Italy

III - Changes to Constitutional Law

Nature national instruments      
III.1
What is the character of the legal instruments adopted at national level to implement Euro-crisis law (constitutional amendment, organic laws, ordinary legislation, etc)?

First of all (see questions IX.1 and IX.4), Constitutional Law n. 1/2012 amended articles 81, 97, 117, 119 of the Constitution, inserting (in a somewhat nuanced way) the principle of the “balanced budget”.

Moreover, the same Constitutional Law n. 1/2012 is autonomously the source of adoption of other «Euro-crisis law» obligations, in particular by providing the need for the establishment of a Fiscal Council and by leaving to a ‘reinforced law’ the establishment of the maximum deviation from the parameter of equilibrium in the budgets.

Such a ‘reinforced law’ was adopted, as already said, at the end of 2012 (Law 243/2012). The Italian legal order does not include, in its system of sources, formal ‘organic laws’, but the Law 243/2012 is in some ways comparable to that model[1] ; in particular, its peculiar ‘reinforced’ nature is substantiated by the facts that[2] :

a) this law may be “repealed, modified or waived only expressly” by a subsequent law passed by the same special majority of art. 81, sixth paragraph of the Constitution; the laws amending the Law no. 243 of 2012 must necessarily be approved by the two plenary sessions of the Chambers

b) this special law cannot rule, in such a reinforced way, on matters already covered by ordinary legislation and outside its predicted area of competence; on the other hand, in the matters of art. 5 of Constitutional Law. n. 1 of 2012 any ordinary law is precluded

c) the Government cannot intervene on such matters by decree-law or by delegated legislation (even in the case of mandate by the Parliament reinforced as the law n. 243)

d) any effect of implied repeal of the norms of the Law 243 of 2012 is precluded.

All the other mentioned legislative measures, including the reforms on the budgetary process, came by ordinary legislation.

Constitutional amendment   
III.2    
Have there been any constitutional amendments in response to the Euro-crisis or related to Euro-crisis law? Or have any amendments been proposed?

See Questions IX.4 and IX.5, about Constitutional Law no. 1/2012, of 20 April 2012, which has introduced the “balanced budget” principle into the text of the Constitution itself, modifying the central Article 81 and, incidentally, other three provisions of the basic law: articles 97, 117 and 119.

Constitutional context
III.3
If national constitutional law already contained relevant elements, such as a balanced budget rule or independent budgetary councils, before the crisis that are now part of Euro-crisis law, what is the background of these rules?

See for a relevant point for Italy here Question IX.1: and so the debate on the previous text of Art. 81 of the Constitution, which already dictated a formally strict rule on the coverage of the financial burden (art. 81.4, previous text: «all other laws implying new or additional expenditures must set out the means to cover them»), but was then relaxed by subsequent interpretations of the Constitutional Court[3] .

But precisely for this reason, Italy needed a new constitutional reform, and so we are not properly talking of a proper «background» already in place, but simply of an interesting debate often confined in academic terms.[4]

Purpose constitutional amendment 
III.4
What is the purpose of the constitutional amendment and what is its position in the constitution?

The purpose of the constitutional amendments is the introduction of the “balanced budget” principle into the text of the Constitution itself, modifying art. 81 and, incidentally, other three provisions of our basic law: articles 97, 117 and 119.

Article 81 is central in this respect: in the Italian basic law, in the absence of a true “Economic Constitution” (according to the German definition of Wirtschaftsverfassung), the properly said fiscal rules can be found in several constitutional dispositions, strictly linked to those protecting social rights, but article 81 was and is the one directly related to the budget process, «budgets and expenditure accounts», and «new taxes and expenditures» (it is located in PART II, ORGANISATION OF THE REPUBLIC; TITLE I, PARLIAMENT; SECTION II, The Drafting of Laws of the Constitution).

The constitutional revision brings also changes to:

– Article 97 of the Constitution, the central article of the two related to the Public Administration, and in particular historically stating the «efficiency and the impartiality of administration» – by introducing the requirement that public administrations, in line with European Union directions, ensure “balanced budgets and public debt sustainability”

– Article 117, one of the central articles of the recently reformed TITLE V on REGIONS, PROVINCES, MUNICIPALITIES, and in particular devoted to the legislative powers of the central State and the regions, by amending paragraphs 1 and 2 and granting the State exclusive legislative power over the “harmonization of public budgets”, whereas it was previously shared between State and regions

– Article 119, again in Title V, on matters of regional and local finance, where more stringent constraints on the local authorities have been introduced.

