Abstract
The question of the Regions and the social services is paradigmatic of the development of Regional autonomy in the years following the reform of Title V of the Constitution. The ill-defined boundaries of powers defined in article 117, compounded by the difficulties and delays in implementing fiscal federalism, and putting social care services under the residual competence of the Regions have substantially increased the volume of legislation and regulations governing this sector and have greatly increased the caseload of litigation between the State and Regions before the Constitutional Court. Both tiers of government have been trying to carve out a place for themselves in the new system: Central Government is to hold on to its existing prerogatives, while the Regions are determined to defend the powers already acquired, and their autonomy. These events have hampered the consolidation of a common institutional framework shared by Central and Regional Governments, in this major area, which makes it necessary to look briefly at the origins of the present state of welfare and then at the Regional situation, highlighting the special social policy areas falling to the Regions, the critical aspects, and the corrective measures implemented by the Regions in a system that is still basically a work in progress in the wake of the constitutional reform of Title V.
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Notes
- 1.
On the notion of residual powers, see Arabia, in this volume.
- 2.
For a more detailed examination of Presidential Decree No. 616 of 1997, see Desideri, in this volume.
- 3.
Fargion (1997).
- 4.
D’Atena (1997).
- 5.
These aspects were published in the report of the Onofri Commission instituted in 1997, which had been set up to analyse the microeconomic compatibility of social expenditure. The Commission found that in 1994 92 % of transfers had been in cash and only 8 % had been actually used for social measures. The Commission noted that welfare expenditure was still sharply biased towards pensions (working document No. 3 of 1997).
- 6.
The Council of the European Community issued two separate recommendations [L 245/46 and L 245/49 of 24 June and 27 July 1992 (OJ 26.8.1992)] laying down common criteria governing the provision of adequate services and resources in social protection systems, calling on the Member States to achieve a convergence of social protection policies and targets.
- 7.
This is not the appropriate place for a description of the new system established by the law. Reference will be only made here to the aspects needed to reconstruct the development of the statutory framework governing welfare and health care.
- 8.
Unlike health care, which is the subject of concurrent powers and for which there exists a National Health Service.
- 9.
No statutory definition exists of what is known as the “third sector”. However, art. 2 of Prime Ministerial Decree of 30 March 2001 states that third sector parties are voluntary organisations, associations and social development bodies, cooperatives, social cooperatives, foundations, unions, and other private not-for-profit entities. This definition therefore refers to all private not-for-profit organisations that provide goods and services, for the public or community benefit.
- 10.
For it is the Central Government, working through the National Social Fund, which allocates resources to the Regions, consistently with the objectives and targets set out in the National Social Plan.
- 11.
The zonal plan provided by article 19 of Law No. 328 of 2000 is the local tier (individual municipalities or groups of municipalities) planning tool. The zonal plans comprise strategic objectives, intervention priorities, the organisation of services, resources, quality standards, the design of the local information system, cooperation between the services and the third sector, and forms of cooperation with the Health Care Enterprises (ASLs) in order to ensure the integration of the social and health care services.
- 12.
The Court will be seized of a huge amount of litigation between the Central and Regional Governments, mostly in the matter of essential service levels and the institution of funds subject to allocation constraints. Specific reference will be made to Constitutional Court case law in the relevant paragraphs.
- 13.
For example, the reorganisation laws enacted by the Toscana, Liguria, and Friuli Venezia Giulia are examples of those setting objectives or targets for certain areas such as family, children, the elderly, people with disabilities, immigrants, people at the risk of social exclusion, the protection of the mentally ill, and the prevention and treatment of addictions.
- 14.
For example, the 2007–2009 Lombardia Regional Social Plan reiterated that the “ASLs shall increasingly coordinate the system of services and local planning, by playing an active part in the policies adopted by associated municipal authorities, and foster strategies to rationalise and integrate social and health care systems”.
- 15.
Toscana has instituted an entity called the Società della Salute, as a kind of melding of the two models. On the one hand, it integrates the social and the health care areas while at the same time seeks to place the governance of the ASLs on equal footing with the local authorities in a kind of partnership to plan and manage the social and health care services. The main functions, and resource planning and management, are distributed between different tiers of government on the basis of the vertical subsidiarity principle while favouring forms of horizontal subsidiarity through the increasingly wider participation by the third sector.
