Autonomy of South Tyrol

Under autonomy of South Tyrol is defined as the sum of the legal norms of the region Trentino-Alto Adige / South Tyrol in general and the Autonomous Province of Bolzano - South Tyrol , in particular, a far-reaching self-government allow public figures.

The autonomy of South Tyrol is derived from the principles of ethnic minority protection . The basic regulations were enacted over a period of several decades. Milestones were the signing of the Gruber-De-Gasperi Agreement (1946), in which they were documented for the first time (under international law), the entry into force of the Italian Constitution with a First Statute of Autonomy for Trentino-South Tyrol (1948), the entry into force of an expanded Second Statute of Autonomy ( based on a catalog of measures called the South Tyrol package ) for the provinces of Trento and Bolzano (1972) and its content implementation by 1992.

This article mainly refers to the province of Bolzano. At the same time, the province of Trento is also taken into account, as the forms of autonomy granted to the former also apply to the latter (there are differences in the area of ​​minority protection). However, the autonomy of the provinces must always be viewed in the context of the region. Therefore this will also be mentioned in detail, although it occupies a relatively insignificant position and has a symbolic and coordinating function. In the article, “Region” in the singular mostly refers to the Trentino-Alto Adige / South Tyrol region.

The terms correspond to those used in South Tyrol to describe the legal system of the Italian Republic in German. We try to use the corresponding terms of the Austrian, Swiss and German legal systems as far as possible. Nevertheless, due to the peculiarities of the Italian legal systems, the use of terms that are unusual in other German-speaking areas cannot be avoided (e.g. “decree” for decreto , a legal institution with no equivalent in Austria, Switzerland or Germany).

development

prehistory

After the Second World War , South Tyrol's remaining with the Italian state was not denied by the victorious powers; the German- and Ladin-speaking population of this area should, however, be given special privileges to protect their language and cultural characteristics. In this regard, the Paris Agreement was signed between the Italian Prime Minister De Gasperi and the Austrian Foreign Minister Gruber , for the protection and equal rights of the German language group. It saw the people - and secondary education in the mother tongue before; the equality of the German and Italian languages in the public offices and official documents as well as in the bilingual place names; Equal rights with regard to employment in public offices, in order to achieve a more appropriate ratio of job distribution between the two ethnic groups ; the granting of autonomous legislative and executive power .

In accordance with this agreement, schools were established with German as the language of instruction, the German place names and the Italianized German family names were restored, and the optants were able to return to their South Tyrolean homeland.

However, essential points were neglected. When the First Statute of Autonomy in the form of a constitutional law came into force in 1948 , extensive autonomy rights were not assigned to the Province of Bolzano or South Tyrol, but to the newly created region of Trentino-Tyrolean Etschland with an Italian-speaking majority of the population. Italians continued to be preferred in the allocation of public positions, so that a large part of the administration remained in Italian-speaking hands. Above all, however, the German South Tyroleans were denied real self-government. This should also benefit De Gasperi's compatriots in Trentino; in fact, however, the self-government of South Tyrol, which at that time still bore the official name Tyrolean Etschland , was made impossible. In addition to an “external self-determination” refused for Italian state reasons, this also prevented “internal self-determination” in the sense of extensive autonomy. In the region, the Italian language group was (clearly) in the majority, all important decisions regarding South Tyrol were made in Trento. In addition, the governments in Rome and Trento endeavored to settle migrant workers from southern Italy and Veneto in the course of advancing industrialization in South Tyrol. So it came about that social housing was built almost exclusively for Italians. The situation aroused great resentment among the German population, and strong resistance was formed against the so-called First Statute of Autonomy. When it was decided in 1957 to build 5,000 apartments for Italian immigrants, the South Tyrolean People's Party (SVP), under its new party chairman Silvius Magnago , gathered 35,000 South Tyroleans for a large rally at Sigmundskron Castle , where Magnago won a "Lot from Trento" and thus disempowered the region in favor of the Autonomous Province of Bolzano (South Tyrol) demanded. For the first time, the rally generated great, also international, interest in the South Tyrolean problem at the time. At the institutional level, the SVP reinforced its demands when its members of the government resigned from the regional government of Trentino-Alto Adige for the first time in 1959 . As a result, the SVP refused to participate in government until 1970, which meant that it was no longer possible to comply with the legally required proportionate occupation of the regional government with members of the German and Italian language groups.

From 1956, frustration with Italy's South Tyrol policy led to a series of bomb attacks parallel to the party-political initiatives of the SVP. The attacks of the first series (until 1961) - carried out by the Liberation Committee of South Tyrol (BAS) - were primarily directed against property ownership; above all high-voltage pylons that supplied electricity to the Italian industrial areas (see Sepp Kerschbaumer and Feuertacht ). The following series of attacks, in which, after the imprisonment of the leading BAS activists, people from other parts of the German-speaking area outside of South Tyrol were increasingly involved, claimed an increasing number of human victims. From 1961, the Italian authorities also contributed to the escalation of violence. In addition to the torture of arrested BAS activists by the Carabinieri , most of whom had been acquitted of these offenses in court - in contrast to the leading BAS activists - the Italian military intelligence service SIFAR was soon working in South Tyrol to use violent provocations to raise political tensions tighten and thereby weaken the negotiating position of the German South Tyroleans.

All groups who carried out bomb attacks as so-called "South Tyrol activists" in the period since 1956 persecuted, in contrast to the leading representatives of the SVP, but also to socially committed opposition parties such as the Social Progressive Party of South Tyrol (SFP), founded in 1966, as well as to Italian representatives in the ranks of Christian Democratic , Socialist and Communist parties , not the goal of achieving the legal implementation of the Gruber-De-Gasperi Agreement. With the support of their assassinations, they tried to obtain the separation of South Tyrol from Italy with the aim of reuniting the country with Austria.

Internationalization of the South Tyrol problem

UN resolution 1497 (XV) on the South Tyrol issue, which was passed by the UN General Assembly in 1960 on the initiative of the Austrian Foreign Minister Bruno Kreisky .

