legitimate interest. (Losses due to a discretionary decision taken some stunted trees is issued on the grounds of a power granted in order to protect
by an adrninistrative agency, even if unlawful, are not recoverable damages when the landscape, whereas the real aim was to prevent building in an overly-crowded
even a lawful decision could not have satisfied the interested parties). However, as urban zone).
we shall soon see, the more recent law reforrns thwarted this expansion of the As for the other flaws, suffice it to note that administrative acts must, above all,
tasks of ordinary civil courts. be "reasonable," which means not arbitrary or capricious, nor grounded on irrelevant
The originaI task of the administrative courts was the judicial review of considerations, nor inconsistent with their premises or with other administrative
adrninistrative action, and thus the protection oflegitimate interests. Judicial review decisions, nor grounded on errors of fact, and so ono
is aimed at ensuring the legality of the adrninistrative decision - that is, the com­ Under the influence of the case law ofthe European Community Court of Justice, •
pliance with a set of special rules, consisting of explicit or implicit principles of the reasonableness of an administrative measure is also going to be tested frequently
law rooted in the Constitution and regarded as stemming from the legality principle, on the grounds of its "proportionality." This concept, which comes from Gerrnan
most of which are the standards usually gathered under the traditional heading of case law, has a substantive meaning long-recognized in Italian adrninistrative law:
manifold significance, "excess of power." the measure must be suitable and necessary for the achievement of its objective
Technically speaking, judicial review constitutes a check on the adrninistrative and may not, in any case, impose on the concemed individuaI a greater burden
acts aimed at determining whether the acts are flawed by an irregularity under one than that strictly needed to satisfy the public interest at stake.
ofthe three headings described since 1889 by the laws regulating the adrninistrative The decision must be also impartial. That is to say, it must be free of bias and
courts as "incompetence," "excess of power," and "violation of law." must also take into account all the relevant interests, whether public or private,
To be brief, an act is said to be flawed by "incompetence" when its author lacked that emerge over the course of the procedure.
the authority to issue il. This may occur either because the act was issued after the Finally, a "violation of law" can be alleged when a primary or secondary piece
expiration of a mandatory time limit, or the author acted outside of his geographical oflegislation, including European regulations, is infringed upon. For instance, on
jurisdiction, or the officer not have jurisdiction over the subject matter to which .'·these grounds, the compliance of a decision-making process is tested against the
the act refers. due process rules established by law no. 24111990, but compliance with other rules
"Excess of power" is a very far-reaching heading, since it encompasses both of the same law (for example, the rules on access to administrative records)79 is
what the French call détournement de pouvoir, or diversion of power, and certain also checked.
hypotheses embraced by the English doctrine of ultra vires. Moreover, according to the so-called principle of "typicality" of adrninistrative
Agencies have the primary duty to pursue the aims established in the statutes measures (regarded as a corollary to the principle of legality), an adrninistrative
empowering them or those established by other governrnent policy directions, such act impinging upon a subject's liberties or rights would be considered flawed if it
as governrnent guidelines or programs (provided that they are not contrary to law), is not of a kind specifically provided for by law.
Until very recently, judicial review was the only task of administrative courts.
However, just before judgment no. 500/1999, mentioned above, Legislative Decree
77 Indeed, some damages caused by adrninistrative decisions infringing upon legitimate interests no. 80/1998 80 provided that they can also adjudicate damages in subject matters
were usually compensated. For instance, the ltalian courts maintained that when a building
permit or a commerciallicense,lawfully granted, was unIawfully repealed or unrenewed, the
damages issuing therefrom should be indemnified (even though following the long process
explained in note 85, infra). See part I A 2, Access to the Agencies' Records, supra.
78 Of 22 July (Comune di Fiesole v. Vitali). See Foro italiano, 1999, I, 2487. See also Appellate See arts. 33-35 ofLegislative Decree no. 80 of3IMarch 1998 on delegation by law no. 59 of
Court of Florence Case no. 1055 of 28 May 2001. 15 March 1997, c. 4, g.
CHAPTERSIX ADMINISTRATIVE LAw