- 16.
The different roles played by the ASLs and the municipality are addressed in full in the Emilia-Romagna 2008–2010 Social and Health Care plan (DAL No. 175 of 2008), which recognises “The central role of the Region in the governance of the health service, and the central role of the local authorities, by reference to article 118 of the Constitution, in the governance of social services and measures”.
- 17.
“Maintenance” laws amend, supplement, or replace previous legislation in order to bring it up to date, to take account of the de facto and de jure changes occurring since the date of entry into force.
- 18.
Law No. 383 of 2000, governing associations for social advancement; Law No. 381 of 1991, governing social cooperatives; and the framework law on voluntary service, Law No. 266 of 1991. The reorganisation of charities is governed by Legislative Decree No. 207 of 200, reorganising the system of public care and charitable institutions pursuant to article 10 of Act No. 328 of 2000, and Law No. 206 of 2003, enacting provisions for the recognition of the social function of parish youth clubs and similar entities, and for the enhancement of their role.
- 19.
Particularly since 2005, this post has been introduced and consolidated in 11 regions.
- 20.
In the case of the children’s Ombudsman, measures were adopted by the Regions before the national law, which has only recently been enacted for children with specific learning difficulties at school (Law No. 170 of 2010).
- 21.
Instituted by Law No. 296 of 2006 (the 2007 Budget Law).
- 22.
More specifically, Central Government has challenged articles 10 and 15 of Law No. 32 of 2009, providing measures for the admission, civil coexistence, and integration of immigrants in Puglia. Article 10 refers to the health care rights of immigrants, and in paragraph (5) it provides that “the Regions shall identify the procedures for giving access by foreign nationals temporarily present in breach of the law on the entry and stay in Italy to essential and continuing care”. Article 15 on social inclusion policies provides that the Regional Social Policies Plan “shall devote specific attention to the immigrants’ living standards and opportunities for their integration and social inclusion”.
- 23.
Article 117(2)(b) of the Constitution provides that immigration is one of the subject matters over which the State has exclusive competence.
- 24.
Referral against the Campania Region, No. 62 of 2010, published in the Official Gazette No. 20 of 19 May 2010.
- 25.
Italics added.
- 26.
See also judgments No. 300 of 2005 and No. 156 of 2006.
- 27.
In this respect, see also judgments No. 432 of 2005 and No. 324 of 2006.
- 28.
Balboni (2001).
- 29.
The Decree of the President of the Republic of 29 November 2001 defined the essential levels of health care. See also France, in this volume.
- 30.
In reality, there are no clear indications regarding the essential standards to be met in the matter of education except a reference in article 21 of Law No. 59 of 1997, which provided that “unitary and nationwide levels of the right to an education, and the elements common to the whole State school system regarding central government management and planning”. Subsequently, Law No. 53 of 2003 gave the government delegated powers to lay down general rules for education and set the essential levels of the services to be provided in schools and in the matter of vocational training. Legislative Decree No. 226 of 2005 then laid down the essential levels for the second cycle of the educational and vocational training system.
- 31.
It was not until October 2009 that a “Nomenclature of services and social measures” was adopted by the State-Regions Conference. This idea was first broached at the beginning of 2006 following an analysis of the results of the “Survey of social services and measures adopted by individual and associated municipalities conducted by Istat in conjunction with the Ministry of Work, Health and Social Policies, the State General Accounting Office and the Regional Governments”. The nomenclature can be found at the following website: http://www.cisis.it/archivi/seminari/fiuggi/cd-rom/index.htlm.
- 32.
- 33.
- 34.
Article 46(3) of Law No. 289 of 2003 provided that “within the limits of the resources available in the National Fund for Social Policies, taking into account the ordinary funding for social expenditure by the Regional and sub-Regional authorities, and in compliance with the financial compatibilities defined for the whole public finance system in the Economic-Financial Planning Document, the essential levels of services to be guaranteed throughout the whole national territory shall be indicated in a Prime Ministerial Decree, based on a proposal of the Minister of Work and Social Policies, jointly with the Ministry of the Economy and Finance, by agreement with the Unified Conference referred to in article 8 of Legislative Decree No. 281 of 1997”.
