Italy

Italy - Monitoring report

Date of the monitoring visit: from 21 to 23 March 2017
Report adopted on: 18 October 2017

This report was prepared following the third monitoring visit to Italy since the country ratified the European Charter of Local Self-Government in 1999. The report notes with satisfaction that the principle of self-government is soundly anchored in the State organisation by the domestic constitution. It also approves the efforts undertaken by the country to foster decentralisation. Nevertheless, the rapporteurs express their concern with regard to the general lack of financial resources available to local authorities, notably provinces, and the absence of effective consultations on financial matters that concern them directly. The report highlights the fact that local authorities do not dispose in practice of enough qualified personnel. Furthermore, the representatives of the provinces and the metropolitan cities are not elected by direct and universal suffrage and do not receive appropriate financial compensation in order to perform their responsibilities. Lastly, there exists a discrepancy between financial resources of regions having a special status in comparison with those having an ordinary status.

 

The Congress urges the Italian authorities to reconsider, during consultations, the calculation of the budget cuts and to lift financial constraints imposed on local authorities to ensure sufficient financial resources are available to them. It recommends clarifying the competences of the provinces and metropolitan cities, by re-introducing direct elections of their governing bodies, providing for adequate financial remuneration of their representatives and revising the current limitations in relation to local human resources. Finally, the Congress recommends that the Italian authorities ensure a greater fiscal autonomy to the regions having an ordinary status.

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Article ratified Ratified with reservation Non ratified
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Article 2
Constitutional and legal foundation for local self government - Article ratified

The principle of local self government shall be recognised in domestic legislation, and where practicable in the constitution.


In Italy, the principle of local self-government is explicitly recognised and proclaimed in the constitution. Thus, the Constitution proclaims that the Republic is one and indivisible, but in the same provision states that the Republic recognises and promotes local and regional autonomies in view to achieve “the fullest measure of administrative decentralisation” (Article 5). The fact that the Republic “recognises” local self-governments conveys the idea, in a certain way, that the local autonomy is not a creation of the State, but a sort of pre-existing entity. Something which, under a strict historical perspective, is fully true.

 

Article 114 provides that “the Constitution is composed of the Municipalities, the Provinces, the Metropolitan Cities, the regions and the State”. These four local and regional bodies “are autonomous entities having their own statutes, powers and functions”. In this sense, the case-law of the Italian Council of State, which is the highest body in the administrative jurisdiction, has established that municipalities and provinces enjoy full “administrative” autonomy, as opposed as the autonomy enjoyed by the regions, which is a “political” autonomy. Article 117 states that Municipalities, provinces and metropolitan cities have regulatory powers as to the organisation and implementation of the functions attributed to them. Furthermore, Article 118 of the Constitution is a key provision for the purposes of this report, since it deals with the principle of subsidiarity, which is reflected in several aspects: first, “administrative functions are attributed to the municipalities, unless they are attributed to the provinces, metropolitan cities and regions or to the State” pursuant to the principle of subsidiarity. In the last indent of that article, reference is again made to the principle of subsidiarity.

 

These Constitutional provisions, which expressly recognise local self-government, have been specified and supplemented by a harmonic body of domestic legislation on local authorities which also recognise explicitly local self-government. The most relevant reference is to be found in the “Codified Laws” (Testo Unico), whose Article 3, paragraph 1 proclaims that: “the local communities, organised in municipalities and provinces, are autonomous”. The 4th indent of the said article goes on to specify that municipalities and provinces have autonomy in the domains of “regulation, self-organisation and administration, as well as taxing and financial autonomy”.

 

In the light of these constitutional provisions, the rapporteurs conclude that the Italian legal system complies with the requirements of Article 2 of the Charter. Furthermore, the interlocutors met during the visit ensured the delegation that the principles enshrined in the Charter do inspire domestic legislation on local governments.

 

Despite this overall positive situation, reference should be made to the legal status of the said Charter within the domestic legal system, especially in the light of certain recent judgements of the Constitutional Court. Two general features should be first presented, to have a clear picture of the situation. To begin with, Italy is a country with a classical “dualist” approach to International Treaties. Article 117 of the Constitution provides that the legislative powers of the Republic shall be exercised “with limitations deriving from EU-legislation and international obligations”. Treaties occupy a sort of “intermediate” position between the Constitution and regular legislation and, as a rule, a Treaty has to be “received” in the internal legal order, and the Legislative power enacts legal rules by which the said Treaty crystallises into operational legal rules. This makes difficult, from a methodological point of view, to invoke “directly” in the courts (especially in the administrative courts) the wording or provisions of a given treaty. On the other hand, under Italian constitutional Law, a court cannot disapply a given piece of legislation on the ground that it could be contrary to the Constitution or to a regular international treaty: the court is under the obligation to refer to the Constitutional Court, which will rule on that question. This feature hampers dramatically the possibility to invoke the direct application of the Charter in a given administrative litigation, in which local authorities could be parties.

 

In the above described context, the Charter is generally seen as a binding international treaty, to which Italy has made no reservation or further scope limitation whatsoever. The Charter is seen as an “interposed rule” (norma interposta), between the Constitution and ordinary legislation. According to a leading academic, “the national Constitution had already incorporated principles regarding local authorities, so national legislation did not require readjustments to comply with the terms of the Charter”.

 

However, and contrary to what happens in the case of the regions, local authorities cannot bring a direct legal action in the Constitutional Court to challenge the compatibility of a piece of legislation with the principles and provisions of the Charter. Only by means of a referral or preliminary question can the Administrative regional Courts or the Council of State ask the Constitutional Court about the said compatibility (see infra, point 5.8). In this scenario, the case-law of the Constitutional Court has raised some concerns in the Congress. For instance, in its ruling No 50/2015 (dealing precisely with the Delrio Act) the Court said that, in the framework of the specific legal problems raised by the constitutional question, the Charter was basically a sort of guideline, or a guiding political document (un mero atto di indirizzo), and was too vague to be taken as reference for an abstract control of “legitimacy” of a given piece of national legislation. On this point, it should be pointed that a meeting with the Constitutional Court was scheduled for the monitoring visit in order to get clarifications on this point, but unfortunately it could not take place.

 

Anyway, and according to the information collected by the monitoring delegation, the point is not that the Constitutional Court understands –as a rule- that the Charter is not an applicable Treaty in itself, but that the problems raised in the precise proceedings leading to the ruling No. 50/2015 were too imprecise in order to be adjudicated exclusively on the basis of the wording of the Charter. Therefore, that ruling should not be taken as a “final” and denial ruling on the “legal teeth” of the Charter, but only as a specific reply constrained to a precise question. Apparently, in January this year the Administrative Regional Court of the Lazio region has formulated a request for a preliminary ruling in the Constitutional Court, concerning a State law that imposes the obligatory merger of municipalities in some cases. The said regional administrative court understands that this piece of legislation could disregard the principle of local self-government. Apparently in this case, the referral is very detailed and well structured. Consequently, in adjudicating this preliminary ruling, the Constitutional Court will have a new opportunity to clarify his interpretation of the binding effect of the Charter in the Italian legal system.

Article 3.1
Concept of local self government - Article ratified

Local self-government denotes the right and the ability of local authorities, within the limits of the law, to regulate and manage a substantial share of public affairs under their own responsibility and in the interests of the local population.


As regards the concept of local self-government (Article 3, paragraph 1 of the Charter), the main question that must be addressed under this heading is whether, in the present situation, Italian municipalities and provinces do regulate and manage a “substantial share of public affairs”. The impression of the delegation should be nuanced. In the case of municipalities, the situation is positive, but in the case of the provinces the appraisal is not so positive, in the light of the reduction of competences that has happened in recent years (see infra). However, it is true that, as explained below, some provinces may have additional competences according to the region where they are located, since the region may attribute competences to their provinces. Therefore, the picture may be varied.

 

Both in the case of municipalities and provinces, the principle of self-government applies to both entities ex constitutione in the same manner and with the same intensity; they have the power to enact binding local regulations, and there is a lack of “a priori” controls from State and regional agencies and departments, for most of the decisions taken by local authorities (see infra).

 

As regards the compliance with Article 3, paragraph 2 of the Charter, it should be noted that the internal structure and organisation of Italian local authorities is regulated exclusively by ordinary legislation, and not from the Constitution itself. There is here a clear constitutional difference between “local” and “regional” authorities, in the sense that the structure and organisation of regions are enshrined in the Constitution, while in the case of local authorities the Constitution is silent and therefore leaves a wide remit or discretion to the legislators.

 

The key rule here is again, the “Unified Laws” on local authorities of 2000, as amended, or Testo Unico. In the light of this legal framework, the main bodies of the local authorities may be described as follows:

 

Municipalities (Comuni)

 

The representative body is the city council (consiglio). The number of local councillors (consigliere) varies according to the number of inhabitants and fluctuates between 12 and 60 members (Article 37, Testo Unico). They are elected by the citizens of the municipality through an electoral process of secret, general, and direct voting and they serve a five-year term. The last local elections were held in June 2016 (with different dates in some Special Status regions). The municipal council is chaired by its own president, elected by the council members among themselves. It is the body for debate and decision-making and is depicted as the organ of direction and political-administrative control (Article 42, paragraph 1). It adopts the most important political decisions affecting the municipality, inter alia: the local budget, the agreements with other municipalities, land development plans, the local regulations and the internal by-laws (statuto), etc.

