Acts with the force of law

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The legislative acts of the government are summarized as acts with legal force ( Italian: atti a / avente / con forza di legge ) in Italian legislation . The designation comes from the fact that they are not laws in the formal sense (i.e. laws of the chambers or the regional councils or the state parliaments of the autonomous provinces ), but rank on the same level as these and are therefore on an equal footing with them; they thus bind citizens, courts and administration.

overview

The Albertine statute of 1861, which formed part of the material constitution of Italy until 1948, did not allow the government to intervene in the area of ​​the legislature. However, since it was not a formal constitution, i.e. legal norms that take precedence over all others, the government could be given legislative powers through enabling laws. After Mussolini's installation as prime minister and the subsequent takeover of power, this also offered the fascist regime some opportunities to fundamentally change the Italian state.

The 1948 constitution , which is now also a formal constitution, i.e. H. forms a superordinate (in Italy super-primary) norm, provides for a strict system of separation of powers between the legislature (the two chambers), the executive (the government) and the judiciary ( self-administration of the judges ). However, it also offers opportunities to break this principle, as the government basically has two avenues of legislative action, namely the Legislative Decree and the Legislative Decree. This is e.g. B. in the Federal Republic of Germany , which is obliged to a far stricter separation of powers, without example. In the legal system of Spain , however, there are comparable legal institutions.

Legislative decree ( decreto legislativo )

Article 76 of the Constitution fundamentally prohibits the delegation of legislative activity to the government, but opens up exceptional cases in which this can happen. It is necessary to define the principles, guidelines, a deadline and the subject or regulatory matter in which the government can legislate. This so-called Delegation Act ( legge delega or "Enabling Act") is enacted in the normal legislative procedure and empowers the Council of Ministers to issue the text of a so-called "legislative decree" (decreto legislativo, approximate literal translation "legislative decree", in South Tyrol also partially " legislative decree" ) ), which is then issued by the President of the Republic by decree (hence the name). Until 1988 this decree was issued under the name "Decree of the President of the Republic" (decreto del Presidente della Repubblica, DPR). In order to make the character of this act more unmistakable (the President puts various acts into force by means of a decree), the name has been changed.

The reason for this deviation from the separation of powers is the degree of complexity and difficulty of certain regulatory matters. Since the members of the chambers are not elected on the basis of their technical knowledge, but on the basis of the confidence of the voters, the necessary expertise in the field of e.g. B. of criminal, administrative or EU law mostly in the respective ministries of the government. In this way, they are allowed to regulate the subject area while maintaining the limits specified in the Enabling Act.

Despite the transfer of authority, the decree ultimately passed remains under full control of Parliament. This can withdraw the authorization explicitly or implicitly (it regulates the entrusted matter by law itself). In addition, the Constitutional Court finds all provisions created in this way to be unconstitutional if they violate the limits defined in the Enabling Act (e.g. exceeding the deadline). If the authorization is granted for more than two years, the Council of Ministers has to forward the text to the competent committees of the chambers before taking a decision.

The form of the statutory decree is also used to produce so-called "atypical sources of law", as follows.

The standard text or standardized text ( testo unico )

Standard texts ( ital. Testo unico ) summarize a large number of provisions previously regulated in separate laws. This is intended to standardize complex matters by summarizing scattered subject areas that have become confusing over time. Authorization to create a uniform text must also be granted by Parliament; In many cases it is not just a matter of a collection of laws that deal with a certain regulatory matter (compilation). The Council of Ministers can harmonize the subject area within the framework of the authorization by means of coordinating uniform texts; in the sense of a coherent regulation, he can amend, supplement or delete provisions, which actually creates new legal provisions, which must clearly be subject to the control of the chambers. This can roughly be compared with the re-pronouncement in Austria , whereby this must be done much more strictly and only affects individual laws.

Implementation regulations ( norms di attuazione )

The implementing regulations are a special case in the Italian legal system. They are responsible for regulating a specific field of competence, namely the implementation of the special statutes of the regions or provinces with special statutes . This subject can only be regulated by implementing regulations. In this sense, they are used by the Constitutional Court as a so-called "intermediate norm" ( norma interposta ) within the framework of the control of norms ; this means that the constitutionality of other sources of law at the same level will be assessed on the basis of the implementing rule. It will thus be immunized from other sources of law at the same level and in some cases also referred to as "provisions with increased legal force ". However, this designation is misleading because they do not have any other level of rank, but only a certain field of competence, albeit exclusively, is assigned to them.

