The five mayors of the provincial capitals of Calabria – Nicholas Flowery (Catanzaro), Franz Caruso (Cosenza), Joseph Falcomata (Reggio Calabria), Vincent Voice (Crotone), Enzo Romeo (Vibo Valentia) – promoters of the appeal “Unasolaitalia” that has collected the support of 130 mayors, will bring to the Anci assembly of Lorica the reasons for the strong request, addressed to the president Occhiuto and the Regional Council, to adopt two resolutions to block the “splits Italy” law. The first to ask for the abrogative referendum following the example of Campania, Tuscany, Emilia Romagna, Puglia and Sardinia; the second to challenge the “Calderoli” law before the Constitutional Court, not in its entirety, but on specific points.
“Let us have a single voice, there is no room for mediation or phantom observers on autonomy. Either you are for, or you are against. Anci must demonstrate a united and autonomous face. Otherwise, we will go forward alone”.
The five mayors have anticipated the results of a preliminary study carried out, at the request of the mayors, by some authoritative jurists. There are at least five possible arguments for appeal that can be identified by the Regional Assembly, with good chances of success.
First point
Law no. 86 of 2024 regulates the procedure for the “specialization” of Regions with ordinary statutes that wish to acquire further forms of autonomy, pursuant to art. 116, paragraph 3, of the Constitution. However, this provision establishes that the attribution of such autonomy must take place in compliance with the principles set out in art. 119 of the Constitution, so that the law in question, in addition to not being expressly required by art. 116, is in conflict with it since the procedure provided for therein, in addition to providing for the prior determination of the Lep, leads to the attribution of such further forms of autonomy without the process of achieving regional financial autonomy provided for by art. 119 of the Charter having been previously completed. It could be decided to request the annulment of the entire law or, as seems preferable, a manipulative decision with which the Court declares art. 11 of the law (in particular, paragraph 1), containing transitional and final provisions, in the part in which it does not condition the reaching of the definitive agreement in relation to the acts of initiative of the Regions, already presented to the Government or presented in the future, to the prior complete implementation of art. 119 of the Constitution.
Second point
For the purpose of identifying the essential levels of performance concerning civil and social rights, which must be guaranteed throughout the national territory (LEP), art. 3, paragraph 1, of the law delegates the Government to adopt, within twenty-four months from the date of entry into force of the law, one or more legislative decrees, without directly indicating the principles and guiding criteria of the delegation, but identifying them per relationem, through a reference to the provisions of article 1, paragraphs 791 to 801-bis, of law no. 197 of 29 December 2022. The Constitutional Court has repeatedly stated that, since the ownership and stable exercise of the legislative function belongs to Parliament, delegation laws lacking sufficiently precise principles and guiding criteria are constitutionally illegitimate: so-called blank delegations (106/1962). Nor can this lack be remedied by referring to art. 3 to the 2022 law, given that for the Constitutional Court a determination of principles and guiding criteria is practicable per relationem, with reference to other normative acts, if and to the extent that they are sufficiently specific (judgments nos. 87/1989 and 156/1987), a condition that is lacking in this case. Now, according to the constant constitutional jurisprudence, the Regions can report in court by way of action a defect in the state law other than the violation of their competence where – as in this case – the different defect in any case translates, albeit indirectly, into a violation of such competence (so-called redundancy).
Third point
The law provides for the determination of the LEP only in relation to matters that can be subject to differentiation and that require it by their very nature (see list art. 3, c. 3). However, this choice determines the illogical and unreasonable effect for which the LEP are determined first on the matters on which differentiation is possible for the Regions that request it and only possibly afterwards for the matters that, depending on the case, are already now the object of competence (concurrent or residual) of all the Regions with ordinary statute.
Fourth point
Article 3, paragraph 7, establishes that the LEP, once determined by Legislative Decree, can be periodically updated by Prime Ministerial Decree. Although it cannot be excluded that a secondary act may intervene at a later stage, the presence of a relative reserve of law in Article 117, paragraph 2, letter m), of the Constitution, requires that in this context a legislative act specifically establishes the limits of government discretion, which instead, as mentioned, seem to be lacking in this case.
Fifth point
Article 11, paragraph 1, establishes that “the initiatives of the Regions already submitted to the Government, for which joint discussion between the Government and the Region concerned has been initiated before the date of entry into force of this law, are examined in accordance with the provisions of the relevant provisions of this law”. From this provision it does not seem possible to clearly deduce whether the agreement reached in relation to such initiatives should be considered provisional or definitive, so that first of all a defect of “radical obscurity” of the law is highlighted (judgment no. 110/2023). Alternatively, one can request the annulment of this provision in the part in which it allows the preliminary draft of the agreement to be considered as having already been reached, thus preventing the President of the Council from limiting the scope of the negotiation before arriving at the definitive draft, pursuant to the provisions of Article 3, paragraph 1. 2, according to which the latter, «In order to protect the legal or economic unity, as well as the direction with respect to priority public policies, (…), also on the proposal of the Minister for Regional Affairs and Autonomies or of the Ministers competent for the subject matter, may limit the object of the negotiation to some subjects or areas of subjects identified by the Region in the act of initiative». This is an essential assessment for the purpose of safeguarding unitary interests that may prevent the attribution of further forms of autonomy in particular subjects, such as, for example, education, large transport networks, airports, national energy distribution.