 

There are two key “executive” organs: the mayor (sindaco) and the board (Giunta).

The mayor, as in other European countries, is the key executive officer, and it is responsible for the entire administration and management of the municipality (Article 50, paragraph 1, Testo Unico). In this sense, the mayor manages, controls and supervises the functioning of the municipal services and offices, and the execution of municipal plans and decisions. Moreover, the mayor discharges all the competences and duties that are attributed to him by the local regulations and by-laws (statuto), and by the sectoral legislation, either enacted by the State or by the region. Apart from his strict “local” powers, the Law also assigns the mayor competences in matters of State responsibility such as the police, civil register, public order and security (Article 54). These powers are exercised in connection with (or under the control of) the “prefetto”. The mayor can also call for the meetings of the council, if there is no Council President (Article 50, paragraph 2).

 

The system to elect the mayor is different in small and in medium/large cities, but the mayor is elected at the same time as the council. If the municipality has less than 15,000 inhabitants, the candidate for the local council that receives the most votes is elected mayor. If the population is higher than the said figure, the system is more complex and may involve a two-round voting, if no candidate obtains the absolute majority of the ballots.

 

From the perspective of Article 3, paragraph 2 of the Charter, a relevant aspect is the “responsibility” of the mayor (and, consequently, of the members of the Giunta) vis-á-vis the local Council. Despite the direct election of the mayor, the Council is still the sovereign body, so a motion of non-confidence (voto di sfiducia) is established in the Law (Article 52, Testo Unico). If the motion is successful (absolute majority is required), the mayor must resign.

 

The board or Giunta is the other key executive organ of the municipality. It is composed of the mayor, who acts as the chairman, and an even number of assessori. This number is established by the local by-laws (statuto) but it cannot be higher than 1/3 of the members of the council (Article 47, Testo Unico). The aldermen are appointed and dismissed by the mayor. The Giunta is basically conceived as an organ that assists and helps the mayor in discharging his duties (Article 48 Testo Unico). The members of the Giunta may act collectively, discharging duties and competences that are attributed to that body by the internal by-laws, by specific commissions of the Giunta or by the order of the Mayor. They can also act individually, following instruction, precise commitments or tasks commissioned by the mayor.

 

Provinces

 

At point 5.3, reference was made to the profound reforms that have been operated on the provinces by a set of laws and regulations whose keystone is the “Delrio Act”. The provinces have been reformulated in the area of competences, finances and resources, as a key point in the plan of structural reforms envisaged to overcome the economic crisis. At this point the rapporteurs need to underline once more the “transitory” nature of this piece of legislation, to the point that Article 51 of the said statute provides that the new regulation of provinces is enacted “in attesa della riforma del titolo V della parte seconda della Constituzione e delle relative norme di attuazione”, that is, “awaiting the reform of the Constitution”, a reform that could not be culminated due to the negative outcome of the December 2016 referendum. However, the Delrio Act does not affect the autonomous provinces of Trento and Bolzano.

 

This piece of legislation has not only altered the election system for the provincial bodies, but also some of their names, competences and profile. The current key organs of the provinces are the President, the Provincial Council and the Assembly of mayors. Before the Delrio Act, the “Unified Laws” on local authorities did regulate with a great parallelism the organs of the municipalities and those of the provinces, and this parallelism still exist to a certain extent.

 

Currently the key executive is still the President of the Province (Presidente della Provincia). The President has the same institutional profile and type of competences than the mayors have in municipalities, so there is no need to repeat what was presented above. As underlined supra, the President is no longer elected by the inhabitants of the municipalities of the province by universal and direct suffrage.  Nowadays, the president is elected by direct and secret ballot by the mayors and by the members of the local council of the municipalities of the province, but only mayors are eligible to become the president of the province. Therefore, if the President ceases to be the mayor of his city, he can no longer be the President of the Province. The president may appoint a vice-president among those persons that are provincial council members, who helps and assists the president in discharging his duties. The old “Provincial board” was eliminated by the reforms.

 

The Provincial council (consiglio provinciale) is a multi-member organ, composed by consiglieri whose number is: 16 members in the provinces with more than 700,000 inhabitants; 12 in provinces having between 300,000 and 700,000 inhabitants and 10 in provinces with less than 300,000 inhabitants. The new figures represent a dramatic reduction of members, as compared with the members of the old provincial councils. Another reform pertains to the length of the term they serve: currently is two years (while the President of the province serves a four-year one!). The members of the current provincial councils are elected by the mayors and by the local councillors of the province among themselves, also through a direct and secret ballot. The competences of the Provincial council are, mutatis mutandis, the same as those of the local council but it should be pointed out, for purposes of Article 3, paragraph 2 of the Charter, that apparently there are no specific provisions on the possibility to formulate a vote of dismissal or censorship in the Council as against the President, something which is in contradiction of Article 3, paragraph 2 of the Charter.

 

Finally, the Assembly of Mayor (Assemblea dei sindaci) is a brand-new organ in the traditional structure of the province, but its profile and competences are somehow murky, for the Law only provides that it is composed of the mayors of the municipalities of the province.

 

The change from the old “direct” election to the new “indirect” ones did not happen at once, but along an extended period that included deadlines, which were successively extended. Thus, the first elections of provincial bodies following the Delrio Act took place in September/October 2014 (in 65 provinces). In the rest of the provinces, such elections took place at different times, between November 2015 and September 2016.

 

Metropolitan cities

 

This “new” type of local, intermediate entity was already foreseen in the Act of 8 June 1990, but never really incepted since then. The Delrio Act “activated” the actual establishment of those bodies an operation that has lasted one quart of a century. Here the delegation should only present summarily their internal structure, as regulated by the Delrio Act. The key organs are the metropolitan mayor, the metropolitan council and the metropolitan conference.

 

The metropolitan mayor (sindaco metropolitano) has more or less the same institutional and administrative profile of the President of a province. He represents the metropolitan city, and his competences are detailed at Article 8 of the Delrio Act. From the perspective of local democracy, though, this top official presents a more negative profile than the current presidents of provinces, since these are at least elected by the mayors and local council members. On the contrary, the metropolitan mayor is elected by no one: the person who becomes the mayor the city-capital of the province (capoluogo) becomes automatically and de iure the metropolitan mayor of the metropolitan city (Article 19, Delrio Act), so he discharges simultaneously both positions. The metropolitan mayor may appoint a vice-mayor.

 

The metropolitan council (consiglio metropolitano), has a profile and powers that do replicate to a large extent those of a provincial council (approval of the budget and of the “statuto”, etc). It is composed by the metropolitan mayor and by a number of councillors whose numbers varies according to the population of the “metropolitan city”: from 14 to 24 members. They are elected (among themselves) by the mayors and by the local council members of the municipalities of the province. These members serve a five-year term (Article 21, Delrio Act). Most of the “elections” related to the effective constitution of the “councils” of the metropolitan cities took place in 2016. For the purposes of Article 3, paragraph 2 of the Charter, the same remark should be made in connection to the metropolitan city (lack of responsibility of the Sindaco metropolitano vis-à-vis the Council).

 

Finally, the metropolitan conference (conferenza metropolitana) is composed of the metropolitan mayor (who presides its meetings) and by the mayors of the municipalities included in the metropolitan city (that is, in the “old” province). Its main competence is the approval and amendment of the by-laws (statuto) of the metropolitan city.

 

In the light of the precedent lines, some conclusions could be derived: the Italian system complies with Article 2 of the Charter but it does not comply with Article 3 paragraph 2, in the case of the provinces and metropolitan cities, since their governing bodies are not elected by the people. There is a kind of “indirect” election in the case of the provinces, but this light democratic link is absent in the case of the metropolitan cities. In this sense, two points should be mentioned: the Law provides the possibility for direct election for metropolitan cities, but possibility has not been activated. In addition, the rapporteurs were informed that a Bill was recently introduced in the House of Representatives by the “Lega Nord”, aiming at reintroducing the direct election in the case of provinces, but the overall impression was that the bill had little chance to be approved. It seems that the political sensitivity of the moment is far from this motion.

 

This observation is more regrettable in the sense that the legal reforms adopted in the case of those entities –namely the Delrio Act- were adopted after recommendation 337(2013), that recommended the Italian authorities to defend the system of direct local elections and by the fact that, on ratifying the Charter, the Italian Republic ratified the whole text without introducing any declaration excluding the application of Article 3, paragraph 2 to any of its local authorities.

 

Furthermore, in the opinion of the rapporteurs, the lack of a meaningful responsibility of the president of the province vis-à-vis the council and that of the metropolitan mayor as concerns the metropolitan council are in contradiction with the requirements of Article 3, paragraph 2.

Article 3.2
Concept of local self government - Article ratified

This right shall be exercised by councils or assemblies composed of members freely elected by secret ballot on the basis of direct, equal, universal suffrage, and which may possess executive organs responsible to them. This provision shall in no way affect recourse to assemblies of citizens, referendums or any other form of direct citizen participation where it is permitted by statute.