After the conclusion of the Austrian State Treaty in 1955 South Tyrol was once again become a central theme of the Austrian foreign policy, so that the South Tyrol problem after several unsuccessful exploratory talks between Rome and Vienna at the initiative of the Social Democratic Foreign Minister of Austria, Bruno Kreisky , first on the agenda of the UN General Assembly has been set . With the UN resolution 1497 / XV of October 31, 1960 it was determined that the Paris Treaty was binding for Italy. Italy agreed to better implement the existing Statute of Autonomy, but in practice this changed little for the time being.

The high-profile bomb attacks by the Liberation Committee of South Tyrol led to an escalation on the diplomatic floor, which culminated in a veto by Italy on Austria's accession to the EEC . The Austrian federal government then forced a repeated referral to the UN General Assembly with the South Tyrol question, which confirmed the resolution of 1960 in 1961.

In parallel to the ongoing negotiations at the level of the United Nations, the parliamentary commission of 19 (also called commission of nineteen ) was set up in Italy on September 1, 1961 . It consisted of eleven representatives from Italy, seven representatives from the German-speaking South Tyroleans and one representative from the Ladins. Senator Paolo Rossi held the presidency. The establishment of this commission was initially seen as a suitable measure to keep Austria away from the South Tyrol issue ( see History of South Tyrol ). However, the work in the commission proved to be constructive, especially since the members succeeded in working out a step-by-step plan for the concrete implementation of the autonomy - the so-called South Tyrol package - which should be acceptable for Austria as well as Italy and the South Tyroleans. After more than three years of work, the results of the commission were presented to the then Italian Prime Minister Aldo Moro on April 10, 1964 .

On December 16, 1964, the social democratic foreign ministers of Italy and Austria, Saragat and Kreisky , met at a secret conference in Paris. The proposals of the Commission of the Nineteen were approved and a fundamental agreement was reached on the implementation of the package. As a result, Kreisky spoke to representatives from North and South Tyrol on January 8, 1965 in Innsbruck and recommended that they accept the package. However, this was already rejected in the run-up to the meeting, but without informing Kreisky. Kreisky then officially withdrew from politics in South Tyrol.

In its implementation proposals, the Commission of the Nineteen also provided for the reform package to be anchored internationally. While Italy categorically rejected this, Austria initially insisted on it in order to meet the demands of the SVP of March 1967. The secret negotiations on this point dragged on for years until Austria gave in towards the end of the 1960s.

On May 13, 1969, a meeting of the two foreign ministers Pietro Nenni and Kurt Waldheim took place on the sidelines of a ministerial conference of the Council of Europe . There they agreed for the first time on the operation calendar . Operation calendar is a term coined by the Italians, which means the sum of the package changes without the controversial international agreement.

The Second Statute of Autonomy

Before it was finally approved, the Autonomy Package had to be ratified by the governments of South Tyrol, Italy and Austria. In October 1969, the party committee of the South Tyrolean People's Party met and recommended the regional assembly to adopt the calendar of operations with 41 to 23 votes. This national assembly finally took place on November 22nd and 23rd, 1969 in the Merano Kurhaus . Delegates from all over the province came to take part in this ballot. A flaming debate was held until the early hours of November 23, and it was finally decided to carry out the operation calendar. The package advocates around Silvius Magnago , Roland Riz and Friedl Volgger prevailed with 583 votes over the package opponents around Alfons Benedikter and Peter Brugger , who achieved 492 votes.

A few days later, on November 30, 1969, Kurt Waldheim and Aldo Moro met again in Copenhagen and decided on the schedule for carrying out the operation calendar. Just a few days later - on December 3rd - a large majority of the Italian parliament voted in favor of the package in a formal vote. Prime Minister Mariano Rumor's motion was approved by 269 ​​MPs, 26 against, and 88 MPs abstaining. Thereupon Italy withdrew the EEC veto against Austria on December 8th .

The vote in the Austrian National Council was much more controversial . After losing the election, the SPÖ left the government in 1966 and came into opposition to the ÖVP , which ruled with an absolute majority. Correspondingly, the fronts with regard to the policy of autonomy practiced between the SPÖ and ÖVP had hardened. This development manifested itself on the one hand in South Tyrol itself, where parallel to Kreisky's resignation as Foreign Minister, the SPÖ -affiliated SVP politician Egmont Jenny was excluded from the South Tyrolean People's Party, which was close to the ÖVP, and, with Kreisky's support, founded the Social Progressive Party of South Tyrol . On the other hand, the SPÖ in Austria tended to block the autonomy negotiations, which were now being carried on solely under the ÖVP direction, if possible.

On December 15, 1969, after the bilateral negotiations with Italy , Federal Chancellor Klaus brought the vote on the adoption of the package to the National Council. The SPÖ then applied to submit the entire package, from the Gruber-De Gasperi Agreement to the calendar of operations, to the International Court of Justice . This proposal was rejected by the majority of the ÖVP government (83 votes against 73 of the SPÖ and 6 of the FPÖ), and the package was ultimately accepted by the National Council.

The so-called Second Statute of Autonomy was passed by parliament in Italy on November 10, 1971 and came into force on January 20, 1972. The statute was given the name package because of the many measures it contained. These were originally intended to take effect within two years, i.e. by 1974; in fact, however, it took until 1992 for full implementation. On May 30, 1992, an extraordinary regional assembly of the SVP declared the implementation of the South Tyrol package to have been implemented by a large majority (82.86%). Thereupon Austria withdrew its lawsuit at the UN (so-called declaration of dispute settlement or declaration of dispute settlement ).

A comprehensive amendment in many areas took place through Constitutional Law No. 2/2001; Since then, the special statute has occasionally been referred to as the “Third Statute of Autonomy”, even if this designation is controversial, as the changes cannot be compared with the jump from the First Statute of Autonomy to the Second. The summary of the constitutional provisions on regional autonomy was published in a uniform text. In the course of the amendment of Title V of Part II of the Italian Constitution , which, among other things, deals with the local authorities, the linguistic peculiarities of South Tyrol, and thus also its autonomy, were constitutionally recognized. Art. 116 para. 1 of the Italian Constitution mentions (in the original text) "Trentino-Alto Adige / Südtirol" and "Aostatal / Vallée d'Aoste" and recognizes that these regions have special forms and types of autonomy according to special statutes that are approved by constitutional law. Further changes introduced by the constitutional law concerned the role of the Ladin language group, which now had access to various offices that had previously been reserved for the German and Italian language group (various disadvantages of the Ladins that existed even after 2001 were eliminated by constitutional law No. 1/2017 adjusted).

