On Sunday 22 October voters in the Italian regions of Lombardy and Veneto expressed their support for greater regional autonomy in two consultative referendums. Is this the start of a new attempt at overhauling and modernising Italy’s two-track regional system, after a constitutional reform proposal that would have re-centralised Italy’s regional system (and reformed its bicameralism) was rejected in December 2016? Jens Woelk provides an overview of recent developments in Italy and suggests that despite the two referendums in favour of more autonomy, consensus and a coherent design for reforms of the Italian system are still lacking.

What kind of answer do you expect to the question, ‘Do you like chocolate?’ The answer seems obvious. The same applies to the question asked in consultative referendums held in wealthy regions in northern Italy on Sunday 22 October: ‘Are you in favour of greater autonomy (for your region)’? As widely expected, including by the organisers, the results were positive. In Veneto, the threshold of 50% established for the validity of the consultation was not a problem: with a turnout of 57.2% an overwhelming 98.1% voted in favour. Although the turnout in Lombardy, where no threshold applied, was considerably lower (38.34%), the ‘Yes’ votes were a large majority (95.29%) there too.

Narrowing the gap between the two tracks of Italy’s regional system?

The asymmetrical Italian regional system consists of five autonomous or ‘special’ regions and of 15 ‘ordinary’ regions. While the Constitution itself contains detailed regulations regarding the latter, the autonomy of each special region is individually based upon a special ‘statuto’. This Act with constitutional rank lists legislative powers and administrative functions and contains specific institutional and financial arrangements. There are peculiar features in each special region; these and their powers distinguish special regions from ordinary ones which have fewer (and no exclusive) competencies and only generic guarantees of financial resources.

A constitutional reform in 2001 aimed at narrowing the gap between the two categories by strengthening the powers of the ordinary regions (therefore the reform is widely known as ‘federalisation reform’). However, the ambitious reform did not produce positive results, due to a combination of poor and slow implementation; passivity of the regions themselves, which hardly made use of their new powers; and the activity of the Constitutional Court, which has  at times overturned the devolutionary logic of the reform in order to preserve the unity of the state and the co-ordinating function of central government.

A third way: differentiation ‘à la carte’?

However, the 2001 reform did not only increase the powers of ordinary regions, at least by intention and on paper. It also introduced a constitutional provision which permitted single ordinary regions to take over further powers, upon request and after negotiation with the central government, thus narrowing the gap with the special regions. According to article 116.3 of the Italian Constitution, the regional request can include all subject matters of concurrent power (article 117.3 Const.) as well as some listed matters of exclusive state powers, such as the organisation of peace judges, general regulations on education and the protection of the environment, the eco-system and cultural heritage. Using the mechanism requires a regional initiative, consultation of its local government bodies, and respect of the principles of fiscal relations between state and regions (according to article 119 Const.). The competence-transfer to the region is based upon an agreement between the region and the state, which has to be ratified by an Act of the Italian parliament adopted by both chambers with an absolute majority of its members (and includes the eventual transfer of necessary resources).

In the past there have been some half-hearted attempts to activate the procedure, but no agreement has ever been concluded. From a strictly legal point of view, the procedure can be started by any interested region with the presentation of a proposal to the central government; a referendum is not a requirement foreseen in the Constitution. Thus, Lombardy and Veneto called for a consultative non-binding referendum within the framework of their political and administrative autonomy. By contrast, Emilia-Romagna, another active and wealthy region, has recently chosen to engage directly in negotiations, after a debate in the regional assembly, but without a referendum.

Political referendums and their constitutional limits

The reasons for organising the two referendums were thus strictly political: the two regional governments have a sound majority and the two ‘governors’ (a term often used by the press since direct election of the Presidents of the Regions has been introduced) are both from the Northern League, well known for its demands for a stronger consideration of ‘the North’ in Italian politics and – even more important – in the distribution of resources. At times these demands had even turned into secessionist claims (‘Padania libera’). However, when the Northern League was part of the national government in coalition with Silvio Berlusconi’s party, no substantial reform of the regional system was achieved (a proposal for constitutional reform was rejected in 2006). Thus, these referendums are an attempt to put the topic back on the political agenda – in 2018 there will be a general election as well as regional elections in Lombardy.

Doubts have been raised about the legitimacy of a referendum which is not necessary in legal terms. The Italian Constitutional Court has given an affirmative answer to this question, at least as long as the referendum is held ‘in the forms and within the limits foreseen by the Constitution or established on its basis’ (judgement 118/2015). In its decision, the Court struck down various provisions of the Regional Act of the Veneto Region forming the basis for the consultative referendum (No. 15/2014) and annulled another Regional Act (No. 16/2014, ‘Holding a consultative referendum on Veneto’s independence’).