Consult reply indicated at article 3.1

Article 4.1
Scope of local self government - Article ratified

The basic powers and responsibilities of local authorities shall be prescribed by the constitution or by statute. However, this provision shall not prevent the attribution to local authorities of powers and responsibilities for specific purposes in accordance with the law.


The analysis of the competences and functions of Italian local authorities needs to have in mind a couple of general principles. First of all, and for the purposes of Article 4, paragraph 1 of the Charter, the Constitution does not enumerate a more or less close list of competences for those entities. It certainly recognises regulatory powers to municipalities, provinces and metropolitan cities “as to the organisation and implementation of the functions attributed to them” (Article 117). Also, it recognises certain fiscal powers, such as the power “to set and levy taxes” and little else. But these are more “powers” than true “competences.

 

This means that there is not really a “core” of essential or nominated “competences”, in the technical sense of the word, guaranteed by the Constitution and that the legislators have a wide remit of discretion in order to identify precise competences, according to the political sensitivity of the moment. However, the Constitution lays down a fundamental principle at Article 118, when it states that “Administrative functions are attributed to the Municipalities, unless they are attributed to the provinces, metropolitan cities and regions or to the State, pursuant to the principles of subsidiarity…”. This means that there is a clear constitutional preference in favour of the municipalities as the best “governmental instance” to discharge administrative functions. This could be interpreted as a fair implementation of Article 4, paragraph 3 of the Charter. It is unclear, though, how this provision is ensured or observed by the legislators.

 

The other factor is the presence of the regions. Under the Constitution (Article 117, paragraph 2) the State has exclusive legislative competences to regulate the “fundamental functions” (funzioni fondamentali) of municipalities, provinces and metropolitan cities. This means that the “core” or uniform basic competences are identified by the State. However, regions have relevant legislative powers in a large list of matters (see infra). When they legislate on these matters, they may attribute competences to their own local authorities. This may introduce a factor of diversity in the national picture, for the competences of municipalities in region A may not be exactly the same as the competences of municipalities in region B. For instance, the leaders of Veneto region told the rapporteurs that this region has traditionally created a greater decentralisation of administrative functions to provinces and municipalities.

 

It is commonly accepted that powers granted to local authorities are full and exclusive, and that they enjoy autonomy in the discharge of those competences and duties. The overall feeling expressed to the delegation by the interlocutors met was that the depth and width of local autonomy is fair and reasonable. In this sense, municipal competences may be divided into “original” competences and “transferred” or delegated competences”.

 

Municipalities

 

There is no piece of legislation identifying in a comprehensive way all the competences of the municipalities, not even the Testo Unico. The Fiscal Federalism Act of 2009 identified an array of competences in the following fields: local police, public education (for children between 0 and 3 years), urban management, local road networks and transportation, and environment and social services. These are identified as “fundamental functions” or “obligatory services”. Apart from those, there are other municipal competences in the following fields: Social welfare, in particular personal social services and community assistance; culture and recreation, including museums, exhibition halls, cultural activities and theatre; town planning, housing, and land registry; local transport and maintenance of local roads; economic development, including drafting of plans for trade, programming and regulation of commercial activities, as well as establishment and management of industrial and trade zones; environment, including waste management, and local police.

 

Provinces

 

The competences of the provinces have been significantly reduced in recent years, as a result of the “structural reforms” undertaken by Italian authorities to combat the economic crisis. Among all local authorities, provinces are clearly those who have experienced a more dramatic downsizing.

 

Before the reforms, provinces were responsible for a bunch of competences in a variety of sectors: public education, concretely the management and maintenance of school facilities (edilizia scolastica), transportation, spatial planning, social and land-use planning, environmental protection (natural reserves and parks, water refuse, energy resources, pollution and waste collection), disaster prevention, civil protection, agriculture, fishing, some labour and market issues, protection of cultural heritage, technical and administrative assistance for municipalities, economic development, etc. The provinces would also coordinate municipal proposals in matters of regional economic, territorial and environmental plans.

 

As a consequence of the reforms (example: Decree Law 201/2011, but especially the Delrio Act) many of those competences were transferred either to the municipalities or to the regions. In this sense, the provisions of that statute were accompanied by regional legislation. All the regions having a regular or ordinary statue were required to approve a piece of legislation in order to lay down precise rules on the rearrangement of the provincial “non-core” functions and competences. The 15 “regular” regions did so during the year 2015 and 2016. For instance, the Veneto Region approved the regional laws 19/2015 and 30/2016).

 

Provincial leaders told the delegation that, currently, the provinces only discharge the following basic competences (or “fundamental functions”):

 

Management of buildings and facilities for the school system (secondary education only);

Provincial roads and transit management and transport;

territorial planning;

some competences in the field of environmental protection;

Collection of data, technical and administrative assistance to the local bodies.

 

The regions may attribute more competences to the provinces in specific sectors that fall under their competences. In this sense, all Italian regions have passed laws implementing the Delrio Act, by assigning competences to Provinces or Municipalities.

 

Metropolitan cities

 

As presented supra, metropolitan cities are supposed to replace in full the position, assets and competences of the corresponding former provinces in the metropolitan areas. Therefore, the metropolitan cities discharge the “fundamental functions” that are attributed to the provinces, plus some others that are singled out at Article 44 of the Delrio Act. The idea is that they will be strong in the domain of territorial planning and the economic development, as well as the coordination of local services.

 

In the light of the foregoing, the rapporteurs conclude that Article 4 of the Charter is respected in Italy.

Article 4.2
Scope of local self government - Article ratified

Local authorities shall, within the limits of the law, have full discretion to exercise their initiative with regard to any matter which is not excluded from their competence nor assigned to any other authority.


Consult reply indicated at article 4.1

Article 4.3
Scope of local self government - Article ratified

Public responsibilities shall generally be exercised, in preference, by those authorities which are closest to the citizen. Allocation of responsibility to another authority should weigh up the extent and nature of the task and requirements of efficiency and economy.


Consult reply indicated at article 4.1

Article 4.4
Scope of local self government - Article ratified

Powers given to local authorities shall normally be full and exclusive. They may not be undermined or limited by another, central or regional, authority except as provided for by the law.


Consult reply indicated at article 4.1

Article 4.5
Scope of local self government - Article ratified

Where powers are delegated to them by a central or regional authority, local authorities shall, insofar as possible, be allowed discretion in adapting their exercise to local conditions.

 


Consult reply indicated at article 4.1

Article 4.6
Scope of local self government - Article ratified

Local authorities shall be consulted, insofar as possible, in due time and in an appropriate way in the planning and decision-making processes for all matters which concern them directly.

 


Consult reply indicated at article 4.1

Article 5
Protection of local authority boundaries - Article ratified

Changes in local authority boundaries shall not be made without prior consultation of the local communities concerned, possibly by means of a referendum where this is permitted by statute.

 


At point 4.1 of this preliminary report, reference was already made to the evolution and current situation of the mergers of municipalities in Italy. In this domain, the most important concern raised by this short article of the Charter is whether the local residents are consulted whenever a fusion or merger or municipalities is approved. The interlocutors met during the visit ensured that this provision is fully respected by the Italian legislation and is common political and administrative practice. In this sense, Article 15 of the Testo Unico provides that “the region may modify the territorial remit of the municipalities having heard the concerned population…”. Moreover, the Constitution includes specific provisions on this: “the region, after consultation with the populations involved, may establish through its laws new municipalities within its own territory and modify their districts and names”. The delegation was informed that the merger of municipalities is always a bottom-up process, and that there is a referendum for the citizens involved. If this popular referendum is positive, then the merger is approved by the region, by means of a specific legislative act.

 

Therefore, the rapporteurs conclude that Article 5 of the Charter is fully respected in the Italian Republic.

Article 6.1
Appropriate administrative structures and resources for the tasks of local authorities - Article ratified

Without prejudice to more general statutory provisions, local authorities shall be able to determine their own internal administrative structures in order to adapt them to local needs and ensure effective management.


As regards the compliance with Article 6, paragraph 1 of the Charter, as a rule, Italian local authorities are able to determine their own internal administrative structures, with due respect to general legislation. This self-organisation power is recognised by the Constitution, according to which “municipalities, provinces and metropolitan cities have regulatory powers as to the organisation and implementation of the functions attributed to them” (Article 117). In this sense, and as noted supra, all local authorities have the power to approve their own by-laws, by which they decide on the organisational structure of their internal services, as well as the precise competences of the local organs. The comprehensive document of such by-laws is called “statuto” and is regulated extensively at Article 6 of the Testo Unico. The statuto has to be approved in every local authority, they must be discussed and approved in the council by a two-thirds majority. 

 

In the light of this information, it can be concluded that Article 6, paragraph 1 of the Charter is complied with in Italy.

Article 6.2
Appropriate administrative structures and resources for the tasks of local authorities - Article ratified

The conditions of service of local government employees shall be such as to permit the recruitment of high-quality staff on the basis of merit and competence; to this end adequate training opportunities, remuneration and career prospects shall be provided.


Concerning Article 6, paragraph 2, it should be noted that each municipality, province and metropolitan city has its own bureaucratic apparatus, consisting of administrative officials who are responsible for discharging the instructions of the mayor and other municipal bodies. In large municipalities (above 100,000 inhabitants), the municipal office may be run by “managers” (dirigenti) and by a “director general” (direttore generale) placed at the top of the professional staff.