falling witlùn their exclusive jurisdiction. At the same time, decree no. 80 added any previous judgment of the adrninistrative cooo, but the prohibition of the
many broad new subjects81 (even though they are not always clearly defined) to armulment, suspension and modification of adrninistrative acts remains in force
tlùs jurisdiction, so that now it encompasses the larger portion of litigation of the (grounded, as noted above, in a now anachronistic idea of the separation of powers).
public adrninistrations, ranging, for instance, from land and urban planning, access Both the adrninistrative agency86 and the officer who personally caused the
to public records, or agreements on the content of actministrative decisions to public damages can be sued. Usually, the agency is sued. In tlùs case, ifthe agency must
utilities, public procurements, or independent authorities acts. 82 pay damages, the Public Prosecutor of the Court ofAccounts87 can bring the officer
On the other hand, just after judgment no. 500, a new law (no. 205/2000)83 before tlùs Cooo to recover the damages paid by the agency or at least an equitable
stated that the adrninistrative courts can also adjudicate damages whenever they .sum of money, taking into account the seriousness of his or her violations of duty,

have jurisdiction, not just when they have exclusive jurisdiction. ifany.

The ordinary cooos may also adjudicate questions of contracts for public works
b. Final and Provisional Judgments
or procurements. However, the selection of the counterpart and the awarding of
According to the law of 1865,84 the ordinary cooos can neither annuI, suspend, nor the contract are thought of as adrninistrative acts; as we have seen above, the
modify an adrninistrative act, but can only set it aside if they conclude that it is adrninistrative courts enjoy exclusive jurisdiction in this matter, and therefore also
contrary to the law. According to case law, the courts have no power to order an adjudicate the question of damages.
adrninistrative agency to undertake a specific adrninistrative act, whereas they can The action before an adrninistrative cooo must take the form of an appeal against
order the agency to pay a sum of money. They can also declare the right of the an "adrninistrative act" in arder to be quashed. The adrninistrative act is thought of
plaintiff, in the very lirnited circumstances in wlùch a declaratory judgment is 'as absolutely necessary for the commencement of such an action, to the point that,
allowed. In fact, until judgment no. 500/1999 of the Unified Sections of the Italian lo challenge the failure to act by an adrninistrative agency, the aggrieved party
Supreme Cooo, in order for an ordinary court to hold an adrninistrative agency 'must attempt to impugn the silence of the agency.
liable for damages caused by an adrninistrative act, the act had first to be quashed i; According to case law, annulment prohibits the agency from renewing the •
by an adrninistrative court. 85 Now, an ordinary court can award damages without :à'quashed act (unless it has been amended according to the judgment), and requires
". ,eagency to arrive at a new decision on the unsuccessfu1 original application for
ecact. This new decision must conform to the points of law on wlùch the judgment
81 Il remains to be seen what results will proceed from the Constitutional challenge to this law. ;,grounded (e.g., if the refusal of a building permit is armulled, the application
already pending, because it is doubtful that such an extension of the exclusive jurisdiction is .
~all be newly considered in compliance with the directions wlùch may be elicited
Constitutional without amending the Constitution, which allows this kind of jurisdiction of
the administrative courts only in "particular matters" (art. 103). :om the judgment). This effect of the judgment, called "conformative" effect by
. scholars, is in some ways greater than that of res judicata because it is tied to the
82 Before Legislative Decree no. 80/1998. the main subject matter falling within the exclusive
jurisdiction of the administrative courts was public employment. Since l July 1998, the .'ratio decidendi itself, and not solely with to final orders and decisions of the
jurisdiction over public employment litigation has been up to the ordinary courts. judgment.
83 Law no. 2005 of 21 July 2000 whose art. 7, modified art. 35 para, 4 of Legislative Decree no. As we have seen, whereas traditionally the adrninistrative courts could not enter
80/98. judgments against an adrninistrative agency to pay money (except in a limited
84 See part Il B, supra. [lumber of cases), they now have the power to adjudicate damages against the
. blic adrninistration whenever they have jurisdiction, whether ar not such juris­
85 Therefore, the allegedly harmed person first had to appear as a plaintiff before a TAR; then
tiùn is exclusive.
likely had to appear as a defendant, or as a plaintiff again, before the Consiglio di Stato; then,
had to go before an ordinary judiciary office of the first instance, as a plaintiff; then likely had
to present the case either as a defendant or as a plaintiff before the Court of Appeal, which
could again review the merits of the case; and then needed to appear before the Italian Suprem, ·e.cause the agents of the adrninistration, according to the so-called "organic doctrine," can
Court for questions oflaw. Later, possibly, he or she would have been required to bring a ne; , thought of as organs of the State without personal relevance.
action to cause the final judgment to be enforced. Statistics suggest the entire proceedin .ee part II B, supra.
could take more than twenty years.
 CHAPTERSIX
ADMINISTRATIVE LAW

