Abstract
The Regions’ foreign competences operate in two directions (that are analysed in this paper): one projected externally (entering into agreements or memorandums and more generally taking part in activities ranging beyond the purely domestic sphere) and the other mainly domestic (implementing commitments undertaken at the international level).
However, foreign “competence” must be distinguished from foreign “policy”, which is one of the typical exclusive powers vested in the State, by being strictly related to the State as a subject of international law, and hence to sovereignty, from which it follows that only the State can act in international forums and has the responsibility to honour commitments taken at the international level. Seeking to strike a balance between the arguments supporting exclusive State competence and those supporting the need of local governments to play a part in external activities is the leitmotif running through the analysis of matters relating to the “Regions’ foreign competences”, that existed both prior to the reform of Title V and in the legislation enacted to implement it. Indeed, this is one of the typical cases of tension between the principles of autonomy and of unity, which characterizes any system with a territorial division of powers and a division of competences.
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Notes
- 1.
This definition is by Gizzi (1989), pp. 90 and 91ff., and is one of the most commonly cited in the literature.
- 2.
This seems to be the thinking in international law. On this point, see Marcelli (1998).
- 3.
Olivetti (2004), p. 17, draws a distinction between direct regional foreign policy and indirect regional foreign policy. This paper shows that the Italian legal system is still very sketchy in this latter regard.
- 4.
- 5.
One emblematic judgment here was No. 46 of 1961, in which the Court ruled that “There is no doubt about the principle that the State, and the State alone, is responsible for the domestic implementation of obligations entered into internationally with other States”; see also judgment No. 170 of 1975: “This case-law denies the Regions the power to judge foreign policy and to frame agreements with parties belonging to other legal systems, for these tasks are exclusively vested by our constitutional system in the organs of the sovereign State” (judgments No. 21 of 1968, No. 32 of 1960).
- 6.
This constraint is enshrined in the following Statutes: Sardegna (article 3), Trentino Alto Adige (articles 4–8), Valle d’Aosta (article 2), and Friuli Venezia Giulia (article 4). For the extension of the international obligations constraint on all the Regions, see judgments No. 46 of 1963 and No. 21 of 1968.
- 7.
The Sicilian Regional Statute (article 21), the Sardegna Regional Statute (articles 47 and 52), the Friuli Venezia Giulia Statute (articles 47–44); the Valle d’Aosta Statute (article 44, final paragraph).
- 8.
The justification for vesting exclusive powers in Central Government to implement and enforce international obligations was the close linkage existing between treaty transposition and foreign policy, reserved to the State, and in part the need to avoid giving the State international liability. The situation was further aggravated by the prevalence attributed to the State transposition law over any incompatible Regional law provisions using the “interposed norms” mechanism. In this respect, see Spataro (2007), pp. 138–139.
- 9.
Art. 4 of Presidential Decree No. 616 of 24 July 1977, “Implementing the delegated powers provided by article 17 Law No. 382 of 22 July 1975”. The instrument containing the guidelines and coordination measures with the procedures for reaching agreement was adopted on 11 March 1980.
- 10.
The difference between “prior agreement”, referred to in article 4 of Presidential Decree No. 616 of 1977, and “prior assent”, referred to in judgment No. 179 of 1987, was clarified in judgment No. 472 of 1992: “The difference between them is the fact that, whereas ‘prior agreement’ would imply that Central Government issues an instrument expressly granting powers, in the absence of which the Region’s activities abroad could not be performed, ‘prior assent’ is simply a government-initiated communication, which can only expressly prohibit the Region from taking action when there is demonstrable conflict between the Regional initiative and general Government policy”.
- 11.
Constitutional Court judgment Nos. 179 and 1987 loc.cit.
- 12.
Judgment No. 179/1987 (which was the landmark decision) was followed by judgments 250/1988, 737/1988, 256/1989, 26/1994, 564/1988, 739/1988, 924/1988, 276/1991, 472/1992, 124/1993, 204/1993, 251/1993, 290/1993, 212/1994, 332/1998, and 427/1998.
- 13.
On the view that international activities appear to be co-essential with the political and representative nature of the Region, and for an examination of later case law, see Spataro (2007), op. cit., pp. 113ff.
- 14.
In judgment No. 472 of 1992, the Constitutional Court reiterated the need for effective oversight over the Regions’ foreign activities in order to guarantee the unity of national foreign policy.
- 15.