 

Municipalities, provinces and metropolitan cities are quite independent in the field of human resources and as a matter of fact, they can freely appoint and withdraw their own employees. Each municipality is responsible for hiring, managing and paying its own public employees, within the framework of applicable legislation, the by-laws and regulations adopted by each city and the applicable collective agreements signed with the trade unions. According to a leading expert, “the legal regime of local government personnel, as well as all the Civil Service, changed radically with the reforms to privatize Public Administration staff” (starting in 1993). Current government employees are normally regulated by the Civil Code.

 

A specific feature of the Italian system, common also in countries such as Spain or France, is the existence of the town or province secretary (segretario municipale, segretario provinciale). These special and highly regarded civil servants have a peculiar legal nature (a hybrid dependence from the State and the local entities where they work) and play a leading role in the day-to-day business of the local authorities. Usually, they manage some specific proceedings under his responsibility, they oversee the legality of the decisions, plans and regulations approved by the local body, they attend the meetings of the Council and the Executive board (and records the minutes), etc. The local clerk may be pooled by several neighbouring municipalities, something that happens more and more frequently for the sake of reducing costs of administration.

 

As for the specific requirements of Article 6, paragraph 2 of the Charter, the overall impression is rather negative. Italian local authorities do not have enough qualified personnel, as a consequence of the structural reforms and budget cuts implemented in the last years. Those entities have no possibility to have a meaningful “personnel” policy, due to the financial and budget cuts (tagli lineari) established by different State laws and regulations (especially by the annual Stability plans). For instance, a cross-cutting “freeze” on personnel was established, so as a rule there is no possibility for local authorities to hire new personnel. There are exceptions in case of mergers of municipalities, as mentioned supra.

 

This appraisal is especially severe in the case of the Provinces. In fact, those bodies had to reduce significantly their staff (up to 50%, according to provincial leaders). This obligation was accomplished by means of anticipated retirements, transfers to the regions or to other bodies, etc. The implementation of the Delrio Act involved the transfer or reassignment of up to 20,000 provincial civil servants. This is supposed to be the biggest public employees reorganisation in the history of the republic. The situation was described as almost catastrophic by the said representatives. They claim that there is as a total “blockade” by provincial leaders in terms of new recruits, continuous training, and professional career.

 

Furthermore, the delegation was also told that, in general, the work in local administration is usually unattractive for young and qualified people, not only for economic reasons but also for the lack of a meaningful administrative “career” and the few possibilities for promotion.

 

In conclusion, it seems to the rapporteurs that the requirements of Article 6, paragraph 2 of the Charter are not met in general in Italy.

Article 7.1
Conditions under which responsibilities at local level are exercised - Article ratified

The conditions of office of local elected representatives shall provide for free exercise of their functions.


The analysis of Article 7 in the Italian context should be carried out following the different indents of that provision. Thus, apparently there is no problem with Article 7, paragraph 1, that deals with the “free exercise of the functions” of local elected representatives. This independent action is enshrined in the legislation and the interlocutors met during the visit did not report cases of political coactions or similar hindrances on the “free” exercise of political level (the rapporteurs do not refer, of course, to criminal constraints or pressures coming from the organised crime, unfortunately a well know problem in the Italian landscape, especially in some areas of the country).

Article 7.2
Conditions under which responsibilities at local level are exercised - Article ratified

They shall allow for appropriate financial compensation for expenses incurred in the exercise of the office in question as well as, where appropriate, compensation for loss of earnings or remuneration for work done and corresponding social welfare protection.


As regards Article 7, paragraph 2, the assessment may differ according to municipalities and provinces and metropolitan cities. In the case of municipalities, local council members do not receive, as a rule a permanent “salary” or pay. At most (especially in big and some middle-sized municipalities), they receive an allowance or indemnity (gettone di presenza) for participating in the different meetings of the council and its commissions (Article 82, paragraph 2, Testo Unico), and the reimbursement of the costs of travelling (Article 84, Testo Unico).

 

The mayors do receive a remuneration for the exercise of their functions (called “indennità” by the Unified Laws and by Decree-Law No. 174/2012). This pay is regulated in detail by a Decree that is approved by the competent State minister, in the framework of the guidelines and criteria established by the legislation on local authorities (for instance, the population of the Comune). Italian municipalities can determine in an autonomous way the remuneration or financial compensation to be granted to the mayors, within the limits of the said State decree. For instance, in municipalities having up to 1,000 inhabitants, the maximum is 1,291€ per month. This amount escalates according to the population, and in the municipalities with more than 500,000 inhabitants, the indennità´s amount is 7,019€. The members of the local council receive an “allowance” or compensation for assisting to the meetings of the said council or other statutory bodies thereof (Gettoni di presenza). Here again the amount varies according to the city´s population: from 17€ in towns with up to 1,000 inhabitants, to 103€ in cities having more than 500,000 inhabitants. As for the actual amount of the said pay, in general the feeling is that it may be considered as “fair”, taking into account the different national realities in Europe and the delicate economic situation of the Italian public sector. Apart from this main “retribution”, mayors and the members of the local councils may receive allowances and other types of compensations for expenses incurred in the fulfilment of their tasks.

 

In the case of provinces and metropolitan cities, however, the situation is far less satisfactory. As a matter of fact, the Delrio Act broke the historical practice and legislative provision that provincial councillors and presidents should receive remuneration or at least compensation for their work as local representatives. The same rule was extended to the Metropolitan cities that have replaced some of the provinces. In this sense, Article 84 of the Delrio Act provided that the positions of President and members of the Provincial Council will be discharged in a non-remunerated way (sono esercitati a titolo gratuito), and Article 24 of the same Act did the same with the positions of presidents and members of the metropolitan cities.

 

This deplorable situation was the target of strong disapproval uttered by the provincial leaders and by the Union of the provinces. They complain of course about this strange situation, but also by the fact that the non-existence of retributions, salaries or allowances has a catastrophic effect on the possibility to have qualified leaders engaged in the provincial political life, a contention which seems understandable. Many people are “de facto” prevented from getting involved in provincial politics.

 

Ministerial representatives, replicated that the situation is not truly as the one depicted by provincial leaders and see the situation from another perspective. First, the measure was taken to get savings in the public expenses. Second, they content that in reality provincial representatives do get a sort of payment: if the mayor of one municipality is elected as president of his province, he still obtains the allowances and indemnities that corresponds to him as a mayor. This indication does not deny the fact that, under the current legislation, someone will be responsible for discharging two positions (that of mayor and that of President of the province) that are highly demanding, but receiving only one “salary”. That is, two jobs with only one salary. It is clear that “nobody can serve two masters…” In the case of the members of the provincial Giunta, the situation seems to be even worse, for there is no fixed remuneration for any of the jobs.

 

In the light of the above, the rapporteurs consider that Article 7, paragraph 2 is not respected in Italy, in the case of Provinces and Metropolitan Cities.

Article 7.3
Conditions under which responsibilities at local level are exercised - Article ratified

Any functions and activities which are deemed incompatible with the holding of local elective office shall be determined by statute or fundamental legal principles.


As regard Article 7, paragraph 3 of the Charter, this provision is complied with, in the sense that the Testo Unico (Articles 63 to 65) and the electoral legislation determine what functions and activities are deemed incompati­ble with the holding of local elective office.

Article 8.1
Administrative supervision of local authorities' activities - Article ratified

Any administrative supervision of local authorities may only be exercised according to such procedures and in such cases as are provided for by the constitution or by statute.


As a rule, the control of the State (or of the region) over local authorities is very limited, it is strictly regulated in the Law and covers aspects of legality. Two different aspects need to be addressed here: the system of inter-administrative controls. The role played by other State bodies such as the Court of Auditors (corte dei Conti).

 

The inter-administrative controls over local authorities have experienced a profound change in the last decades. For a long time, a rather strong control over local authorities was in place (mainly performed by the region, which could annul local decisions) and this situation was already criticised by the 1997 Congress Recommendation. There were different types of controls: control of legality and control of expediency. In the nineties, though, the system was totally revamped in order to grant local governments more autonomy and to reduce the controls exercised so far by State and regional bodies. Another constitutional reform in 2001 eliminated most of the inter-administrative controls that were exerted by regions, as they were found ineffective. Consequently, as a rule local authorities do enjoy full autonomy in their day-to-day activities in adopting their decision, plan, policies and regulations without the need to get the prior approval of State or regional bodies (while in the case of delegated competences, however, the legislation or the delegating decision may establish specific sorts of supervision).

 

This general rule does not mean that there are no inter-administrative controls. These are regulated by the Constitution, by the general legislation on local authorities and by sectoral legislation. Different techniques and controls may be identified. To begin with, under Article 120 of the Constitution the government may intervene in certain cases of measures adopted by local and regional authorities. This power (called “power of substitution”) is only possible in three cases or situations:

 

non-compliance of the local authority with legal rules, international treaties and EU legislation;

serious threats to public safety and security;

when it is necessary to preserve the legal or economic unity of the country, and particularly if this is needed to guarantee the basic levels of social and civil entitlements of the population (Article 120, paragraph 2 of the Constitution).

