Italy

V - 136(3) TFEU

At the 16/17 December 2010 European Council a political decision was taken to amend the Treaties through the simplified revision procedure of article 48(6) TFEU. On March 25, 2011 the European Council adopted the legal decision to amend article 136 TFEU by adding a new third paragraph: “The Member States whose currency is the euro may establish a stability mechanism to be activated if indispensable to safeguard the stability of the euro area as a whole. The granting of any required financial assistance under the mechanism will be made subject to strict conditionality.” 
The process of approval of this decision by the member states in accordance with their respective constitutional requirements as prescribed by article 48(6) has been completed and the amendment has entered into force on 1 May 2013.

Negotiation
V.1
What political/legal difficulties
did Italy encounter in the negotiation of the amendment of article 136 TFEU?

 Both in relation to the dynamics within the government and in the Parliament, Italy faced no particular difficulties in the negotiation of the amendment, in terms of serious obstacles to the actual feasibility of the approval.

This has to do with a common feature of the Italian politics in relation to what one can call, in general terms, «European affairs» (also including the regular international treaties concluded in the Euro zone crisis, namely the Fiscal Compact and the ESM Treaty, see question VIII.1): a certain (until now) stable bi-partisan favorable approach, by main center-left and center-right parties, in the approval of the related measures.

This was surely the case of the procedure of authorization by Law 23 July 2012, n. 115 of the 136 TFEU Treaty amendment: in fact, it is interesting here to highlight, as a first point and talking about general political/legal difficulties and related debates, that

§  the negotiation took place under the Berlusconi IV government (but in any case with the political approval of large part of the center-left opposition), and the ratification under the «technical» Monti government (with bi-partisan support)

§  in both parliamentary Chambers, and in their Committees in charge of the first review, the procedure in question was joined with the other procedures related to the Fiscal Compact and the European Stability Mechanism (ESM), as it is clear from the attached documents: (http://leg16.senato.it/japp/bgt/showdoc/frame.jsp?tipodoc=Resaula&leg=16&id=667367, http://documenti.camera.it/leg16/resoconti/assemblea/html/sed0669/stenografico.pdf, so called «joint discussion», «discussione congiunta»; see also http://www.europarl.europa.eu/webnp/webdav/site/myjahiasite/users/fboschi/public/esm%20tscg/art.%20136%20ESM%20fiscal%20compact%20ratprocess.pdf).

In this joint discussion, no particular point was raised on the matter of the amendment of Art. 136 TFEU, since the focus was not on the technical legal aspects of the three measures (for instance, the problem of competence or of legal basis of the Treaty reform), but mainly on the broad macroeconomic perspectives.

Approval
V.2
How has the 136 TFEU Treaty amendment been approved in Italy and on what legal basis/argumentation?

It is probably relevant to highlight that, in both the Chambers, and for both the initial part in front of the competent Parliamentary Committees and the discussion in the Chamber, the procedure of authorization by law of the Fiscal Compact was joined with the other procedures related to the Treaty amendment article 136(3) TFEU and the European Stability Mechanism (ESM).

In fact, given the aforementioned «joint discussion» (see question V.1) in the Italian Parliament in relation to the 136 TFEU Amendment, the Fiscal Compact and the European Stability Mechanism (ESM), the answer will be common for the 136 TFEU Amendment (here), the Fiscal Compact (see question VIII.2) and the ESM Treaty (see question IX.2).

The legal process through which these measures have been approved/ratified in Italy was the typical process dictated by articles 80 and 87(8) of the Constitution.

According to art. 80, the two Chambers of the Parliament (Camera dei Deputati and Senato della Repubblica) «authorize by law the ratification of international treaties which are of a political nature, or which call for arbitration or legal settlements, or which entail changes to the national territory or financial burdens or changes to legislation».

Art. 87(8) Const. reads: «The President shall: authorize the introduction to the Houses of bills initiated by the Government, promulgate the laws and issue decrees having the force of law as well as regulations, call popular referenda in the cases provided for by the Constitution, appoint State officials in the cases provided for by law, accredit and receive diplomatic representatives, and ratify international treaties which have, where required, been authorized by the Houses». So the final step of the ratification procedure – and, formally speaking, the ratification itself – is an act of the President of the Republic. In any case, it is important to highlight that this is a typical act that, in the categorization of the President’s acts, is normally qualified as “formally but not substantially” presidential: this means that the act involves the formal role of the President as the highest representative of the Republic, especially in international relations, but this does not imply his substantive role, nor his liability, for the related political choices, which are in the sphere of the Government in terms of negotiation, and of the Parliament for the authorization, as already seen.

