Venice is not Barcelona: A Less Aggressive Regional Question gets a More Nuanced Constitutional Answer

—Diletta Tega, University of Bologna (Italy)

In 2014 it was not only the Catalan and Scottish governments which were involved in claims for independence: the Italian Region of Veneto was also involved. Yet the three cases are very different: in this post, I will try to describe the Veneto case and highlight its peculiarities.

In past years, Veneto had several times attempted to hold consultative (non-binding) referendums on its own demands for enhanced political autonomy. These initiatives were challenged before the Italian Constitutional Court (CC), whose scrutiny has been very strict.[1] This time, the Region passed two laws: one envisaged a referendum on five questions, all of them basically concerning a higher degree of autonomy within the framework of the Italian regional form of State; the other law concerned a second referendum with a single question on full-fledged independence from the Italian Republic. The two laws have been challenged by the national Government and – although the scrutiny was as strict as usual – for the first time one of the referendum questions survived scrutiny, in judgment no. 118 of 29.4-25.6.2015.[2] Another Region, Lombardy, is already following in the lead of Veneto.

The first Veneto law (regional law no. 15 of 2014) required the Regional Government to negotiate with its national counterpart on the summoning of a referendum, in which regional voters would be asked if they favor greater autonomy for Veneto. In the (likely) event of failure to reach an agreement, the law directs the President of the Region to unilaterally summon Veneto voters to a five-question consultative referendum, in order to ask them if they want: 1) “further forms and particular conditions of autonomy” granted to the Region; 2) no less than 80% of the revenues collected by the State from Veneto taxpayers spent in goods and services on Veneto territory; 3) no less than 80% of the revenues gathered in Veneto kept and managed by the Region; 4) to free the Region from obligations concerning how it spends its own income; 5) Veneto to become a special statute Region. If the voter turnout is over 50%, and if positive votes outnumber negative ones, the law requires the Region to prepare a bill concerning “ways and means of recognizing further, specific forms of autonomy for the Region of Veneto,” and to submit it to the national Parliament.[3]

The second law (regional law no. 16 of 2014) simply provides for a consultative referendum on the following question: “Do you want Veneto to become an independent and sovereign Republic? Yes or no?”

Superficially, it could be argued that these laws and the initiatives they purport to launch bear some resemblance to the recent Scottish and Catalan precedents, especially with regard to the claim for independence and to negotiations with the national Government. Yet the question on independence comes together with a much more nuanced referendum on autonomy, which in turn should lead to a legislative proposal to the national Parliament. Moreover, since passing the two laws, the negotiations with the State required by law no. 15 of 2014 have not actually begun; donations have been collected from citizens to hold the referendum on independence, but with the express warning that the referendum might not take place, and that in this case money would be refunded to the donors.

The general premises of the CC’s ruling can be summarized as follows:

• a Region may activate popular participation, through a referendum or otherwise, on issues relevant to the local community, even if they exceed the strict boundaries of regional competences and territory;
• every kind of participation must take place in the forms, and within the limits, provided for either by the Constitution, or by other sources of law implementing it;
• according to Article 123 of the Italian Constitution, in each Region referenda must be regulated by the statute (the basic law of the region, setting out its form of government and general principles of organization and activity), which in its turn must remain “in harmony with the Constitution”;
• according to well-established case law of the CC, consultative regional referenda may not concern constitutional choices. Thus, regional voters may not be asked to express favor or disfavor for any part of the Italian Constitution.

Another general remark by the CC deserves special attention, since it somewhat echoes one of the most controversial features of the Catalan initiative, which in its last version had been set up as a “non-referendum consultation.” Similarly, the Veneto defense tried to downplay the nature of the question on independence, presenting it as a mere “formalized poll,” worthy of protection under Article 21 of the Italian Constitution (freedom of speech and communication). Yet the regional laws were very clear in qualifying all the questions as referenda. The CC easily dismissed the defense argument, highlighting the difference between a referendum and a spontaneous collective exercise of the freedom of speech: “The referendum is a tool linking the people and representative institutions, so that it always involves the whole electoral body (or a fraction of it, in the case of regional referendums), which is asked to answer a fixed question. Moreover, even if it has no immediate effects on sources of law, the referendum serves the purpose of starting, influencing or opposing public decision-making processes, mostly of a normative nature.”

