Autonomy, the ruling of the Constitutional Court: energy, education and transport functions that should not be transferred

The ruling of the Constitutional Court (number 192 of 2024) on questions of constitutionality concerning the law on differentiated autonomy has been filed in the offices of the chancellery of the Constitutional Court. The statement released by the Court on 14 November had highlighted seven profiles of illegitimacy (from the Lep to tax rates) and five norms that were saved on the condition of a 'constitutionally oriented reading'. The Court partially upheld the appeals of the four centre-left-led regions (Campania, Puglia, Sardinia and Tuscany) that challenged the Calderoli law. The judges considered the question of the constitutionality of the entire law to be 'unfounded', considering some specific provisions to be 'illegitimate'. Hence the invitation to Parliament to 'fill in the gaps'.

In short, differentiated autonomy is not unconstitutional in itself, because it does not conflict with fundamental principles such as the unity of the Republic. On the contrary, it can be an opportunity for the efficient development of the criteria of subsidiarity; but to be so, it needs corrections on all its fundamental mechanisms. In fact, the first 'profile of unconstitutionality' invests the heart of the process: what can be transferred to the regions? Not 'subjects or areas of subjects' but only 'specific legislative and administrative functions', i.e. the individual strands of activity that make up a subject, and their transfer must be 'justified, in relation to the individual region, in the light of the principle of subsidiarity'.

Not only. "There are matters, to which Article 116, third paragraph of the Constitution also refers (further forms and particular conditions of autonomy, ed.), to which functions pertain whose transfer is, in principle, difficult to justify according to the principle of subsidiarity. There are, in fact, reasons of both a legal and a technical or economic nature which preclude their transfer'. In this case, the Court refers to matters in which 'European Union regulations predominate' such as the common commercial policy, environmental protection, national energy production, transport and distribution, and major transport networks, but also 'general rules on education', which have a 'necessarily general and unitary value' - the functions relating to the 'professions' and communication systems.

"Regionalism corresponds to an irrepressible need of our society, as it has gradually structured itself also thanks to the Constitution. It is, however, up to Parliament alone to compose the complexity of institutional pluralism," the Constitutional Court wrote in its ruling on the questions of constitutionality concerning the law on differentiated autonomy, in which it partially upheld the appeals of four regions. "The current constitutional framework reserves to Parliament exclusive legislative competence in certain matters so that unitary requirements are taken care of (Article 117, second paragraph, of the Constitution)".