A Case-Study of Sovereignty and Autonomy in Italy

Following the continental European tradition of monolithic sovereignty as dis­cussed above, regional states insist upon the difference between autonomy and sovereignty of constituent units as a fundamental feature distinguishing them from pure federations, as the Italian case-study exemplifies.

4.1. A (Brief) Overview of Italian Regionalism

This is not the place for a detailed account of the Italian regional system. I will point out that the 1948 constitution created an archetypal regional model, a compromise between the unitary and decentralizing forces that have con­stantly torn Italy since its unification. It divided Italy into 20 regions, five of which enjoy special forms and conditions of autonomy in consideration of their geographical location and/or the presence of autonomist/separatist movements coupled with linguistic minorities.^[23]

In 2001, a reform to Title v of the constitution on local autonomies pro­foundly changed Italian regionalism by strengthening the scope and powers of regions.

All discussions on regionalism in Italy shall start from article 5, providing that [t] he Republic is one and indivisible. It recognizes and promotes local autonomies, and implements the fullest measure of administrative decen­tralization in those services which depend on the State. The Republic adapts the principles and methods of its legislation to the requirements of autonomy and decentralization.

While article 5 encourages autonomy, it also mandates that Italy is ‘one and indivisible': the tension between this principle of unity and indivisibility and the constitutional recognition and promotion of local autonomies has been a constant feature of Italian constitution making.

The local autonomies mentioned in article 5 are spelled out in article 114(1):

The Republic is composed of Municipalities, Provinces, Metropolitan Cities, Regions and the State.

Italian regionalism is thus articulated in different levels, building up from met­ropolitan cities and municipalities. However, not all these local autonomies have the same powers, as only regions enjoy constitutionally recognized leg­islative powers.

4.2 Sovereignty and Autonomy According to the icc

When outlining Italian regionalism, constitutional scholars insist upon the fact that regions are not sovereign, but merely enjoy forms of ‘constitu­tionally protected autonomy', even if they are vested with constitutionally entrenched legislative, administrative and fiscal powers (articles 117, 118 and 119 respectively). This idea of ‘constitutionally protected autonomy'—as opposed to sovereignty—has also been emphasized by the icc. How has this been explained? As the next subsections will better illustrate, the arguments made by the constitutional judges revolve around three main elements: (1) the principle of ‘unity and indivisibility' of the state and constitutional and stat­utory limits to regional powers; (2) historical reasons; and (3) the differences between regional legislative councils and the national parliament. I will anal­yse each of them separately.

4.2.1 The Principle of ‘Unity and Indivisibility' of the State and Constitutional and Statutory Limits to Regional Powers

In one of its first decisions in the late 1950s, the icc clarified that, regardless of the constitutional recognition of regional autonomy, regions shall be situated within the framework of the unity of the state and subordinate to it. Consequently, regions can never replace the national government in its tasks and offices, unless such power has been expressly devolved by law (icc decision 9/1957).

The icc also underlined that, while regions are granted broad constitutional autonomy, they are not sovereign, as only the central state is a subject of inter­national law (icc decision 49/1963, par.

In subsequent decisions, the icc cemented its position, contending that only the state enjoys a sovereign position in relation to regions, since the latter are vested with autonomy but always within the ‘political unity of the Italian state', which is ‘one and indivisible' (icc decision 120/1969). In other words, regional autonomy shall be balanced with the unitary form of the state that is ‘formally and solemnly' enshrined in article 5 (icc decision 39/1971, par. 4). For this reason, regional powers shall be ‘harmonically compliant with the unitary interests of the state community', since regions are not in opposition to the state, but represent different articulations of it (icc decision 39/1971, par. 5).

In 1989 the icc released an interesting decision, in which it canvassed the main traits of the Italian regional state (icc decision 229/1989, par. 4). In addi­tion to article 5, it identified article 115 as a fundamental provision, since it indicated that regions are autonomous entities having their own powers in accordance to the principles set forth in the constitution, thus distinguishing them from provinces and municipalities, which article 128 qualified as auton­omous entities within the boundaries set forth by national laws. The constitu­tional nature of regions implies that the relationships between the state and the regions shall find its basis in the constitutional text (icc decision 229/1989, par.

The icc also pointed out that regional autonomy has political character and is limited to the ‘assessment and pursuit of the specific interests of the region'; only the state can pursue general interests and is, as such, sovereign (icc deci­sion 512/1988, par. 1). In 1991, the icc defined each region as an autonomous entity ‘within a decentralized, cooperative and solidarity-based system' with the central state called to protect the unity and indivisibility of the Republic (icc decision 51/1991, par.2).

In 2013 the icc used the expression ‘regional state' to define the Italian legal system, characterized by the ‘constitutional and political autonomy of the regions', which is the foundation of the system of territorial autonomy; how­ever, regional autonomy is always integrated within the principle of unity and indivisibility ingrained in article 5 (icc decision 219/2013, par. 14.4). The icc acknowledged that the 2001 reform of Title v of the constitution caused regions to broaden their legislative competences; nonetheless, such autonomy does not imply that regions can deviate from the constitution, which embeds values and principles transcending any territorial dimension (icc decision 219/2013, par. 14.4). Consequently, despite the amendment of Title v and the expansion of regional legislative powers, the exclusive legislative powers assigned to the national government prevail (icc decision 219/2013, par. 14.4).

Finally, in a decision declaring the unconstitutionality of a proposal con­tained in a regional law of Veneto to hold a consultative referendum for the independence of the region, the icc argued that, although Italian regional­ism is premised on the principles of territorial autonomy and social pluralism, the Italian Republic remains ‘one and indivisible' pursuant to article 5, and the ‘unity and indivisibility' of the country is one of those features so essen­tial to the constitutional architecture that they are beyond the reach of con­stitutional amendment (icc decision 118/2015, par. 7.2).

