Comparative Law, Stockholm University, Faculty of Law

Constitutional analysis of subsidiarity:Allocation of decisional power in Italy,

Sweden and the European Union

Supervisor Dr. Pär Hallström

Arnaldo Mitola24 – 11 – 2014

Index

Introduction………………………………………………………….…………………….2

1. Problem and method……………………………………………………………………...3

2. Contextual background for the comparison: the concept of subsidiarity………………...5

3. Subsidiarity and representativeness in Italy, Sweden and the EU………………………..7

3.1 Italy……………………………………………………………………………………7

3.1.1 General background………………………………………………………………7

3.1.2 Legal basis………………………………………………………………………...8

3.1.3 Practical applications and considerations…...………...…………………………11

3.2 Sweden……………………………………………………………………………….12

3.2.1 General background……………………………………………………………..12

3.2.2 Legal basis……………………………………………………………………….13

3.2.3 Practical applications and considerations………………………..……………...14

3.3 European Union……………………………………………………………………...15

3.3.1 General background……………………………………………………………..15

3.3.2 Legal basis……………………………………………………………………….16

3.3.3 Practical applications and considerations…………………………………...…...17

4. Comparison……………………………………………………………………………...19

5. Conclusions……………………………………………………………………………...20

Acknowledgements………………………………………………………………………22

List of references………………………………………………..………………………..23

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Introduction

This essay seeks to analyze and reconstruct the allocation ofthe decisional power in Italy, Sweden and the EU. “Withoutsociety there is no need for law (…)”. Changing the word ofDias for this context, a man by himself on a desert islandhas no need to call his power to decide into question. It isonly when at least one other person joins him that it becomesnecessary1. My comparison wishes to use the systems mentionedabove as a pretext to analyze the different solution andanthropological framework, of this topic, in particular,taking into consideration the principle of subsidiarity.

My starting point is Italy, as the legal system in which Iwas born2. Nowadays, this country is crossing a very intenseperiod of reforms and changing. One of the main issue isprecisely managing the people’ and electors’ will in thedecision making process, both from the administrative and thelegislative point of view. This is a central feature fordemocracy and for every social system. The issue isparticularly interesting inside the European Union (EU),1 R. W. M. Dias, Jurisprudance, Butterworth, p.297 in K. Akuffo, The concept ofland ownership in African customary law and its implications for development, African Journalof International and Comparative Law, Vol. 17, p. 60.2 I think it is relevant in comparative studies to alert the reader aboutthe mentalité of the author. Cfr. P. Legrand, Against a European Civil Code, The ModernLaw Review, Blackwell, Malden, USA, 1997.

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where the Member States (MS), conferring to the EU part oftheir sovereignty3, consign also part of the decisional powerof their citizens. Therefore, the allocation of thedecisional power is everyday further from the individuals,going behind the national borders.

My analysis will take into account a horizontal comparisonbetween two States, Italy and Sweden, and a verticalcomparison between the EU and the latter4. The relation withthe EU is particularly important in a context that, accordingto many scholars as Scaccia, the EU will certainly evolve ina federal direction5. So it is fundamental to analyze the waythe EU decisional process works, especially because of thefact that, despite the tendency mentioned above, thisinstitution is accused to be affected by a “lack ofdemocracy”, to be a quasi-oligarchy system whose decisionsare taken in a “space-ship” and very far from theiraddressees.

I have elected Italy and Sweden for the examination because oftheir very different approach from a legal point of view to theproblem. The allocation of decisional power, in fact, isapproached from two very far perspectives: it is decentralized inthe first case (e.g. the choice of a Regional legislator), andvery centralized in the latter, based, among other things, on thedifferent historical background. Despite the fact that in general,in the constitutional analysis, “the deeper the study is carriedon in individual systems, the more differences are found6”, I wouldlike to point out the fact that they respect and interpret in

3 The EU is considered ”endowed with sovereign rights, the exercise ofwhich affects Members States and also their citizens”. See Case 26/62 VanGend en Loos v Nederlandse Administratie der Belastingen [1963] ECR. 1.4 Although the EU it is not a State, it has got sovereign rights whichaffect directly the MS citizens. See note above.5 “[I]ncedere - lento ma inesorabile - di un processo federativo”, G.Scaccia, La dimensione Giuridica della Sussidiarieta´, in S. Sangalli (a cura di), Sussidiarieta´: Mappe e Rotte di esplorazione, GB Press, Roma, 2014, p.99.6 J. Husa, Guarding the Constitutionality of Laws in the Nordic Countries: A Comparative Perspective, The American Journal of Comparative Law Vol. 48, June 2000, p.345.

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different ways the same principle, which is self-governance,through divergent points of view.

In summa, I use the problem of the allocation of decisionalpower as tertium comparationis, a neutral point of view andfunctional analysis between these systems, I focus on thedifferent approaches (subsidiarity and strong society) and Iconsider self-governance7 as the common goal the latter wouldlike to aim to regulate social life.

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Problem and method

The problem of managing the people’s will is a centralfeature of any form of government. Who decides? Where? How?When? This is a concern that every system somehow has tosolve. In particular, it is fundamental for every democraticinstitution and State, such as Italy and Sweden8. Democracyis defined by the U.S. president Abraham Lincoln as “thegovernment of the people, by the people, for the people”9andthat means that the decisions are always ascribable to thecitizens’ will. In modern democracies, this will is often notdirect, but it is indirect and carried on by theinstitutions, such as the Parliament (i.e. representativedemocracy). This word derives from the French parlement, whichmeans to speak: a place, therefore, where people discuss andpromote political decisions. Although I don´t want to focus

7 In nutshell, the principle of self-governance describes in this context a social group capable to exercise in autonomy all of the necessary functions, without the intervention of any other authority which they cannot alter.8 In Italy, “Sovereignty belongs to the people” (Art. 1 Cost.); in Swedenin The Instrument of Government it is stated: “[a]ll public power in Swedenproceeds from the people. Swedish democracy is founded (…)” (Art. 1).9 A. Lincoln, The Gettysburg Address, Gettysburg, Pennsylvania, USA, November 19, 1863.