Although the Statute of Autonomy is a constitutional law, the autonomous scope of South Tyrol remains subject to selective changes. The federalist innovations hoped for by politics and jurisprudence as a result of the 2001 constitutional reform have largely failed to materialize; Certain parts of the autonomy were even restricted by judgments of the Italian Constitutional Court following the reform , which is further elaborated in the area of ​​“Legislation”. Various responsibilities have also been restricted by European law since 1992 . Conversely, through implementing provisions negotiated bilaterally with the Italian government, South Tyrol received a number of powers that were not originally provided for in the Statute of Autonomy.

The "Statute"

General

The (second) special statute for the Trentino-Alto Adige region (Statuto speciale per il Trentino-Alto Adige), colloquially simply called “Statute”, forms the core of the local autonomies. Whenever the article refers to the “statute” (or St.), the special statute is always meant after the major changes from 1971/72. It still exists in the form of the Constitutional Act of 1948, which was amended by other constitutional acts in 1971 and 1972 to incorporate the package. Since it forms the legal basis of all measures to protect the German-speaking and Ladin population and to ensure self-government, the subject area naturally shows strong overlaps with the constitutional law of the Italian Republic . In the article, therefore, various subject-specific terms from legal theory are used; However, these are limited to what is necessary and, if necessary, circumscribed.

Constitutional status means that all state, regional and provincial acts that act contrary to it can be rejected as unconstitutional by the Constitutional Court. There are special procedures for changing the statute; the constitutional law amending it cannot, for example, be subjected to a referendum (in the course of which the entire Italian people would have to vote on autonomy); an amendment passed by an absolute majority of the members of each chamber is therefore sufficient. Exceptions are the provisions of VI. Section (Financial Provisions) and Article 13, which can be amended by mutual request of the government and, depending on the jurisdiction, the region or the two provinces with simple state law, also the provisions contained in Articles 30 and 49 on the replacement of the President of the The regional council of Trentino-Alto Adige and that of the South Tyrolean parliament can, upon mutual request of the government and the region or the province of Bolzano.

Implementing Regulations

Since the adopted package has constitutional status (in Italian legal doctrine superprimary source , fonte superprimaria ) and it is unusual to make detailed legislation in it (details can change within months and years, the path of constitutional amendment would have to be followed every time), the implementation clearly had to be done through norms that are one rank lower (primary sources, fonti primarie). However, the provinces had to be given their legislative powers; the region did not have all the powers that were intended for the provinces. Thus the implementation of the statute necessarily had to be carried out through state laws. However, this approach would have had the disadvantage that areas considered sensitive, especially with regard to the public offices and the regulations relating to the German and Ladin languages, would have been subject to subsequent simple legal changes by the chambers.

Origin and creation

In order to give the negotiating partners on the provincial side the impression of a steady implementation that is not at the mercy of the discretion (or the arbitrariness) of parliamentary majorities, an instrument of state legislation was misused. This is the Legislative Decree (decreto legislativo, D.lgs.), A provision adopted by the government with legal force, which is one of the acts with legal force . The special statutes of the regions Friuli-Venezia Giulia, Sardinia and Sicily, but not that of the Aosta Valley region, are implemented with this instrument.

According to Art. 76, a mandate from Parliament in the form of an enabling law is required for the creation, resolution and issuance of such a decree; Since the exercise of legislative power by the government means a massive (and in the past also proved to be devastating) breach of the principle of the separation of powers, this results in a tie back to the will of the chambers. However, Art. 76 is only to be seen as a lex generalis , which regulates the general transfer of legislative power to the government. According to the rule “ lex specialis derogat legi generali ”, Art. 107 St., which is on the same level as the constitution itself, grants the government a kind of “permanent authorization” to pass legal decrees. The implementing provisions are also named according to the system of acts with legal force; So they carried until 1988 (when there was a reform of the names) the official name "Decree of the President of the Republic" ( Decreto del Presidente della Repubblica , DPR). After 1988 the designation "Legislative Decree" (GvD) followed, sometimes also "Legislative Decree" (LD).

Not only in the type of authorization, but also in how they are drafted, the implementing provisions differ from the other statutory decrees: For their adoption, a prior statement by special commissions is necessary, which are made up of equal numbers in the sense that they are equally represented by representatives of the State as well as the region and the provinces.

• The so-called “12 Commission” (or “12 Commission”) is generally to be consulted for the adoption of the implementing provisions. It consists of twelve members: six of them are appointed by the Italian government, two representatives each from the South Tyrolean parliament , two from the Trentino parliament and from the regional council of Trentino-South Tyrol . Three of the members have German as their mother tongue.
• The so-called “6 commission” (or “6 commission”) is a special committee formed within the 12 commission. This commission is responsible for implementing provisions relating to the areas assigned to the Province of Bolzano. Three of the six representatives are sent by the Italian government, two are elected by the South Tyrolean Parliament and one by the Regional Council of Trentino-South Tyrol; one of the representatives of the state has to be German as their mother tongue, one of the state parliament Italian. This commission is even made up of two equal members, with equal representation of the local authorities and language groups involved.

In order to ensure the rapid implementation of the autonomy, the commissions were obliged in Article 108, Paragraph 2, to submit at least part of their opinion within eighteen months after November 10, 1972 (entry into force of Constitutional Law 1/1971). If this does not happen, the government is entitled to issue the regulations within the next six months without the involvement of the commissions. In practice, this regulation was ignored; it would have meant not implementing the autonomy or without the participation of the linguistic minorities actually to be protected, which was out of the question. The Constitutional Court agreed with this view and does not see the two years as a deadline. Implementing provisions may thus be issued as long as it is necessary for the implementation of the autonomy. Since the conditions at the national and EU levels change again and again and the autonomy has to be adapted again and again, this will continue to happen.

Nature and nature of the implementing provisions

The function of the implementing provision is not to repeat the statutory provisions, but to implement and supplement them. They may therefore also contain provisions that are not provided for in the statute, provided that they correspond to the statute in terms of language, content and logic. In no case may they contradict the statute; this would make it unconstitutional.