- 35.
In 2003, through the Conference of Presidents of the Regions and Autonomous Provinces, the Regional Governments had submitted a proposal that “national legislation setting essential levels of welfare shall identify the services and not the organisational systems”. It also expressed the hope that the Central Government’s determination would be the result “of a wide-ranging debate and an agreement involving the Regions and the sub-Regional authorities” deeming the responsibility for defining the procedures and the organisational standards to lie with the Regional Governments.
- 36.
As stated in the Social Services Monitoring Report, published by the Directorate-General for the Management of the National Fund for Social Policies and of Social Expenditure at the Ministry of Work and Social Policies, September 2005, “The Regions are beginning to govern types of services and benefits that have been traditionally the preserve of Central Government, such as poverty-alleviation measures, legislating on matters very closely connected with the (as-yet undefined) ‘essential service levels’” (page 44).
- 37.
Article 1 (1259) of Law No. 296 of 2006 provided that “Without prejudice to the powers of the Regions, the Autonomous Provinces of Trento and Bolzano and the sub-Regional authorities, until article 119 of the Constitution becomes effective, the Minister for Family Policies, jointly with the Ministers of Education, Social Solidarity and Rights and Equal Opportunities, shall, pursuant to article 8(6) of Law No. 131 of 5 June, 2003, promote an agreement at the Joint provided by article 8 of Legislative Decree No. 281 of 28 August, 1997, to allocate €100 million for each of the years 2007, 2008 and 2009. The agreement shall also establish, on the basis of the core principles established in State law, the essential levels of service and the criteria and the procedures whereby the Regions shall implement an extraordinary plan of action for the development of the local system of social and educational services, including kindergartens, supplementary services diversified by structural forms, access, attendance and functioning, and innovative services in the workplace, with families and in the homes, and to pursue, by the end of 2010, the common objective of ensuring a 33 % coverage of the territory required as by the Lisbon European Council on 23–24 March, 2000, and to reduce the imbalances between different areas of the country. For the purposes of this plan, authorisation is hereby given for expenditure of €100 million for each of the years 2007, 2008 and 2009”.
- 38.
Provision was made for what is called a “strong agreement” at the Joint to “encourage the harmonisation of their legislation or the establishment of common positions”.
- 39.
Constitutional Court judgment No. 370 of 2003.
- 40.
Article 20 (2).
- 41.
- 42.
- 43.
In this sense, see judgments No. 181/2006, 120, 271 and 285/2005, and 6, 16 and 423/2004.
- 44.
The Constitutional Court also ruled that “It is improper to refer to article 117(2)(m) Const. because the power of pre-determining essential levels of services regarding civil and social rights, on the basis of specific enactments, also in respect of matters which the Constitution entrusts to the legislative powers of the regions, may not be used as a reason whereby Central Government may claim the right to directly manage and govern these subject matters by excluding, or radically reducing, the role of the Regions in respect of them” (judgment No. 383 of 2005).
- 45.
Judgment No. 88 of 2003. The Court had been asked to rule on the constitutionality of a Prime Ministerial Decree issued on 29 November 2001, establishing essential levels of health care, and recognised the need for a formal enactment to lay down the general guidelines governing essential levels while admitting that the use of lesser ranking instruments was possible, given the technical nature of the subject matter: “The strong impact on the exercise of the functions in the matters falling within the legislative and administrative competence of the Regions and the Autonomous Provinces evidently makes it necessary for these decisions to be enacted in State legislation, at least in terms of their general guidelines, which must also establish adequate procedures and specific formal instruments to be able to proceed to any further specifications and articulations that may be necessary in the sectors concerned”.
- 46.
- 47.
Judgments No. 88 of 2003 and No. 134 of 2006.
- 48.
Mangiameli (2011).
- 49.