Presidential Decree of 31 March, 1994: “Instrument providing guidelines and establishing coordination in the matter of the Regions’ and Autonomous Provinces’ foreign activities”, which was designed to adjust the previous Prime Ministerial Decree of 11 March 1980, laying down guidelines and provisions to coordinate the Regions’ activities abroad.
- 16.
Pasini (1995), pp. 981ff.
- 17.
In particular, activities of mere international relevance were divided into two groups: the first group required no formalities [Presidential Decree of 21 March, 1994, article 2 (1) (a): study and information regarding miscellaneous issues; exchange of news and experiences on their respective statutory or administrative rules; attendance at conferences, roundtables and seminars; courtesy visits within the European area; relations resulting from agreements or forms of association for the purposes of transborder inter-regional cooperation]; the second required Central Government assent [Presidential Decree 31 March 1994, article 2 (c.1) (b): courtesy visits outside the European Union, twinning, establishing principles and intents to create forms of consultation and cooperation to be implemented through the unilateral exercise of their powers; framing proposals and identifying problems of common interest, making contacts with regional communities abroad for the purposes of gathering information on the laws and regulations current in the respective regions and for the conservation of the original items of cultural heritage].
- 18.
In short, the system created by Constitutional Court and the 1994 Presidential Decree comprised, on the one hand, the obligations of the Regions to submit prior information and, on the other, the obligation to provide reasonable grounds in the event that the government were to refuse to issue its assent or to conclude an agreement, which was considered to be a fundamental instrument for protecting the Regions (judgment No. 204 of 1993). See, for example, judgment No. 332 of 1998, in which the Constitutional Court upheld a conflict of powers by violation of the principle of loyal cooperation, because the Sicilian Region had proceeded to sign an agreement with a foreign State without having previously informed the Central Government (and therefore without having concluded the agreement or secured the assent required) such that the Government had not been able to judge its compatibility with national foreign policy.
- 19.
On the principle of loyal cooperation in respect of foreign competence in constitutional case law, see judgment Nos. 425/1995, 343/1996, and 428/1998. In the literature, on the “foreign” activities of the Regions and relations with Central Government based on the cooperative model, and in relation to the cited above, see Anzon (2002), pp. 158–162; Olivetti (2004), p. 22, according to whom “Regional foreign competence in the system prior to 2001 was simply a cooperative procedure”. On the principle of loyal cooperation in the first and the second regionalisation, see the detailed treatment by Mangiameli (2008).
- 20.
Art. 1-(2)(a) of Act No. 59/1997; it should be emphasised that article 8 (5)(b) repealed paragraph (2) of art. 4 of Presidential Decree No. 616/1977, vesting the Regions with powers to perform promotional activities abroad, which continued to be governed solely by the 1994 Presidential Decree.
- 21.
- 22.
On legislative powers, see chapter “Legislation by the Ordinary Statute Regions: Powers and Subjects”, Arabia; on administrative powers, see chapter “The Administrative Structure of Italian Regions”, Castelli, in this volume.
- 23.
For a reconstruction of the reasoning underlying the rules governing the Regions’ foreign competence in the constitutional reform, see Olivetti (2004), pp. 24–25, which provides a general political account (the gradual internationalisation and “deterritorialisation” of every subject matter) and a technical-constitutional account (the overall enhancement of the role of local government and the new of enumeration of subject matters). In more general terms, see also chapter. “The Regions and the Reforms: Issues Resolved and Problems Pending” of Mangiameli, in this volume.
- 24.
- 25.
For comments regarding the difficulty of reconciling this law with the overall design of the Constitution to exploit regional autonomy, see Violini (2003), pp. 137 and 142. Similarly, see Mura (2007), pp. 279ff, according to whom Law 131 of 2003 provided a restrictive interpretation of the constitutional provisions and ultimately gave a kind of delegated power to the Regions to conclude international agreements.
- 26.
Constitutional court, judgment No. 238 of 2004 (indent 6). For a commentary on the judgment, see Dickman (2004).
- 27.
As confirmed by the Constitutional Court in judgment No. 238 of 2004. For the purposes of article 10 of Constitutional Law No. 3 of 2001, see D’Atena (2010), Chap. VII and Mangiameli (2002), Chap. V; they are therefore subject to the provisions of Law No. 131 of 2003 “since they are necessary to enable the new powers acquired to be exercised in practice”, even though these provisions could be “ceded” in the event of “any subsequent provisions implementing the Statutes which provide otherwise” (Giangaspero 2006, p. 115, who states that in reality there are other solutions enabling the Special Statute Regions to put forward their own demands in a more favourable sense for autonomy).
