Of Silvio Gambino *
The constitutional doctrine (at least part of it) speaks of the implementation of art. 116.3 of the Constitution in terms of a factual ‘constitutional laceration’, since it configures injuries inadmissible of the principle of equality (between people and between territories) and of the requirements of universality and effectiveness of fundamental rights (civil and social), and with them of national cohesion. The Constitution entrusts the relative guarantee to the Constitutional Court where Parliament and the law disregard their fundamental guaranteeing, egalitarian and unitary mission.
Such would, in fact, be the implementing results of art. 116, paragraph 3, of the Constitution on the subject of differentiated regionalism through the Agreements already signed (Veneto, Lombardy, Emilia Romagna) and those that would still be signed in the future, which would produce – when (or if) implemented – a regressive impact on the universality and effectiveness of the social and civil rights concerned and with them on national cohesion.
Since it determines factual (and formal) discriminations in the equality of public services and benefits between subjects in different territories (and therefore violations of the principle of equality), the issue is of particular constitutional sensitivity since the new distribution of competences between the regions (envisaged in the framework of the so-called differentiated regionalism) inevitably affects civil rights and even more so social rights.
The implementation of the law (Calderoli) n. 86/2024implementing art. 116.3 of the Constitution, furthermore, in abolish the concurrent competence within individual Regions the ‘deconstitutionalization’ substantial of art. 117 of the Constitution. With respect to the scenario that is being determined in the framework of the reallocated competences between the State and the regions, it is not unreasonable to hypothesize a possible rethinking by the State of the transferred competences, which could lead it to claim in the future a broad interpretation of its own competences, which would determine the worsening of the conflict before the Constitutional Court between the State and the regions.
In such a framework, the doctrine asks whether there is a guarantor of the fundamental rights of the subjects and of the principle of unity/indivisibility of the State. The answer recognizes the fundamental role of guarantee played in this area by the Constitutional Court, which can be called upon to enforce the provisions guaranteeing the fundamental rights enshrined in the Constitution (from 1 to art. 13 of the Constitution).
The institutional and political scenario outlined by the implementation of art. 116.3 of the Constitution, in this way, describes a framework in which, if we take note of the uncertainties of Parliament in conforming to the Constitutional Charter (as the law no. 86/2024)the Constitutional Judge himself will do so, on the basis of that same authoritative doctrine (V. Crisafulli) which framed the fundamental principles of the Charter as “super-constitutional provisions”. The scenario that can be seen in the background of the ongoing debate is therefore that of the desired appeal to the Constitutional Court, mediated by the referendum instrument, which in these hours has reached one of the necessary prerequisites (500,000 signatures) to access it.
From this perspective, if the third paragraph of art. 116 is indisputably a constitutionally established provision, the whole of Part II of the Constitution must be interpreted in the light of the fundamental principles (of equality, and of solidarity), in order to contribute to the guarantee of the exercise of the inalienable duties of solidarity which are essential to ensure the inviolable rights of the person, as an individual but also in the social formation where his personality is expressed, including territorial autonomies. Furthermore, these are already largely responsible for those social rights that the Constitution declares inviolable precisely on the basis of the principle of equality, of a substantial nature.
In this perspective, the Court of Laws will be called upon to provide its safeguards to protect the Constitution and the subjects, if certainly not with regard to the legitimacy of the ddPCM, excluded due to the administrative nature of the act (which the Government has decided to adopt for the implementation of art. 116, paragraph 3, of the Constitution). The impact of the Calderoli law which, in addition to the limits already mentioned, on the basis of the assumption of irreversibility (now downgraded to a renewable 10-year term)) of the deconstitutionalization practiced through the reallocation of fundamental competences in the field of social rights and infrastructure, should determine the recourse to the Constitutional Court to protect the fundamental principles of the Charter (according to the jurisprudence of sentence 1146/1988).
