Year XL, 1998, Number 1 - Page 38
ASPECTS OF THE EVOLUTION OF EUROPEAN UNIFICATION IN THE PROJECT PRESENTED BY THE COMMISSION FOR CONSTITUTIONAL REFORM INSTITUTED BY THE ITALIAN PARLIAMENT
Introduction.
The transfer of increasingly significant shares of sovereignty by national states to EC institutions, which has, and continues to characterize the process of European unification, has inevitable repercussions on the constitutions of many EU member states. Indeed, ever since the post-war period, the various countries have, while conserving a strong sense of common values, nevertheless found different ways of regulating their supranational integration through constitutional channels; and this applies particularly to most of the continental legal systems.
In recent years, following the ratification of the Maastricht Treaty, and with the prospect of further transfer of powers to European level, the significance of the relationship between national constitutions and European unification has been increasing steadily, and in this context, the recent proposal to add several articles relating to the European Union to the Italian Constitution can be seen as paradigmatic, as it embraces problems shared by various constitutions.
The most recent attempt (still in progress) to bring about a broad revision of the Italian Constitution has been, of course, the institution, through the constitutional law no. 1 of 1997, of a parliamentary commission to develop “projects for a revision of Part II of the Constitution, with reference in particular to form of state, form of government and bicameralism, system of guarantees”.[1] The above constitutional law provides for a different procedure of ratification from the one (written in Art. 138 of the Constitution) which is ordinarily applied. The new procedure involves a preliminary examination by the Commission of the projects which have been submitted to it, followed by the communication to the houses of parliament of a project developed by the Commission (this stage was concluded on November 4th, 1997), debate of the same by parliament and finally, if the procedure manages to get this far, the ratification of the project by both houses, this ratification taking the form of a single constitutional law to be sanctioned at a later stage by referendum.
The project for constitutional reform, defined by the bicameral Commission on November 4th,[2] contains among other things a section, “Titolo VI”, which is made up of three articles entitled “Italy’s participation in the European Union”.[3] It is a completely new addition to the existing text of Part II of the Constitution, designed to introduce, for the first time, constitutional rules relating to Europe. The present paper, however, will deal only with Art. 114, the first of the three articles contained in “Titolo VI”, which, in the texts published during the work of the bicameral Commission, is entitled “Participation in EC building and procedures for the conferment of further powers”.[4] This article is in fact the one central to a definition of the constitutional position of Italy vis-à-vis the evolution of the process of European unification.
A brief analysis of the work of the Commission on this aspect, a subject which will be picked up again further on, will be followed in this paper by an examination of the legal-political aspects of the text in question, in an attempt, as far as possible, to distinguish between questions of legality and those of political opportuneness.
The Drawing up, by the Commission, of Art. 114.
There were two reasons why the bicameral Commission decided to approach constitutional reform with regard to relations between Italy and the EU: the first, a formal one, was the presence, among the projects presented to the two branches of parliament and examined by the Commission, of proposals for a revision of this area; the second, of a substantial, or rather legal-political, nature was the firm belief of many jurists and many political figures, including the foreign minister, that there existed a need, particularly in the wake of the Maastricht Treaty, to modify the Italian Constitution with regard to the question of European integration,[5] also to reflect the constitutional changes implemented upon ratification of the Treaty by other states.[6]
After its first meetings, the Commission was split into 4 committees, each given particular areas of competence. Issues relating to “a constitutionalization of the process of European unity and, in particular, to legislation relating to the relinquishing of quotas of sovereignty” were entrusted to the Committee on Parliament and Legislative Sources.[7] After being elected by the said Committee as its spokesman on the European issue, D’Amico MP (Rinnovamento Italiano) immediately expressed misgivings (doubts which had already emerged and which, not without foundation, have coloured all discussion of the question of the constitutionalization of Italy’s membership of the EU) over the relationship between the reforms proposed and the first part of the Constitution (especially Art. 11, considered to constitute the basis for Italy’s involvement in the process of EC integration[8]) whose revision, it should at this point be recalled, is precluded by the constitutional law by which the Commission itself was instituted.
In the course of the discussions conducted by the Committee, which in actual fact dealt mainly with questions relating to the reform of parliament and of legislative sources, the opinion emerged that there existed a need to “render explicit the transfer of sovereignty to the European Union,” an idea generated by a firm belief in “the need to build into the Constitution the principle of Italy’s membership of the EU, given that the existing Art. 11 of the Constitution cannot, to this end, be considered sufficient”.[9] These notions are present in Art. “A” of both the article drafts presented by the spokesman during the work of the Committee.[10] The article itself, which underwent only minimal changes between its first and second drafts, provided substantially for the following: 1) Italian membership of the EU, and the possibility, in compliance with “the supreme principles of the Constitution” to transfer further powers to the EU; 2) within the context of the EU, the subordination of Italian action to the pursuit of certain objectives; 3) a formal revision of the Constitution to be carried out whenever there is a transfer of powers to the Union which requires modification (or even, in the second draft, derogation) of the Constitution; 4) the possibility, for certain bodies, to request a control by the Constitutional Court of the legality of powers transferred to the EU.