4.2.2 Historical Reasons

In 2007, the icc rendered what is perhaps the most exhaustive decision on the absence of divided sovereignty in Italy. At issue here was the constitution­ality of certain provisions contained in a regional law of Sardinia appointing a board to draft a proposal for a new regional statute. Among other things, this proposal contained references to concepts such as the ‘autonomy and sover­eignty' of the people of Sardinia, which became the subject of constitutional challenge (icc decision 365/2007, par. 5).

The icc indicated that the use of the term sovereignty by the Sardinian board implied the intention to qualify the region in terms radically different from the existing constitutional system and more appropriate in a federal model. At this point, however, the icc made a conceptual mistake: it asserted that federal systems are normally the product of ‘historical processes where the constituent units of the federal system preserve forms and institutions that convey their pre-existing sovereign condition' (icc decision 365/2007, par. 6). As explained above, this conception of federal systems essentially reflects a US-derived federalist vision and does not encompass all federations.

The icc further recalled that, when referring to the scope of regional pow­ers, the constitution always uses the term autonomy (or declinations thereof) and never sovereignty (icc decision 365/2007, par. 7), this being a legacy of the debates on the form of state that took place within the constituent assembly. While there was a common agreement on the introduction of forms of regional autonomy, members of the constituent assembly ‘were absolutely resolute in excluding ideals that could appear to be even only broadly traceable back to federalist—or even confederalist-type modes' (icc decision 365/2007, par.

Finally, the icc pointed out that the novelties to Italian regionalism intro­duced in 2001 did not disfigure the original nature of regional autonomy: in other words, the state's sovereignty was not undermined by either supra­national integration or domestic regionalism. Consequently, the concepts of sovereignty and autonomy are so different that they should be construed as ‘oxymorons' rather than ‘hendiadys', with regional sovereignty being ‘foreign to the configuration of Italian regionalism as embedded in the constitution and shaped by regional statutes' (icc decision 365/2007, par. 7).

4.2.3 Differences between Regional Councils and the National Parliament

In several decisions beginning in the early 1960s, the icc insisted on the dif­ference between regional legislative assemblies and the national parliament, to draw the line between sovereignty and autonomy of constituent units. For example, it rejected the argument, made by Sicily, that the regional legislative assembly could be considered as constitutionally equal to the national parlia­ment (icc decision 66/1964).

Among other things, the icc posited that the legislative activity of a region, even when it falls within the ‘exclusive' set of constitutionally assigned compe­tences, is limited by national legislation, pursuant to the principle of unity and indivisibility of the state; consequently, regional laws are not equal to national laws (icc decision 66/1964, par. 3). Furthermore, only the legislative powers of the national parliament are complete in scope. Regional assemblies reflect a constitutionally protected but limited political autonomy, while the national parliament is the expression of a power of general political direction, also exercised through the control over regional legislation pursuant to article 127 (icc decision 66/1964, par. 3).^[25] Finally, the constitution guarantees the inde­pendence of the national parliament and some prerogatives that are broader than those of regional councils. For example, in article 122 the constitution grants parliament the ability to adopt its own rules, to verify the credentials of its members and the causes of disqualification, and the unaccountability of its members for the opinions expressed and votes cast in performing their duties, whereas it extends only this last protection to regional councillors (icc decision 66/1964, par. 4).^[26]

In 1970, the icc confirmed that, in a unitary state like Italy, regional assemblies cannot be compared to the national parliament because, even if regions enjoy political autonomy, the Republic is one and indivisible and such autonomy is not sovereignty (icc decision 6/1970, par. 6). In other words, the tasks assigned to regional assemblies and to the national par­liament are not identical: the former are an expression of constitutionally protected autonomy, the latter an expression of sovereignty (icc decision 110/1970, par. 4). Likewise, the icc posited that the tasks and duties of the national parliament express a power of general political direction that is represented by sovereignty, while regional councils only enjoy autonomy powers (icc decision 171/1989).

Even after the constitutional reform of 2001, the icc did not change its position. For example, in 2002 the national government challenged the con­stitutionality of a resolution of the regional council of Liguria ordering that the expression ‘regional council' be coupled with the expression ‘parliament of Liguria' (icc decision 106/2002, par. 1). The icc argued that the Italian constitution employs the term ‘parliament' only in reference to the national institution (article 55 et seq.), whereas at regional level the term used is ‘regional council' (article 121) (icc decision 106/2002, par. 2). The word ‘par­liament' cannot be used for regional institutions because only the parliament is the seat of national political representation by virtue of article 67; conse­quently, the nomen ‘parliament' has not only a lexical, but also a more substan­tive value, as it refers to the exclusive position that the body occupies within the constitutional organization (icc decision 106/2002, par. 4). Regions are thus banned from appropriating the term ‘parliament', which evokes the func­tion of national representation (icc decision 106/2002, par. 4).

In 2006 the regional council of Marche decided to match the expression ‘regional council' with the expression ‘parliament of Marche' and the expres­sion ‘regional councillor' with ‘deputy for Marche' (icc decision 306/2002, par. 1). Recalling its previous decision regarding the term ‘parliament', the icc argued that the Italian constitution mandates the use of the term ‘council­lor' and not ‘deputy' for regional members, the latter being assigned only to members of the national assembly (icc decision 306/2002, par. 4). The fol­lowing year, the icc reiterated that no assimilation is possible between the national parliament and regional councils; unlike the functions that belong to the national branches of government, the powers of regional councils can be framed as expressions of ‘constitutionally protected autonomy' and not of ‘sovereignty' (icc decision 301/2007, par. 3.1).

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