 

Those constitutional provisions were supplemented by Act No 131, of 2003, which regulates in detail the procedure to implement this substitutive power of the State or the regions, a procedure where the local or regional authority must be heard. Scholars underline that this power must be construed as an extraordinary device, according to the case-law of the Constitutional Court.

 

A second type of inter-administrative control is now enshrined in the general legislation on local authorities (mainly, the Testo Unico). Under Article 138 of this legislation, the central government, on proposal of the Ministry of the interior, may annul the illegal (or illegitimate, in Italian) decisions adopted by the local authorities. This device is called extraordinary annulment (anullamento straordinario) and a precise procedure must be followed: this power has to be discharge by means of a decree of the President of the Republic, with the previous deliberation of the Council of Ministries and the opinion of the Council of State. The delegation did not hear complaints about a possible misuse or abuse of this extraordinary form of control. In any case, the procedural and legal guarantees that are established make us understand that it is only applied when the protection of the legal order is required (as this is the main ground for exercising it).

 

Other types of controls may be specified by sectoral legislation. For instance, the prefect (prefetto) may carry out supervisory and substitutive controls over the functions that are discharged by the mayor in his capacity of State government representative, which include the civil register, elections, statistics and military service matters.

 

Beyond the typical forms of inter-administrative controls, there are (like in other countries) exceptional powers of the State over local authorities, such as the power to dissolve the local entity. In this sense, the Unified Laws or Testo Unico also provides for the possibility to dissolve the local council and to remove the local administrators as a sanction in some circumstances, like the non-approval of the local budget in the way prescribed by the Law. It should also be recalled that in 1991, the possibility to dissolve the municipal and provincial councils that were suspected to have “mafia-like” infiltrations was introduced in the legislation.

 

The outbreak of the economic and financial crisis has had a notable impact in the pre-existing system. In the last years, the financial and budgetary controls over the economic activity of local authorities have been multiplied, with the justification that there were necessary to attain different objectives in the struggle against the public deficit, the consecution of balanced budget and some stability objectives.

 

This leads to consider the growing role of the Court of Auditors (Corte dei Conti). The Court of Auditors is an independent institution established by the Constitution (Article 100) and according to that provision it carries out the “ex ante” audit on Government acts and the compliance, financial and performance audit on State budget and local government budgets. The Law 20/1994 is the main reference for the audit activity. The Court of Auditors supervises, among other things, all financial and budgetary and financial operations of local governments. In doing so, it performs different types of controls, fact finding and verification practices. These powers are constitutionally enshrined at Article 81 of the Constitution. Currently, this State body performs a key role in the control of local (and regional) accounting, budgeting and public expenditures. Since 2003 the Court of Auditors carried out a « verification » on the respect of budgetary balance as respected by municipalities, provinces and metropolitan cities. This role has been dramatically reinforced by the successive annual Stability Plans and by different pieces of legislation, especially the Act No. 213 of 2012. In this sense, the Court of Auditors enjoys increased power to carry out its « verification » powers. While confirming a collaborative nature audit, the Regional Audit Chambers verify, every six months, the legality and regularity of the management, the functioning of internal controls and the budget balance as well as the respect of the annual objectives fixed by the internal Stability pact (until 2016) and the debt constraints established by the Article 119 of the Constitution. They verify the implementation of the measures addressed to the rationalization of public expenditures of local bodies (so-called spending review) and in some circumstances (negative result in the audit activity) may determine prohibitive measures on expenditure laws, as well as procedures concerning financial bail lout plan. That is, in some circumstances, a negative result in this « verification » process may determine some sanctions on the concerned local authorities, something that has an evident impact on the local autonomy, as has been pointed out by some scholars.

 

In light of the foregoing, Article 8 of the Charter is respected in Italy.

Article 8.2
Administrative supervision of local authorities' activities - Article ratified

Any administrative supervision of the activities of the local authorities shall normally aim only at ensuring compliance with the law and with constitutional principles. Administrative supervision may however be exercised with regard to expediency by higher-level authorities in respect of tasks the execution of which is delegated to local authorities.


Consult reply indicated at article 8.1

Article 8.3
Administrative supervision of local authorities' activities - Article ratified

Administrative supervision of local authorities shall be exercised in such a way as to ensure that the intervention of the controlling authority is kept in proportion to the importance of the interests which it is intended to protect.


Consult reply indicated at article 8.1

Article 9.1
Financial resources of local authorities - Article ratified

Local authorities shall be entitled, within national economic policy, to adequate financial resources of their own, of which they may dispose freely within the framework of their powers.


As in other European countries, the financial aspects of local autonomy are perceived by local politicians as one of the most controversial aspects of the current situation. As a matter of fact, most of the attention and remarks made during the visit had to do with this topic. Three main ideas should be here presented as the general framework of local finances in Italy: the constitutional context, the economic-political scenario and the key legal framework governing this matter.

 

For what concerns the first point, local finances are regulated by different constitutional provisions and principles, which form the so-called “Fiscal Federalism” (federalismo fiscale). On the one hand, and from the perspective of the allocation of powers between the State and the regions, it should be underlined that, after the constitutional reform of 2001, local finances are characterized as a concurrent competence. The regions have legislative powers in this area, but the State keeps control of the fundamental principles. As a consequence: (a) the regions can establish local taxes, “as long as they do not hit elements already taxed by the State”. Regional Laws may also determine variable tax rates and establish other schemes for co-participation for local authorities in the regional taxes; (b) the financial situation of local authorities may present differences around the country, especially in the regions having a special status, since they manage almost entirely their own resources and have increased competences in the field of local government.

 

Moreover, the Constitution provides substantive principles in the domain of local finances (Article 119). To begin with, local authorities shall have revenue and expenditure autonomy, “subject to the obligation to balance their budgets”. Moreover, they will have “independent financial resources. They set and levy taxes and collect revenues of their own”. They have also the right to have a share in the State revenues. On the other hand, it is established that “State legislation shall provide for an equalisation fund”. As for the principle of commensurability, it is explicitly guaranteed at Article 119. 4th indent: Revenues raised from the above-mentioned sources shall enable local authorities “to fully finance the public functions attributed to them”. Finally it is provided that the State shall allocate supplementary resources and adopt special measures in favour of specific local authorities “to promote economic development along with social cohesion and solidarity”. These constitutional principles have been further elaborated by a bunch of rulings of the Constitutional Court (i.a., Rulings No 37/2004 and 425/2004).

 

Therefore, the basic requirements of Article 9 of the Charter seem to be enshrined in the domestic constitution.

 

For what concerns the economic-political scenario, the whole situation is pervaded by the governmental policies and laws approved by the government and Parliament to fight the economic crisis, to control the public deficit, and to comply with the Stability plans and other strategies required by European Union. This framework has prompted the adoption of different measures, the most important ones being the Stability Plans, approved every year since 1999. These plans involve numerous measures and objectives, such as linear budget cuts, reinforced budgetary balance obligations and even financial penalties, which have hit in a dramatic manner the local finances, and has led to a limitation in their spending autonomy. The situation seems to be critical in the case of provinces. This picture was already underlined by the previous monitoring visit carried out by the Congress in Italy, back in 2012. Unfortunately, this panorama is likely to remain the same at least in the short future, since the Italian economy, according to our interlocutors, is not recovering at the desired pace. Fiscal decentralisation has not been deepened since the last monitoring visit, just the reverse. The overall picture may present variations and nuances in some regions having a special status.

 

Finally, the key legal framework is represented by a set of laws and regulations, whose backbone is the Fiscal Federalism Act of 2009 (Act No 42, of 5 May 2009), as amended. This key statute enables the approval of further regulatory measures, and enumerates general and specific guiding principles. Among those principle stands that of coordination of public expenditures, consistency, financial discipline, rationalization and budget balance. The continuous amendments and readjustments to this statute make the picture difficult to depict as stable. In any case, the current situation and trends may be summarily described as follows:

 

Municipalities

 

Main sources of municipal income

 

Local taxes

 

Traditionally, municipal taxes included the tax on real estate, a housing tax (ICI), a tax on the collection and disposal of waste; a supplementary (local) income tax; a publicity tax and a tax on the occupation of public spaces. There have been several changes in this picture: some taxes have been eliminated, while others have been renamed and new acronym introduced, which sometimes makes the matter hard to understand. The main changes are:

 

The single municipal tax (imposta unica comunale, IUC), established by the Act No 147 of 2013. The details and operative elements of such tax may change from year to year, which makes difficult to present a “stable” situation.

In reality, this tax embraces or unifies three other local taxes:

 

The IMU (imposta municipale propria), which is a real estate tax. It hits owners of real estate that is registered in the cadastre (buildings, farms, urban and farm land) and other real estate rights. This tax does not hit the personal, main housing (except if it is a luxury housing), but only secondary residences. The taxable base is determined in connection with the value of the property according to the cadastre. The regular tax rate is 0,76% of the taxable base, but municipalities may increase or reduce such rate, with a maximum of 0,3%. There are specific tax exemptions, which change from one year to another.

