Differentiated autonomy: “The conditions no longer exist, a change to the Calderoli law is needed to avoid inequalities and public finance problems”

Dear Minister, dear Roberto, dear President, dear Sabino,

We appreciated the attention you paid to our observations on the procedural and substantive problems raised by the implementation of art. 116 of the Constitution on differentiated autonomy as governed by the budget law for 2023. We also appreciated, dear Minister, some of your important statements on the subject of differentiated autonomy, in particular when you shared during Astrid’s seminar the interpretation according to which the “particular forms and conditions of autonomy” to be attributed to the Regions pursuant to art. 116 concern specific tasks and functions and not entire subjects, and you have excluded transfers of competences in the field of general education rules.

We also appreciated the fact that Sabino Cassese proceeded within the CLEP to set up a new sub-group dedicated to identifying LEPs in matters not included in the perimeter indicated by art. 116 third paragraph.

However, some fundamental problems remain. First of all those that derive from the evident contradiction between the first period of the art. 1 paragraph 791 of the budget law for 2023 and some subsequent provisions. The first sentence of paragraph 791, as you well know, reads:

«For the purposes of the complete implementation of article 116, third paragraph, of the Constitution and the full overcoming of territorial differences in the enjoyment of benefits, this paragraph and paragraphs 792 to 798 regulate the determination of the essential levels of benefits concerning civil rights and social benefits which must be guaranteed throughout the national territory, pursuant to article 117, second paragraph, letter m) of the Constitution, as a constitutionally necessary expenditure threshold which constitutes an insurmountable nucleus for disbursing social services of a fundamental nature, to ensure a fair and transparent conduct of financial relations between the State and the territorial autonomies […..] and the full overcoming of territorial differences in the enjoyment of services inherent to civil and social rights and as a condition for the attribution of further functions”. (our highlights)

In Astrid’s paper, which you know well, they explained the reasons why we believe that this provision of the budget law correctly interprets the constitutional provisions, as derived from articles 116.3, 117.2, lett. m, and 119 of the Constitution. And that this inevitably entails, before the assignment of new specific tasks and functions to some Regions with the corresponding financial resources, the determination of all the LEP pertaining to the exercise of civil and social rights and the definition of their financing, according to the principles and the procedures of art. 119 of the Constitution. Since the available resources are determined by budget constraints (imposed by Article 81 of the Constitution), it is clear that the determination of the LEP will require an overall assessment of the LEP that the country is actually able to finance, an assessment which cannot be made by matter, because in the end one would find himself in the position of not being able to finance the LEP necessary to ensure the exercise of civil and social rights in the matters left last. This assessment is up to the Parliament as it is clear not only for the provisions of the art. 117.2 (exclusive legislative competence), but also because the fundamental choices on the allocation of public resources are up to the Parliament. However, recourse to the criterion of historical expenditure does not solve the problem, because historical expenditure reflects the territorial inequalities in the enjoyment of the fundamental rights that art. 117, letter m, aims to overcome. In essence, historical spending risks crystallizing inequalities, which is the opposite of what the Constitution and paragraph 791 want to do.

The establishment of the new sub-group aimed at identifying LEPs in matters not included in the scope of art. 116 is a step forward, but it doesn’t solve the problem. On the one hand, in fact, in the approach that has been given to the work of the CLEP (with our dissent), it is only a question, for this subgroup as for the others, of carrying out a mere reconnaissance work of the LEPs already found in the existing legislation, not to propose to the control room (but through it inevitably to the evaluation of Parliament: reserve of law), the new LEPs necessary to effectively ensure the overcoming of territorial inequalities in the exercise of civil and social rights. There are in fact matters in which the legislator has never proceeded to determine LEP and many others in which this determination was partial. And the work of overall comparison of the LEPs with financial resources, aimed at defining which essential levels are actually insurable for everyone, without discriminating against anyone or creating unsustainable burdens for public finances, has never been done.

On the other hand, it is quite clear that this last sub-group will not be able to receive from all the PAs concerned the elements necessary to present its proposals within the very short terms established by the budget law for 2023; even more inadequate terms if one considers that the determination of the new LEPs is inevitably up to the Parliament, and that this determination should involve that complex work of comparing the LEPs with each other and of the LEPs with the available financial resources mentioned above.

As we had proposed, the contradiction between the constitutional provisions (116, 117 and 119) and the first sentence of paragraph 791, on the one hand, and the other provisions of the budget law, on the other, could be resolved by modifying the latter through specific amendments to the Calderoli bill, thus correctly making the constitutional provisions prevail. But we understand that this proposal is shared neither by you nor by Sabino Cassese. Our proposal to allow the Parliament, during the examination of the Calderoli bill, to define in advance some limits to the negotiation of agreements, to be understood as non-negotiable contents, such as for example the general rules on education was also not shared o major national transport infrastructures (motorways, railways, major ports and airports), telecommunications networks and national infrastructures for the transport and distribution of electricity and gas.

A similar prejudice, as we have demonstrated in the paper, concerns the implementation of art. 119 of the Constitution. It is true that the art. 116 conditions the differentiated autonomy only to the respect of the principles of the art. 119. But as long as all the LEPs have not been determined, and the tools and ways to ensure that all the Regions have effective tax autonomy which allows them to fully finance the LEPs themselves have not been redefined in relation to their standard costs, the actual extent of those principles remains indeterminate and indeterminable.

For all these reasons, which we have only briefly summarized here (intelligenti pauca), we are forced to acknowledge that there are no conditions for our participation in the work of the CLEP.

However, we want to assure you that we remain fully aware of the importance that a complete and correct implementation of the constitutional provisions mentioned would have for the country, starting from the complete determination of the LEP necessary to ensure throughout the national territory the exercise of civil and social rights overcoming inequalities consolidated over time but no less unacceptable and less unconstitutional. We will therefore not fail to make our contribution – personally and through Astrid’s research and proposals – to ensure that this objective is achieved. We have already started a work of analysis and preparation of proposals for the full and correct implementation of the provisions of art. 119 of the Constitution, in order to combine the integral financing of the functions attributed to the Regions and local authorities (starting from the financing of the LEP), the tax autonomy of the Regions (with the reactivation of the circuit of responsibility between collection and expenditure), the balance of public finance (art. 81 of the Constitution) and the overcoming of gaps and inequalities between territories. Nor will we fail, more generally, to contribute to the public debate on all these problems, which are decisive for the future of our country. And we will continue to hope that over the next few months there will be a rethinking such as to bring the path of implementation of differentiated regional autonomy back to the tracks defined by the Constitution.

With kindest regards