No referendum was held on the 136 Treaty amendment (or Fiscal Compact or ESM Treaty). In fact, art. 75(2) Constitution excludes this possibility for the ratification of international treaties as it reads «Referenda are not admissible in the case of tax, budget, amnesty and pardon laws, or laws authorizing the ratification of international treaties».

Ratification difficulties           
V.3
What political/legal difficulties
did Italy encounter during the ratification of the 136 TFEU Treaty amendment?

The legal process through which the 136 TFEU Treaty amendment has been approved in Italy was the typical process dictated by articles 80 and 87(8) of the Constitution.
This means that Italy had an authorization law adopted, through the regular legislative procedure of art. 72 of the Constitution, by both the two Chambers of the Parliament, and the formal act of ratification issued by the President of the Republic (see question V.2, and in more detail on the procedure question IX.2 on the ratification of the Fiscal Compact).

It is relevant here to highlight again, talking about general political/legal difficulties and related debates, that, in both the parliamentary Chambers, and in their Committees in charge of the first review, the procedure of authorization by law of the 136 TFEU Treaty amendment was joined with the other procedures related to the Fiscal Compact and the European Stability Mechanism (ESM), as it is clear from the attached documents.


The other important point to highlight is that in the Italian political system, the two major parties of the center-right and center-left coalitions (Popolo della Libertà e Partito Democratico, respectively) are both strong pro-European movements, with really few, and scarcely relevant, exception among their members (see also question I.1 on the political context of Italy during the Eurozone crisis). This can be considered (at least until now) as a traditional element of the Italian party system, probably one of the few rooted elements in a period of possible changes like the present. This has historically had an impact on the quantity and quality of the Italian debate on European issues: the related bills are normally adopted in the Parliament jointly by these two parties (and a large part of the satellite-parties),[1] with relatively scarce, and normally apologetic, debate, and again relatively scarce echo in the general public debate.


This has only slightly changed with the Eurozone crisis, and the ratification procedure of the 136 TFEU Treaty amendment (and of the other international measures, as aforementioned) constitutes evidence of that. The bill for authorization of the 136 TFEU Treaty amendment was presented by the competent ministers of the Berlusconi IV government on 19 September 2011, and then discussed and approved (jointly), by the same Chambers, in July 2012 under the Monti government. This means that, at the time of the presentation, there was a political system in place with a strong center-right governing coalition with the biggest parliamentary majority in the Italian history, and the center-left coalition in opposition; at the time of the discussion and the approval, both coalitions supported the new Monti government (as a kin
d of “große Koalition” pushed by the choices of the President of the Republic after PM Berlusconi’s resignation in November 2011, linked itself to the Eurozone crisis, see question I.1), and only some small parties formally in opposition.
The “stenographic reports” attached show that the rapporteurs in charge of the different bills were members both of the centre-right parties and of the center-left (symbolizing a kind of joint endorsement).[2]

The parliamentary debates (held in the upper house[3] between 14 December 2011 – first exams in the Committees – and 12 July 2012 – final approval – and in the lower house[4] between 17 July 2012  – first exams in the Committees – and 19 July 2012 – final approval) were obviously influenced by the joint discussion on the three different ratification/approval procedures.

The rapporteurs themselves emphasized the difference with the old times in which the ratification of the EU-related bills was seen as an only “technical” debate, with no political echo nor particular resistance. But the debates seem to be a general discussion of the typical, historical problems of the so called democratic deficit in the European Union, with strong arguments, from both center-right and centre-left, for the need of a more “political” federal Union.
Sometimes the discussion touches on the German “expansionist” commercial policy in Europe and in the Mediterranean countries, because of the macroeconomic and monetary dynamics helping German exports in comparison with the Italian ones.

