The italian legal framework

Italy is a Parliamentary Republic where, according to Art. 117 of the Constitution, legislative powers are vested in the State and the Regions in compliance with the Constitution and with the constraints deriving from EU legislation and international obligations.

In 2001, with the Constitutional Law no. 3 dated 18th October 2001, the Italian Parliament approved an important Constitutional reform which expanded the legislative power of the Regions, redefining the relations between State, Regions and Local Authorities.

The division of legislative competences between State and Regions is detailed in art. 117 of the Constitution: a first list of specific fields of exclusive jurisdiction of the national Parliament and a second set of specific subjects referring to concurrent legislation for which legislative powers shall be vested in the Regions, except for determination of fundamental principles, to be established by State legislation. Moreover, Regions shall have legislative power in all subjects not expressly attributed to the State.

With the Treaty of Lisbon, entered into force on 1st December 2009, Member States’ Parliaments role has been strengthened and the system of the sub-state authorities has obtained the fully recognition in a perspective of multi-level governance.

As a consequence, in areas falling within their responsibilities, Regions take part in the EU decision-making process, namely the “ascending phase”, through the political dialogue on European legislative and non-legislative initiatives and through the subsidiary control, a responsibility of the Regional Legislative Assemblies. As for the “descending phase”, Regions are responsible for the implementation and enforcement of EU measures, subject to the procedural rules set out in State legislation regulating state authorities to take over in case of failure to act by Regions or Autonomous Provinces.

At present, the laws ensuring the participation of the Regions both in the ascending and descending phase are the following:

-         Law no. 131 dated 5th June 2003 laying down “Provisions to bring Italian legislation into conformity with constitutional law no. 3 dated 18th October 2001” in which Art. 5, concerning the “direct participation” of Regions in the European decision-making process, sets out that regional representatives, in the fields within exclusive Regions jurisdiction, take part in the delegations of Italian Government in order to represent the Italian position in the European Commission and Council of the EU activities.

-         Law no. 234 dated 24th December 2012 laying down “General provisions on Italy’s participation in the elaboration and implementation of EU legislation and policies” enacted in order to adapt the Italian law to the new European institutional architecture set up by the Treaty of Lisbon. This Law is the end point of a long process started with Law No. 86 dated 9th March 1989 and continued with Law No. 11 dated 4 February 2005 and is the current procedural law regulating also the regional participation to the European law-making process.

In chapter IV, the law sets out the coordination mechanism relevant to the ascending phase based on avery closely collaboration between the State and the Regions.

The mechanism works thanks to a network of public representative bodies of local and regional authorities, such as State-Regions Conference - Conference of Regions - Conference of the Legislative Assemblies, hereinafter indicated as “system of Conferences”, which connects the different levels of government (EU – State – Regions) according to the principle of the political dialogue in order to coordinate the needs of the Regions to the national policy lines with regards to European legislative acts falling in the regional jurisdiction.

In practical terms, the system of Conferences transmits the European documentation to Regional executives and Legislative Assemblies, fulfilling the Government duty of informing the local authorities. 

It should be noted that regarding the drafting of European laws falling within regional jurisdiction, the Government has to assure a “timely and qualified” information by transmitting, within 20 days, fact sheets in compliance with the principles of subsidiarity and proportionality together with an overall evaluation of the act including its financial and juridical impacts. On these subjects, the Regions have 30 days to present observations, thus contributing to the creation of an Italian national position regarding the European acts. 

As far as the scrutiny activity on the subsidiary principle is concerned, Regional Legislative Assemblies may be consulted by National Parliaments in the context of the Early Warning System (EWS). They may be involved at an early stage of the EU legislative procedure to assess whether draft legislative acts comply with the subsidiarity principle and, within eight weeks from the date of transmission, they may send a reasoned opinion stating the reasons why the examined draft does not comply with the subsidiarity principle.

The observations and the output of the scrutiny activities are sent to the Government, to the national Parliament and to the system of Conferences. 

These mechanisms, aimed to develop and strengthen a multi-level governance, provide for a proper and timely implementation of the European legislation both in the national and regional legal system. 

As far as the descending phase is concerned, the adoption and implementation mechanisms of the European acts are provided in Chapter VI which introduces the European delegation law and the European law. The first one enables the Government to transpose the Directives and the other European acts within the national system, thus empowering the Regions to directly transpose the directives falling within regional jurisdiction. The European law is aimed to modify or annul domestic laws that are subject to infringement procedures or to Court of Justice judgments. It  may also introduce the provisions enacted under the substitutive power and the necessary provisions to implement EU acts and international treaties concluded by the EU.

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