It is important to underline that, in addition to a general and not particularly innovative declaration of Italy’s membership of the EU and of the criteria on which this membership must be based, a mechanism of constitutional revision was proposed as a means of ratifying the transfer of powers to the Union,[11] something for which, until now, ordinary laws have always sufficed.
The work was then taken up again by the Plenary Commission, with the spokesmen delivering the proposals, based on the debates conducted by the committees, destined to become the texts which would be debated and put to the vote by the Commission.[12]
In his introductory speech, D’Amico underlined that the first article proposed should be seen as a form of constitutional “cover” for Italy’s involvement in the process of European integration, necessary to rectify the rather forced interpretation of Art. 11 which had been used to justify the ratification, by ordinary laws, of the EEC and EU treaties.[13]
The contributions of other speakers revealed, on the one hand, concern over the proposal to constitutionalize the principles guiding Italy’s role in the process of European construction, based on the fear that these principles may to a certain extent oppose those sanctioned by the first part of the Constitution, effectively creating two separate tracks. This fear was accompanied by requests to render more rigorous the procedures for the transfer of sovereignty, with provision being made for: a procedure for revision of the Constitution, preventive checks to be conducted by the Constitutional Court and the possibility of requesting referenda on European treaties.[14] Some, on the other hand, were of the opinion that there is no need to build such detailed principles into the Constitution, it being sufficient to state “that the action of the Republic within the EU is carried out with the aim of ensuring that the citizens are granted an increasingly broad democratic role in the decision-making process”; those who hold this view are convinced that a process of constitutionalization hinges merely on the “obligation to increase the level of democratic involvement in EU decision-making mechanisms”.[15]
Following discussion and the presentation of amendments, the spokesman rewrote the text he had originally drafted. The alterations, however, were of a minor level, apart from the exclusion of parag. 3, the one concerning the provision for a procedure of constitutional reform.[16]
Further amendments to the text were proposed, debated and approved during the meeting at which the article, in the version that ultimately went before parliament, was passed.
The first amendment debated was the one proposed by commissioners Boati and Pieroni (Green Party), destined to form the basis of the final draft of the article. This text echoed Art. 11, talking in terms of limitations of sovereignty rather than the conferment of powers and competence,[17] and instead of listing principles with which Italy should conform, it correlated “the alienation of sovereignty with the principle of increased democratic involvement” in the EU.[18]
To this text was added, upon the suggestion of Salvi MP (Democratic Left), the main part of the amendment proposed by the group of the Democratic Left, which provides for: further “limitations of sovereignty sanctioned by an absolute majority of the members of both houses,” thereby reintroducing the idea, albeit different from the constitutional solution, of a more rigorous procedure. It could, substantially, be seen as a middle way between the elimination of any reference to procedures leading to further limitations of sovereignty and the request to have recourse to constitutional law.[19] This proposal was immediately explained in these terms by Salvi himself who, believing that Art. 11 of the Constitution had been applied beyond its scope, maintained that the process of integration and eventual transfers of sovereignty must be guaranteed not only by a respect for principles, but also by a procedure which is “not destined to bring everything to a halt, this being precisely what would occur in the case of a constitutional revision procedure” and which would furnish the “instruments of guarantee (...) with which we are not, at the present time, equipped”.[20] The aforementioned middle way also went some way towards appeasing those opposed to the possibility of relinquishing areas of sovereignty[21] whose views culminated in the amendment (subsequently rejected) in favour of the implementation of a constitutional reform procedure for every transfer of sovereignty, proposed by senator Salvato (Communist Refounders), and in her insistence (approved) on provision being made for the possibility to request referenda on the subject (something which in fact is already provided for, in relation to all international treaties, by the reform of the current Art. 75).
On the other hand, the “Salvi” proposal led senator Elia (Italian Popular Party) to object that the introduction of a new legislative source would “modify Art. 11 of the Constitution”, on the basis of which recourse has never before been had to constitutional laws.[22]
On June 30th, 1997, the Commission presented its first draft of the project to parliament.[23]
Subsequently, following the presentation of amendments by members of parliament who were not on the Commission, a small bicameral committee was set up to make a few alterations to the text, then, on November 4th, 1997, the bicameral Commission approved the revised project to be debated and voted upon by the houses. As regards the article of interest to us here, apart from formal changes, the variations made to the text approved in June were the following: 1) all reference to “further” limitations of sovereignty was eliminated to avoid the risk of generating doubt over the legality of decisions ratified prior to the reform (and it is important at this point to recall that, in the course of the debate, the chairman of the bicameral Commission had underlined, in response to the fear expressed by senator Elia that the introduction of the more rigorous procedure in question may cast doubt over the validity of the ratification of previous treaties, that the text in question, with its references to “further limitations” would not in any case have been applicable to that which had occurred in the past, marking the introduction of tighter procedures for the future only;[24] 2) provision was made for the possibility that an ad hoc referendum may be requested on the limitation of sovereignty law, thus tightening up the procedure still further and rendering it even more similar to the solution based on constitutional reform.