Implementing provisions regulate a clearly defined field of competence, namely the implementation of the special statute. As a result, they have greater legal force than all other legal acts, i.e. also before state laws (but also before those of the country). They are sometimes referred to as “provisions with increased legal force”, although this is a vague designation; they are not above the normal primary level, but are merely equipped with defined regulatory authority. The implementing provisions certainly do not have constitutional status; However, the Constitutional Court uses the relevant implementing provisions as an "intermediate standard" ( norma interposta ) to check the compatibility of a legal provision ; A state, regional or state law is therefore unconstitutional if only because it contradicts the implementing provisions.

A violation of the involvement of the joint commissions is also unconstitutional. (One) example is the implementing regulation GvD No. 291/1993: The government replaced the words “after agreement with between the state and the autonomous provinces” with “after consultation of the autonomous provinces” without obtaining the consent of the Commission of Six. Since there is an essential difference between “agreement” and “questioning”, not only a cosmetic, but a weighty change was made here; the Constitutional Court immediately declared Article 2 of the relevant norm, which contains this, to be unconstitutional.

List of implementing regulations

The list contains a selection of the most important implementing provisions and is not intended to be exhaustive.

Subject / year:

• Alpine farming / 1974
• Labor Inspectorate / 1980
• Employment agency / 1974
• Alignment and coordination authority / 1992
• Banner and coat of arms of the country / 1983
• Legislative Powers / 1972
• Professional training and vocational training / 1973
• Electric energy / 1977
• Finance / 1975, 1989 and 1992
• Justice of the Peace / 1992
• Subsidized housing / 1974
• Parishes / 1975
• Healthcare / 1975
• Land and building cadastre / 1983
• Elementary and Secondary School / 1983
• Land registry and land registry / 1978
• Commerce, craft and the Chamber of Commerce, Industry, Crafts and Agriculture / 1978
• Disaster relief ... (civil defense) / 1978
• Communications and Transportation / 1987
• Governor / 1973
• Regional spatial planning plan / 1974
• Agriculture / 1974
• Local customs and traditions (culture) / 1973
• Radio and television / 1973
• Social Welfare / 1978
• Usage / 1988
• Roads / 1974
• Bilingualism / 1976

Constitutional protection

The state of South Tyrol is authorized to challenge laws of the state and other regions at the Constitutional Court if they violate its jurisdiction and whenever the principle of protecting the German-speaking and Ladin minorities is violated.

The special statute also provides for direct protection for the individual language groups. If a legislative proposal violates the equality of citizens of different language groups, the majority of the members of a language group in the regional council or in the South Tyrolean state parliament can demand voting according to language groups. If this motion is not approved or if the legislative proposal is passed by two-thirds of the members of the language group that submitted the motion despite the dissenting vote, the majority of this language group can contest the law within thirty days of its announcement at the Constitutional Court.

If the areas of responsibility of the country are impaired by administrative measures or political acts of other regions, provinces or the state, the country and the regions are entitled to raise a conflict of powers, which leads to a decision by the Constitutional Court.

Legislative autonomy

Types of Legislative Powers

At the time of the negotiation of the statute there were (or still are) only two types of local authority in Italy which could enact provisions of the law: the state itself and the regions. The latter were only introduced after the Second World War and were intended to make the republic more “decentralized” and to enable the local population to regulate certain areas themselves by electing their own regional parliaments. On the one hand, this was implemented relatively slowly; It was not until the 1970s that the regions were fully established. On the other hand, legislative powers were imposed from the outset by severe limits. Until the reform in 2001, Article 117 said that the regions were allowed to legislate in the areas listed below; however, these must remain within the framework of the principles laid down by state law, the so-called "national" or "state" interest and that of other regions should not be violated. In addition to the competence to organize one's own administration, the competencies were primarily those that were of local importance, such as trade fairs and markets, spatial planning, tourism, hospitality, hunting and fishing, agriculture, etc.

When designing autonomy, new concepts were developed as to how the division of legislative power could take place. A system of “graduated” legislative competencies was used, which applies to both regional and provincial competences.

• Primary powers find their limits according to Art. 4 St. in the constitution and in the principles of the legal order (whereby this is considered as a unit), in the respect of international obligations (which also includes the European communities at that time), the fundamental provisions of economic -social reforms of the republic (a relatively flexible term which is ultimately subject to the judicature of the constitutional court) and the national interest (which, however, includes the protection of minorities). Despite the various barriers, the authority to regulate was relatively large, at least until the constitutional reform in 2001, which created a lot of uncertainty in this area.
• Secondary powers are limited by the limits that apply to the primary ones; in addition, they can also be limited by the principles laid down in state law . In this area there is therefore a further limited scope.
• Tertiary powers only allow state laws to be supplemented.
• Delegated powers are transferred to the provinces, whereby only the possibility to do so is anchored in the statutes, but not the exact subject areas. The state (according to Art. 17 St.) or the region have the option of transferring these powers back at any time (which, however, is hardly to be feared by the region). For the province, however, there is a higher level of security if the transfer takes place through implementing regulations

The laws are passed either by the regional council or by the state parliaments and published in the regional gazette (Bollettino Ufficiale della Regione). Like state laws, they come into force on the fifteenth day after promulgation, unless otherwise specified.

Recent developments

In the course of the constitutional reform in 2001, this system was adapted to reorganize the distribution of competencies between the state and regions. The revised Article 117 speaks in paragraph 2 of the exclusive competences of the state, in paragraph 3 of areas of "competing legislation" (not to be confused with that in the Federal Republic of Germany), in which the state regulates the essential principles, but the regions the Detailed legislation is entitled. All other subject areas fall within the competence of the regions. This constitutional reform gave rise to another, albeit by no means so clearly defined, category of powers: residual powers.