In its judgment No. 134 of 2006, addressing the procedure for establishing the “essential service levels”, the Constitutional Court also ruled that there was no justification for reducing the procedures for Regional involvement in the process merely by requiring an opinion instead of the procedure of reaching an agreement at the Joint Conference.
- 50.
Emphasis added.
- 51.
For a commentary on this judgment, see Guiglia (2007), Balboni and Rinaldi (2006), and Di Somma (2006). These legal scholars focus their attention, in particular, on the significance they feel the Court has attached to the agreement if it is constitutionally required or constitutionally appropriate. “It is worth pointing out that having recourse to an agreement in the instant case derives from the need to adjust and rationalise the procedures laid down in the provision challenged before the Court, to make them comply with the more general provisions set forth by the legislator to identify and establish essential service levels; the agreement is certainly not a constitutionally required application of the principle of loyal cooperation, nor is the principle of the so-called ‘strong’ agreement, sic et simpliciter, to be considered a constitutional requirement.”
- 52.
In its judgment No. 136 of 2060, the Court ruled that “Neither can the Court ignore the paradox of having two different ways of involving the Regions in relation to phenomena that are strictly coterminous, such as establishing the essential service levels and hence particular essential service levels in the form of the standards specifying them or for implementing them.”
- 53.
On the need for an agreement at the Unified Conference, the Court (judgment No. 6 of 2004) has deemed the strong agreement to be essential and indeed that “failure to achieve this is an insuperable obstacle to concluding the procedure” (see also judgments Nos. 28 of 2004, 285 of 2005, and 134 of 2006).
- 54.
- 55.
For example, some selected services or benefits are available for Italian residents or for EU and non-EU nationals, subject linked to residency for a given number of years.
- 56.
The Constitutional Court (in judgment No. 423 of 2004) indicated the major novelties introduced by Act No. 328 “providing a general rule according to which the implementation of an integrated system of welfare services, is provided from a variety of different funding sources to which the Central Government, the Regions and the Local authorities contribute according to their respective powers”.
- 57.
Law No. 476 of 1987 (ratifying and implementing the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, etc.), Law No. 216 of 1991 (enacting initial measures to assist children at the risk of involvement in criminal activities), Law No. 266 of 1991 (enacting the framework law on voluntary service), Law No. 104 of 1992 (the framework law on care, social integration and the rights of people with disabilities), Law No. 284 of 1997 (on the prevention of blindness and for the visual rehabilitation and the social integration and integration into employment of blind persons with multiple disabilities), Law No. 285 of 1997 (on the promotion of the rights and opportunities of children and adolescents), Decree of the President of the Republic No. 309 of 1990 (consolidated law on drugs and psychotropic substances, the prevention, treatment and rehabilitation of the related states of substance abuse).
- 58.
Law No. 451 of 1997, instituting the Parliamentary Committee for Children and the National Observatory for Children; Law No. 40 of 1998, on immigration and the status of foreign nationals, article 43—the National Fund for Migration Policies.
- 59.
The opinion of the Unified Conference provided by article 133 (4) is particularly interesting because even before the reform of Title V, provision had already been made to transfer the powers to the exclusive powers of the Regions.
- 60.
Law No. 388 of 2000 (the 2001 Budget Law), article 80 (17), and Law No. 448 of 2001 (the 2002 Budget law) article 52 (2).
- 61.
In addition to those listed below, there is also the National Fund for Children and Adolescents instituted by Law No. 285 of 1997. Under Act No. 328 of 2000, 70 % of the resources of that fund were transferred to the National Fund for Social Policies. The balance of 30 % is for 15 municipalities.
- 62.
Instituted at the Office of the Prime Minister under Decree-Law No. 223 of 2006, enacted by Law No. 248 of 2006, financing the operation of the National Family Observatory and the drafting of the National Family Plan, supporting inter-country adoptions, measures to reconcile working time with family life, the Credit Fund for Infants, and other activities and measures falling within the powers of the Regions.
- 63.