These debates, which were both rapid and complex, resulted in the drafting of Art. 114 of the project brought before the houses on November 4th, 1997. This article runs as follows:
“Italy takes part, on equal terms with the other states and in compliance with the supreme principles of the Constitution and the inviolable rights of man, in the process of European unification: it promotes and supports a system based on the principles of democracy and subsidiarity.
Limitations on sovereignty sanctioned by an absolute majority of the members of both houses are admissible. The law will be submitted to a referendum when, within three months of its publication, such a referendum should be requested by a third of the members of either house or by eighty thousand voters, or by five regional assemblies. Unless it is approved by a majority of legitimate votes, the law put to referendum will not be promulgated”.
This is the text which is discussed herein.
The Constitutionality of the Reform Proposed by the Bicameral Commission.
What emerges clearly from the debate outlined above, is the importance of interpretation of Art. 11 of the Constitution, with reference, in particular, to the extent of limitations on sovereignty and to the legislative acts able to determine them.[25] While this is not the right place to look at this question in depth, the account of the debate nevertheless shows that there is an increasing feeling, particularly in relation to the ratification of the Maastricht Treaty, that Art. 11 was, in hindsight at least, an inadequate basis for Italy’s participation in the process of European unification.[26]
If, on the other hand, the interpretation of the Constitution which “views the national state as a value which should not be pursued, supporting instead the subjugation of the same to supranational entities” were to be adopted, Italian support for a federal Europe would be beyond question. The said interpretation, upheld also by the present author, identifies federalism as the real “constitutional directive”, given that peace and justice among equals cannot be had without the subjugation of the absolute sovereignty of states to a federation of the same, and thus favours “the possibility of introducing a supranational state through a treaty that can be ratified and implemented by ordinary law, in compliance, obviously, with the “liberal and democratic” values of the Constitution, for the complete affirmation of which the subjugation of the national state is a requirement.[27]
Having said that, let us look at how the Italian Constitutional Court interprets the aspects of Art. 11 which are of interest to us here, that is, the legislative acts that provide for “limitations on sovereignty” and, in general terms, the “counterlimitations” which these acts themselves encounter. In short, according to the Court’s now well established interpretation of the article in relation to these aspects, it is possible on the basis of Art. 11, and to the ends indicated by the same, to institute “supranational” bodies and to determine the consequent limitations of sovereignty by means of ordinary laws which have the power to authorize the ratification and implementation of the relevant treaties. This procedure is limited only by the need for compliance with the fundamental principles of the Constitution and with the inalienable rights of the individual, a limitation applicable even to the reform of the Constitution itself (decision no. 1146/1998 of the Italian Constitutional Court).[28]
Following on from what has been said so far, it must be considered that the reform proposed by the bicameral Commission, which introduces (as much in the hypothesis of provision being made for the application of a constitutional law as in that of provision for a special ad hoc majority), a procedure for deciding those limitations of sovereignty that are an inevitable part of the process of European unification, which is different and more rigorous than the one actually applied as routine parliamentary practice (which complies with the decisions of the Constitutional Court, in other words the “existing constitution”), and that, even without altering the wording of Art. 11 of the Constitution, this reform would nevertheless have repercussions on the provision contained therein. This is truer still in the light of the fact that the said article “is not only of substantial, but also of procedural value”.[29] From this arises the first doubt over the legality of the reform. Upon consideration, it appears in fact that paragraph 2 of Art. 114 of the project proposed by the bicameral Commission goes beyond the Commission’s own sphere of competence, laid down in the Constitutional law by which the Commission itself was instituted (constitutional law no. 1 of 1997) to develop projects for a revision of Part II of the Constitution which, entitled “the organization of the Republic” is substantially devoted to the rules governing the organization of the state.[30]
The second doubt over the legality of the reform, more general but whose implications are more far-reaching, is generated by the unquestioned inclusion, among the fundamental principles of the Constitution, of Art. 11, and of the principle of Italian adherence to a supranational system to which it is linked.[31] Consequently, even through constitutional law, this guiding principle of the Italian Constitution (to the pursuit of which the constituent assembly has bound the Republic) is untouchable, and this in turn means that the questions of legality, raised here in reference to the proposal put forward by the bicameral Commission, may be considered founded even should this proposal be advanced in the form of a “normal” constitutional law, (in other words, without implementing the procedure in question, reduced as it is to an overall revision of the final part of the Constitution).
Furthermore, with regard to the rest of the article in question, and paragraph 1 in particular, it is to be noted that no significant innovations emerged from the work of the bicameral Commission, which limited itself, rather, to an explanation of the principle of openness to a supranational system, (with precise reference to the process of European integration), and to the assimilation of certain interpretations of the Constitutional Court, an opportune move in view of the political centrality and the legal importance that the process of European unification has acquired, not to mention the prospects for its development. The text proposed contains, first of all, the assertion that “Italy participates”, in accordance with the conditions provided for by Art 11 and by the decisions of the Constitutional Court (equality and respect for inviolable principles), “in the process of European unification”, an assertion which, on the one hand, is a statement of what has occurred and an assimilation of the interpretations of the Constitutional Court and, on the other, a highlighting of one aspect of the constitutional directive contained in Art. 11. Secondly, again highlighting principles already contained in the first part of the Constitution, it indicates the ends which Italy must pursue as it plays an active part in the process of European integration: the principles of democracy and subsidiarity. In short, the bicameral Commission seems, so far, to see the overall reform process currently in progress as an opportunity to determine the position of the Italian Constitution vis-à-vis European integration, with a view, in the short term, to applying these guidelines in a concrete manner.