Based on these general premises, the CC scrutinized each of the six questions at stake separately.

The law on the referendum for independence (no. 16 of 2014) was firmly struck down: unity and indivisibility are fundamental features of Italy, which may be neither altered, nor questioned by any regional initiative, including one of a merely consultative nature.

When considering the five questions in law no. 15 of 2014, the regional statute has greater relevance. As noted by the CC, the Veneto statute forbids referendums on tax and budget laws, as well as on laws fulfilling international, European and constitutional obligations. Together with the already recalled constitutional case-law on regional consultative referendums, these statute clauses allowed the CC to easily strike down four out of the five questions. Only the first and broader question in regional law no. 15 of 2014 passed the CC’s examination: but not without some additional remarks on how it should be construed and enacted.

The CC read the first question closely against the background of Article 116.3 of the Constitution. According to this clause, “further forms and particular conditions of autonomy,” only on certain listed objects, may be attributed to ordinary Regions (not having a special statute) by a law of the State, on the initiative and with the agreement of the interested Region. In the opinion of the CC, the textual correspondence between question no. 1, in law no. 15 of 2014, and Article 116.3 means that the Region only aims at consulting its own voters, before starting the complex and peculiar procedure which could end with the national law provided for in that provision of the Constitution. The CC has thus pointed out a way for the Regions to gather popular support behind their initiatives for greater autonomy and a more asymmetric regionalism.

The largest and richest Region, Lombardy, has already taken steps in this direction. In February 2015, its legislative assembly decided to call for further autonomy in each of the matters listed in Article 116.3, and to hold a regional referendum on this question: “Do you want the Lombardy Region, taking into account its special condition, within the framework of national unity, to take the institutional initiatives necessary to request the State to grant further forms and particular conditions of autonomy, with the inherent resources, in application of Article 116.3 of the Constitution, with regard to each and every legislative object for which this is allowed by said constitutional provision?”[4] The emphasis is on Article 116.3 and on legislative competences, but the latter carry inherent administrative functions and resource-distribution issues as well. The resource question is the crucial and most divisive issue in a country such as Italy, with great economic and social cleavages between its different areas.

Indeed, at the core of these issues lies the preoccupation that, if voters in the richer Northern Regions were allowed to directly call for more financial autonomy, and consequently less solidarity with the poorer Regions, contrasts could open up inside the national electorate, enflaming the political debate at some of its vital and most delicate spots and ultimately endangering national cohesion.

Of course, it remains to be seen how much political support these initiatives will actually garner – and, of course, what practical results they will achieve – at a juncture where public opinion seems highly distrustful of (or at least indifferent to) local and regional politics, due to recent scandals. This was made clear by the very low turnout in the Regional Elections of May 2015 (53.90%, down from 64.13% in previous regional elections). Moreover, incoming constitutional reforms aim at a general reduction, rather than increase, in regional autonomy. In sum, the Veneto referendum may not raise the same difficulties found in Scotland and Catalan, but it suggests in some ways a more nuanced and complex set of problems.

Suggested citation: Diletta Tega, Venice is not Barcelona: A Less Aggressive Regional Question gets a More Nuanced Constitutional Answer, Int’l J. Const. L. Blog, July 22, 2015, at: http://www.iconnectblog.com/2015/07/venice-is-not-barcelona-a-less-aggressive-regional-question-gets-a-more-nuanced-constitutional-answer/

[1] See judgments no. 470 of 1992 and no. 496 of 2000, which annulled similar initiatives by the Veneto Region. See also judgment no. 256 of 1989, equally critical towards a referendum called by the Sardinia Region.

[2] The judgment is already available in Italian. An English translation should be published soon in the English section of the CC official website.

[3] With regard to question no. 5, it is worth recalling that, according to Article 116.1 of the Italian Constitution (available in English translation), five Italian Regions have a special statute, legally equivalent to the Constitution, which grants them “special forms and conditions of autonomy,” including the right to keep a variable but large part of the revenues normally collected by the State.

[4] See Official Bulletin 24.02.2015, no. 9, page 5