Italy: The Subsidiarity Principle

Abstract

Since 2003, the docket of the Italian Constitutional Court has filled with more and more cases concerning jurisdictional conflicts between the national and regional governments with regard to lawmaking. This is an interesting development in the history of the judicial review of legislation in Italy. In the past, judicial review nearly always concerned the guarantee of constitutional rights and was related to incidenter (ordinary court) proceedings resulting from a constitutional claim lodged during separate court proceedings. Decisions concerning jurisdictional disputes between the state and the regions increased from 2 percent of the docket in 2002 to 15 percent in 2003, to 22 percent in 2004. The reason for this is the 2001 constitutional reform, which, for the first time since 1948 (the year the Italian Constitution was adopted), has reshaped the Italian regional state by changing the way powers are distributed among levels of government. In one of the most important decisions of the Constitutional Court— decision no. 303 of October 1, 2003—a number of regions lodged constitutional complaints against various provisions contained in Law no. 443, December 21, 2001, which concerns large-scale, infrastructure projects. The Court’s decision, against the petitioners, contains a landmark interpretation of the constitutional amendment of 2001 and is bound to influence future developments of the Italian regional system. Some authors have even claimed that the ‘‘Constitutional Court has rewritten the Constitution.’’