In the light of these considerations, the tightening up of procedures provided for in paragraph 2, (whose poor compliance with the written constitution, has already been illustrated herein) appears all the more significant, constituting the main innovation within the reform, almost as though all the constitutional problems linked to the process of European integration were of a procedural nature. Furthermore, a marked lack of consistency emerges between the assertions contained in paragraph 1, which, reflecting the line of interpretation so far adopted, establish, for the law makers, the framework within which eventual procedures for “deepening the EU” should operate, and paragraph 2 which puts an extra obstacle (procedural, not substantial) in the way of European integration. Although this inconsistency may in part be due to the genesis of the article, (the result, as we have seen, of a hurried fusion of different proposals), this is no reason to consider it any the less serious. On the contrary, the gravity of this inconsistency increases if a further aspect is taken into consideration, paradoxical if attributable to an oversight, alarming if the product of political will. Indeed, judging by its position, the more rigorous procedure regulating the transfer of powers seems to refer exclusively to Italy’s involvement in the process of European integration and not to other supranational organisations, be they existing ones or those set up ex novo. Thus, eventual treaties providing for limitations of sovereignty in favour of entities other than those of the EU would be governed exclusively by the terms of Art. 11, and, as such, could be approved through the application of ordinary legislative procedures. Thus, a treaty which limits Italy’s sovereignty, transferring powers to an existing entity which has nothing to do with European integration (the UN, for example) or a newly established supranational organisation (such as a Mediterranean alliance with North African countries) would enjoy, from a procedural point of view, different and more favourable treatment than one transferring powers to the European Union!
Quite apart from the hypothesis (not, given the record of the bicameral Commission, so very far-fetched) that there may exist a political desire, whose substance would have to be verified in parliament, to place procedural obstacles in the way of European unification, doubts remain over the soundness (political as well as legal) of this proposed reform.
Reform of the Italian Constitution and European Federation.
Had one of the aims of the constitutional reform discussed in this paper been to set the process of European integration, which is now effectively and very much under way, moving in the direction indicated by the guiding principles of the Italian Constitution, then it would be appropriate to broach the issue from another angle.
The problem of the relationship between the Constitution and the process of European unification, given the advanced stage that the latter has reached, is not the formal question of the juridical source (constitutional law, ordinary law, ad hoc source) which has the legitimate power to transfer, in part, the sovereignty of Italy to a European authority, so much as the substantial question of the conformity of the process of unification with the principle of democracy, in terms both of the of the new holder of sovereignty and of the way in which this new authority functions. It is no longer possible to ignore the need, within the process of European unification, to guarantee the compliance with the principle of democracy as the basis for sovereignty which is implicit in a “federalist” reading of Art. 11 and in its balancing with Art. 1 of the Constitution; in other words, the need to ensure that there exists a directly proportional relationship between the transfer of national sovereignty and the creation of a supranational democracy.
The centrality of this question has been highlighted various interpretations of the famous decision on the Maastricht Treaty delivered by the German (Federal) Constitutional Court. In this decision which, in another way, binds the future of European integration to precise conditions, it is indeed to be “noted that the German Constitutional Court does not exclude that the Union may one day become a federal state”, indeed, it “foresees the conditions on which [according to the fundamental principles of the German Constitution] the founding of a future European federal state depends, in particular the condition of full and total compliance with the principle of democracy”. This principle “whose reconstruction, in terms of content, begins with universal suffrage... forms the constitutional basis of all the theories embraced by the decision” which, at one point, declares that “... the extension of the tasks and functions of the European Communities encounters limits deriving from the democratic principle”: from this assertion, it follows that “the creation of a proper federal state is thus admissible providing the principle, to its fullest extent, is effectively absorbed by the European institutions”.[32] What is more, as increasing still further the competence of Community bodies would conflict with the democratic principle, we are “thus left with a choice between a EU unable to govern the process of its own development and of the integration of member countries, continually facing the threat of action taken on the basis of national constitutions, and a Union founded on the consensus of the people of Europe who, by virtue of their own constituent role (in turn strengthened by forty years of Community integration), are able to free themselves from their dependence on national government”.[33]
In the light of these considerations, it is not clear why the decision was taken, upon the ratification of the Maastricht Treaty, to insert, into the German Constitution, the special article on European integration (Art. 23, paragraph l) which seems also to have been a source of inspiration to the bicameral Commission in Italy[34] especially in view of the fact that Art. 24 of the German Constitution (the equivalent of Art. 11 of the Italian Constitution) formed the sole basis for the FRG’s ratification of the treaty that would have led to the institution of a European Defence Community (and the related European Political Community)[35] these being forms of union necessitating the transfer of large shares of sovereignty by national states to European institutions.
