Simoncini, Marta

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The Need for Clear Competences inTimes of CrisisMarta Simoncini 2020-04-09T12:48:04All Italian institutions established at different levels of government have been atthe forefront in the health emergency to fight the spread of the coronavirus disease(see Diletta Tega and Michele Massa). Yet, they had to take action in the absenceof a consistent legal framework establishing a clear division of competences andchain of command in the management of the emergency. The resulting legaluncertainties have been delaying the timely adoption and effective implementation ofthe containment measures which led to the national lockdown.Contradiction causing confusionThe absence of effective coordination amongst containment measures quicklybecame visible all over Italy. For instance, Ordinance 15/2020 adopted by thePresident of Campania Region prohibiting, among other things, exercise outdoorsalone contradicted the Decree of the President of the Council of Ministers (DPCM)of 8 March 2020. The Regional Administrative Tribunal was as asked to ascertainwhether the citizens of Campania had a “right to sport”, and Presidential decree n.416/2020 confirmed the legitimacy of the regional Ordinance on the grounds of theirreversible risks for the regional health system, which would come with the spreadof the infection. In Milano, the professional association of accountants could not besure whether they were allowed to continue their activity in the lockdown of all non-essential activities, because of the conflict between the national provision of DPCM22 March 2020 allowing their activity and regional Ordinance n. 515/2020 that waspublished the same day and prohibited it. In addition, in Sicily, the Prefect orderedthat the Mayor of Messina should revoke his Ordinance n. 61/2020 authorising theopening of supermarkets on Sundays. Although the measure complied with nationalprovisions – in particular DPCM of 9 March 2020 and DPCM of 11 March 2020 – itcontradicted the regional Ordinance n. 6/2020 adopted on 19 March 2020.Alongside institutions, legal scholars were also unsure about the coordination ofregional and local measures with the national ones. The doubts stemmed from thespecificity of interventions operated by the different levels of government. Whileregional and local measures can address specific, critical circumstances that thenational ones cannot grasp, only national measures can make the collective fightagainst any national emergencies effective. If the plurality of standpoints is notorganised in a common and coherent mitigation effort, it becomes a weakness andall the governmental levels will pay for it.- 1 -The Italian Achilles' heelThe reason for such regulatory uncertainty is the current, uncoordinated distributionof emergency powers across the different levels of government. The Italian legalsystem has not developed a holistic system to respond to national emergenciesof the scale of pandemics. Instead, it has favoured the distribution of specificemergency powers across the different levels of government, so that everyinstitutional actor could exercise extraordinary powers to tackle emergencies as theyhappen. Different pieces of legislation thus conferred on individual executive bodiesextraordinary ordinance powers, which can derogate from ordinary legislation toface extraordinary circumstances while keeping within the boundaries of the generalprinciples of the Constitution. In the current pandemic crisis, some emergencypowers were particularly relevant. For instance, art. 32 of the Law establishing thenational health service provides the ordinance powers of the Minister of Health,of Presidents of Regions and Mayors; in addition, art. 50 (5) of the Law on localgovernment and art. 117 of the Legislative Decree on administrative decentralisationrecognised the power of Mayors to adopt ordinances in public health emergencieshaving exclusive local relevance.In the rush of the health crisis, the central government had to take the lead. Afterthe initial Declaration of the state of emergency for six months and the adoption ofcivil protection decrees, a few Decrees (having the force of Law) – adopted by theGovernment under art. 77 of the Constitution – and several Decrees of the PrimeMinister (which are administrative in nature) aimed at managing the emergency. Inthe extraordinary situation, however, the overlap of different containment measuresapplying to the same territories has carried the risk of becoming the “Achilles’ heel”in the emergency management. The search for coordination between national andregional measures was pragmatically ensured. The first Decree Law n. 6 adopted bythe Government on 23 February 2020 aimed at pursuing the coherent and uniformapplication of containment measures, while ensuring their adoption in cooperationwith territories and without waiving the territorial powers to intervene promptly in theabsence of coordination.Yet, the theoretical reasonableness of such a mechanism was confronted with thematerial urgency of regions to act in these exceptional circumstances on the onehand, and with the understandable incapability of the government to offer instant andunequivocal solutions to regional needs, on the other. The central government thusintervened by taking uncertain steps.For instance, it challenged – quite strangely in times of emergency – the “rebellious”Ordinance of the Marche Region before the Regional Administrative Court, whichsuspended the regional measure ad interim. Nonetheless, on the same very day ofthe judicial decision, the Region could legitimately reiterate its measure, becauseof the occurrence of the factual circumstances and legal requirements envisagedin the Decree Law 6/2020 for the adoption of containment measures. As soon asthe infection spread, the government quickly extended the restrictive measuresto the entire national territory. Finally, the second Decree Law n. 19 of 25 March2020 engaged with the reorganisation of all the adopted measures and introduced- 2 -additional, specific coordination instruments in the exercise of emergency powers.Although the substance of the coordination principle remains unchanged, theregions have won the power to propose the adoption of new DPCMs. The use ofthe emergency powers conferred by other existing pieces of legislation has beencircumscribed to the existence of clear – but necessarily flexible – conditions, andthe adoption of ordinances limited to the pending adoption of DPCMs.The conflict of competence must be resolvedFar from having completely settled any conflict of competence, the latest approachof the government hints at some key imperatives that need to be taken into accountin the management of national emergencies in the future. Territories (regions andmunicipalities) are critical actors in the adequate understanding, mapping, andmanagement of emergencies; however, their actions need to be coordinated andintegrated in a wider national strategy. The current pandemic crisis revealed thatItaly needs a general law establishing a consistent chain of command, which caneffectively end the uncertain competition of measures and remedy the awkwardproliferation of legislative provisions. Such a law should reduce the conflicts ofcompetence and make the actions of institutions (and citizens) more effective in theresponse to the crisis. A critical change is needed to avoid further delays in crisismanagement.- 3 -

The Need for Clear Competences in Times of Crisis

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The Need for Clear Competences in Times of Crisis

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