It is interesting to notice that article 117 was the only one already containing a reference to «the constraints deriving from EU-legislation and international obligations» (in the absence of a proper “European clause” in the Constitution); it is now in Articles 97 and 119 (on the public administrations and territorial authorities) that reference to “economic and financial constraints derived from the European Union” was included (a reference lacking in Article 81).

Relationship with EU law        
III.5
Is the constitutional amendment seen as changing the relationship between national and European constitutional law?

See under Question IX.5 for the peculiar genealogy of the Balanced Budget Rule amendment.

But apart from that, and from the general points described also in that context in relation to the (non influential) parliamentary concerns on budgetary sovereignty, no other special elements are traceable to see the constitutional amendment as «changing the relationship between national and European constitutional law». On the contrary (see Question III.3), the point of the proper, or strict, interpretation, as opposed to the relaxation, of the balanced budget rule, has always been part of the Italian academic constitutional law debate.

Organic law      
III.6
Have there been changes to organic laws or other types of legislation that are of a different nature or level than ordinary legislation, in relation to Euro-crisis law or the budgetary process?

See Question III.1 on Constitutional Law n. 1/2012 and the “reinforced law” n. 243/2012.

Constitutional amendment and ordinary law       
III.7
If ordinary legislation was adopted in conjunction with a constitutional amendment, what is the relationship between the two?

See again Question III.1, for a brief explanation of the relationship between the aforementioned constitutional amendments, the Constitutional Law n. 1/2012, and the ‘reinforced’ (but formally ordinary) Law 243/2012.

Perception source of legal change   
III.8
In the public and political discussions on the adoption of ordinary legislation, what was the perception on the appropriate legal framework? Was the ordinary legislation seen as implementing national constitutional law, or Euro-crisis law?

Given also the political instability and the difficulties faced by Italy, and the replacement in 2011 of a political government with a ‘technical’ one with a clear pro-European flavour, the public perception was clearly of a period of direct implementation of «Euro-crisis law» measures.

Every single reform was clearly perceived in the framework of a broader European system of policies. There are several possible examples of this, including the parliamentary debates, that opened with (and often focused on) a discussion on the “political” future of the European Union.

In terms of specific reforms with adoption of ordinary legislation, there is for example the report produced by the Camera dei Deputati for its Members and for publication in its website, on the relevant «themes of parliamentary activity» of the current legislature, focusing on the budget reforms: http://leg16.camera.it/465?area=1&tema=496&Il+pareggio+di+bilancio+in+Costituzione. It is clearly contextualized in the terms of «Budget constraints and the European Union» («Vincoli di bilancio e Unione Europea»).

Miscellaneous
III.9
What other information is relevant with regard to Italy and to changes to national (constitutional) law?

No other relevant information.

[1]               N. Lupo, La revisione costituzionale della disciplina di bilancio e il sistema delle fonti, Relazione al Convegno “Costituzione e pareggio di bilancio” (Roma, 18 maggio 2012), in Il Filangieri. Quaderno 2011, Jovene, Napoli, 2012.

[2]               R. Dickmann, Brevi considerazioni sulla natura rinforzata della legge 24 dicembre 2012, n. 243, di attuazione del principio costituzionale del pareggio dei bilanci pubblici, in Federalismi.it, 6/2013, available at http://www.federalismi.it/ApplMostraDoc.cfm?content=Brevi+considerazioni+sulla+natura+rinforzata+della+legge+24+dicembre+2012,+n.+243,+di+attuazione+del+principio+costituzionale+del+pareggio+dei+bilanci+pubblici+-+stato+-+dottrina+-+&artid=22043#.Uq5Vb2TuKYU.

[3]               T. Groppi, I. Spigno, N. Vizioli, The Constitutional Consequences of the Financial Crisis in Italy, p. 94 ff.

[4]               See on this Groppi 94 ff.