Constitutional choices over Europe are however based on a fundamental debate which, while not falling within the scope of this text, must at least be touched upon here. In general terms, this debate is represented by the contraposition of those who believe that it is necessary and appropriate to give Europe its own constitution, creating a federal state, and those who do not accept this view, believing that there exists no legal basis for such a move.[36] These two opposing positions generate, schematically, two different solutions to the problem of this democratic deficit in Europe and, as a result, two different conceptions of the role of national constitutions. From a federalist point of view, the solution is “to constitutionalize Europe”,[37] to give the future European political subject a constitution, striving therefore to create the most favourable conditions, with regard to domestic constitutional law, for the pursuit of this objective. Opponents of this view maintain that the most that can be done is to find a way of increasing the involvement of national parliaments in EU decisions, building into national constitutions specific rules to this end.
From the point of view of bringing the process of European integration into line with the democratic principle, the proposal developed by the bicameral Commission makes several specifications which are, in fact, little more than explanations of points covered in Part I: provision is made, in paragraph 1, for the promotion of the EU according to principles of democracy and subsidiarity, thus providing an indication of what, in terms of content, the evolution of European integration should mean that is, continued pursuit of the clearly federalist ideal according to which national sovereignty is limited in favour of European sovereignty.[38]
At this point, the question may be raised of whether, within the limits imposed on the current revision operation, it would (or would have been) admissible to establish further criteria, based on the same principles, to govern future developments within the sphere of European unification.
By intervening on the “organizational-procedural” part of the Constitution, it would have been possible to render explicit the influence — which may in any case be deduced — that the democratic principle must also exert in a procedural sphere. Indeed, as well as establishing the framework on which reformed European institutions should be based, this principle must be reflected in the procedural aspects of all future developments within the process of European unification.
Respect for the democratic principle means, therefore, opting for a democratic method of managing the procedures inherent in any development of the process of European unification that is to conform fully with this principle. The adoption of a democratic method means, in this case, having recourse to a mechanism that provides for a form of legitimation of, and popular participation[39] in the procedure by which a European sovereign entity is established. And being a democratic procedure for the conferment of sovereignty on a democratically structured institution, this must, of course, be a constituent method.
As far as the modality of its concrete actualization is concerned (which may vary among states, despite remaining within the framework of certain rules common to all those taking part in the process), this idea of a democratic method must be interpreted in broad terms, with provision made, alternatively or together, for the involvement of parliaments (national and/or European), for a people’s referendum, for the election of an ad hoc assembly, etc. In this way it would be possible both to respect the characteristics and to use the instruments of the various constitutional systems.
This method is, in any case, an alternative to the diplomatic and intergovernmental one so far applied to the process of European integration (the European Political Community being the only possible exception). Provision must be made for the democratic legitimization not only of the body (domestic) called upon to ratify treaties, but also of the one (European) responsible for the preparation and approval of the document which gives rise to the new entity (in other words, to a constitution), since this sovereign entity “will be not solely the fruit of the expression of the constituent will by a new subject, nor that of the terms of a contract among pre-existing subjects, but that of a complex act which will contain both these aspects, and whose result will be a document that will have both the characteristics of a constitution and those of a treaty”.[40]
Besides respect for the democratic principle, the procedural aspect of which cannot be ignored, in Italy, the 1989 referendum on Political Union helped to increase support for a constituent method of managing procedures designed to increase the powers of the EU.
Without wishing to overemphasize the significance of the referendum in question,[41] it is an indisputable fact that it was on the basis of the constitutional law no. 2, 1989 that parliament decided to “declare a referendum on the conferment of a constituent mandate on the European parliament... elected in 1989”. Leaving aside formal difficulties relating to the instrument used to adopt the referendum, its object appears to be perfectly in line with the fundamental principles underlying the process of European unification, which it may, in away, be seen to realize; the relative constitutional law is, therefore, completely legitimate from a substantial point of view[42] and sets an important precedent of how even constitutional instruments can be used to actualize the federalist directive contained in the Constitution. The question put before the electorate was the following: “Do you think that the European Community should be transformed into an effective Union with a government answerable before parliament, and that the same European parliament should be given a mandate to draft a European Constitution to be brought, for ratification, before the competent bodies of the Community’s member states?” And an overwhelming majority, over 88 per cent, went on of course to answer “yes”.