Residual powers are all subject areas that are neither expressly due to the state nor exercised by state and region in competition. In principle, they fall within the competence of the region. Article 10 of Constitutional Law 3/2001 guaranteed that "until the respective statutes [...] have been amended, the provisions of this constitutional law will also apply in the regions with special statutes and in the autonomous provinces of Trento and Bolzano, namely for the parts in which forms of autonomy are provided which go beyond those already granted. " This means that the residual powers fall within the scope of provincial legislation. The new barriers of Article 117 (1) of the Constitution apply to them, namely the constitution itself and the obligations arising from the Community legal order (EU) and from the international treaties of Italy. These barriers appear to be much lower than those that apply to the statutory powers of the autonomous provinces. In theory, the favorable Article 10 of the Constitutional Law should have introduced these new barriers for them too; However, the judicature of the Constitutional Court has confirmed that the statutory limits continue to apply to statutory powers. In the wake of the 2001 constitutional reform and an increasing number of "anti-autonomous" judicature of the Constitutional Court, the category of so-called "cross-sectional powers " (competenze trasversali ) was established. If the exclusive legislative powers of the state (e.g. protection of competition) overlap with residual powers of the regions (e.g. trade), the state can, if there is a need for uniform exercise throughout the state, take over this power. If the Constitutional Court confirms this argument in the case of the following direct constitutional complaint (which the regions and autonomous provinces concerned are authorized to submit), the competence in these cases is transferred to the sphere of the state.

Another provision introduced by Constitutional Law 3/2001 relates to the so-called substitution power. It can be found in Article 120 Paragraph 2.

"Regardless of the territorial boundaries of local governments, the government is empowered to disregard international regulations and agreements or EU regulations or if there is a great danger to public order and security for organs of the regions, major cities with special status, or the provinces and the municipalities to act, as well as if it is necessary for the protection of the legal or economic entity and in particular for the protection of essential services relating to civil and social rights. The law lays down the procedures to ensure that the power of substitution takes into account the The principle of subsidiarity and the principle of sincere cooperation. "

The state parliament is expressly mentioned in the statute as an organ of the autonomous provinces. Since the state could intervene instead in the situations described above, it could also take over the legislative power. This would have to be clarified in a specific case before the Constitutional Court. It is also unclear whether the aforementioned Article 10 of the law, according to which the provisions are only applicable if they provide for further forms of autonomy, does not expressly prohibit this.

The term "loyal cooperation" would primarily be associated with a mutual and equal loyalty; However, it has been found that, in principle, the lower regional authorities have to be loyal to the state.

The following is a list of the legislative competences of the Autonomous Provinces, regardless of the residual competences. Important ones are highlighted in bold.

Primary legislation

German-speaking primary school ( Ahrntal municipality )

• 1. Order of state offices and assigned personnel;
• 2. Place-naming, with the obligation to be bilingual in the province of Bolzano;
• 3. Protection and maintenance of historical, artistic and popular values;
• 4. local customs and traditions as well as cultural institutions (libraries, academies, institutes, museums) of a provincial character; local artistic, cultural and educational events and activities; In the province of Bolzano, radio and television can also be used for this, with the exclusion of the authority to set up radio and television stations;
• 5. Regional planning and land-use plans ;
• 6. Landscape protection;
• 7. Public rights;
• 8. Order of the minimum cultural units, also with regard to the application of Article 847 of the Civil Code; Order of the closed courtyards and the family communities based on old statutes or customs;
• 9. Crafts;
• 10. subsidized housing that is wholly or partially financed by public law; this also includes the benefits for the construction of people's houses in disaster areas as well as the activities that non-provincial corporations develop in the provinces with public-law financing;
• 11. inland ports;
• 12. Trade fairs and markets;
• 13. Disaster prevention and emergency relief measures;
• 14. Mining, including mineral and thermal waters, quarries and pits, and peat cutting;
• 15. Hunting and fishing;
• 16. Alpine farming as well as plant and animal protection parks;
• 17. Roads, aqueducts and public works in the province's area of ​​interest;
• 18. Communications and transport in the province's area of ​​interest, including technical regulations for cable cars and their operation;
• 19. Takeover of public services in self-administration and their execution by special companies;
• 20. Tourism and hospitality, including guides, mountain porters, ski instructors and ski schools;
• 21. Agriculture , forestry and forest personnel, livestock and fish stocks, plant protection institutes, agricultural consortia and agricultural research institutes, hail protection, soil improvement;
• 22. Expropriations for reasons of public benefit in all areas of state jurisdiction;
• 23. Establishment and activity of municipal and state commissions to support and advise workers in the field of job placement;
• 24. Hydraulic structures of the third, fourth and fifth categories;
• 25. public welfare and welfare ;
• 26. Kindergartens ;
• 27. School welfare for those branches of the educational system for which the province has legislative power;
• 28. School building;
• 29. Professional upgrading and training.

Secondary legislation

• 1. Local police in town and country;
• 2. Teaching at elementary and secondary schools (middle schools, humanistic grammar schools, secondary grammar schools, educational institutions, technical colleges, technical colleges and art schools);
• 3. trade ;
• 4. apprenticeship system; Work books; Categories and job titles of workers;
• 5. Establishment and activity of municipal and state commissions to monitor job placement;
• 6. public demonstrations as far as public safety is concerned;
• 7. public companies, without prejudice to the subjective requirements stipulated by state laws to obtain licenses, the supervisory powers of the state to ensure public safety and the law of the Ministry of the Interior, in the sense of state legislation, the dispositions made in this area, even if they are final, repeal ex officio. Ordinary complaints against the aforementioned rulings are regulated within the framework of state autonomy;
• 8. Promotion of industrial production;
• 9. Use of public waters, with the exception of large-scale discharges for generating electrical energy;
• 10. Hygiene and health services, including health and hospital care;
• 11. Sport and leisure activities with the appropriate facilities and facilities.

Tertiary and delegated powers

The tertiary powers look very few. The provinces may make additional provisions in the field of job placement and assignment.

In the course of the 1990s, when on the one hand there were political upheavals at the national level and on the other hand the unsteady financial management of the state became obvious, the instrument of delegation gained an upswing. Instead of threatening to cut their funding (which depends on the state and can be changed by the state by law, see below), the autonomous provinces had offered to take over responsibilities for which they would then (at least in large part) pay for their own funding. Primarily administrative powers were transferred (it is not the resolution of a law that is visibly reflected in the budget, but its implementation by the administration), but there has also been a transfer of legislative powers from time to time. This concerns the area of ​​transport concessions, the offices of civil motorization (both in 1995), regulations in the area of ​​emergency medical services and the functions in the area of ​​ordinary and extraordinary maintenance of the state roads in the territory of the two provinces (both in 1995). The latter was transferred by means of an implementing provision in order to allocate the legislative competence. This has led to the catchphrase of "dynamic autonomy", since the country is involved in the adoption of this provision by the 6 and 12 commissions and these delegations cannot be arbitrarily reversed due to the special nature of the implementing provisions.