- 28.
On this point, see Ruggeri (2003) p. 40.
- 29.
- 30.
See the previous note.
- 31.
Constitutional Court, judgment No. 211 of 2006.
- 32.
These considerations were taken up again and reiterated in judgments 181 and 285/2008.
- 33.
On this point, see Palermo (2002), page 718, and also Caretti and Tarli Barbieri (2007), p. 282, both of whom tend to consider the international relations of the Regions not as a “subject matter” in the strict sense of the term but as a “mode” of exercising their powers, such that the State powers provided by article 117 (3) are limited to laying down principles of a purely procedural nature. To construe the question otherwise would entail having to admit the possibility of subjecting the Regions’ international activities to further restrictions (with respect to the foreign policy constraint and to the ordinary constraints encountered when exercising their powers).
- 34.
According to Violini (2003), p. 134, if the expression “international activities” did not signify a subject matter in the full sense of the term falling within the scope of concurrent powers, “it would be practically impossible to reconcile the Regions’ foreign competence in respect of matters falling within their exclusive powers, such as agriculture, except by considering that, for that specific segment of the subject matter involving international and EU matters, exclusive powers is transformed into concurrent powers, for which Central Government is responsible for laying down the core principles”. Olivetti (2004), p. 27, also seems to concur with this interpretation.
- 35.
Even though it refers more specifically to the Community aspect, as far as relations between the third and fifth paragraphs of article 117 Const. are concerned, the ruling in judgment 239/2004 appears to be indicative: “this constitutional provision [article 117 (5) Const.]—the only one in the new Title V of Part II of the Constitution specifically referring to the Ordinary and the Special Statute Regions (…)—institutes a further power vested in Central Government as a special power in addition to the one contemplated in article 117 (3) Const., concerning the broader area of ‘international and EU relations of the Regions’”. But also judgment No. 238 of 2004, referring more specifically to the question of international relations, showed that paragraphs (5) and (9) dealt with matters that could not be confused with the division of powers (Para. 7) but created “an autonomous source of powers” vested in Central Government in respect of the concurrent Regional powers in the matter of international relations.
- 36.
Ruggeri (2003), para. 3.
- 37.
- 38.
The whole system still has many lacunae with regard to the participation of the Regional authorities when one considers that the Senate cannot be considered to be a Chamber of the Regions, that article 11 of Constitutional Law No. 3 of 2001 (which set out to institute the Bicameral Committee) has never been implemented, and that the system is still based on the system of Conferences that was developed during the pre-reform period. On these matters, see Sect. 1 in Mangiameli, elsewhere in this volume.
- 39.
See Constitutional Court judgment No. 285 of 2005, paragraph 6, under Conclusion on points of law. According to the Court, “Article 6 (3) of law No. 131 of 5 June, 2003 (enacting provisions for transposing the provisions of Constitutional Law No. 3 of 18 October, 2001 into the Republican Constitution) also confirmed its purely optional character when setting out the limitations and the procedures for the Regions to conclude international agreements”.
- 40.
Ibid.
- 41.
Even though the relationship between the foreign competence of the State and the foreign competence of the Regions refers more strictly to the vertical division of powers (the powers of the Central and Regional governments in respect of their foreign competence) and not to their horizontal distribution (referring to other subject matters), also according to Caretti and Tarli Barbieri (2007), p. 277, it must be reconstructed not in terms of separation but in terms of possible concurrency (for these writers consider that the concurrent nature of their powers should be construed in the context of procedural rules laid down by the State legislator), in compliance with the principle of loyal cooperation.
- 42.
The convention was enacted into force in Italy by Law No. 948 of 1984, which not only authorised its ratification and implementation but also contained a number of procedural provisions to permit Central Government to participate in and control it.
- 43.
Article 2 (1) of the Convention provides that “For the purpose of this Convention, transborder co-operation shall mean any concerted action designed to reinforce and foster neighbourly relations between territorial communities or authorities within the jurisdiction of two or more Contracting Parties and the conclusion of any agreement and memorandum necessary for this purpose. Transborder co-operation shall take place in the framework of territorial communities’ or authorities’ powers as defined in domestic law. The scope and nature of such powers shall not be altered by this Convention”. Despite the Convention, however, the Regions and the sub-Regional authorities are only empowered to proceed following the adoption of specific inter-country agreements.