In addition to those listed in the rest of this paper, there is also the National Fund for Children and Adolescents, instituted by Decree-Law No. 223 of 2006, enacted by Law No. 248 of 2006, to foster the rights of young people to a cultural education, vocational training, and integration into social life by adopting measures to guarantee the rights of young people to a home and access to credit. The fund is used to finance projects of major national interest; activities for local implementation, with a share of the resources divided between the Regions and based on the framework programme agreements signed with them; and publicly and privately instituted projects.
- 64.
Instituted by Law No. 296 of 2006 (the 2007 Budget Law), it guarantees essential service levels throughout the whole country for the non-self-sufficient; the resources are distributed annually between the Regions on the basis of the size of their non-self-sufficient population and other demographic and social economic indicators. All the measures relating to the use of these funds are adopted by joint agreement with the Joint Conference. The 2011 budget did not replenish the fund.
- 65.
Instituted by Law No. 66 of 1999 to help people with disabilities to find employment in the public sector or private employment or with cooperatives.
- 66.
Instituted by article 11 (5) of Law No. 431 of 1998 at the Ministry of Infrastructure and Transport. Since 2005, the resources of the fund have been distributed by the Minister of Infrastructure and Transport after agreement at the Central-Regional Governments Conference, according to criteria laid down by decree of the Minister of Infrastructure and Transport following the agreement and depending upon the proportion of resources made available by the individual Regions and Autonomous Provinces.
- 67.
In relation to Law No. 13 of 1989, Central Government funding has been provided to the Regions, which allocate the resources between the municipalities, following a complex procedure.
- 68.
- 69.
In judgment No. 50 of 2008, the Court ruled the Fund for the Social Inclusion of Immigrants [article 1 (1267) of Law No. 296 of 2006] and the Fund for the Removal of Architectural Barriers [article 1 (389) of Law No. 296 of 2006] to be unconstitutional. In its judgment No. 370 of 2003, it also ruled that the Fund for the Institution of Nurseries (article 70 of Law No. 448 of 2001) was unconstitutional.
- 70.
See also judgments Nos. 50 of 2008, 77 of 51 of 2005, 423 and 16 of 2004, and 370 of 2003.
- 71.
See also judgment Nos. 423 of 2004 and 370 of 2003.
- 72.
For example, the Family Policies Fund, the Youth Policies Fund, and the Equal Rights and Opportunities Policies Fund (judgment No. 453 of 2007).
- 73.
Italics added.
- 74.
This particular case referred to the Family Policies Fund and the National Fund against Sexual Violence. The Court ruled that “in cases of this kind, according to the settled case law of this Court, in the absence of criteria provided by the Constitution relating to the unitary and undivided nature of the Fund at issue, the fact that the Regions and the State share concurrent powers over the matter justifies the application of the principle of loyal cooperation (judgments Nos. 201 and 24 of 2007; and Nos. 234 and 50 of 2005), which must at all events be present in all relations between the State and the local government system. The very nature of the interests involved, in the instant case, requires this principle to take the form of the agreement concluded at the Unified Conference” (judgment No. 453 of 2008).
- 75.
In particular, the Court required the Unified Conference to reach agreement on a decree relating to the distribution of allocations from Family Policies Fund and the opinion of the Unified Conference for the decree setting the criteria for the distribution of the resources of the Equal Opportunities and Rights Policies Fund, with differing degrees of Regional participation.
- 76.
For example, in judgment No. 423 of 2004, the Court declared the allocation of 10 % of the resources of the National Fund to support family policies [article 46 (2) of Law No. 289 of 2002] to be unconstitutional.
- 77.
In judgment No. 423 of 2004, the Court rejected the application of the Emilia Romagna Region to participate in the phase of establishing the Fund.
- 78.
Judgment No. 423 of 2004.
- 79.
In this case, there are considerable similarities with the Fund for the Non-Self-Reliant, which is exclusively used to cover essential service levels.
- 80.
See Buglione, in this volume, for a more detailed analysis of the funding system.
- 81.
For the notion of standard costs and standard requirements, see Buglione and France, in this volume.
- 82.
Ministry of Work, op. cit.
- 83.
Saraceno, op. cit., and Ministry of Work, op. cit.
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Napolitano, G.M. (2014). Social Care as a Workshop for Regional Welfare Policies. 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_14
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