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on historical and sociological issues10, I just want tounderline – and this is relevant for this analysis – that thedecision’s place isn´t available for all the communitymembers and this leads to a different allocation of thedecisional power. The theme of the research, therefore, thefunctional question, is: how do Italy, Sweden and the EUmanage the people’s will, how do they allocate the decisionalpower, what criteria do they use to determine whoparticipates to the deliberations? Therefore, mine is amacro-comparison involving not only the legislation, but alsocultural and historical issues and it is an intra-culturalanalysis11 as well because all of these systems belong to theWestern culture12.

My analysis starts on the meaning and general background ofthe concepts of subsidiarity, then I focus on the legal basisof the systems involved (i.e. the Italian Constitution, theSwedish Instrument of Government and the EU Treaties) and theconcrete development of these sets of rules. Finally, Icompare the data and I will share my personal conclusions.

How can be this subject approached by using a comparativemethod? As Husa states, the judicial comparison is not onlythe description of a picture, how is the examined legalfunction realized by different systems, but it would like

10 Direct democracy was possible in more restricted and les specializedcommunities such as Athens in the V century B.C. and its ἐκκλησία,“assembly”, where all citizens used to participate in the most importantdecisions of the State. Also in this system, of course, people did notapprove every single resolution. 11 “[T]he comparison of legal systems rooted in similar culturaltraditions and operating in similar socio-economic conditions”, W. J.Kamba, Comparative Law: a Teoretical Framework, 23 I:C:L:Q: 485, 1974, p.511, inM. Van Hoecke, M. Warrington, Legal Cultures, Legal Paradigms and Legal Doctrine:towards a new model of Comparative Law, The International and Comparative LawQuarterly Vol. 47, Cambridge University Press, Cambridge, 1998, p. 509.12 As Friedman, I consider the concept of Legal Culture very useful. Aflower that has to be allowed to bloom. Cfr. L. M. Friedman, A Concept ofLegal Culture: A Reply, in D. Nelken, Comparing Legal Cultures, 1997, pp. 33-39.

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also to “generate new knowledge13”. This essay seeks to followthe methods and requirements for the study of comparativelaw. I use the structure of Husa´s Guarding the Constitutionality ofLaws in the Nordic Countries: A Comparative Perspective14, which Iconsider, in my very humble opinion, an ideal and rigorousway to approach constitutional comparative studies.Therefore, I do not only focus on the similarities anddifferences between these systems, but I will try to supplyinterpretation tools for representativeness in these Europeaninstitutions (i.e. subsidiarity), in an anthropologicalvision of the human relations based on individualresponsibility. Furthermore, the goal is to try to explain,at a general level, the reasons behind these systems: I wouldlike to develop a judicially culture-oriented comparison,which takes into account not only the written norms, but alsoa wider context.

The structure of the chapters is based on Wittgenstein’sTractatus logico-philosophicus because I believe that this kind ofdivision could help a logical development of the essay. Thepaper is organized as follows15:

Section 2, “Contextual background for the comparison: theconcept of subsidiarity” is about a general definition andanalysis of subsidiarity. Section 3 “Subsidiarity andrepresentativeness in Italy, Sweden and the EU”, examines howthese systems work. It is divided in different sub-sectionsin order to separate the object of the analysis maintainingthe same structure for each sub-chapter (i.e. a verticalcomparative analysis). I will take into account the legalframework, sentences and observations moved by academics andscholars, and also cultural and historical elements. Section13 See above note 6, p. 346.14 Id. pp.345-381.15 The structure of this work consists in primary statements explained byother propositions which are referred to the previous as sub-statements(e.g. proposition n. 1.1 elucidates n. 1 and n. 1.1.1 clarifies n. 1.1).See L. Wittgenstein, Tractatus logico-philosophicus e quaderni 1914 – 1916, Einaudi,Torino, 2009.

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4, “Comparison”, correlates the different systems pointingout the differences and similarities. Section 5,“Conclusions” outlines the reached results and contains mypersonal considerations.

2

Contextual background for the comparison: the concept ofsubsidiarity

As pointed out by Husa, “[i]n judicial comparative research acontextual frame is needed, if the intention is amethodological and disciplined approach”. Before analyzingeach singular system, it is necessary to define the generalmeaning in the context of the concepts involved and create ageneral framework of interpretation of the problem.

First of all it is required to underline the fact that theanalyzed systems, Italy, Sweden and the EU, belong to theWestern legal culture16 which is characterized, according toVan Hoecke and Warrington17, by individualism, a belief in theautonomy and total liberty of the individual and rationalism,a belief in the possibility to know, structure and masterreality in an objective manner. Another important element is“personalism18”, which the authors, in my very humble opinion,improperly used as synonymous to “individualism”: in fact,the first term underlines the ontological relational nature16 The distinction between Civil law and Scandinavian systems is not relevant in this context.17 M. Van Hoecke, M. Warrington, Legal Cultures, Legal Paradigms and Legal Doctrine:towards a new model of Comparative Law, The International and Comparative LawQuarterly Vol. 47, Cambridge University Press, Cambridge, 1998, pp. 503ss..18 F. Wieacker, Grundlagen der Rechtskultur, in S. Jörgensen et al. (Eds), Traditionand Progress in Modern Legal Cultures, 1985, p. 182, as quoted in M. Van Hoecke, M.Warrington, Legal Cultures, Legal Paradigms and Legal Doctrine: towards anew model of Comparative Law, The International and Comparative LawQuarterly Vol. 47, Cambridge University Press, Cambridge, 1998, pp. 504.