A premise – the one recalled – which aims to underline how the limits of party politics have caused the political unity of the country to run serious risks, assigning to the guarantee bodies (first of all to the Constitutional Court) the burden of taking charge – together with the guarantee of civil and social rights in every part of the territory – of the needs of political unity of the country and national cohesion.
We are now invited to reflect on all these problems (constitutional and political) also in light of the consideration already mentioned according to which the most recent legislative/governmental political direction, in the perspective of implementing art. 116, paragraph 3, of the Constitution, clearly highlights the risk of tearing apart the unitary principle and with it the (factual) inequality between citizens in the different regional territories. All this in the social body of a country that still recognizes itself in the North-South territorial dynamic, also by reason of their belonging (or not) to the Regions that signed the Agreements for the implementation of art. 116, paragraph 3 of the Constitution (inter-territorial discrimination in violation of art. 3 of the Constitution).
Such a perspective, therefore, if it does not want to run the risk of violating/regressing the fundamental principles of the Charter, must re-propose those fundamental questions that have always been raised when reflecting on the relationships between the concrete institutional forms of territorial decentralization and the problems of their compatibility with the constitutional principles that form the basis of the republican State.
For the purposes of this reflection on the (inevitable) regressive effects of differentiated regionalism on fundamental rights (civil and social) – together with the fundamental principles of unity and indivisibility of the Republic (art. 5 of the Constitution), among the fundamental principles of importance from the perspective of this analysis – a fundamental role is played by principle of equality (formal and substantial, inter-personal and inter-territorial), from that personalist and from that solidarityplaced as a whole at the basis of the republican Constitution as axiological, expressive and protective principles of the fundamental and founding values of the republican system.
This catalogue of principles and constitutional provisions aims to ensure that the territorial autonomy constitutionally provided for by the aforementioned constitutional provisions and that which is (will be) innovatively permitted in particular by art. 116, paragraph 3, of the Constitution does not affect its effectiveness, translating into the limitation of the necessary legislative and administrative performances relating to the fundamental rights (social but not only) of citizens, regardless of their territory of residence.
In this perspective, we recall, in particular (with a merely indicative list) the right to work, the right to health, the right to education, the right to social assistance and social security which, together with all the other principles and rights which are positivised in the catalogue of fundamental rights, constitute basic pillars of the social state of law and, at the same time, implementation of the principle of equality (art. 3.2 of the Constitution) and the principle of solidarity (art. 2 of the Constitution).
Together with the other fundamental principles included in the constitutional heading of Fundamental Principles, these principles inform the entire republican architecture. leading to a necessary questioning of the scope and limits of regionalism if understood (in a functionalist perspective) not as a mere reorganisation (constitutionally differentiated) of state competences between centre and periphery but rather in terms of protecting the effectiveness of rights (civil and social) of citizens regardless of the territorial boundaries of regional and local governments.
A theme – this – that, starting from the reform of Title V of the Constitution, we find at the center of the constitutional analysis and public debate, but which in an absolutely questionable way now appears to have been neglected in the implementation of art. 116, paragraph 3, of the Constitution. In the legislative conversion of the Calderoli bill, as had already been established in art. 1, paragraph 791 of the financial law for 2023, the Law No. 86/2024 (Calderoli) implementing the constitutional amendment – among other questionable provisions with marginalising effects on Parliament – in fact, has made use in a completely questionable way of the provision of ddPCM (administrative acts which, as has been critically underlined by the doctrine, escape the control provisions of the President of the Republic and the Constitutional Court) as instruments for implementing the provisions on the LEP, such formally administrative acts being subject to the mere jurisdictional control of the administrative judge.
As it has been observed, in fact, the Law No. 86/2024 (Calderoli), together with the budget law for 2023, provides for the “determination” of the LEP, elusively (and enigmatically) assuming that such a determination “can also be made on the basis of “current legislation”.
In this context, one may ask whether the procedure designed by the Calderoli law was the most appropriate form to establish such a determination which, as already observed, is exclusive legislative competence of the State.
* Unical teacher