- 44.
Emblematic here is the EU’s INTERREG programme. For more details on transborder cooperation, see Florenzano (2004), pp. 680ff.
- 45.
On this point, see Di Salvatore (2008) and the paper by Iacoviello, elsewhere in this volume.
- 46.
On this point, see the commentary on the judgments by Dickman (2004), p. 13.
- 47.
For an overview of foreign experiences in which local governments take part in the preparation of international agreements, see Spataro (2007), p. 77.
- 48.
On the significance of this absolute reserve, see Olivetti (2004) pp. 28–29.
- 49.
See Constitutional Court judgment No. 379 of 2004, point 3 of the Conclusion on points of law. In the literature, see Buonomo (2003), para. 3, for whom this term is more favourable to the Regions in the sense that they may implement and enforce agreements for which no enforcement order has yet been issued. According to this writer, the main concern of the legislators is with the simplified agreements. On this point, see also Spataro (2007), pp.150–152.
- 50.
Dickman (2003).
- 51.
Buonomo (2003), para. 2, points out that this is a problem of municipal law, which is becoming increasingly more irrelevant at the international level.
- 52.
Sorrentino (2002), p. 1316.
- 53.
Caretti and Tarli Barbieri (2007), p. 276.
- 54.
This is a problematic matter because there is some confusion in the way the terminology is used. In positive law, a distinction is drawn in the Vienna Convention on the Law of Treaties of 23 May 1969, which in reality only talks about treaties and agreements, while the Madrid Convention on Transborder Cooperation speaks of the agreements and arrangements. On the difference between these instruments in the literature, see Sciso (2006), pp. 65ff.; Buquicchio (2004), pp. 185ff. For an examination, reorganization, and classification of the regional agreements, with reference to the literature, case law, and practice, see Mura (2007), who reconstructs the conditions required to enable an agreement between a Region and a foreign party to be considered subject to international law and therefore constitute a source of rights and obligations under international law.
- 55.
- 56.
This typology appears to be justified by the possibility it gives to Central Government to exercise its foreign competence over matters falling within the powers of the Regions (see Constitutional Court judgment No. 285/2005, paragraph 4). This provision seems to be linked to article 117 (5), which gives the Regions the responsibility of implementing and enforcing international agreements, Crivelli (2004), p. 154.
- 57.
The Vienna Convention on the Law of Treaties of 23 May 1969 was ratified in Italy by law No. 112 of 12 February 1974. Under article 1 of the Convention, it only applies to treaties concluded between States, while article 3 confirms the validity of treaties concluded between entities other than states, even though it remains a matter of some debate that parties may be considered to be the contracting entities. In relation to these problems, see Saulle (1998) and Strozzi (1999).
- 58.
- 59.
Constitutional Court, judgment No. 238 of 2004, point 8 of the Conclusion on points of law.
- 60.
The Court speaks of “a formality linked to the outcome of the aforementioned verification”. Judgment No. 237, cit. point 8 of the Conclusion on points of law.
- 61.
Hence, the need for a series of restrictions (the citation is from Spataro 2007, p. 173). Later case law also continued to uphold this reconstruction. See, in this connection, Constitutional Court judgment No. 387 of 2005, in which the Court reiterated the fact that even though the State has exclusive powers in the matter of foreign policy, the international activities of the Regions are subject to the real possibility of Central Government control over regional initiatives in order to prevent any conflict with national foreign policy; this justifies the fact that it is Central Government that is vested with the powers to govern cases and forms of regional activity.
- 62.
With regard to the problems linked to this phase (one could, for example, envisage giving the Head of State a role in this regard), see Ruggeri (2003), p. 56; for the solutions actually adopted by the Regions, refer to Spataro (2007), Chap. III, para. 6. On this point, see also the Constitutional Court judgment No. 242 of 2003.
- 63.
On the constraints referred to in article 117 (1), see Sorrentino (2004), Pinelli (2001), and Cannizzaro (2001). The most original and innovative literature offers the interpretation according to which this constitutional provision has created “an automatic mechanism to adjust to international treaty law” without any need for an enforcement order, provided that “the measures on which these obligations are based are immediately of relevance to the Italian legal system”, D’Atena (2002), (2006) and also id. (2010), p. 133. In this case, the author took up the position of R. Quadri, who says that on the basis of the pacta sunt servanda principle, the automatic adjustment to general international law extends its effects to include international agreements Quadri (1989), Chap. X, even though in practice this idea does not seem to have been taken up, considering that the enforcement order is routinely adopted.