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of the human beings, that are not only autonomous entities,but are also inserted in a context of relationships which arepart of their essence (e.g. their family, the culture)19. Thisis fundamental to understand the importance of the concept ofsubsidiarity and to give value to the regional decisionalautonomy.20What does “subsidiarity” mean? First of all, it could beuseful to reconstruct the meaning and the historicaldevelopment of the term. The word derives from the Latinsubsidium, which was a military term referred to the troopsbehind the cohort21 who intervened when the latter was aboutto give up. So, it is a help that was offered only in case ofdifficulty, when someone wasn´t able to comply to hisfunction. This basic meaning has arrived also nowadays,through different schools of thought, in particular connectedwith Christian churches, in which anthropology the man isimago Dei, “image of God”, and so subject and not object of theinstitutions22, and lay rationalism (e.g. Kant and his conceptof human being as Selbstzweck, “end in itself”). It is a form ofliberalism faithful on the value and the potential of

19 This is a fundamental concept of several philosophers in Italy, such asRosmini, belonging to a Catholic culture, but it is not absent in theNordic culture. Just to give an ancient example, we could take intoaccount the Hávamál, an Eddaic poem composed in the period around AD 700-900. As Sæmundsson wrote, the ethics of the Hávamál states that anindividual is “not alone in the world but tied by inextricable bonds tonature and society (…)”. See B. Jonasson, The Sayings of the Vikings, Gudrun,Reykjavik, 1992.20 The following part of this section is based on G.Scaccia, La dimensione Giuridica della Sussidiarieta´, in S. Sangalli (a cura di), Sussidiarieta´: Mappe e Rotte di esplorazione, GB Press, Roma, 2014 pp-53 -102.21 The cohort was a unit of the Roman legion after the reforms of Gaius Marius in 107 BC.22The man “is far from an object and a passive element of the social life,it is and it must be, the subject, the foundation and the end” (“lungidall’essere l’oggetto e un elemento passivo della vita sociale, ne èinvece, e deve esserne e rimanerne, il soggetto, il fondamento e ilfine”, Pio XII, Radiomessaggio natalizio del 24 dicembre 1944, in ActaApostolicae Sedis 37 (1945), 12., in Scaccia, see above note 18 p. 56.

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liberty. The social institutions and aggregate, therefore,are instrumental for the human beings.

One of the fields it is commonly used in is family, where theparents sustain the children who are not able to provide totheir own needs. The support, initially all-embracing, isaimed to emancipate them. Another field where the concept ofsubsidiarity is spread is charity, with the popular slogan“give a man a fish and you feed him for a day; teach a man tofish and you feed him for a lifetime”. It is not about thesekinds of subsidiarity I would like to focus in this essay,but about the juridical meaning of the word which involvesboth the administrative and legislative sphere.

I do not analyze the different understandings, both from acultural and philosophical point of view, but I shortlymention some relevant landmarks. First of all, the birth ofthe modern State, intended as a sovereign political systemwith the monopoly of political decisions and interventions.Before this, subsidiarity involved spontaneous socialphenomena because of the natural tendency of human beings tocooperate to satisfy needs that are not possible to please bythemselves. With the modern State the process is inverted:the whole is not built by the aggregation of the parts, butit is the whole, that detains the sovereignty, thatreconstructs the rule of the parts, with relationship basedon subordination, delegation and derivation: the State is anordinated complex of competences23. In this context,subsidiarity is a way to hinder the State in absorbing everysphere of the political life. In a nutshell, the centralState conception finds out the competences by deduction fromthe whole, the subsidiarity obtains them inductively. As Iwill try to show in the sections underneath, on one hand thefirst approach is mainly used by Sweden and the latter byItaly, the EU, and, in general, in federal systems; on theother hand these systems are not in contradiction, but fit as

23 Id. p. 55, “(…) un insieme ordinato di competenze”.9

well as they are adequate to the context and try to manage asimilar issue, which is self-governance.

Another important topic is conflict and balancing between thefreedom of the individuals and the equality and duty tointervene in cases of non-adequacy of the lower level of thedecision24. The solution of this problem, the point of balanceof these two tendencies depend on the context: if it is not apriority of the system to stress the value ofdifferentiation, the most important political decision willattract the central States (e.g. an overuse of the clause ofsupremacy in Federal States). This is what could happen inItaly and Europe and this leads to the final point I wouldlike to remark in this very brief analysis of subsidiarity.

The concept of subsidiarity is based on the development of anindividual’s responsibility: it is first the single citizenwho acts in the society: the other institutions are more orless far from him and decide through an aggregation process,from the micro level of municipalities to the macro level ofthe state or the international organizations. Theanthropological framework of subsidiarity and self-governance, thus, is based on the ethic of responsibility andit is deeply contrary to every mechanistic conception of thestate: the starting point is a natural and living organismand the different systems develop their solutions accordingto their particular needs. The public intervention is basedon real necessity, not on deductive assumptions taken farfrom the addressees.

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Subsidiarity and representativeness in Italy, Sweden and theEU

24 Id. p. 58.10

Paraphrasing the words of Carlson25, capturing the essence ofa legal decisional system in simply a few pages is adaunting, if not impossible task. Therefore, I beg the readerpardon for the superficiality and very brief depictions ofthe following subchapters. I enter into detail more in theItalian system, trying also to explain the ratio of someprovisions which I will try to compare with the othersolutions. I maintain the same structure in all the systemsinvolved in order to allow the reader to see by itself thedifferences and similarities. Finally, I just want tounderline that the information below is a pretext andinstrumental to understand different aspects of the centralissue: allocation of decisional power.

3.1

Italy

“Per l´onore d´Italia26”

25 L. Carlson, The fundamentals of Swedish Law, Studentlitteratur, Lund, 2012, p.23.26 “For the Italian honor”, Italian motto.

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3.1.1

General background

The Italian Republic (La Repubblica Italiana) is a parliamentarydemocracy where about 60 million citizens live and nearly 87% of them are Catholic. It has existed as a State since 1861.Italy is facing an economic recession which seriously affectsits prosperity. Although a crisis within its institutions, itis politically stable with a multiparty system. It iscrossing a period of reforms to stabilize its economy andreassert its Parliamentary structure and allocation oflegislative and administrative power. Nowadays, the Republicis divided in State, Regions, Provinces and Communes. It is afounder member of the EU and so, as mentioned above, deliverspart of its sovereignty to this international organization.The system is made up on the basis of a tripartition-doctrineof governmental power and its institutions are ruled by awritten constitution whose observance is guaranteed by theConstitutional Court (Corte Costituzionale). The legislative powerbelongs to the Regions (Regioni) Parliament (Parlamento), whichis divided in Chamber of deputies (Camera dei Deputati) and Senateof the Republic Senato della Repubblica, and elects the Presidentof the Republic (Presidente della Republlica). The Head of the Stateis the President of the Republic who appoints the PrimeMinister (Presidente del Consiglio dei Ministri). The executive powerbelongs to the Government, which has to obtain the consensus(fiducia) of the Parliament. Therefore, it is a check-and-balance system. The administration system is based ondecentralization.