The legal institute was necessary to enable the government and the representatives of the regions or provinces with special statutes to implement the special statutes freely, swiftly and independently of (changing, perhaps also anti-autonomous) majorities in the chambers. For this purpose, the form of the statutory decree, which is drawn up and decided by the Council of Ministers, was "misused". Since the special statutes have constitutional status, they can deviate from Article 76, which regulates, to the extent that the government is given permanent authorization to pass implementing provisions. However, the government is bound by certain requirements, which are also defined in the respective special statutes.

Using the example of the Trentino-Alto Adige region, in accordance with Art. 107 of the special statute, prior to enacting such a provision it is necessary to obtain an opinion from an equal committee. This so-called "Commission of 12" consists of six representatives from the state, two representatives from the regional council of the region and two representatives each from the provinces of Trento and Bolzano, which make up the region. Three of the twelve members must belong to the German language group. For implementation regulations that only affect the province of Bolzano, a commission of 6 is formed within this commission, half of which must be German-speaking. Originally it was envisaged that this authorization, as with the other legislative decrees, would only be granted for two years (Art. 108 special statute). If it were exceeded, the government could have passed without comment. However, this would have meant either not implementing the special statute or implementing it without the participation of the local authorities, which would have been politically sensitive, especially in the case of the Province of Bolzano. The Constitutional Court therefore ruled that the two years would not constitute a deadline and that the government can pass implementing provisions until the statute is considered implemented. Since, in view of the constantly changing legal situation, both at national and EU level, adaptations of the autonomies are constantly necessary, implementing provisions have been issued to this day, i.e. 44 years (2017) after the deadline.

Legislative decree ( decreto legge )

Article 77, paragraph 1 of the Constitution forbids the government to use its power to issue ordinances to enact provisions with the force of law. As in Article 76, this is only done for the fundamental determination of the legislative sovereignty of the chambers; Paragraph 2 lists the conditions under which this can still happen.

Another weak point of parliamentary democracy was recognized by the Constituent Assembly as the fact that it may not be able to react quickly enough to sudden circumstances, which, however, require immediate action. This topic is also discussed in many legal systems, whereby it is regarded as a sensitive subject area everywhere; In the Weimar Republic in particular , the authority of the Reich President to issue emergency ordinances under Article 48 of the Reich Constitution played a part in the decline of the first all-German democracy.

In the Italian Republic, this problem has been solved in the following way, by giving the government the opportunity to take legal action in cases of "exceptional need and urgency" and to adopt a so-called "legislative decree" ( decreto legge ). Here, too, the force of law means that it is in the same order of precedence as the laws of the chambers. The link back to parliamentary control occurs through the obligation to forward the decree on the same day to the chambers, which for this purpose even have to be convened within five days. They have to "convert" it, i.e. confirm it. A period of sixty days is provided for this. If the chambers reject a conversion or if they allow the deadline to expire, it is deemed to have been rejected. It is also possible to convert it with changes, deletions and additions. However, these only apply from the day of conversion ( ex nunc ).

A rejected legislative decree loses its validity retrospectively ( ex tunc ), which means that it will be treated as if it never existed. The chambers are appointed, but not obliged, to regulate any legal consequences that may arise.

Due to the often changing and unstable majorities in the chambers, the constitutional reality of Italy was marked by a very generous use of this instrument. If governments did not have sufficient majorities to pass an ordinary law, or if these were difficult to obtain, they passed legislative decrees, some of which they reissued after the deadline (sometimes after rejection by the chambers!). This runs counter to the meaning of the constitutional regulations, namely that the government does not have independent legislative powers. Only a law (No. 400/1988), but above all a judgment by the Constitutional Court, stopped this practice. In the latter, the Constitutional Court recognized that a reissue of a legislative decree that has not been converted is unconstitutional if it does not contain substantially new regulations or if a new emergency situation justifies this.

literature

  • Roland Riz, Esther Happacher: Fundamentals of Italian constitutional law taking into account the constitutional aspects of South Tyrolean autonomy . 4th edition, STUDIA Universitätsverlag, Innsbruck 2013

Web links

Individual evidence

  1. ↑ Possible basic forms for the word "-akte", the file dict.leo.org, accessed on December 14, 2017
  2. ↑ Esther Happacher: Introduction to the Italian public law lawyers sheet, undated, p 17
  3. ^ The Constitution of the Italian Republic of December 27, 1947, entered into force on January 1, 1948. Verassungen.eu, accessed on December 14, 2017
  4. ↑ Special Statute for the Trentino-South Tyrol Region Unified Text, Decree of the President of the Republic, August 31, 1972, No. 670 with later changes. Society for Threatened Peoples website , accessed December 14, 2017