The adrninistrative courts can also issue a specific provisional remedy: they not require any enforcement conceming the annulment of an adrninistrative act.
may order a stay of execution of challenged acts in order to suspend their legal However, we have seen that after the quashing of the challenged act, the agency
effects and enforcement. The stay is granted when the judges are persuaded, after has the duty to issue a new act abiding by the "conformative content" ofthe judgment
a prima facie exarnination, that doubts about the legality of the act under attack - that is to say, by the directions which can be drawn by the judgment regarding
appear grounded and that, without the stay, the plaintiff (which can be a private the renewal of the act that has been quashed. In cases in which the agency infringes •
party, but can also be another agency) will suffer serious and irreparable prejudice upon these duties, taking a new measure in contrast with the judgment and therefore
before the final judgment is entered. Quite often the adrninistrative courts also one considered invalid, the adrninistrative court may be asked, via an action for
compare and balance the feared prejudice alleged by the plaintiff with the urgency compliance, to enforce its own judgment with regard to its conformative effect.
of acting in view of the public interest. Such a measure prevents an endless chain of appeals against subsequent acts of the
• As can be seen, this provisional remedy is negative in nature. Thus, it can be adrninistration. In such cases, the procedure for compliance before the adrninistrative
useful when the plaintiff's attack is aimed at preventing the agency from enacting court (the same court that rendered the judgment) may end with issuance of an
a measure contrary to his or her interests (e.g., an expropriation). But it is not order that substitutes the due decision (which can occur only when no discretion is
useful when the plaintiff seeks an adrninistrative act (e.g., a license) because the left to the adrninistration), or committing to issue the due decision to a commissioner
stay of execution of an act's refusal would not result in any case in the issuance of of justice appointed to the case (commissario ad acta).
the act sought. Indeed, the case law has extended the reach of the stay in some
cases, furnishing it with it positive effects as well (e.g., the stay of the refusal of d. Time Limits
the renewal of a license for a shop has been construed as a stay of the effects of the The time limits applicable to actions before the adrninistrative courts differ from
expiratìon of the license to be renewed). those for the ordinary courts. Five-year limitation terrns usually apply for complaints
• In any case, these restrictìons of provisional remedies hampered effective judicial
falling within the jurisdiction of the ordinary courts (those concernìng "rights").
protection, and was considered inadrnissible by commentators. Law no. 205/2000 By contrast, an adrninistrative act must be challenged before the adrninistrative
removes these restrictìons, and the adrninistrative courts now also have the power courts within 60 days of the date on which the party has knowledge thereof
to grant any provisional remedy which they determine appropriate to the case. (knowledge that does not necessarily result from notification). This is a mandatory
c. Enforcement of Judgments .. term, even though the judge retains the traditional power, exercised with strict
. . self-restraint, to toll the prescription for excusable delay.
We can also note remarkable differences between the enforcement of judgments of
the ordinary and the adrninistrative courts, flowing from the different constraints e. Evidence
affecting their powers that we have discussed. There is no lirnìtation on adrnissible evidence within the general system of evidence

The judgments of the ordinary courts that only declare the unlawfulness of an employed by the ordinary courts; thus, they can even consider and ascertain facts

act give rise to the agencies' duty to act according to the statements of law embodied .outside of the record. By contrast, the process before the adrninistrative courts was

in the judgment. This generaI (but essentially vague) obligation may be enforced once characterized by a strong lirnitation on evidence relied upon: they could not

by means of an action for compliance (giudizio di ottemperanza), which is a special adrnìt nor use testimony or expert witnesses, so that the revìew was made almost

action before the adrninistrative courts aimed at compelling the agencies to render exclusively on the record. Now, law no. 205/2000 removes these restrictions,

a new decision according to the law embodied in the judgment of a court. . according them the power to adrnit expert witnesses and, in cases of exclusive
• The enforcement ofthe judgment against an adrninistrative agency to pay a sum jurisdiction, testimonial evidence as well.
of money is in principle analogous to that which follows the end of a private lawsuit.
However, not all property belonging to the public adrninistrations can be seized, E. The Main Faults of the System
and one frequent1y has to bring the action for compliance before the adrninistrative
courts in order to obtain payment. >This machinery for protecting citizens from unlawful actions by the public admini­

The judgments rendered by the adrninistrative courts are self-executing and do stration has some serious flaws.