3.1.2

Legal basis

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As mentioned above, Italy is crossing a serious period ofreforms that involved its decisional system. In this sectionI briefly describe how the concept of subsidiarity isintended in Italy from both the perspective of the ius conditumand ius condendum27, in particularly stressing the attention tothe principle of subsidiarity. I analyze the actual systemwith several glances to the new-coming (but not certain)system. 28In Italy the sovereignty belongs to the people (Art 1 Cost.)that is variously allocated in the governmental level. “The Republic is one and indivisible. It recognizes and promotes localautonomies, and implements the fullest measure of administrativedecentralization in those services which depend on the State. TheRepublic adapts the principles and methods of its legislation to therequirements of autonomy and decentralization” (Art. 5 Cost.)29.

It is relevant to stress the attention on the fact that it iswritten as “decentralization” and not “de-concentration”30:the administrative local system is not a peripheral branch ofthe State, but it is an autonomous body. Moreover, there aretwo legislators: the regional and the national one, whichhave the same importance in the system of the sources of law.The Constitution itself does not consider them hierarchically

27 For the official draft, see Atto Senato n. 1429 - Senato della Repubblica, http://www.senato.it/japp/bgt/showdoc/17/DOSSIER/800855/index.html, as available November 24, 2014.28 This sub-section is based on P. Caretti, U. De Siervo, Diritto costituzionale e pubblico, Giappichelli, Torino, 2012, in particular pp. 372 ss. Regarding Regions and local government.

29 In this essay I use the translation of the official website of theItalian Senate. See The Constitution of the Italian Republic – Il Senato della RepubblicaItaliana,https://www.senato.it/documenti/repository/istituzione/costituzione_inglese.pdf, as available November 24, 2014. For the original text, seeCostituzione Repubblica Italiana – Senato della Repubblica,https://www.senato.it/documenti/repository/istituzione/costituzione.pdf,as available November 24, 2014.30 Italian terminology: “decentramento” and “deconcentrazione”.

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but assigns them the same status. It is relevant to point outthe fact that it is not the central State that is divided,but the latter is only one of the components of the Republic:“The Republic is composed of the Municipalities, the Provinces, theMetropolitan Cities, the Regions and the State. Municipalities,provinces, metropolitan cities and regions are autonomous entities havingtheir own statutes, powers and functions in accordance with theprinciples laid down in the Constitution. (…)” (Art. 114 Cost)

As written above, the division of competence between theseorgans is stated by the Constitution and nowadays, as therepresentativeness system, the framework is changing.

At a national level, Italian citizens are represented by theParliament (Artt. 55 ss. Cost.) which has legislative powerand is divided in two chambers with the same functions (socalled “bicameralismo perfetto”), The Chamber is elected onnational level and it is composed by 630 seats. The Senate iselected on regional basis and it is composed by about 315seats.31 The distribution of the seats nowadays is a pureproportional system (so called “Mattarellum”) because theformer system based on a majority prize and long blockedlists (so called “Porcellum”) was not considered conformant tothe Constitution. The recent electoral reform,32 valid onlyfor the Chamber33, tries to let the people choose from ashorter list of candidates and to manage the correction ofthe people’s will (i.e. majority prize) to guaranteegovernability without exceeding in distortion. Of course itis a very formalistic approach, because inside the Parliamentthe single members are not forced to vote for their party.The Government proposes new laws and implements decisions31 It could be bigger because it could include also the five membersappointed by the President of the Republic and the former Presidents(Art. 59 Cost.).32 For the text of the reform, see http://www.senato.it/leg/17/BGT/Schede/Ddliter/44128.htm, as available November 24, 2014.33 In the draft of the constitutional reform the Senate is modified in itsrule as a legislator and it will not participate any more to the fiducia of the Government.

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taken by the Parliament. The party or bloc of parties thatwins most votes in an election forms the Government, and thenewly elected Chambers, together, elect the Head of theState, who appoints the Prime Minister. The latter has to beconfirmed by the Chambers. The Government is accountable tothe Parliament and must have its support in order to carrythrough its policy. The Parliament has also a supervisorypower to control the Government and the Public Administration(PA).

At a regional level34, Italy is divided into 20 regions.Political tasks are undertaken by the Regional Council, theRegional Executive and its President (Art. 121. Cost.). TheRegion has the legislative power as the National Parliament.

At a local level, there are Provinces35 and Municipalities.Each Municipality has an elected assembly, the municipalcouncil, a mayor, directly elected by people, who appointsthe municipal executive board. The activities are financedthrough municipal taxes, government grants and chargesrespecting the principle of self-governance.

Hereby I analyze in details the allocation of legislative andadministrative power. As stated by Art. 117 Cost., theregional and the national legislator have the same positionin the source of law system but they have three differentcompetences: exclusive of the State, shared and residual tothe region36. This leads to a problem of coordination betweenlegislators, and it is an in fieri matter37. I just want to

34 I don´t take into account the differences between Special and Ordinary Statutes (Art. 116 Cost). 35 In the draft of the reform they are abolished.36 This is a typical federal approach: the parts confer to the State some functions, but all the other matters remain to the local level. Cfr. US and German Federal System. 37 I don´t take into account here the Conference between the State and theRegions and the jurisprudence of the Costitutional Court. It is onlyrelevant to mention Sen. 303/2003 (so called “Sentenza Mezzanotte”), thefirst sentence which tried to introduce principle of subsidiarity from alegislative point of view.

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underline that the Italian Constitutional Court has oppressedby a huge amount of direct appeals and that the actualinstitutional reforms are addressing this problem asmentioned in the sub-section underneath.

The administrative division of competences is stated on Artt.118 ss. Cost. The first part of this Article is clearlyinspired by the principle of subsidiarity and Art. 5 Cost38:Administrative functions are attributed to the Municipalities, unlessthey are attributed to the provinces, metropolitan cities and regions orto the State, pursuant to the principles of subsidiarity39,differentiation and proportionality, to ensure their uniformimplementation. Municipalities, provinces and metropolitan cities carryout administrative functions of their own as well as the functionsassigned to them by State or by regional legislation, according to theirrespective competences. (…) State, regions, metropolitan cities,provinces and municipalities shall promote the autonomous initiatives ofcitizens, both as individuals and as members of associations, relating toactivities of general interest, on the basis of the principle ofsubsidiarity40.