Leaving aside questions over the legal efficacy of the referendum vis-à-vis the Euro MPs (an issue which became irrelevant when the European parliament in question reached the end of its term in office), the real importance of this referendum lies in its political impact and the ensuing responsibilities placed on political bodies. Because this was not a question referred to one particular body, because it was one regulated by constitutional law, all the representative bodies found themselves politically bound to adapt to the views expressed by the electorate on the subject of European unification. Clearly, such obligations could always be removed at a later date as a result of changes in the views of the electorate, which need not necessarily be expressed through a referendum, but may also be deduced from the results of subsequent elections. In this case, constitutional propriety would demand that the new orientation be explicitly declared in parliament, when the government receives the support of parliament, or through the passing of a special parliamentary motion. Until this happens, the validity of the political preferences expressed by the electorate at the 1989 referendum seems to be indisputable. Indeed, the final part of the question identifies specifically the constituent method which has been seen to be inherent in the principles of the Constitution, support for this method being confirmed by the will expressed by the electorate in response to a questioned regulated by constitutional law.
At this point, Italy’s support, political and constitutional, for the use of a constituent procedure for regulating further developments in the area of European unification, is clearly demonstrated, irrespective of the presence, or otherwise, of an explicit declaration of the same in the wording of the Constitution.
Conclusions.
Just a single hope and a few considerations remain to be expressed.
In relation to the current process of constitutional reform, it is to be hoped that the provision for tighter procedures regulating further limitations on sovereignty (Art. 114, parag. 2) may, as requested by several amendments, be removed. Meanwhile, no amendments favouring adoption of the constituent method appear to have been presented, although it does appear, from views and interpretations of political developments, that there is a movement in this direction.
Having examined the specific case of Italy, it is important, in conclusion, to underline the significance of the relationship between national constitutions and revisions of national constitutions on the one hand, and the process of European unification on the other.
“The Constitution is not there to build history... so much as to create obstacles (in an attempt to protect valid interests), and to remove obstacles (in order to take instruments of dominion away from centres of power)”.[43] History is built within the political sphere and on the basis of the political will of the people, and when that will is strong, there exist no formal obstacles that can stop it in its tracks; however, by acting within a framework of legality, those who support political projects which conform with the values of the Constitution will find that they are facilitated (or at least not hindered) in their task, and that the position of their opponents, conversely, is weakened (or at least, not strengthened).
The Italian Constitution, on the basis of what has been examined here, does not hinder (and may even be said to favour) the process of the creation of a European federation as its values include the transcendence of the absolute sovereignty of the national state, and thus the formation of superior political entities. There is certainly no denying that the construction of a European federation will be bound to include a constituent phase, even though this will be peculiar in nature, having as its object a treaty-constitution. But, providing it is conducted in conformity with the principles of the republican Constitution, this phase need not be, per se, extra ordinem and thus illegitimate.[44] Those who constructed the Italian Constitution with thoughts also of a European federation, deliberately left what Calamandrei described as an “ammorzatura” (Art. 11), in other words, “one of those protrusions sometimes left by architects on the bare walls of a building so that they may, at some future date, add another part to it, perhaps more splendid and more opulent, a part which has not yet been built, but which is already drawn in their imagination”.[45] This, then, is the part of the Constitution which makes it possible for Italy to belong to a European federation. It is not, however, the tool for building that federation — it is up to federalists to do that.
Salvatore Aloisio
[1] Cf. Art. 1 parag. 4, constitutional law no. 1 of January 24th, 1997.
[2] The project presented by the commission appeared in Il Sole 24 Ore on November 5th,1997.
[3] “Titolo VI” comprises articles 114, 115 and 116.
[4] The other two articles refer, respectively, to the participation of the two houses of parliament and of local government in the definition of community policies.
[5] This aspect recurs in many contributions contained in the proceedings of the convention of the Italian association of constitutionalists, Le prospettive dell’Unione europea e la Costituzione (Milan, December 4th-5th, 1992), Padua, Cedam, 1995. Moreover, it was on the basis of Art. 11 of the Constitution, (the scope of which will again be touched on further on) that, as with all community treaties, Italy ratified the Maastricht Treaty by ordinary law (law no. 454 of November 3rd, 1992).
[6] For an overall view, cf. P.F. Lotito, “Integrazione comunitaria e regole costituzionali: gli esempi di Francia, Spagna e Germania” in Quaderni Costituzionali, 1993, pp. 155 ff. Ibid. the texts of alterations to the constitutions of France and Germany, pp. 149 and 151, respectively.
[7] The words of D’Alema, in the transcript of meeting no. 7 (26.2.97) of the Parliamentary Commission for Constitutional Reform (hereinafter, the Commission).
[8] D’Amico, in the brief report of the meeting, held on 16.4.97, of the Committee on Parliament and Legislative Sources (hereinafter, the Committee). With reference to the section of interest here, Art. 11 of the Constitution runs as follows: “Italy (...) agrees, on equal terms with the other states, to the limitations of sovereignty necessary to create a system able to ensure peace and justice among states; it promotes and supports the international organisations whose activities are directed to this end”.
[9] The words given in inverted commas are, respectively, those spoken before the Committee by Soda MP (Democratic Left) at the meeting of 16.4.97 and by senator Greco (Forza Italia) at the meeting of 30.4.97.
[10] Enclosures 18 and 26 of the Committee meetings held on 23.4.97 and on 22.5.97 respectively.