But in general, the real technical discussion relevant for this question is linked to the problems of the financial inadequacy of the European stability mechanism, and the important concerns for the possible great costs for the Italian budgetary system.[5]

Since the plenary debates took place in mid-2012, real strong resistance to the approval of the bill came only from the relatively small parties of the new opposition under the Monti government, and in particular by the Lega Nord group (a federalist and regionalist political party rooted in the Northern part of Italy, which some months before voted in favor of the Greece related bilateral measures, with the idea that that would strengthen their “fiscal federalism“ projects – see question IV.8).

In this respect, some (relatively scarce) broad concerns are raised on the constitutionality of the measures, and the sovereign attributions on fiscal and budgetary policy:[6] for instance by emphasizing how the ESM «takes away from the Parliament, and therefore from the citizens, the responsibility of the national budget by handing it to an executive power without constitutional legitimacy, namely the Council of Finance Ministers of the countries of the European Union (…) and the European Central Bank»;[7] or how these measures themselves, for their implied economic burden, would go contrary to the rationale of the golden rule of the renewed article 81 of the Constitution on the financial coverage of every law of the State.[8]

A PdL member suggested that, in view of the constitutional significance of such measures, the special “aggravated” procedure for constitutional reform should have been used.[9]

A general emphasis was put on the forthcoming important judgment of the German Constitutional Court, at the time still awaited, as evidence of a more structured and serious debate on these themes in other Member states.[10]

Some of the opponents actually tried to discuss the issue of a possible referendum on the new European measures,[11] but it is important to highlight in this respect that no “consultative referendum” of this kind is foreseen in the Italian Constitution, and the only way to establish it would be by adopting a special “constitutional law” enabling such a referendum (legge costituzionale), used only once in the history (but precisely on EU-related issues, in 1989).

Last point to mention: some important, even if only symbolic and numerically irrelevant, defections came for the center-right coalition from some traditionally liberal members, based on concerns for new possible increases in taxes.

Case law        
V.4

Is
there a (constitutional) court judgment in Italy on the 136 TFEU Treaty amendment?

 No. This was not surprising, given the limited possible modalities of access to the Italian Constitutional Court (see under Question IV.5).

Miscellaneous
V.5
What other information is relevant with regard to Italy and the 136 TFEU Treaty amendment?

No other relevant information

[1]               See, for instance, the majorities at the Camera dei Deputati at the page http://parlamento16.openpolis.it/votazione/camera/ratifica-ed-esecuzione-della-decisione-del-consiglio-europeo-2011199ue-che-modifica-larticolo-136-del-trattato-sul-funzionamento-dellunione-europea-relativamente-a-un-meccanismo-di-stabilit%C3%A0/39316.

[2]               http://leg16.senato.it/japp/bgt/showdoc/frame.jsp?tipodoc=Resaula&leg=16&id=667367.

[3]               http://leg16.senato.it/leg/16/BGT/Schede_v3/Ddliter/37365.htm.

[4]               http://leg16.camera.it/126?tab=&leg=16&idDocumento=5357&sede=&tipo=.

[5]               See for instance, MP D’Amico, plenary discussion at the Camera dei Deputati, 11 July 2012: http://leg16.camera.it/410?idSeduta=0668&tipo=stenografico#sed0668.stenografico.tit00110, p. 60.

[6]               An highly debated point at least by some constitutional lawyers in the country, somehow disregarded in the parliamentary debates.

[7]               MP Boldi, joint plenary discussion of the Senato, 11 July 2012: http://leg16.senato.it/japp/bgt/showdoc/frame.jsp?tipodoc=Resaula&leg=16&id=667367.

[8]               MP D’Amico, joint plenary discussion of the Camera dei Deputati, 18 July 2012, http://leg16.camera.it/410?idSeduta=0668&tipo=stenografico#sed0668.stenografico.tit00110.

[9]                 MP Azzolini, joint plenary discussion of the Senato, 11 July 2012: http://leg16.senato.it/japp/bgt/showdoc/frame.jsp?tipodoc=Resaula&leg=16&id=667367.

[10]              MP Evangelisti, joint plenary discussion of the Camera dei Deputati, 19 July 2012, http://leg16.camera.it/410?idSeduta=0669&tipo=stenografico#sed0669.stenografico.tit00020.

[11]              MP Mazzatorta, joint plenary discussion of the Senato, 11 July 2012: http://leg16.senato.it/japp/bgt/showdoc/frame.jsp?tipodoc=Resaula&leg=16&id=667367.