Art. 119 Cost. underlines the principle of self-governance:Municipalities, provinces, metropolitan cities and regions shall haverevenue and expenditure autonomy. Municipalities, provinces, metropolitancities and regions shall have independent financial resources.

Art 120. Cost. permits the Government to intervene in localmatters where the local body doesn’t coply to its functions“(…) The Government can act for bodies of the regions, metropolitancities, provinces and municipalities if the latter fail to comply withinternational rules and treaties or EU legislation, or in the case ofgrave danger for public safety and security, or whenever such action isnecessary to preserve legal or economic unity and in particular toguarantee the basic level of benefits relating to civil and socialentitlements, regardless of the geographic borders of local authorities.(….)”

38 See above in this sub-section.39 i.e. “vertical subsidiarity” among institutional bodies.40 i.e. “horizontal subsidiarity” among institutions and private citizens.

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3.1.3

Practical application and considerations

Italy is a very complex and heterogeneous country from anhistorical point of view. It is a relatively recent State(1861) born by, on one hand, an ambiguous process ofaggregation of the former little States crossing various wars(so called “Independence Wars”), and on the other hand by anexpansion and centralistic tendency of one of these States,the Kingdom of Savoia (the Italian first king was stillcalled Vittorio Emmanuele II: why second, if he was thefirst? Because he was also Vittorio Emmanuele II king ofSavoia). The tendency to centralize and create a nationalidentity and the tendency to regionalism always affect Italyand also today this is an urgent political issue.Historically, the first approach insisted on thecentralization to create national identity but nowadays theprocess is inverted with regionalism.

I make underneath five considerations. First of all, it isonly Art. 114 Cost. that puts on the same plan the differentlevels of government: the former considered hierarchicallythe Republic’s components. This is relevant because now theperspective is inverted: from a top down approach (the centerto the periphery), to a bottom up aggregation process of thenatural bodies of the society41. Id est subsidiarity, becausethe central state it is not an ontologically preexistent bodybut the result of an aggregation of parties. This is a formof “institutional pluralism”42 were subsidiarity is a naturallaw that describes the spontaneous aggregation of humanbeings to satisfy more comlpex needs.

Secondly, a relevant aspect that underlines this equalapproach to institutional levels is the provision of a

41 See supra note 19, pp. 67-68.42 Id.

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regional and autonomous legislator with the same position inthe source of law system (Art. 117 Cost.: the regional lawhas not as a limit the national law, but it has differentcompetences). It corresponds to the idea that the decisionhas been maintained to the local communities as near aspossible to the citizens.

Third, the problem of coordination of legislators becausethey have the same importance. The solution the actualGovernment has proposed is based on two elements: first acoevolution between national and regional systems through asecond chamber, the Senate, with limited power andrepresenting regional interests characterized by an indirectelection as in Germany and, in the past, in the EU (very farfrom the people’s will); second by a supremacy clause toattract competences which are better achieved at the Statelevel and respect the needs of unification and coherency.This is a clear legislative subsidiary element.

Fourth, Art. 120 Cost. could also recall subsidiarity becauseof the substitutive power of the Government but it is not.“To substitute” signifies that there is a hierarchy and thatthe functions are not attracted by the Government but theyremain to the local bodies. This means that, if a function isattracted, the local body cannot do anything while, if it isnot, it is free to modify and interfere later. Subsidiarity,in fact, doesn´t tolerate control power because it is basedon the functional parity between the bodies involved43.Furthermore, the intervention is based on an omission orinefficiency and not on objective advantages of the higherlevel regarding results that it is not possible to achievelocally.

To conclude, I would like to briefly spend a few words aboutthe concrete application of this principle of subsidiarity inItaly44. It was introduced to simplify bureaucracy and to make

43 Id.44 Id. pp. 85 ss.

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the decisional process closer to social demands.Nevertheless, de facto, it centralized the administration and,with the new reform, it could centralize also the legislationthrough the clause of supremacy45. There are several concernsabout centralization in this country, through historical andpolitical reasons that are not possible to explain in fewlines. I could easily mention, for instance, the deepdifference from an economic and social point of view betweenthe South and the North Regions and a centralization couldstrengthen this problem.

The “failure” of subsidiarity decentralization, from aconceptual point of view, could be individuated in the factthat the balancing between liberty and equality is leanstoward the latter, also from an organizational point of view.

3.2

Sweden

“För Sverige - i tiden46”

3.2.1

General background

45 Actually it is not a literary clause of supremacy but it has equivalent effects.46 “For Sweden – for ever”, Swedish motto. It is present, for example, in one face of the 10k coin.

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The Kingdom of Sweden (Konungariket Sverige) is an old State: ittook the independence from Denmark in 1523. It is aconstitutional monarchy that in practice works as aparliamentary democracy where about 9 million citizens liveand nearly 90 % of them are Protestants. Sweden iseconomically prosperous and has a stable multiparty system.It is part of the EU since 1995 so, as Italy, delivers partof its sovereignty to this international organization. Thesystem is made up on the basis of a tripartition-doctrine ofgovernmental power and its institutions are ruled by awritten constitution (Regeringsform) whose observance isguaranteed by a decentralized, ex post facto and concretesystem47. The powers of the Monarch are parliamentarized, theunicameral Parliament has the legislative power and theexecutive power belongs to the Government and the PrimeMinister.

3.2.2

Legal basis

In Sweden the sovereignty belongs to the people (Art. 1Instrument of Government) that is variously allocated in thegovernmental level.“All public power in Sweden proceeds from the people. Swedish democracyis founded on the free formation of opinion and on universal and equalsuffrage. It is realized through a representative and parliamentary formof government and through local self-government. (…)”48

47 Cfr. Husa, Guarding the Constitutionality of Laws in the Nordic Countries: A Comparative Perspective, The American Journal of Comparative Law Vol. 48, June 2000, pp.360 ss.48 In this essay I use the translation of the official website of the Government, The Constitution - riksdagen.se, http://www.riksdagen.se/en/Documents-and-laws/Laws/The-Constitution/, as available November 24, 2014. For the original text, Regeringsformen – Riksdagen, http://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/Kungorelse-1974152-om-beslu_sfs-1974-152/, as available November 24, 2014.