- 64.
- 65.
These are treaties concluded by being signed by plenipotentiaries (Conforti 2002, p. 73.), without the need for ratification.
- 66.
For this would bind Parliament by agreements in which it has not taken part. To solve this dilemma, distinguished legal scholars (D’Atena 2002, p. 146) propose that articles 117 (1) and 80 Const. should be read together, such that whenever it is intended to place constraints on future legislators [within the meaning of article 117 (1)], parliamentary authorisation should always be required for ratification pursuant to article 80 Const. (which speaks of “new legislation”), for otherwise the Parliament would be required to comply with binding measures that it has not contributed to framing D’Atena (2010), p. 134.
- 67.
See Crivelli (2004), p. 160.
- 68.
Anzon (2002).
- 69.
- 70.
Particularly in judgment No. 348 of 2007, the Court drew a distinction between international obligations and European constraints for which there is also a different regime: the disapplication of a provision of municipal law in conflict with directly applicable European law versus the unconstitutionality of the municipal law provision in conflict with international law, provided that the international treaty itself is not in conflict with constitutional law [in which case, it would be non-compliant with the article 117 (1) parameter].
- 71.
On this point, see Violini (2003), p. 117.
- 72.
See, for example, the note of 13 December 2001 issued jointly with the Department for Institutional Reforms, and the note of 27 February 2002 abolishing it. In the literature, see Olivetti (2003), p. 12.
- 73.
Constitutional Court, judgment No. 238 of 2004, cit., point 10 of the Conclusion on points of law.
- 74.
Gianfrancesco (2002), pp. 239ff.
- 75.
- 76.
Law No 131 of 2003, article 8 (1): “In the cases, and for the purposes, provided by article 120 (2) of the Constitution, the Prime Minister, acting on a proposal by the Minister having jurisdiction by subject matter, and also at the initiative of the Regions or local authorities, shall set an appropriate deadline for the authority concerned to adopt the required or necessary measures; after this deadline, if the measures have not been adopted, the Council of Ministers, acting on a proposal of the Minister responsible by subject matter or by the Prime Minister, shall, after hearing the position of the entity concerned, adopt the necessary measures, including normative measures, or shall appoint a commission to this effect. The meeting of the Council of Ministers shall be attended by the President of the Regional Council concerned by the measure;” while paragraphs (4) and (5) provide that “4. In cases of absolute urgency, whenever the Government cannot delay deputising without jeopardising the purposes protected by article 120 of the Constitution, the Council of Ministers, acting on a proposal of the Minister having jurisdiction, and also at the initiative of the Regions or the local authorities, shall adopt the necessary measures immediately notifying the Central-Regional Governments Conference or the Central Government-Cities and Local Authorities Conference, enlarged to include the representatives of the Mountain Communities, which may request that it be re-examined. 5. The deputising measures must be proportional to the purposes being pursued.” The procedural rules enacted in article 8 of Law No. 131 of 2003 [requiring compliance with the principle of loyal cooperation, pursuant to article 120 (2) Const.] were based on judgment No. 177 of 1988, which laid down the conditions to be met for Central Government to intervene. More specifically, on the subsidiary/deputising powers enacted in the law of implementation, see Scaccia (2004).
- 77.
Buonomo (2003).
- 78.
- 79.
Anzon (2002), pp. 229ff.
- 80.
D’Atena (2002), pp. 913ff.
- 81.
In this connection, the only coordination forum, apart from the system of Conferences, would appear to be the Unit for the National System and Local Government, instituted in 2008 as a structure to provide direct support to the work of the Secretary General, serving the whole of the Italian Ministry of Foreign Affairs, whose work is designed to support the (public and private) parties involved in ensuring the international projection and protection of its economic and cultural interests.
- 82.
Ruggeri (2003), p. 38.
- 83.
Constitutional Court judgment No. 238 of 2004, cit., point 8 of the Conclusion on points of law.
- 84.
On these problems, see the paper by Mangiameli in this volume.
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Saputelli, G. (2014). The Regions and Their International Activities. In: Mangiameli, S. (eds) Italian Regionalism: Between Unitary Traditions and Federal Processes. Essays on Federalism and Regionalism, vol 1. Springer, Cham. https://doi.org/10.1007/978-3-319-03765-3_11
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