 

 

The TASI, or tax for indivisible services. This is a supplementary real estate tax, which hits among other things the main residences if they are considered luxury housing. It is supposed to meet the expenses for the delivery of lighting, street cleaning, green areas and services that are provided equitably by municipalities to all citizens;

 

The TARI (tassa sui rifiuti, a tax on waste). Formerly “TARES” and other denominations such as “TARSU”. The amount is determined by the municipality, within the guidelines that have been determined by State regulations and which, in any case, must ensure the integral covering of the cost of the service of collection and treatment of waste).

 

The ADDIRPEF, a municipal surtax on the personal income tax. Municipalities may decide to establish such surtax (addizionale), with a maximum of 0,8% (for Roma Capitale, 0,9%).

 

The ICPDPA, a municipal tax on external publicity and billposting.

 

Other taxes, such as the touristic tax (imposta di soggiorno) and the contribution (contributo)  on disembarkation. The first one can be collected by some municipalities such as the capital of the province (capoluogo), the unions of municipalities and other touristic spots. The latter can be collected by municipalities in some minor islands, as an alternative as the touristic tax.

 

Charges and fees

 

Italian municipalities may collect several fees and charges. Among them:

 

The CIMP. This is a fee for the installation of publicity, which may replace the ICPDPA (tax on publicity), if the municipality finds it appropriate;

 

The TOSAP, a fee for the occupation of public spaces (such as streets, boulevards and parks) by economic activities, such as bars, stores, etc.

 

The COSAP, another fee for the occupation and use of public areas and spaces, which may substitute the TOSAP.

 

The ISCOP: a charge that may be collected to cover the cost of some public works by the municipality.

 

Non-fiscal income

 

Italian municipalities may get income of no fiscal nature, such as the revenue from business, commercial activities and revenue from the ownership of property (sale of movable and immovable property); interests from deposits or other financial products; collection of traffic and parking fines and other administrative offences; financial operations: the municipalities can ask for loans from the private sector and they can issue bonds. However, this source of income has been subject to many restrictions, in the framework of the struggle against excessive public deficit. According to Article 119 of the Constitution, local authorities can only have recourse to indebtedness in order to finance investment expenses, not their running costs.

 

Transfers and equalisation schemes

 

Italian municipalities may receive different types of transfers:

           

 

Transfers from equalisation mechanisms: the lack of meaningful equalisation mechanisms has been a traditional feature of the Italian system of local finances, and the 2012-13 Congress Monitoring still reported that “there is no general scheme in operation and this continues, therefore, to be a huge gap in the implementation of fiscal federalism”. The present 2017 visit, however, has revealed that significant progress has been achieved, although the situation was still assessed as unsatisfactory by the interlocutors met during the visit. Currently, the fund of local solidarity (fondo di solidarietà comunale, FSC) is the most important tool for equalisation. This equalisation Fund was created by the Law No. 228/2012, and replaced the preexisting “Fondo Sperimentale di Riequilibrio”. This Fund, and the respective allocations received by the municipalities in the regions of ordinary status (plus Sicily and Sardinia) is managed by the Central Direction of Local Finance, in the Ministry of the interior. The amounts to be received by the municipalities are calculated according to a complex set of variables. The Solidarity Fund envelope for 2016 was 6,442 million €.

Ad hoc Transfers and subsidies from the State budget:  municipalities may receive transfers for the performance of joint projects or public works.

EU Funds: municipalities may benefit from the several EU funds established in the domain of urban development, rural development and other fields related to the municipal life. Italy has also received extraordinary funds to remedy the situation caused by emergencies like earthquakes in the L´Aquila area.

 

The current overall situation of municipal finances was diagnosed in a contradictory way by the interlocutors of the delegation. Local leaders consider the situation as unsatisfactory in general, as far as the flexibility and sufficiency of financial resources is concerned. Their main claims may be summarized as follows:

 

while the biggest part of the public deficit is on the shoulders of the central government (48,4 billion € in 2015, against a surplus of 1,5 billion€ on the part of municipalities) local finances have been hit in disproportionately severe  way. The budget cuts (tagli lineari) imposed on the municipalities do sum up more than 9 billion€ between 2011 and 2015.

Since 2012, the State transfers to municipalities have been continuously reduced: from roughly 10 billion € in 2012, to 1,4 billion € in 2015.

Since 2015, the fund for municipal solidarity (FSC) is provisioned solely by the IMU local tax.

In 2015 the State net contribution to the municipality finances was even negative: the municipalities have done a net contribution of 628 million€ to the State budget.

 

In a nutshell, they claim that the system of local taxes is not satisfactory and that the total amount of disposable resources is not enough. Moreover, some local leaders are not satisfied with the manner how funds are calculated, and according to them there is not enough equalisation. They also allege that the budget cuts (tagli lineari) were decided unilaterally by the Government and imposed in a rather executive way. In this sense, mention should be made to several reports and opinions performed by the Court of Auditors (Corte dei Conti) in recent years. In these reports (namely in one released shortly before the visit of the delegation) the said Court found that municipalities are not adequately funded to discharge their statutory services and responsibilities.

 

A different viewpoint is that of the central government. The relevant ministry contends that the current system is fair for the country, taking into account the current economic crisis. Government official assert that the current financing has been established according to the “standard costs” (fabbisogni standard) for the fundamental functions of municipalities. The current system ensures, at least, the adequate delivery of such fundamental functions. They also understand that the principle of commensurability of local finances (as proclaimed by the Constitution) is respected. Moreover, in order to counterbalance the negative fiscal effects on the municipalities of the abolition of the TASI for main residences, the central Government has allegedly increased the FSC by 3,5 billion€ for compensatory transfers.

 

Independently from the official position of the Government, it is clear from tables and data provided by municipal associations and leaders that the own revenues of municipalities have decreased in recent years, and so have the state transfers.

 

Provinces

 

The main sources of own revenues for the provinces (taxes and charges) are the following:

 

IPT, imposta provinciale di trascrizione. This is a tax that hits the inscription of cars and other vehicles in the transit register, and other modification in the said register. The tax rate depends on the fiscal power of the car. The provinces may increase the said rate up to 30%;

RC-Auto; this is a tax that hits the insurances of civil responsibility derived from transit accidents. The provinces may also increase or reduce the tax rate;

TEFA: this is an environmental tax, that is supposed to finance the provincial services in the domain of protection and restoring of the environment. This is a derivative provincial tax, and is complementary to the local TARI (waste tax);

TOSAP: this tassa functions like the equivalent one in the case of municipalities.

 

From the perspective of the Charter, the assessment of the financial situation of provinces is, according to the delegation, rather negative.

 

To begin with, the financial legislation of the period 2013-16, together with the institutional review under Law No. 56 of 7 April 2014 and the reduction of tax revenues, has provided for a reduction of resources amounting to 4,25 billion€, with a severe repercussion on their capacity to perform their functions. Second, the Stability Act of 2015 established that provinces and metropolitan cities would contribute to the containment of public expenditures by means of a reduction of running costs (linear cost or tagli lineari) of one billion € (900 million € for the provinces of the regions of ordinary status and 100 for the provinces of Sicily and Sardinia). This reduction should be in the amount of 2 billion in 2016 and 3 billion in 2017.

 

The government representatives declared that they are aware of this situation and that in 2016 (Act No. 208 of 28 December 2015, Stability Act of 2016) some measures were adopted in favour of metropolitan cities and provinces. In particular, 495 million€ of complementary contributions were granted to the provinces for roads and school buildings, 100 million€ for extraordinary road maintenance works, 20,4 million for staff expenditure and 39,6 for the maintenance of balanced budgets. The total amount of those complementary contributions for the incoming years are supposed to be 470 million€ for the years 2017-2020.

 

In any case, the representatives of the provinces (at least those placed in the regions having an ordinary status) do evaluate their financial situation as clearly insufficient. They claim that the own revenue is far to cover the expenses for the fundamental functions of the provinces. In addition, and under the “spending review” strategy embodied in the Act No. 190/2014, the provinces must transfer to the State a significant amount of the fiscal effort obtained in the provinces.  This would go clearly against Article 119 of the Constitution. According to the provincial leaders, in 2017 the provinces of the regions having an ordinary status will have to “reimburse” or repay to the State more than 1,6 billion €, a sum which is close to the amount of the total collection of the provincial own taxes: according to the UPI, the tax revenues for the provinces in 2014 accounted for a total of 2,095 million€ (660 million for the tax on transcriptions; 1,250 million for the insurance tax, and 185million for the environmental protection tax). Consequently, the net amount of the tax collection that will stay at the disposal of the province will only be 446 million € (2,095 billion minus 1,6 billion in transfers to the State). However, the discharge of the three fundamental functions for the 76 provinces placed in the regions having an ordinary status (roads, schools and environmental protection) would need at least 1,305 million €. The imbalance is, thus, quite clear.

 

Finally, they remind that they manage today more than 130,000 kilometers of provincial roads and 5,100 schools, hosting in total more than 2,5 million students ad claim that they do not have the resources to manage and conserve appropriately those facilities and infrastructures. This is not only a problem of sufficiency of means to provide good quality services, but a source of personal concern among the provincial leaders. In the case of an accident in a provincial road or in a school, the Law does not only provide of course for the civil and administrative responsibility of the province, but also in some extreme cases the criminal liability of the provincial leaders, as long as the accident was caused by a bad maintenance or conservation of the facility. Therefore, provincial leaders feel that, on the one hand, they could be prosecuted in the criminal courts, but on the other they do not have the financial means to avoid the risky situation.