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49In Sweden there are three internal levels of government,national, regional and local and a super-national one, the EUlevel. The parliamentary, municipal and county councilelections are held every four years. In this section I focusonly on the internal level of governance. The division ofcompetences between these bodies is regulated by the SwedishConstitution and the Swedish Local Government Act (1992)50 andhas been changing over the years in order to transfercompetences from central government to municipal bodies.

At the national level, the Swedish people are represented bythe Riksdag (Swedish Parliament) which has exclusivelegislative powers and is composed by only a chamber of 349seats proportionally distributed among the political parties.People can choose their candidates. The Government proposesnew laws and implements decisions taken by the Parliament.The party or bloc of parties that wins most votes in anelection forms the Government and the newly elected Riksdagchooses a Prime Minister. The Government is accountable tothe Riksdag and must have its support in order to carrythrough its policies51. The Riksdag has also a supervisorypower to control the Government and the Public PA. Thecentral government authorities (around 400) implement thedecisions of the Parliament and the Government.

At a regional level, Sweden is divided into 21 counties.They don´t have legislative power. Political tasks areundertaken by: 1) the county councils, whose decision-makersare directly elected by the people of the county. The country

49 This section is based on M. Bogdan (editor), Swedish Legal System, Elanders,Sweden, 2010, pp. 41 ss. the official website of the Swedish government,How Sweden is governed – The Swedish Government,http://www.government.se/sb/d/575, as available on 24th November 2014. 50 I based my research on Local Government Act – Regeringen, http://www.regeringen.se/content/1/c4/06/96/34cb7541.pdf, as available November 24, 2014.51 This is particularly evident in the recent government crisis in Swedenbecause of the budget and the ealry elections that will take place in2015.

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council appoints a county executive committee which leads andcoordinates its work. The county council´s principal task ishealth and medical services and it is financed throughgovernment grants, county council taxes and charges. It isnecessary to underline that the form of regional governmentchanges depending of the county; 2) by the countyadministrative boards which are central government bodies andacts as a link between the regional and the national level.The Head of the county administrative board is appointed bythe Government and is designated County Governor.

At a local level, Sweden has 290 municipalities. Eachmunicipality has an elected assembly, the municipal council,which takes political decisions in many fields (e.g. school)and appoints the municipal executive board, which leads andcoordinates municipality work. The activities are financedthrough municipal taxes, government grants and charges.

The allocation of the legislative power is centralized andthe allocation of administrative power is derived from thecentral State according to the principle of self-governance.As stated in the Local Government Act, “Municipalities and county councils may themselves attend to matters ofgeneral concern which are connected with the area of the municipality orcounty council or with their members and which are not to be attended tosolely by the state, another municipality, another county council or someother body” (Chap.1, Section 1).

3.2.3

Practical application and considerations

Considering the framework sketched above, Sweden is anational State characterized by a strong unity amongcenturies after the independence from Denmark (1523). There

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was not a process of aggregation made by little States, butSweden expanded its domain to other territories. The actualsystem, in general, has not a problem of identity: people arefirst of all Swedish and then they belong to their localcommunity. There is a united and strong State who justifiesthe existence of the autonomies. In Sweden the element ofself-governance is present, for instance in themunicipalities , to make it is easier to maintain continuouscontact between decision-makers and the private citizens, butthere is not subsidiarity.

I make underneath five considerations. First of all, it isimportant to underline that the State is hierarchicallydivided: there is a top down approach from the center toperiphery. Again it is not subsidiarity.

Second, the law is made by the Riskdag and other normativesources are subordinated to the law of the Parliament: it isthe State that lets autonomy be maintained. I must underlinethat this is a more ordinate normative framework, where thereis certainty of the source of law system (no constitutionalconflict between legislators). There is not, again,legislative subsidiarity.

Third, the principle of subsidiarity is absent both inadministration constitutional law (vertical subsidiarity) andin the relation between PA and private citizens (horizontalsubsidiarity).

Fourth, the strong centralization of the state is alsoremarked by the parliament who is composed by people electedon a national level (of course there is not the necessity tocoordinate legislators), but the deputies sit respectinggeographical criteria and not in relation of their politicalprovenience. This is not only a very high sign of development

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of a democracy52, but also the fact that it is relevant wherethey come from53.

In Sweden more than in Italy, the balancing between libertyand equality leans towards the latter, also from anorganizational point of view. Sweden is a very strong Statethe whole, again, is not built by the aggregation of theparts, but is the whole itself, that detains the sovereignty,that reconstructs the rule of the parts, with relationshipbased on subordination, delegation and derivation.

EU

“In varietate Concordia54”

3.3.1

General background

The EU is an international political and economic union among28 independent and democratic States. The first treatyestablishing a cooperation is the European Community of Coaland Steal (ECSC) in 1951; since this year it has developeduntil nowadays. The name “EU” was adopted after theMaastricht treaty in 1992 and its functioning is regulated by

52 In Italy, for instance, it could not be possible for cultural reason: in December 2014 deputies through to others kangaroo puppets.53 In EU and in Italy, to strengthen the opposite, the relevance of thepolitical values and not of the geographical provenience, deputies sitaccording to political criteria.54 ”United in diversity”, European Union motto. I don´t like thistranslation, which is the official of the EU. I prefer “harmony” (whichis also literary nearer to Latin word, “with heart”). The same heart, so,the same principle of coexistence, but still independent parts. EU isneither a State nor, at least in the intentions of someone, a centralizedcenter of power. Cfr. US motto (de facto) “In pluribus, unum”.

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the Lisbon Treaties in 2007. Around 500 million people liveinside its burdens. It is a multicultural society where the90 % of the population is Christian (Catholics, Orthodox andProtestants). It is a very peculiar legal system: it isneither an intergovernmental organization, such as the UnitedNations (UN), nor a federal state, as the United States ofAmerica (US), but “a new legal order55”, whose membersdelegate some sovereign power and whose decisions affectdirectly the citizens of the MS. It is crossing a politicaland economic crisis which affects the life style of a hugepart of its population and its own identity. The systempresents a deficit of the tripartition-doctrine, inparticular regarding its lack of democracy which the LisbonTreaties tried to adjust. Its institutions are: the EuropeanCommission, the European Parliament, the European Council,the European Court of Justice (ECJ), the European CentralBank (ECB) and the Court of Auditors. There are also severalauxiliary organs including the Committee of the Regions whorepresent sub national authorities (this is relevant for theprocess of participation of local levels of government).