 CHAPTERSIX ADMINISTRAfIVE LAW

l. Confiicts oJJurisdiction staffed with specialized judges.91 Such a measure would also eliminate the anomaly
Since ordinary courts and adrninistrative courts constitute two separate judicial common to France and Italy of the Council of State, which simultaneously acts as
hierarchies, a court that adjudicates confiicts ofjurisdiction is needed for the system judge and advisor to the public administration.
to work. This role is performed by the Sezioni Unite of the Italian Supreme Court, 2. The Infiation oJJudicial Remedies
whose decisions mostly turn on whether the issue before a particular court concerns
rights or legitimate interests. The output of the Italian system of protection against wrongful adrninistrative
Indeed, in every country in which there are both ordinary and adrninistrative actions is an apparent inflation ofjudicial claims. This may be explained as folIows.
courts (or, as in England, where particular procedures exist which apply to the First, insufficient attention has been given to the hearings of interested persons
judicial review of adrninistrative actions), a single criterion for distinguishing before administrative decisions are rendered. 92 It is not yet clear whether the general
between the different judicial authorities is needed, and some problems arise when right to a written opinion given by the above-mentioned law no. 241/1990 on the
such a criterion comes into operation. Let us take as an example the distinction adrninistrative procedure wili help in avoiding litigation.
between what is and is not a governrnent service,88 or that between private law Secondly, since the regional adrninistrative courts were set up, it has no longer
rights and public law rights,89 or between private law and public law. 90 been necessary that hierarchical administrative appeals be exhausted before an
The task of the Italian confiicts court was at one tirne thought of as very difficult issue is taken to the administrative court. 93 On the other hand, people do not like
because, as noted above, drawing the distinction between the two kinds of these now optional remedies, because they are usualIy adjudicated by the same
• entitlements can prove highly problematico FolIowing recent reforms, the job of authority that rendered the decision appealed (ricorsi in opposizione), or by a hier­
the United Sections of the Italian Supreme Court should become easier because in archically superior authority (ricorsi gerarchici), both of which are seen as biased
many fields of litigation it is no longer necessary to distinguish between rights and by those who are convinced that the agencies wili always have the last laugh.
legitirnate interests. There are, however, stilI fields in which the old distinction is Finally, there is a shortage of alternative, non-judicial channels through which
needed, and whether the controversy falls within the exclusive jurisdiction of the one can seek redress either instead of or before resorting to the courts. There are
adrninistrative courts can stili sometirnes be disputed. Now the expansion of the very few organs composed of independent lawyers and other experts similar to the
exclusive jurisdiction of the adrninistrative courts in new matters, reduces problems English Adrninistrative Tribunals, to which people can address their problems
of distinction between subjective rights and legitimate interests on the one hand, "without excessive formalismo
though on the other hand it spurs new doubts since the boundaries of these new Where such tribunals operate, as in the field of social security, a very large
fields are sometimes indistinct. Because the possible need for a confiict judgment percentage of controversies are settled without the need to file complaints with the
- which, according to past experience, can also be abused just to waste tirne - is a courts. In addition, for controversies that pertain to public works, a recent law
serious burden for anyone seeking justice, and because law no. 205/2000 assirn­
ilated the authorities of the ordinary and administrative courts much more than in
91 Another proposa1 is to preserve the administrative courts, but redefine their judicia1 authority
the past, some commentators hold the view that the separation between the two
on new grounds abolishing a confiicts court (along the lines of the Gerrnan mode1). Moreover,
tiers of courts should be abolished, providing for some divisions of ordinary courts the adrninistrative courts wou1d have to be deprived of any advisory competence. An these
sorts of reforrns wou1d require constitutional amendments. Therefore, they became topica1
when Parliament set up a special Bicameral charged with proposing extensive constitutiona1
reforrn (Commissione Bicamerale per le Riforme Costituzionali). Indeed, the Committee
made proposals simi1ar to those of the second kind (that can be seen in Diritto Pubblico,
1997, no. 3). However, the special constitutiona1 reforrn procedure has been interrupted. See
88 A criterion app1ying in France. chapter 3, supra.