 

The UPI pointed out that, as a result of these different financial measures, there is an imbalance in the budgets of the provinces which allegedly amounts to 650 million€, as certified by the public company “SOSE”. The overall situation can be singled out in certain provinces. In this sense, the delegation was briefed about the extremely difficult financial situation of the province of Belluno, in the Veneto region. The rulers of this province informed the delegation that there is an acute imbalance in the provincial budget for 2017. The total expenses for the discharge of the “fundamental functions” have been budgeted in 29,200 million€ and they have estimated tax revenues in the amount of 23,800 million€. However, they are obliged to transfer or repay (riversamento) to the State funds in the amount of 22,915 million€. Therefore, there is an imbalance of some 28,315 million€. The data are quite illustrative and show a dramatic situation.

 

The Court of Auditors has also made its voice heard in this area. In an important report released shortly before the visit of the delegation, the Corte dei Conti has affirmed that provinces do not have the adequate financial resources to accomplish their tasks; that the provinces should no longer suffer from the effects of the “programmed suppression” of these bodies; and that they must have the necessary personnel, financial and instrumental resources to carry out their fundamental functions and to guarantee the essential services for the citizens and for the territory.

 

Additional aspects

 

In the domain of budgeting, all municipalities are free to draft and to approve their own budgets, but in recent years the budgetary discipline of the State (mainly by the Corte dei Conti) has been sharply increased. “Budgetary discipline” is now the golden rule.

 

Although the Law sets some specific limits and clear on the public debt and on the deficit of local authorities, the indebtedness of local authorities is still a hot issue. The precise rules governing the extreme cases of insolvency are laid down at Articles 244 and ff. of the Testo Unico. According to information facilitated by the Ministry of the Interior, in recent times 102 local authorities have resorted to financial failure, including large-size municipalities like Alessandria or Potenza. The peaks are in Sicily, Campania and Calabria. Cases of financial instability did affect some provinces, too (Biella, Caserta).

 

Finally, and as far as municipal property is concerned, Italian local authorities have their own property, goods and assets. This is specifically guaranteed by Article 119, last indent, of the Constitution. The situation on this issue seems to be quite satisfactory. The right to own land and real estate property is fully recognised to local authorities, and they manage their assets in a free way. In the case of the provinces, thought, a specific information should be underlined: As a consequence of the Delrio Act, the provinces were partly dismantled in several ways; their “non fundamental” functions were transferred to the regions, and part of their personnel and assets were alto transferred, according to some criteria that were negotiated in the Joint Conference.

 

In view of the foregoing, it appears to the rapporteurs that Article 9 of the Charter is not respected in Italy, especially in the case of provinces.

Article 9.2
Financial resources of local authorities - Article ratified

Local authorities' financial resources shall be commensurate with the responsibilities provided for by the constitution and the law.


Consult reply indicated at article 9.1

Article 9.3
Financial resources of local authorities - Article ratified

Part at least of the financial resources of local authorities shall derive from local taxes and charges of which, within the limits of statute, they have the power to determine the rate.


Consult reply indicated at article 9.1

Article 9.4
Financial resources of local authorities - Article ratified

The financial systems on which resources available to local authorities are based shall be of a sufficiently diversified and buoyant nature to enable them to keep pace as far as practically possible with the real evolution of the cost of carrying out their tasks.


Consult reply indicated at article 9.1

Article 9.5
Financial resources of local authorities - Article ratified

The protection of financially weaker local authorities calls for the institution of financial equalisation procedures or equivalent measures which are designed to correct the effects of the unequal distribution of potential sources of finance and of the financial burden they must support. Such procedures or measures shall not diminish the discretion local authorities may exercise within their own sphere of responsibility.


Consult reply indicated at article 9.1

Article 9.6
Financial resources of local authorities - Article ratified

Local authorities shall be consulted, in an appropriate manner, on the way in which redistributed resources are to be allocated to them.


Consult reply indicated at article 9.1

Article 9.7
Financial resources of local authorities - Article ratified

As far as possible, grants to local authorities shall not be earmarked for the financing of specific projects. The provision of grants shall not remove the basic freedom of local authorities to exercise policy discretion within their own jurisdiction.


Consult reply indicated at article 9.1

 

Article 9.8
Financial resources of local authorities - Article ratified

For the purpose of borrowing for capital investment, local authorities shall have access to the national capital market within the limits of the law.


Consult reply indicated at article 9.1

 

Article 10.1
Local authorities' right to associate - Article ratified

Local authorities shall be entitled, in exercising their powers, to co-operate and, within the framework of the law, to form consortia with other local authorities in order to carry out tasks of common interest.


Concerning the application of Article 10, paragraph 1: In Italy, the right of local authorities to associate and to form common organisations and structures for the delivery of local services is fully recognised. As a matter of fact, the Italian system provides for different possibilities for municipalities to form co-operative structures in order to carry out their common tasks and public services. This legislative situation is in a certain way unavoidable in ca country with so many and small municipalities (some 5,567 municipalities have less than 5,00 inhabitants as of 1 January 2016). The Testo Unico regulates under different headings the “communities” and the “associative forms”, and the regions (especially those of Special Status, may established other forms or co-operation). For what concerns the first ones, there are “Mountain-area community” (comunità montana, Article 27) and island communities (comunità isolana, Article 29). The first ones may be established in the mountainous areas and may discharge in an associative manner the functions attributed to municipalities, as well as any other function that can be attribute to them by the provinces or by the regions (Article 28). The second ones may be established in the different islands, except in Sicily and Sardegna, and they follow the same rules as the comunità montane.

 

There are three basic associative forms (forme associative): the conventions (convenzioni), the consortia (consorzi) the unions of municipalities (unione di comuni) and the program agreements (accordi di programma). The Conventions may be defined as agreements performed by two or more municipalities regulating the coordinated discharge of common tasks and services, under some requirements that are regulated in a sketchy way at Article 30 of the Testo Unico. Consortia are organisation formed by municipalities and by other public entities, for the associative management of one or more public services. Contrary to what happens with the Convenzioni, the Consorzi are fully recognised as local entities, and they must have an assembly and a management board of their own (Article 31, Testo Unico). Finally, the unions of municipalities are certainly the most important form of inter-municipal associative structure. They are formed by two or more municipalities for the associative exercise of their functions and services, and they are also recognised as local entities (Article 32). Contrary to consortia, that discharge usually one single task, the union may discharge different tasks, and they are multi-functional. Regions, especially the “special status” ones, have authority to regulate in more details these co-operative instruments and entities.

 

 

 

On this aspect of the Italian system, there are three main ideas that should be underlined in this report:

 

First, the cooperative structures are well developed. According to 2017 data, 69% of municipalities have adopted one or more conventions, 38% form part of consortia and 27 % are members of Unioni. The number of Unioni was 586 in February 2017. Among the “associative forms”, the unions of municipalities are clearly the most important ones and they have been sometimes seen as precursors of municipal mergers.” Second, recent State legislation (mainly the Delrio Act) introduced measures to revamp the field of inter-municipal cooperative structures. In particular, that statute tried to reduce the cooperative formulae, to discourage both the consortia and the mountain authorities, and to favor the Unioni and the “convenzioni”. Apparently, there is a political willingness to suppress step by step the consortia and other forms of co-operation, such as the mountain communities. On the other hand, a minimum joint population of 10,000 inhabitants among the interested municipalities is now required to found a new union of municipalities. The Unions may be also fostered and supported by the regions, in terms of financial assistance or specific projects.

 

Third, since 2010 (Decree No 78 of 2010) the government has established for municipalities under 5,000 inhabitants the obligation to carry out their “fundamental functions” by means of partnerships, through a Union or a Convention. The main rationale is the need to make savings in the public expenditures and to “rationalise” the public sector. However, since then the deadline for implementing this obligation has been successively postponed. The “current” target date is supposed to be 31 December 2017.

 

In view of the precedent, it may be concluded that Article 10, paragraph 1 of the Charter is respected in Italy.

Article 10.2
Local authorities' right to associate - Article ratified

The entitlement of local authorities to belong to an association for the protection and promotion of their common interests and to belong to an international association of local authorities shall be recognised in each State.


As regard Article 10, paragraph 2, the right of local authorities to form associations for the representation and defense of their interests is fully recognised in Italy, and the vitality of the associations life is the best argument to support the full compliance with Article 10, paragraph 2. In this sense, the most important local associations are: ANCI (associazione nazionale di Comune d’Italia). This is the largest and most important national association. The municipalities that have adhered are more than 7,300, representing 90% of the overall number. This association has also “regional” chambers or sections; UPI (unione delle provincie italiane): this is the association of Italian provinces, and currently a powerful and clear voice of the provinces in the changing political landscape. It represents all Italian provinces, except those of Trento and Bolzano (parts of a region having a special status); UNCEM is the association representing the mountain towns and communities; AICCRE is the “Associazione italiana per il Consiglio dei Comuni e delle Regioni d’Europa”. It is the Italian section of the CCRE (Conseil del Communes et des Regions de l´Europe).