3.3.2

Legal basis

56As mentioned in the section above, the decisional power inthe EU is divided in several organs. I will focus hereby on

55 See supra note 3.56 This section is based on the official website of the EU, European Union– Eu website, http://europa.eu/index_en.htm, as available November 24, 2014.

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The European Commission, the European Council, The Counciland the Parliament. Then, I will consider the principle ofsubsidiarity, explicitly mentioned in the EU treaties(primary law).

The European Council sets the political direction – but hasno powers to pass laws. It is formed by the national Heads ofState or Government and it is led by its President.

The Law-making function (secondary law) involves three maininstitutions, the European Parliament, which represents theEU’s citizens and is directly elected by them; the Council,which represents the Governments of the MS and the EuropeanCommission, which represents the interests of the Union as awhole. In general, they proceed through the "OrdinaryLegislative Procedure" where the Commission proposes newlaws, after a very wide consultation involving the interestedparties, local authorities and also citizens, and theParliament and the Council adopt them (“co-decision”).Sessions of the European Parliament and some of the Councilcare public and can be watched online. The Commission and theMS then implement them, and the Commission ensures that thelaws are properly applied and implemented.

The EU operates under the principle of conferral (Artt. 4-5TEU)57 and so it cannot make laws in every subject. Thecompetence of the EU are exclusive or shared with the MS. Theprinciple of subsidiarity58 involves this second kind ofcompetences. Thus, it is a legislative subsidiarity. Art 5TEU states that in this field the Union “(…)shall act only if and insofar the objectives of the proposed actioncannot be sufficiently achieved by the member states, either a central or

57 For the EU treaties see Treaty on the Functioning of the European Union, https://www.ecb.europa.eu/ecb/legal/pdf/fxac08115enc_002.pdf, and the Treaty on European Union (TEU) - EUR-Lex – Europa, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2008:115:0013:0045:EN:PDF, as available November 24, 2014.58 The first disposition based on the principle of subsidiarity is Art. 130 of Single European Act 1986.

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a regional level and local but can rather, by reason of the scale oreffects of the proposed action, be better achieved a t Union level”.

The legislative intervention, therefore, is restricted by adouble condition: on one hand, the lower level of governmentis not able to achieve its goals, on the other hand, theproblem has to be achieved better on the higher level from aquality point of view. The legislative draft has to complywith these principles and it could be reviewed because ofnon-compliance59 with subsidiarity.

The Union shall act also under the principle ofproportionality which is aimed not at the level of the actbut at the quality of the act: “(…) the content and form ofUnion action shall not exceed what is necessary to achievethe objects of the Treaties”. The intervention, therefore,must be less intrusive as possible.

3.3.3

Practical application and consideratations

The EU is the edge of an ongoing process that brought out thecontinent from centuries of war to a prolonged period ofpeace60. It based its aggregation on a concrete need to createinterdependence between its members in order to maintainpolitical stability and economic development but it has neverhidden the will to create a community of values. One of theseis stated in its motto, In varietate concordia, and it is aimed, onone hand, to create unity among the states and the people ofEurope, and, on the other hand, to maintain the individualindependence of its components and their cultural identities.

59 See Protocol on the application of the principle of subsidiarity Art. 7. http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=OJ:C:2010:083:TOC, as available November 24, 2014.60 This institution received also the Nobel Peace Prize for these reasons in 2012.

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The principle of subsidiarity and self-governance it isinserted in this context.

I make underneath five consideration about the principle ofsubsidiarity. 61 First, I must say that the EU legislativesubsidiarity is qualitative different from the Italian. Inthe latter, the national and the regional legislators couldlegislate together. In the EU, on the contrary, when thecommunitarian legislator acts, it exclude ipso facto thenational legislation in the matter62.63Second, to limit the EU legislator without a strongjuridical control is inefficient and brings to the oppositeresult. Nowadays there are not a lot of ECJ sentences thatguarantee the State against the EU institutions: despite theintention of preservation of the local identities,subsidiarity could be an instrument to centralize theGovernment, through a verticalization of the functions.64 Forinstance, Sentence C- 233/9465 stated that it is not necessaryto explicitly mention the principle of subsidiarity in themotivation of the legislative acts and in the Sentence C-377/9866 disposed that this principle can be implicit: thecontrol of subsidiarity, from this prospective, is pale. Itis more efficient the early warning systems67: the EU institutionshear the MS indications and they reformulate, change orwithdraw the act involved, especially when the problem is

61 This consideration are based on see note pp. 98 ss.62 Maybe it could be useful to divide these terms. Scaccia uses“competenza concorrente” regarding Italy and “competenza in concorso” inEurope, very difficult expressions to translate.63 See above note 61.64 This happened also in Germany: Art. 72 Grundgesetz states the principleof legislative subsidiarity and the legislator tried to intervene with aclause of necessity (Erforderlichkeitsklausel) in 1994, that remained, accordingto the Bundesvefassungsgericht, a tool of centralization. It was the KarlsruheCourt that stated more strict criteria.65 Case C-233/94, Federal Republic of Germany v. European Parliament and Council of the European Union, [1997] ECR I-2405.66 Case C-377/98, Netherlands v European Parliament and Council 2001 ECR I-7079.67 See supra note 59.

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raised by the politically, economically and demographicallymost important countries.

Third, the EU acts of law are collocated in a higher levelthan the MS national law and constitutions68: the conflict oflaw has to be solved with the lex superior criterion. Thecoordination between legislators

Fourth, the representativeness of interest in the Union isfragmentized: people are represented in the Parliament, theUnion as a whole in the Commission, the States in theCouncil, the local levels of government in the Committee ofthe Regions. This is a very clear example of the system ofcoexistence and involvement of different level of governmentfor the decisional process.