[11] The tightening up of the second draft of the proposal with respect to the first is probably due to remarks made by Crucianelli MP (Democratic Left), (enclosure no. 24; Committee meeting held on 30.4.97) who feels that a constitutional review procedure should be implemented for any modification, through European treaties, of the Constitution.
[12] The text of Art. A (participation in EC building and procedures for the conferment of further powers) submitted to the Commission is, on the whole, the same as those presented to the Committee and has been used, without alteration, as the text forming the basis for discussion by the Commission (Cf. Text enclosed with transcript of Commission meeting no. 30 held on 29.5.97).
[13] Cf. D’Amico, Commission meeting no. 30 held on 29.5.97, pp. 1137-1140.
[14] These opinions had, in part, already been expressed during the work of the Committee, by commissioners Crucianelli (Democratic Left), and Salvato (Communist Refounders) (Cf. Commission meeting no. 31 held on 29. 5.97, pp. 1149 and 1169).
[15] Cf. Pieroni (Green Party), Commission meeting no. 31 held on 29.5.97, p. 1160. lbid. p. 1190, D’Onofrio (CCD) described European integration as a good thing in itself, and as “essential pillars” both that and the limitations on the transfer of sovereignty already established in the interpretation of Art. 11 of the Constitution.
[16] Cf. enclosure (III.1.5.), on amendments regarding Italy’s membership of the EU, presented by the spokesman at Commission meeting no. 39 held on 18.6.97. It is important to note that at the end of this phase of the work of the Commission, D’Amico MP resigned as spokesman.
[17] Boato MP, in particular underlined this point;, it is also relevant to recall here a comment made by the chairman of the Commission, D’Alema: ”We may set down in writing that the state is transferring competences, but this would be hypocritical as the national state does not transfer competences, it transfers sovereignty, indeed, this concept is already expressed in Art. 11 of the Constitution”. Cf. Commission meeting no. 40 held on 18.6.97, pp. 1510 and 1514 respectively; Boato/Pieroni amendment, ibid., enclosure to amendments no. III.01.15.1.
[18] Words spoken by Pieroni MP, Commission meeting no. 40 of 18.6.97, p. 1510.
[19] In his speech, Senese MP (the first signatory) stressed the will to gather together, in a single constitutional provision, the rules developed, on the basis of Art. 11, by the Constitutional Court in recent years. With reference to the request for a provision to ensure that recourse is always had to constitutional law, he made the point that by constitutionalising the process of unification, “further transfers of power” would already be legitimated by the very first paragraph, and that for this reason the legislative instrument proposed could be considered sufficient. Cf. Commission meeting no. 36 held on 16.6.97, the enclosure to the amendments (p. 1356) and amendment III.1.5.
[20] Cf. senator Salvi, Commission meeting no. 40 held on 18.6.97, pp. 1511 and 1515.
[21]21 Cf. contributions of commissioners Servello (National Alliance), Salvato (Communist Refounders) and Pera (Forza Italia) during Commission meeting no. 40 held on 18.6.97, pp. 1510, 1512-13 and 1515, 1514 respectively.
[22] Commission meeting no. 40 held on 18.6.97, p. 1511. This aspect will be dwelt upon further, examining in more depth the legality of the reform.
[23] Cf. Il Sole 24 ore, July 1st, 1997.
[24] Commission meeting no. 40 held on 18.6.97, p. 1512.
[25] For an overall view, cf. F. Sorrentino, Corte costituzionale e Corte di giustizia europea, Milan, Giuffré, 1970, pp. 87 ff.; for more recent debate on this issue cf. M. Cartabia, Principi inviolabili e integrazione europea, Milan, Giuffré, 1995, pp. 95 ff.
[26] Cf., for example, M. Luciani, “La Costitution italienne et les obstacles à l’intégration européenne”, in Revue française de Droit constitutionnel, 1992, pp. 663 ff.; L. Paladin, “Il deficit democratico nell’ordinamento communitario”, in Le Regioni, 1996, pp. 103 ff.; S. Bartole, “La nazione italiana e il patrimonio costituzionale europeo”, in Diritto Pubblico, 1997, pp. 23 ff. It is not, on the other hand, easy to support the view that the 1989 referendum can be seen to justify the ratification of the Maastricht Treaty (see G. Lauricella, “In margine alla ratifica degli accordi di Maastricht: la legge costituzionale del 1989 ed il referendum popolare sul mandato costituente al parlamento europeo”, in Rivista trimestrale di diritto e procedura civile, 1992, pp. 1226 ff.). Indeed, the effects of this referendum, to which we will refer again later on, merit further consideration.
[27] See G. Gemma, “Giurisprudenza costituzionale in materia comunitaria (1964-1976) e superamento della sovranità nazionale”, in Rivista trimestrale di diritto pubblico, 1977, pp. 1185 ff.
[28] This line of interpretation is rooted in decisions 14/1964 and 183/1973 and, at least as far as these aspects are concerned, remains unchallenged by subsequent decisions. Cf. P. Barile, “Il cammino comunitario della Corte”, (note on decision 183/1973), in Giurisprudenza costituzionale, 1973, p. 2406; for information on the evolution of Constitutional Court decisions, cf. F. Sorrentino, Profili costituzionali dell’integrazione comunitaria, Turin, Giappichelli, 1994.