According to the constitutional judges a referendum on ‘Veneto to become an independent and sovereign Republic’ refers to fundamental constitutional choices which are prohibited as subjects for regional referenda; it also suggests institutional changes which are radically incompatible with the fundamental principles of ‘the one and indivisible Republic’ (art. 5 Const.) – a principle so essential for the constitutional system that it is even subtracted from the power of constitutional amendment.

Regarding the Regional Act No. 15/2014, the Court only saved the question put to the voters on 22 October 2017, as it repeats the text of article 116.3 Const., but struck down four more questions. Three of them were related to financial resources: voters were to be asked whether they preferred 80% of taxes raised in the Region to remain and to be spent there, without external spending limits. The Constitutional Court objected that those questions violated the delicate balances in public finance infringing upon the solidarity between the regional population and the rest of Italy. The fourth question relating to the status of the region was also annulled: voters were to be asked whether they preferred Veneto to become a region with special status. According to the Court such a fundamental decision of constitutional impact cannot be raised with a regional referendum.

Thus, only the question regarding the transfer of ‘further forms of autonomy’ from the state to the region was considered as legitimate. The consultative referendum was qualified as being of preparatory and external character: despite its political impact, it was neither going to alter nor to legally determine any of the steps foreseen in the constitutional procedure (article 116.3 Const.).

In Lombardy, the text of the constitutional provision was actually included in the question put to voters. For the first time in Italy, a system of electronic voting was used for the consultation. For this purpose, special software was developed and 24,000 tablets were bought by the region, which shall be used in schools after the referendum. The related costs of approximately €23 million have been heavily criticised.

Of money and status

The high costs of the two referenda, €15 million in Veneto (including €1.2 million for the information campaign by the regional government) and €50 million in Lombardy (including €1.6 million for the campaign) have been criticised by many, the more so as the consultation is not legally necessary. In addition, the Ministry of Interior asked the two regions to take over the costs of (state) police guaranteeing the security of polling stations, costing an additional €2 million. Financial issues also dominated the political debate before the referendums: rather than on more detailed proposals regarding which powers the state should transfer to the regions, the campaigns in favour of more autonomy were based on calculations according to which the Lombardy and Veneto are net-payers sending large parts of ‘their’ tax money to the Italian ‘mezzogiorno’ (the still underdeveloped south) without receiving adequate services in return. The elections scheduled next year explain the emphasis on financial issues. However, the lack of a concrete and elaborate project on autonomy raises doubts regarding a swift and speedy transfer of powers in the near future.

After the victory, Veneto’s governor Luca Zaia was quoted demanding special status for his region. However, the special regions form a distinct category which comprises only those five listed in article 116.1 of the Constitution (Aosta Valley, Friuli-Venezia Giulia, Sardinia, Sicily and Trentino-South Tyrol). The possibility of asking for subject matters referred to in article 116.3 is open to both categories, but does not elevate an ordinary region to the status of a special one, not least for the different legal basis of their respective autonomy, which remains a procedurally reinforced Act of parliament for the former and the autonomy statue, i.e. an Act of constitutional rank, for the latter. However, despite their constitutionally protected status, the political climate has become rough for the special regions which have been accused of enjoying ‘financial privileges’. This weighs heavy due to accusations of inefficient management and negligent use of resources by Sardinia and Sicily in particular.

Where does Italy go from here?

Despite their instrumental use for political reasons and the uncertainties of any negotiation process to follows, the referendums in Lombardy and Veneto have re-launched the debate on Italy’s regional system. The request for more autonomy from some of the regions, with or without the backing of a referendum, puts the re-centralisation of the last decade politically into question. Whether the referendums and subsequent negotiations will effectively lead to a use of the constitutional ‘third track’ and thus to more differentiation between the regions remains to be seen. The two referendums could mark the beginning of the pendulum’s swing in the opposite direction, i.e. towards more autonomy for the regional level. In order to be sustainable this would, however, need more than the initiative of two regions, but require general debate and nationwide support as well as a comprehensive design, at both regional and national level.

About the author

Dr Jens Woelk is Associate Professor of Comparative Constitutional Law at the Faculty of Law and the interdisciplinary School of International Studies at the University of Trento, Italy. He is also Vice-Head of the Institute for Comparative Federalism at the European Academy Bolzano/Bozen, Italy.