Sources of Law LICS

The Italian legal system in the Constitution The Italian legal system of the sources of law can be traced in the Constitution The Constitution describes the organization of the Republic as centered in the Parliament, which is the only body empowered to make legislation (art. 70 Const.) with the two exceptions of the Government and Regions Both, Government and Regions act under the supervision of the Parliament

The Italian sources of law The model of the three Italian sources of law follows an hierarchical pattern: the Constitution, followed by the national statute, and, finally, the national administrative regulations

The Constitution From procedural point of view, the Constitution can be amended only by the double vote of the two Chambers An absolute majority (50 percent plus one) is required for the second vote (art. 138 Const.)

The National Statute The procedural for the approval of a nation statute is set forth in arts. 70 to 74 Const. A number of citizens (50,000 electors), the Government and single Representatives or Senators can propose a law Once approved by the two Chambers, each by a simple majority, a law still have to be promulgated by the President of the Republic, whose refusal must be accompanied by a reasonable explanation and may in any case be overturned by a second approval of both Chambers, again with a simple majority The promulgated law is at the end published in the Gazzetta Ufficiale and enters into force 30 days after publication

Decreti legislativi Decreti legislativi are delegated legislation used in technically complex field (e.g. taxation, or procedural codes) where a sophisticated system of coordination is needed The Parliament enacts a delegating law setting the basic principles and the time required, and the Government issues the actual delegated decree

Decreti legge Decreti legge may be issued by the Government only in “exceptional cases of necessity and urgency” and they have to be immediately transmitted to Parliament, which can approve them in 60 days, otherwise they loose their effect as of the date of issue

The criteria to solve law’s conflicts Since there are many sources of law, it is necessary to find specific rules solving conflicts between different sources. There are three criteria: the hierachical criterion, the chronological criterion, and, finally, the competence criterion

The criteria to solve law’s conflicts The hierarchical criterion applies if a conflict arises between two sources of law belonging to different categories (e.g. a law and an administrative regulation) The chronological criterion applies if a conflict arises between two sources of law with the same hierarchical position (e.g., two laws, or a law and a decreto legge or two administrative regulations and so on) The competence criterion applies when a conflict arises between two sources of law with the same hierarchical position within different jurisdictional ambits (e.g. between national and regional legislation)

The Regions The Italian regional system has undergone a complete upheaval with the Constitutional Law n. 1/99 (about the regional statuto and the regional electoral system) and then, even deeply, with the Constitutional law n. 3/01 (about the legislative, administrative, and tax power of the regioni) Part 2, title V of the Constitution regulates Regions. There are twenty Regions, of which five are special, and fifteen are regular. All of them have a regional council, elected by the people, a regional government (called The Giunta) and a regional President who, following constitutional law n. 1/99, is directly elected by the people.

Regular Regions’ legislative power The rule of residual power to the Regions: art. 117 Const. lists the seventeen fields in which the State has exclusive legislative authority and another list of eighteen fields in which the State and Regions have concurrent authority. Any other field is subject to the exclusive legislative power of Regions.

Regions’ administrative authority and taxing power art. 118 Const. introduces the principle of subsidiarity of the administrative authority art. 119 states that local governments should pay for all their activities with only their own taxes

Regular and special Regions The regular Regions have their own Statuto approved by the national Parliament but proposed by the regional Assembly, which regulates their internal organization Each of the five special Regions has a special Statuto, that regulates their legislative and administrative authority, and has constitutional force

Italy and the European Union Italy’s participation in the EEC, and the signature of all other treaties, up to the Treaties of Maastricht and Amsterdam, has been constitutionally justified by the Constitutional Court (decision n. 14 of the 1964 and n. 183 of the 1974) with art. 11 of Const. which says that Italy “shall agree, on conditions of equality with other states, to such limitations of sovereignty as may be necessary to allow for a legal system that will ensure peace and justice between nations”.

The European sources of law Directives: need to be implemented in every single legal system. In Italy, each year since 1990, a special law (so-called legge comunitaria) is approved which confers upon Government the power to issue decreti legge in order to have EC directives executed and transformed in pieces of Italian legislation Regulations: are immediately applicable in every member state and every judge has to apply them, even if in conflict with national law.

The application of EC Law in National Legal System In the beginning, the Constitutional Court stated that, in cases of contrast between Community and internal statutory rules, Italian judges were compelled to ask the Constitutional Court for judicial review according to internal standards In 1984, with the Constitutional Court decision in Granital, it was finally settled that Italian judges can autonomously refuse to apply internal rules that conflict with EC law, without seeking judicial review by the Constitutional Court

The application of EC Law in National Legal System The rule of the direct effects confers individual right that are self-executing upon citizens of the member states The adoption of the rule of the direct effect avoid the risk that the failure of a member state to implement an Ec directive could not guarantee individual rights afforded by the directive.