[29] Constitutional Court decision 183/1973.
[30] Clearly, the limitations imposed on the revision of the Constitution provided for by constitutional law no. 1/1997 merit broader consideration than they can be afforded within the context of this paper. The case under examination here can, indeed, be considered “borderline” in view of the intervention, in the absence of any modification to the text of Art. 11 (and thus to Part I of the Constitution), on the part of the bicameral Commission in an area (limitations of sovereignty) regulated by the said article, an intervention which modifies the interpretation of Art. 11 established by the Constitutional Court and by consequent parliamentary practice.
[31] This view is summed up in V. Onida, “Costituzione Italiana”, in Digesto delle discipline pubblicistiche, Turin, UTET, 1989, p. 334. This author shares the belief that the basis for, and constitutional legitimation of the birth of a European federation can be found as far back as the 1948 Constitution.
[32] G.U. Rescigno, “Il tribunale costituzionale federale Tedesco e i nodi costituzionali del processo di unificazione europea” in Giurisprudenza costituzionale, 1994, pp. 3119 and 3123, note 18. This point is also underlined by L. Paladin, op. cit., pp. 1031-2. The decision mentioned underlines the incompatibility between the procedures contained in Art. 236 of the Treaty of Rome (now Art. N of the Maastricht Treaty) and the transformation of the Community into a federal state. Cf. F. Rossolillo, “Can We Delegate the Founding of the European Federation?”, in The Federalist, XXXVI (1994), pp. 29 ff.
[33] F. Sorrentino, “Ai limiti dell’integrazione comunitaria: primato delle fonti o delle istituzioni comunitarie?”, in Politica del diritto, 1994, p. 201.
[34] This view is strengthened by the fact that, according to A. Gattini, the majority of German jurists did not see any need for modification of the Constitution. (Cf. A. Gattini, “La Corte costituzionale tedesca e il Trattato sull’Unione europea”, in Rivista di diritto internazionale, 1994, p. 115).
[35] Historical-political aspects are dealt with by S. Pistone, L’Italia e l’unità europea, Turin, Loescher, 1982, pp. 152-3 and, more broadly, by D. Preda, Sulla soglia dell’Unione: la vicenda della CPE, Milan, Jaka Book, 1994. Legal aspects, meanwhile, are examined by G. Gemma, op. cit., p. 1215, note 108.
[36] Emblematic of this contraposition is an exchange of opinions between two German jurists, D. Grimm, “Does Europe Need a Constitution?”, pp. 282 ff., conference held at the Carl Friedrich von Siemens Stiftung, January 19th, 1994 and J. Habermas, “Comment on the paper by D. Grimm: Does Europe Need a Constitution? “, in European Law Journal, 1995, no. 3, pp. 303 ff., and now also in Id., Die Einbeziehung des Anderen. Studien zur politischen Theorie, Frankfurt am Main, Suhrkamp, 1996.
[37] Expression attributable to G. Zagrebelsky, “Presentazione”, in Il federalismo e la democrazia europea, Rome, Nuova Italia scientifica, 1994, p. 13.
[38] This underlines the connection between the principle of subsidiarity, landing place of the EU in its movement towards a federal-type system and the overcoming of the “democratic deficit”. P. Caretti, “Il principio di sussidarietà e i suoi riflessi sui piano dell’ordinamento comunitario e sul piano dell’ordinamento nazionale” in Le prospettive dell’Unione europea, cit., pp. 140 ff.
[39] The national peoples of Europe and the federal people of Europe are, together, drawn into a European constituent process (Cf. F. Rossolillo, “Popular Sovereignty and the World Federal People as Its Subject”, in The Federalist XXXVII (1995) pp. 150 ff.); the present paper refers prevalently to the Italian people, inserted however, into the context mentioned.
[40] F. Rossolillo, Ibid., p. 176.
[41] The value of this referendum was, moreover, seriously underestimated by many jurists, a view summed up by B. Caravita, “Il referendum sui poteri del Parlamento,europeo: posizioni critiche”, in Politica del diritto, 1989, pp. 319 ff. As we have seen, an opposing stance is adopted by G. Lauricella, op. cit.; while J. Bartolomei prefers a middle way “Brevi note sul referendum di indirizzo indetto con la legge costituzionale n. 2 del 1989”, in Giurisprudenza costituzionale, 1990, pp. 891 ff. The latter, defining it as “plebiscitary” underlines the political scope of the act.
[42] This would not apply in the case of a referendum which with its fundamental principle opposes the Constitution; for example, even if it were approved by a constitutional law, a referendum relating to the secession of one of the Italian regions would not, constituting a violation of Art. 5 of the Constitution, be legal.
[43] G. Gemma, op. cit., p. 589.
[44] Such is the view held by M. Luciani, op. cit., p. 589.
[45] P. Calamandrei. “Stato federale e confederazione di Stati”, in Europa federata, Milan, Comunità, 1947, pp. 34-5.