Fifth, I would like to point out that in the EU there areboth tendencies to equality and freedom of the component.Managing this balancing will determine the future of theUnion69, and this is in open antithesis to the traditionalconcept of a modern nation state:“Whilst modern nation state have sought unity, member states assumesdivision. The state-society relationship is thus reconfigured in a wayvery alien from traditional thinking about the state: a presumedrelationship of representation is replaced by one of insulation andseparation”.70

4

Comparison

68 I don´t analyze the juridical problems and concerns of the national courts regarding the latter point.69 I could mention here the British referendum that will be held in 2015: it is a clear symptom of skepticism and fear of uniformation.70 C. Bickerton, European Intgration: From Nation States to Member States, OxfordUniversity ress, Oxford, 2012 p. 68-69 in D. Chalmers, G. Davies, G.Monti, European Union Law, Cambridge University Press, Cambridge, 2014,p. 9.

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In this section I would like to briefly compare some aspectsof the system analyzed in the previous sections (horizontalcomparison).

First of all I would like to spend few lines about the mottosI mentioned in the previous sections, which are significant.Both Italy and Sweden are self-referential and they affirmthe identity of the community as a whole. This is typical ofthe national States. The EU, on the other hand, stresses theattention on the parts that compose the community. Again,deductive approach in the firsts and inductive in the latter.The difference mentioned is also an issue of identity: thesetwo States, in particularly Sweden, have a national identitywhile this process is ongoing in the EU and has to belegitimated under the eyes of its single components thatbelong to very different traditions.

Second, although the issue mentioned above, all these systemsare characterized, of course by a different approach, byself-governance and with the principle that every decisionmust be taken as close as possible to their addressees. Themost relevant differences are present in the modality ofinteraction between the different levels (e.g. subsidiarityis based on the concept of collaboration between autonomousparts).

Third, the principle of subsidiarity is present in the EU andItaly, but not in Sweden: in the latter, there are not theparts that form the whole, but it is the State that justifiesthe local autonomies. This principle is typical of federaland liberal thoughts and so it is not surprising that in acountry like Sweden, where is present a strong State androoted social-democratic tradition, it is absent.

Fourth, in the EU and Italy, where the principle ofsubsidiarity is stated, there is the problem that, de facto, itis misused to centralize the functions instead of guaranteeautonomy and freedom, in particularly regarding legislativesubsidiarity. Maybe instead of tolerating an implicit

30

motivation (as in EU), a mandatory explicitly one couldguarantee the aim.

Finally, I just want to remark the importance of thebalancing between equality and freedom that is a veryimportant issue of modern democracy that often verymultifaceted societies must face. As Scaccia said, the aim ofthe law is no more to impose a uniform leveling of theregulation, but to find a limit of tolerability ofdifferences71.

5

Conclusions

In this final section I try to conceptualize some conceptraised in the previous.

In primis, as I mentioned above, the way the system allocatesthe decisional power is also fundamental for developing acommon identity. What does it mean to be European?72 In thiscontinent there is not a cultural and historical identity,(“German strategy”, like it happened in Sweden) and theapproach to form a European identity was based on commonbenefits of the union, to create opportunities and distributemoney (so called “Roman strategy”. This approach is not onlyunder threat because of populist and separatist movements,but also because it does not take into account the modernneeds of a developed society. The principles of subsidiarityand self-governance address this concern with the creation of71 Original: “(…) la legge non è tenuta più, come per l’addietro, aimporre un livellante uniformismo regolativo, ma piuttosto a segnare illimite di tollerabilità delle diseguaglianze”. See supra note 5.72 See L. v. Middelaar, The Passage to Europé: How a Continent Became a Union, Yale University Pree, New Haven, 2013, pp. 223-4 in D. Chalmers, G. Davies, G.Monti, European Union Law, Cambridge University Press, Cambridge, 2014, p. 25.

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an identity based on the objective fact of the involvement ofthe addressees in the decisions that are felt as theirconcerns (so called “Greek strategy”).

Second, the variety of the cultures and economic systems inEU underlines the unpracticability of an approach similar toSweden: the process of aggregation, if it is not stopped, iseasily followed by a federalist development. The principle ofself-governance and subsidiarity are so on fundamental alsoto respect the autonomy of the different production regimes73.This does not mean that a centralistic approach is wrong orless efficient: in Sweden it is perfectly adequate but itdoes not fit to a polyedric reality of legal systems: it willbring to a lack of identity and that means the “revolt” ofthe parts against the whole. Today´s legal systems do notpresent themselves as the mystical unity of nation, language,culture and society, as Volksgaist, but rather as fracturedmultitudes which coexist accordingly only to adequateprocesses of interaction.

Third, the EU as a community of values does not reason onlyin terms of efficiency and that makes the EU a very uniqueinternational organization: “[l]e devoir de répondre à láppel de lamémoir européenne (...) dicte de respecter la différence, lídiome, la minorité, lasingularité (...) (Deridda)74. Paraphrasing Schneider, the EU, inprinciple, is against the Spartan quality to be unforgivingof spontaneity and insensitive to the foggy or the strange75:this is the basement of local freedom and smooth developmentof particularities.

Fourth76, if on one hand the subsidiarity go behind an absolutand levelling centralized system, the correct functioning ofthe autonomy cannot remain steadfast by a simple formalistic

73 G. Taubner, Legal irritants: Good Faith in British Law or How Unifying Law Ends Up in New Divergences, The Modern Law Review, Blackwell, Malden,USA, 1998, p.31.74 Id.75 See supra note 2 p. 45.76 This reflection is based on see supra note 5 p. 88.

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group of functional relationships, but it is rooted on theresponsibility of the single actors that concretely makedecisions. It is easier to apply decisions made by someoneelse, and the freedom of choice requires a high level ofdevelopment of a civilization. It is a cultural challengebefore than a legal one.

To conclude, I would like to point out that subsidiarity isnot only a substantive norm that tries to respect theautonomy of the various actors, but it is also a proceduralnorm that consents a smooth interaction between macro andmicro situations, between the tendency to uniform and thetendency to singularity. This is fundamental not only inEurope, but in all over the world because of theinterrelation between very different, often conflictual andsometimes violent, legal cultures and ways of life. “There isa time for everything” (Ecclesiastes 3:1-8). Subsidiarityrespects this principle and leaves to the differentinterrelating legal systems and cultures and to the time, todecide the rule that the actors of this world have to cover.The edge of civilization is found on a smooth system of `co-evolution` rather than on a convergence around theevolutionary peak77.

Heartful thanks to Prof. Gino Scaccia

77 S. Deakin , Legal Diversity and Regulatory Competition: Which model forEurope?, (2006) 12 European Law Journal 440, 444-5.

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