Administrative autonomy

Establishment of administrative autonomy

In addition to the powers to set standards independently, the ability to independently enforce and implement them is a further measure of the scope of autonomy. If an autonomous body could only make different regulations, but if their implementation would still have to be left to the central state authority, this could create some problems in the implementation: Either state organs would not have an overview of the autonomous regulations, or a process of "deliberate letting go “Happen. In addition, the identification of the resident population with their “country” would suffer if autonomous norms were nevertheless enforced by state organs.

Subject areas

In the sense of the so-called “parallelism”, according to Art. 15 St., the local authorities can perform the administrative tasks in the areas in which they also have the competence to legislate. This forms the basis for the establishment of a comprehensive state administration in the provinces, as these have significant legislative powers. There are also other isolated provisions for administration. The region, which is responsible for the legal regulation of the fire service, has to transfer the corresponding administrative powers to the provinces.

In the wake of the constitutional reform of 2001, the division of administrative powers between the individual regional authorities of the republic was also reorganized.

The constitutional distribution of subject areas was reversed; henceforth the powers of the regions are no longer listed, but those of the state or competing legislation; the rest falls into the sphere of the regions (so-called residual competencies , i.e. remaining competences ). What this regulation means for the autonomous provinces has not been conclusively clarified even sixteen years (2017) after the reform. In any case, legislation and the management of residual powers no longer go hand in hand.

According to Art. 118 1st half-sentence of the constitution, the municipalities are now basically the bearers of the administration. This was probably not intended to disempower the regions, but rather to bring the administration closer to the individual citizen in accordance with the principle of subsidiarity . Nevertheless, the principle of the “old” Article 118, according to which parallelism also applies to the regions, has been abolished. Thus, the regions and the autonomous provinces have had to accept cuts in their administrative powers. For local administrations, the second half of the article is problematic; accordingly, the administrative powers can be assigned to the other regional authorities, insofar as their uniform exercise at provincial, regional or state level is necessary. This provision has often been cited in recent years to justify state intervention in the lower administrative levels , with the Constitutional Court tending to uphold the arguments of the state advocate in the course of the conflicts of powers that were soon raised.

At least, however, it was confirmed, also by the Constitutional Court, that the parallelism in the subject areas of the conventional competences guaranteed by the statutes continues to apply to the region or the countries. The regions continue to have the power to issue ordinances, at least in all areas that are not covered by Art. 118 (2) (exclusive legislative power of the state); the region or the autonomous provinces continue to have this power wherever they have legislative power.

Competent bodies

At the head of the regional or provincial administration (executive) is the regional president (Presidente della Regione) or the governor (Presidente della Provincia). He is at the head of the respective local "government"; he is responsible for the division of tasks in the regional government (Giunta regional) and the state government (Giunta provinciale). In addition, some special tasks in the area of ​​public security have been assigned to him, which otherwise belong to the Ministry of the Interior; he can also use the police, which in Italy (apart from the local police) is solely subordinate to the state.

These have responsibilities for the administration of the areas of regional or provincial interest, the administration of the property of the region or the country as well as for the exercise of all other powers which are granted by law or statute (e.g. delegated administrative powers). The responsibilities of the state administrations have been expanded in some points. They also have the opportunity to set standards; They can pass implementing ordinances for the regional or state laws, which are then issued by the regional president or governor.

Financial endowment of the autonomy

Importance of financial resources

An essential part of any autonomy, its safeguarding, its implementation and its expansion, is the financial resources. As stated above, legislative power is only fully meaningful when it is accompanied by administrative power; Administrative authority also only has its full meaning if it can be covered by financial means. In the area of ​​South Tyrolean autonomy in particular, inadequate financial resources would mean that the chances of the German and Ladin-speaking minorities to maintain and develop their specialty would fall behind.

Unlike the expenditure side, the regions or the autonomous provinces have no way of operating their own policy on the income side, apart from small local surcharges on state taxes and fees payable for public services. So you have to rely on being provided with sufficient funds by the Ministry of Finance. The origin and amount of the allocations are therefore subject to negotiations between local and national authorities.

Regulations in the Statute of Autonomy

The allocation of funds will be VI. Section (Art 69-86) of the special statute. In principle, the regions or provinces are granted shares in various state taxes. Section IV has a special feature; namely, according to Art. 104, Paragraph 1 of the Special Statute, although it itself has constitutional status, it can be amended by state law, this having to be done on a mutual request of the government and the region or province. This relatively easy revision makes sense not to permanently lay down a financial regulation. Due to inflation, the elimination or dwindling profitability of taxes or extraordinary needs, the need for a new regulation can arise within a short time. Usually, the constitutional amendment procedure would be required to amend the statute; However, since this takes at least three months, funding bottlenecks or misdirected allocation can occur. The possibility of amendment by state law is therefore definitely an advantage for the autonomous provinces; Fixing the sources of funding at constitutional level would be impractical and only possible in a very complex way, which in turn would create uncertainties.

The state allocations can be divided into a fixed and a variable quota (which is intended exclusively for the autonomous provinces). The fixed quota consists of a fixed share of the local revenue of certain taxes; the variable quota is to be negotiated annually between the government and the respective provincial governors. It is planned that the main part of the financing will come from the fixed quota.

Soon after the adoption of the Second Statute of Autonomy, the neediness of the regions and autonomous provinces became evident; the proposed financial resources were insufficient to finance the new responsibilities. This led to a certain resentment within state politics, as the exercise of the guaranteed powers threatened to hang by a thread and the country ran into initial bottlenecks. Negotiations between the government and the country were resumed in 1985. In 1986 an agreement in principle was reached, which was enshrined in Law No. 386/1989, which is also the relevant one. The statutory system has not changed significantly, but the country's financial situation has improved significantly since then.

