Differentiated autonomy and constitutional court: the question of the abrogative referendum
After the pronouncement of the Constitutional Court, the referendum issue, which could be there or not there or even proposed only in part
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The Constitutional Court, with the decision taken on the appeals filed on differentiated autonomy, seems to have reconciled everyone, both the Majority Parties and the Opposition Parties, all of whom, in their respective positions, appeared to claim their victory, so to speak. In short: to each his own victory. And it probably could not have been otherwise. Saying it more clearly, the Constitutional Court has finally deemed the question of the constitutionality of the entire law number 86 of 2024 on the differentiated autonomy of the regions with Ordinary Statutes to be unfounded, but at the same time has deemed certain specific provisions of it to be illegitimate.
If one wanted to discuss the meaning of the ruling of the Consulta, bringing it back to a general consideration, one could probably say that it would seem to express the prevalence of a basic principle, namely the so-called solidarity principle, over another principle, the so-called competitive principle, since it must always be the constitutional principle of subsidiarity that regulates the distribution of functions between the State and the Regions. The attribution to the Regions with Ordinary Statute of particular forms and conditions of autonomy pursuant to and for the purposes of Article 116, third paragraph, of the Constitution, must be correctly applied, on an interpretative and contingent level, in the context of the Italian regulatory system. Well. In essence, beyond and beyond the reasons put forward by the opposing parties, expressed, on the one hand, in the body of the appeals presented by Sardinia, Tuscany, Puglia and Campania, and in the intervention documents of Lombardy, Veneto and Piedmont, the Constitutional Court, in recognising the unconstitutionality of certain parts of the Calderoli law, did not fail to underline certain basic points, including, by way of example and not limited to: first of all, that devolution must concern specific legislative and administrative functions and must find its justifying basis in relation to the individual region, by virtue of the aforementioned principle of subsidiarity; then, that the regions with Special Statutes, in order to obtain more consistent forms of autonomy, can resort to the procedures already provided for by their respective Special Statutes without the provisions of Law no. 86 of 2024 being extended to them on this point; finally, that for which there must be a duty, for the regions receiving the devolution, to participate in the public finance objectives, otherwise the bond of solidarity and the unity of the Republic would be weakened.
The knot that still needs to be untied would rather seem to concern the fate of the abrogative referendum in the aftermath, precisely, of the ruling of the Constitutional Court, since it does not seem clear today whether it can still have its own significant meaning, or whether it could be overwhelmed by it as it is emptied of its significant consistency. What can I say: maybe yes, maybe no. The foundation of the Abrogative Referendum of Law number 86 of 2024 promoted by the Opposition, aimed at preserving the unity of the country, would seem to find its raison d'être in a fundamental consideration, namely that the proposition of different levels of autonomy between the Regions with Ordinary Statute could cause harm to both the Regions of the South and those of the North, impacting on the levels of education and public health. Therefore, at present, it could be quite complex to sustain that the decision of the Constitutional Court alone can avert that Referendum, at least until Parliament adopts the indications of the Consulta by filling (if it is really possible to do so and to do so in the short term without incurring other and different questions of unconstitutionality) the gaps resulting from the acceptance of some of the questions raised by the appellant Regions. In the meantime, all that remains is to wait for the reading of the reasons given in support of the decision of the Constitutional Court, which will be essential to bring maximum clarity to the issue.
Giuseppina Di Salvatore – Lawyer, Nuoro