 

Apart from these “institutional” associations, formed by “genuine” local entities, there are other associations at regional level.

 

These associations are very active and play an important role in the defense and advancement of the interest of they represented local authorities. The Minister of the Interior affirmed that ANCI and UPI are fully recognised as partners and that they entertain fruitful relationships.

 

In light of the precedent, Article 10, paragraph 2 of the Charter is respected in Italy.

Article 10.3
Local authorities' right to associate - Article ratified

Local authorities shall be entitled, under such conditions as may be provided for by the law, to co-operate with their counterparts in other States.


On Article 10, paragraphe 3: As noted in the introduction of this report, the Italian has signed and ratified the European Outline Convention on Trans-frontier Co-operation between Territorial Communities or Authorities (signed on 21 May 1980 and ratified on 29 March 1985. Entry into force for Italy: 30 May 1985). On the other hand, Italy has signed, but not ratified yet the addition protocol to the European Outline Convention on Trans-frontier Co-operation between Territorial Communities or Authorities, of 9 November 1995, ETS No.159. And, finally, Italy has not yet signed Protocols No.2 (1988) and No. 3(2009) to the European Outline Convention on Trans-frontier Co-operation. The delegation did not hear any official position of Italy as to the ratification of the said Protocol.

 

At the same time, the rapporteurs did not hear any complaint about limitations or constraints imposed by the State on local authorities in order to engage in trans-frontier co-operation. This co-operation is especially fruitful in some territories in the north where German is the coofficial Language (for instance, Alto Adige/Südtirol). Italian municipalities have established partnerships, agreements and twining with towns and cities in other countries.

 

In light of the precedent, Article 10, paragraph 3 of the Charter is respected in Italy, that is why the rapporteurs do not see any reason not to ratify the above mentioned Conventions in a near future.

Article 11
Legal protection of local selfgovernment - Article ratified

Local authorities shall have the right of recourse to a judicial remedy in order to secure free exercise of their powers and respect for such principles of local self-government as are enshrined in the constitution or domestic legislation.


The implementation of this article of the Charter in Italy should deserve a nuanced assessment. It is true, as noted supra, that Italian local authorities enjoy a large scope of autonomy, an autonomy that is protected both by the Constitution and by the legislation on local government. It is also true that local authorities, as legal entities, do have the right to go to ordinary or regular courts in order to defend their statutory rights, interests, assets and properties. Local authorities can also go to the administrative courts, where they can defend their statutory rights and interests, as well as their autonomy, if it were ignored or reduced by a decision, plan or policy of the central government or by regional agencies. In this field, the regional Administrative Courts and above all the Council of State, play a decisive role.

 

There are different legal scenarios where local authorities may have access to the administrative courts: (1) the municipality, as an entity representing the interests of its  inhabitants, may oppose, for instance, the construction of a State project or work that are disliked by the local residents; (2) conflicts between local authorities. For example, Municipality A authorises an energy-production installation, close to the territorial limits of Municipality B. This entity opposes such projects and sues Municipality A; (3): a conflict between a municipality and a region, mainly in the field of urban management and planning. For instance, a municipality does not get the final approval of the region for a local land use plan. Then, the municipality appeals such denial in the administrative courts; (4) a conflict between a local authority and the State. For instance, in a recent case, a State department issued a circular prohibiting the inscription of same-sex marriages in the municipal civil register (this is a competence of the mayor, exercised on behalf of the State). A municipality sued the government, as it believed that such circular would be illegitimate because it would ignore local autonomy and that it would unduly interfere with the powers of the mayors. The appeal was upheld by the Council of State. The associations of local authorities have standing, also, to sue in the administrative courts on behalf of the associated local entities.

 

 

 

However, the rapporteurs would like to additionally comment on the implementation of Article 11 of the Charter when it comes to having access to the Constitutional Court. This might be useful or even necessary when a region or the central legislative powers enacts a piece of legislation that might ignore, reduce or affect negatively whatsoever the local autonomy. Under Italian public law, local authorities are not entitled to sue in this court when a region or the State approves a piece of legislation which in a way or another disrespects, reduced or limits the local autonomy. Contrary to what happens in other European countries, there is no specific remedy that those entities might use in the precedent scenario. They do not have locus standi.

 

Neither can they have automatic access to the said court by way of an incident or specific referral that they could trigger independently or automatically. It is true that, in the context of an actual administrative lawsuit triggered in scenario 3 or 4 above described, where a piece of State or regional legislation stands at the center of the legal debate, the regional administrative court may refer to the Constitutional Court and it may ask about the constitutionality of such a hypothetical piece of legislation (question of unconstitutionality). In that case, there would be an alleged violation of Article 5 of the Constitution (principle of local autonomy) and the Charter, in connection with the Constitution (especially Article 117) can be used as a parameter of validity or legitimacy of the contested law, that is, the Charter may be used as a part of the argumentative referral made by the administrative court. But the court cannot refer directly to the Charter in order not to apply the Law, and it is obliged to refer to the Constitutional Court. This specific feature of Italian constitutional law has already been presented at point 5.1, supra.

 

Nevertheless, this procedural device can only be triggered by the court, not by the plaintiff municipality, and the court will do that only if it finds that it is reasonable and justified. This situation, as explained supra, is not exclusive of the Charter, but is the result of a specific feature of the Italian constitutional system: no court may pronounce the unconstitutionality of an Act of Parliament, and if any court has doubts as to the constitutionality of that legal rule, it has to formulate a referral or preliminary ruling to the Constitutional Court.

 

This does not mean that this possibility is a closed door. As a matter of fact, in last years there have been several such referrals, which gave the Constitutional Court the possibility to adjudicate whether a given piece of legislation was constitutionally legitimate (because it was contested that it could constitute a violation of the principle of self-government). For instance, the above presented ruling No 50/2015 was the result of such a referral. The delegation was also informed that in January this year the Administrative Regional Court of Lazio made a preliminary question to the Constitutional Court in connection with a State legislative provision that imposes the obligatory merger of municipalities in some cases. According to the court, that provision could go against local autonomy. The ruling of the Constitutional Court on this case may be very interesting in the field of the protection of local autonomy.

 

In the light of the precedent, it may be concluded that Article 11 of the Charter is generally respected in Italy, since local authorities do have access to regular and administrative courts to defend their statutory rights. The rapporteurs believe that ensuring the right of local authorities to directly access the Constitutional court would give them an additional remedy to defend the principle of local autonomy against a piece of regional or State legislation undermining that principle.  In the view of the Council of State, the lack of access to the Constitutional court is, at least in part, balanced by the wide locus standi which is granted to provinces and municipalities before the Administrative courts.

 

Article 12.3
Undertakings - Non ratified

Any Party may, at any later time, notify the Secretary General that it considers itself bound by any paragraphs of this Charter which it has not already accepted under the terms of paragraph 1 of this article. Such undertakings subsequently given shall be deemed to be an integral part of the ratification, acceptance or approval of the Party so notifying, and shall have the same effect as from the first day of the month following the expiration of a period of three months after the date of the receipt of the notification by the Secretary General.


177. As noted at point 1 of this Report, the Italian Republic ratified the Charter without formulating any reservation, or with no territorial or organic restriction on its scope of application. The “declaration” annexed to the Instrument of Ratification clearly states that Italy is bound by all the articles of the Charter.
Article 12.2
Undertakings - Non ratified

Each Contracting State, when depositing its instrument of ratification, acceptance or approval, shall notify to the Secretary General of the Council of Europe of the paragraphs selected in accordance with the provisions of paragraph 1 of this article.


177. As noted at point1 of this Report, the Italian Republic ratified the Charter without formulating any reservation, or with no territorial or organic restriction on its scope of application. The “declaration” annexed to the Instrument of Ratification clearly states that Italy is bound by all the articles of the Charter.

Article 12.1
Undertakings - Non ratified

Each Party undertakes to consider itself bound by at least twenty paragraphs of Part I of the Charter, at least ten of which shall be selected from among the following paragraphs:

 

– Article 2,

– Article 3, paragraphs 1 and 2,

– Article 4, paragraphs 1, 2 and 4,

– Article 5,

– Article 7, paragraph 1,

– Article 8, paragraph 2,

– Article 9, paragraphs 1, 2 and 3,

– Article 10, paragraph 1,

– Article 11.


177. As noted at point 1 of this Report, the Italian Republic ratified the Charter without formulating any reservation, or with no territorial or organic restriction on its scope of application. The “declaration” annexed to the Instrument of Ratification clearly states that Italy is bound by all the articles of the Charter.

ACCESSION

to the Council of Europe

RATIFICATION

of the European Charter of Local Self-Government

CONSTITUTION | NATIONAL LEGISLATION

In Italy, the principle of local self-government is explicitly recognised and proclaimed in the constitution. Thus, the Constitution proclaims that the Republic is one and indivisible, but in the same provision states that the Republic recognises and promotes local and regional autonomies in view to achieve “the fullest measure of administrative decentralisation” (Article 5).



30Ratified provision(s)
0Provision(s) with reservation(s)
3 Non ratified articles
12Compliant Provision(s)
0Partially Compliant Provision(s)
2Non-compliant Provision(s)