Overall, almost all of the income from almost all of the taxes levied in the country goes to the country (> 90%). The shares were up to 2009 (the list according to letters follows Art. 75 St. before the Milan Agreement or Law 191/2009):

• a) nine tenths of the registration and stamp taxes as well as the fees for state licenses,
• b) nine tenths of the traffic tax on vehicles registered in the corresponding areas,
• c) nine tenths of the tax on the consumption of tobacco products , based on sales in the province,
• d) seven tenths of VAT, with the exception of that on imports, minus the repayments made within the meaning of Article 38-bis of the Decree of the President of the Republic of October 26, 1972, No. 633, as amended,
• e) four tenths of the value added tax levied in the region on imports, divided at a ratio of 53% to the Province of Bolzano (and 47% to the Province of Trento),
• f) nine tenths of the income from the manufacturing tax on gasoline, on diesel oil used as fuel and on liquid gas used as fuel, which are sold at petrol stations in the province,
• g) Nine-tenths of all other direct or indirect, whatever named revenue from state taxes (especially income tax and corporation tax ) including local income tax with the exception of those due to the region or other local authorities.

Recent developments

In the wake of the financial crisis from 2007 onwards , the management of which put pressure on public budgets all over Europe, austerity efforts also intensified in the Italian Republic. In order to avoid unilateral measures by the state, which would have led to legal uncertainty and legal disputes, the so-called "Milan Agreement" (accordo di Milano) was signed between Italian members of the government and the governors of the autonomous provinces; this in accordance with Art. 104 Para. 1 of the Special Statute. Law 191/2009 (Finance Law for the year 2010) inserted the negotiated provisions into the special statute and replaced the previous provisions. The most relevant and most obvious innovation is the abolition without replacement of the variable quota of financial allocations that are allocated to the provinces. Other important innovations include the following:

• For the first time, the autonomous provinces are empowered to introduce their own taxes in the areas of their jurisdiction by state law; the provinces are entitled to the income from the tax on motor vehicles introduced by state law. Here, however, the share of the transport tax allocated to the provinces has been abolished (point b above).
• In some cases, the provinces can not only levy surcharges on state taxes, but are now authorized (within the framework of the requirements of the state) to change the tax rates and to set exemptions, allowances and deductions. This is explicitly permitted for the municipal property tax (IMU or IMP) introduced by state law.
• The passage on the assumption of debt by the provinces (Art. 74 St.) has been changed slightly, but not significantly.
• The fixed distribution of VAT on imports has been abolished (point e above). The provinces now simply receive nine tenths of the tax levied in the respective province.
• The manufacturing tax on all other energetic products has been added to the taxes under letter f) above.
• The proportion of corporate income tax and substitute tax on capital gains due to the provinces are made dependent on indicators.
• The variable quota of Art. 78 has been completely abolished without replacement.
• It was enshrined in the statutes that the region and the provinces in the implementation of financial equalization and the stability pact as well as all other measures provided by the state.
• At the same time, further restrictions were imposed on the provinces by assuming the costs of performing (delegated) state functions. The provinces will also have to provide 100 million euros from 2010 to finance initiatives and projects that not only have to include the area of ​​the region, but also border areas with 40 million euros.
• The region and the autonomous provinces find a negotiating partner in the Ministry of Economic Affairs and Finance with whom they have to define the obligations that have outgrown the stability pact. In contrast, it is guaranteed that the state regulations for the rest of the territory will not be applied to the region and the autonomous provinces.
• Region and provinces have to adapt their legislation to the state requirements in the area of ​​the harmonization of public budgets.

A pact concluded in 2014 between the autonomous provinces of Bolzano and Trento and the Italian government added further modifications. The agreement reversed the previous system whereby the state transfers the funds to which they are entitled to the provinces; Now it is the provinces that pay the state the money it is entitled to or compensate it in the form of taking on new tasks. The pact also provides that South Tyrol annually transfers a sum to the state that corresponds to 0.6% of the interest burden on the Italian national debt (as of 2014: 476 million euros) and can be increased by a further 10% in defined cases. Since 2014, the state has also been able to determine the rates of local taxes (real estate tax, waste charges, surcharges on state taxes) itself.

The total budget of the two autonomous provinces currently amounts to around 5 billion euros annually. For South Tyrol it is 5.588 billion for 2017; Trentino, which has a similar financial coverage, reports planned expenditure of 4.981 billion for 2017. In comparison, the Austrian state of Tyrol , which has a significantly larger population (approx. 750,000 inhabitants compared to approx. 500,000 inhabitants each), has to be content with around 3 billion (3.656 billion for 2017). It should be noted, however, that the autonomous provinces have to cope with and pay for various tasks, which are taken over and financially covered by the state in the other regions and by the federal government in the Austrian states. It can therefore be assumed that, given the similar level of prosperity and welfare, public spending per capita is roughly the same in both halves of Tyrol.

The financial resources of the municipalities are regulated much less extensively. This has to take place between a uniform representation of the municipalities and the governor, the relevant regulation in Art. 81 St. only provides for "suitable financial" means for the exercise of the municipal powers.

The Trentino-South Tyrol region

Role of the region

As a result of the implementation of the South Tyrol package, the region, now known as Trentino-South Tyrol , will remain. However, their role was greatly weakened after the core competencies of South Tyrol and Trentino were transferred directly. The region is no longer subdivided into provinces, but rather, according to Art. 116, Paragraph 2, the autonomous provinces of Trento and Bozen ... [form] the region of Trentino-Alto Adige / South Tyrol . The entry into force of Constitutional Law No. 2/2001 also formally changed the institutional weight of the regional council and state parliaments: Whereas the state parliaments were previously formed by dividing the regional council elected in a regional council election into a South Tyrolean and a Trentino half, now the state parliaments are constituted by state elections together the regional council. Trento has formally remained the regional capital, the regional council and the residual regional administration are divided between Trento and Bolzano.

Legislative autonomy

In terms of legislation, the region has retained some relevant competencies despite a massive weakening since 1972. The above division into primary, secondary, tertiary and delegated powers can also be applied to the powers of the region.

Primary responsibilities

The region can, in compliance with the constitution, international obligations and national interests - which include the protection of local linguistic minorities - enact legal provisions in the following areas:

• 1. Order of regional offices and assigned staff;
• 2. Order of the semi-regional corporations;
• 3. Organization of local bodies and the corresponding territorial delimitation;
• 4. Expropriations for reasons of public utility, insofar as they do not relate to work that is primarily and directly at the expense of the state and insofar as they do not relate to the subject areas for which the provinces are responsible;
• 5. Creation and keeping of land registers ;
• 6. fire services;
• 7. Organization of the sanitary and hospital bodies;
• 8. Rules of the Chambers of Commerce;
• 9. Development of the cooperative system and supervision of the cooperatives;
• 10. Improvement contributions related to public works carried out by the other public bodies existing in the region.

