Lecture 15

Question 1

Government’s powers

Answer 1

• legislative powers: power to create primary and secondary sources of the law
• political powers: power to promote and coordinate national policies (implementation of the political majority’s political agenda)
• administrative (executive) powers: power to enforce/ implement the law. Organization, coordination and assessment of the Public Administration (PA) through the Ministries

Question 2

Government’s powers: legislative

Answer 2

1. government’s power within the parliamentary legislative proces
   - governmental legislative initiative (ordinary legislative process)– disegno di legge
   - question of confidence
2. cases in which the government directly exercises the legislative power:
   - acts having the force of statutory law: law decree, legislative decree (primary sources of the law)
   - regulations (secondary sources of law)

Question 3

Government’s powers– legislative: question of confidence

Answer 3

• the government ties its own “survival” to the parliamentary approval of an act (e.g: bill, amendment, motion, resolution, agenda, etc.)
• instrument regulated entirely by the Internal Standing Orders (not by the Constitution)
• the government leverages the confidence relation with Parliament to “force through” acts necessary for the advancing of its political agenda
• open vote, simple majority
• if the government loses the vote: it must resign (parliamentary crisis)
• unifies the parliamentary majority
• speeds up the ordinary legislative process (no amendments, “fast lane”)
• abuses (due to its high effectiveness)

Question 4

Government’s powers– legislative: law decree

Answer 4

• extraordinary situations of necessity and urgency
• adopted by the Council of Ministers under its full responsibility, and emanated by the President of the Republic (who may refuse for constitutional reasons), immediately published, enters into force on the same day of publication on the Official Bulletin
• the same day of the approval, the government must table a “bill of conversion” (“disegno di legge di conversione”) in one of the Houses. The House is summoned within 5 days to examine it
• the two Houses must approve the ordinary law of conversion (“legge di conversione”), following an accelerated ordinary legislative procedure, within 60 days from the decree’s adoption (the Houses may approve amendments)
• if the decree is not converted into an ordinary law, it expires (“decadenza”): it ceases to have any effect “ex tunc” (retroactively), unless the Houses approve an act “saving” the previous effects (“legge di sanatoria”)
• the law-decree cannot be used on some specific matters (e.g.: budget, delegation laws, elections, constitutional, international treaties)
• a law- decree that is not converted by the Houses cannot be approved again in the same text, unless there are new reasons of urgency (“reiterazione”)
• if a law-decree contains provisions that are not clearly connected to the extraordinary situation of necessity and urgency declared by the government, the Constitutional Court could annul it (even if it has been converted by Parliament)

Question 5

Government’s powers– legislative: legislative decree

Answer 5

• delegation of legislative power by the Parliament to the government
• ordinary law of delegation (“legge delega”) adopted by the two Houses following the ordinary legislative process
• the ordinary law of delegation must contain
  1. the object
  2. the time-frame
  3. the principles and criteria
• legislative decree adopted by the Council of Ministers, on the proposal of Minister (+ other procedural steps detailed in the law of delegation). Emanated by the President of the Republic (it may be sent back to the government for constitutional reasons). then published and enters into force
• if the delegation expires (time-frame) it cannot be “re-used”
• if the delegation’s time-frame exceeds two years: mandatory advice of the competent parliamentary Commissions on the legislative decree’s draft
• the same ordinary law of delegation may authorize the government to adopt a subsequent legislative decree to “adjust” or “integrate” the first one (within a certain time limit) without a “new” delegation
• normally used to regulate complex technical matters (the government has the necessary tools)
• limits (e.g.: budget, constitutional amendment, international treaties, conversion of a law-decree, etc.)

Question 6

Government’s powers– legislative: regulations

Answer 6

• secondary sources of law
• general procedure:
  1. initiative by the competent Minister
  2. pre-adoption (draft) by the Council of Ministers
  3. advice of the Council of State
  4. adoption by the Council of Ministers
  5. emanation by the President of the Republic
  6. registration by the Corte dei Conti (“court of auditors”)
  7. publication and entering into force (after the “vacatio legis”)
• types of regulations:
  1. executive of an ordinary law or of legisative decree, on matters not absolutely reserved to the ordinary law
  2. implementing or integrative of an ordinary law or of a legislative decree, on matters not absolutely reserved to the ordinary law and not attributed to the Regions
  3. independent, without any previous ordinary law into force, but only on matters not reserved to the ordinary law
  4. delegated: previous ordinary law adopted by Parliament that authorizes the exercise of the Government’s regulatory power, determines the general rules of the matter and repeals existing ordinary laws (with effect from the entry into force of the new regulation) on matters not absolutely reserved to ordinary law
  5. organization of public offices based on ordinary laws

Question 7

Government’s powers– political (state budget, religious denominations, EU, ministries, Regions, war)

Answer 7

• State-budget: the government administers the state’s budget through the annual “budget law” (ordinary law/ reserved initiative). Crucial for the funding and implementation of public policies
• International relations: govenment represents the Republic, holds negotiations, signs international treaties (parliamentary authorization, art. 80 Cost., or simplified ratification)
• War powers: Parliament deliberates the “state of war” and confers the necessary powers to the government
• Relations with the EU: The Government represents
  the Republic in the European Council and in the
  Council of Ministers of the EU
• Relations with religious denominations: The
  Government negotiates and signs the agreements
  with the non-Catholic denominations (art. 8 par. 3
  Cost.)
• Relations with the territorial autonomies: e.g.,
  substitutive powers (art. 120 Cost.), differentiated
  autonomy (116 Cost.), challenge of regional laws
  before the Constitutional Court (127 Cost.)
• Political programs, addresses, and “high decisions”
  on the administrative matters attributed by the
  Constitution to the State
• The Government exercises its political powers under
  article 95 par. 1 Cost. (direction and coordination of
  the national policies) through the “ensemble” of all
  of its legislative, political and
  administrative/executive powers
• Political powers are deeply connected with the
  relation of confidence: they can be exercised
  through the entirety of the Government’s powers
• Executive power: the historical power of the
  Executive/Government. The power to
  enforce/implement the law
• Exercised through the Ministries: orientation,
  coordination and verification of the ministerial
  public administration’s activity attributed by the
  Constitution to the State
• Ministries (directed by the competent Minister): link
  between political power and public administration.
  The list of Ministries must be enclosed in an ordinary
  law (95 par. 3 Cost.)

Question 8

Government’s power– responsability for exercising its powers

Answer 8

• The President of the Council and the Ministers are
  responsible for the acts of the Government (article 95
  Cost.)
• Collective responsibility for the acts of the Council of
  Ministers, individual responsibility for the acts of the
  single Ministries
• Prevalently political responsibility (before
  Parliament). In some cases: also a legal (civil,
  criminal, administrative) responsibility (general rule
  enclosed in article 28 Cost.

Question 9

Government’s powers– criminal reponsability for exercising governmental powers

Answer 9

• The President of the Council and the Ministers are
  responsible for crimes committed in the exercise of their functions before criminal Courts (art. 96 Cost.)
• Preliminary investigations by a Board composed of 3 judges (from the competent jurisdiction) drafted at random
• The trial can start only with the leave of the Chamber of Deputies or of the Senate of the Republic by absolute majority. The House may refuse to give its authorization only if the Government’s power was exercised to protect a constitutionally relevant interest of the State