89 A criterion app1ying in Gerrnany. However, in this direction, the new independent authorities have taken some meaningful
steps.
90 A criterion app1ying in Eng1and.
See DPR no. 1199 of 24 November 1971.
 CHAPrERSIX

provides for a procedure aimed at reaching an agreement before the lawsuit is filed CHAPfER SEVEN
and aliows the parties to present themselves before a special organ for arbitration
(camera arbitrale) when they do not reach an agreement.94
Civil Procedure and the Path of a Civil Case
IV. Selected Bibliography

E. Casetta, Manuale di diritto amministrativo, 2nd ed., Giuffrè, Milano (2000).

Michele Taruffo l
S. Cassese, Le basi del diritto amministrativo, 6th ed., Garzanti, Milano (1995).
M. S. Giannini, Diritto Amministrativo, 2 vols., 3rd ed., Giuffrè, Milano (993).
Mario Nigro, Giustizia Amministrativa, 5th ed., TI Mulino, Bologna (2000). E.
Cardi and A. Nigro (eds.). I. Preliminary Problerns
L. Mannori, B. Sordi, Storia del diritto amministrativo, Laterza, Bari (2001). The Italian John Doe who needs the support of a court in order 10 obtain the
L. Mazzarolli et al. (eds.), Diritto Amministrativo, 2 vols., 2nd ed., Monduzzi, fulfillment of a right or of a legaliy protected interest is in a very unfortunate
Bologna (1998). situation. First.of all, he has to find a lawyer who agrees to represent him; secondly,
he will need to have the money to pay the lawyer he wishes to hire. The two, of
A. Romano, Commentario breve al/e leggi sul/a giustizia amministrativa, CEDAM,
Padova (1992). course, are intimately related. To find a lawyer is usualiy not difficult at allo Italy
has about 100,000 practicing lawyers now, one of the highest rates per capita in
D. Sorace et al. (eds.), Materiali del diritto amministrativo, CEDAM, Padova
Europe. On the other hand, fees are not extremely high when compared with the
(2000).
money at stake in the case, except in small clairns and in other cases where the
amounts in controversy are relatively minor. Moreover, John Doe may rely on the
D. Sorace, Diritto delle amministrazioni pubbliche. Una introduzione, TI Mulino,
Bologna (2000). fundamental mIe governing attorney fees and costs in Italy, according to which
"the loser pays all" and the winner will be compensated for ali the costs he has
A. Travi, Lezioni di giustizia amministrativa, 4th ed., Giappichelli, Torino (1998). been required to incur. lf OUI hypothetical client's claim is well-founded, he has a
P. Virga, Diritto Amministrativo, Giuffrè, Milano,vol. 1, I principi, 5th ed., (1999); high probability of winning his case and his party-opponent will be compelled to
voI. 2, Atti e ricorsi, 5th ed. (1999); voI. 3, Amministrazione locale, 3rd ed. (1998); pay for everything. But this does not solve the problem entirely. In Italy, contingent
voI. 4, Attività e prestazioni, 2nd ed. (1996). fees are forbidden by the law and lawyers will not bear the costs of a case by them­
selves without being paid for their work throughout the entire proceedings. There­
fore, OUI John Doe will be required to pay in advance, and in the COUIse of the
process, all the money necessary to cover the costs of the case and at least a part of
the attorney's fees, until the moment when the judgrnent allocates ali these costs
according to the "loser pays ali" mIe. This would not be a great problem if the rime
required to achieve the judgment were short. On the contrary, however, the length
of civii proceedings in Italy is, in most cases, excessive. An average case may
require three or four years to proceed through the court of first instance. But eight
94 See art. 32 oflaw no. 109 of 11 February 1994, as modified by art. lO of law no. 415 of 18
November 1998.
l Professor of Civil Procedure, University of Pavia.