Secondary and tertiary responsibilities

Within the limits set in the previous article and within the framework of the principles laid down in the laws of the state, the region shall issue legal provisions in the following areas:

• 1. Order of public welfare and welfare institutions;
• 2. Organization of the corporations for land and agricultural credit, the savings banks and the Raiffeisenkassen as well as the credit institutions of a regional nature.

The powers of a tertiary nature only include supplementary powers in the area of ​​social security and social security.

Financial resources

The region is assigned the income from the mortgage taxes that are levied on its territory for goods located there. In addition, the following shares of the income from the state tax revenues listed below, collected in the area of ​​the region, are assigned to the region. The Milan Agreement of 2009, implemented by Law 191/2009, also affected the financing of the region (the share of VAT on imports has been removed).

• a) nine tenths of the taxes on inheritances and gifts and on the total net value of the inheritance,
• b) two tenths of the value added tax, with the exception of that on imports, minus the repayments made within the meaning of article 38 bis of the Decree of the President of the Republic of October 26, 1972, No. 633, as amended,
• c) Nine tenths of the lottery income minus the winnings

For 2017, the region estimated expenditure of 305 million euros, not even a fifteenth of what the individual autonomous provinces state.

See also

• Legal position of the German language in South Tyrol
• Ethnic proportional representation (South Tyrol)
• South Tyrolean educational autonomy

literature

• Autonomous Province of Bozen – South Tyrol (Ed.): The new Statute of Autonomy. 12th edition, Tezzele, Bozen 2005.
• Lukas Bonell, Ivo Winkler: South Tyrol's autonomy. Description of the autonomous legislative and administrative responsibilities of the Province of South Tyrol . 10th edition, South Tyrolean provincial government, Bozen 2010.
• Claus Gatterer : In the fight against Rome. Citizens, minorities and autonomies in Italy. Europa Verlag, Vienna-Frankfurt-Zurich 1968.
• Joseph Marko , Sergio Ortino, Francesco Palermo , Leonhard Voltmer, Jens Woelk (eds.): The constitution of the South Tyrolean autonomy. Nomos Verlag, Baden-Baden 2005, ISBN 978-3-8329-1159-1 .
• Roland Riz , Esther Happacher Brezinka: Basic features of Italian constitutional law, taking into account the constitutional aspects of South Tyrolean autonomy . 4th edition, STUDIA Universitätsverlag, Innsbruck 2013, ISBN 978-3-902652-77-5 .
• Rolf Steininger : South Tyrol between diplomacy and terror 1947–1969. 3 volumes, Athesia, Bozen 1999, ISBN 88-7014-997-8 .
• Martha Stocker : The parcel battle: wrestling about the right decision on the South Tyrolean question. Athesia, Bozen 2019, ISBN 978-88-6839-431-8 .

Web links

• Special statute for Trentino-South Tyrol (Bilingual, PDF, 366 kB)
• Publications issued by the press office Autonomous Province Bolzano - South Tyrol

Individual evidence

1. ↑ This is the assessment of Michael Gehler , "From half autonomy to inner self-determination". In: Hannes Obermair et al. (Ed.): Regional civil society in motion - Cittadini innanzi tutto. Festschrift for Hans Heiss . Vienna-Bozen: Folio 2012, ISBN 978-3-85256-618-4 , pp. 325–342, here p. 329 (thesis 13).
2. ↑ United Nations, Resolution 1497: THE STATUS OF THE GERMAN-SPEAKING ELEMENT IN THE PROVINCE OF BOLZANO, IMPLEMENTATION OF PARIS AGREEMENT OF 5 SEPTEMBER 1946 Retrieved: August 4, 2012
3. ↑ http://www.radiosuedtirol.eu/index.php?Itemid=44&id=852&option=com_content&task=view as of October 10, 2010
4. ↑ http://www.radiosuedtirol.eu/index.php?Itemid=44&id=852&option=com_content&task=view as of October 10, 2010
5. ↑ http://www.radiosuedtirol.eu/index2.php?option=com_content&do_pdf=1&id=853 Status: October 10, 2010
6. ↑ In memory of Bruno Kreisky Status: October 10, 2010
7. ↑ United Nations, Resolution 1661: THE STATUS OF GERMAN-SPEAKING ELEMENT IN THE PROVINCE OF BOLZANO (BOZEN) Retrieved: August 4, 2012
8. ↑ After dispute settlement: How is South Tyrol's autonomy doing? Südtirol Online , June 6, 2017, archived from the original on April 4, 2018 ; accessed on April 3, 2018 . 
9. ↑ Themelovin: Officina dell'Autonomia | Le sfide e le le responsabilità dell'autogoverno L'accordo di Milano in dettaglio - Officina dell'Autonomia. Retrieved June 11, 2017 (it-IT). 
10. ↑ Agreement in financial negotiations, security pact is in place. Press service of the Autonomous Province of Bolzano - South Tyrol, October 15, 2014, accessed on October 11, 2017 . 
11. ↑ "Local finance expertise is a groundbreaking achievement". (No longer available online.) Südtirol Online, November 26, 2013, archived from the original on September 24, 2015 ; Retrieved July 29, 2015 . 
12. ↑ u ') Provincial Law of December 22, 2016, No. 29 Budget estimate of the Autonomous Province of Bolzano 2017-2019. Retrieved June 9, 2017 . 
13. ^ Officine Digitali: Provincia Autonoma di Trento - Giunta - Bilancio di previsione 2017-2019. Retrieved June 9, 2017 . 
14. ^ Office of the Tyrolean provincial government: Provincial proposals 2017/2018. Retrieved June 9, 2017 . 
15. ↑ The administration of the relevant offices was, however, in accordance with the implementation regulation of May 16, 2001, No. 260 (PDF file, 6.0 KB) in accordance with the regional law of April 17, 2003, No. 3 on April 1, 2004 in the Area of ​​competence of the Autonomous Province of Bolzano and transferred to that of the Autonomous Province of Trento on September 1, 2004.
16. ^ Office for Organization and IT of the Autonomous Region of Trentino-South Tyrol: Transparent Administration. Retrieved June 9, 2017 (Italian).