The Italian Referendum: a missed opportunity in the energy field?


On December 4th 2016 Italian citizens decided to vote against the constitutional reform. The “Riforma Boschi” (“Boschi Law”), with reference to the name of the Minister of Constitutional Reforms, Ms. Maria Elena Boschi, was initially presented to the Italian Senate on April 8th  2014.

After the final draft Law approval by the Chambers of Deputies and the Senate both, in October 2016, the Prime Minister, Matteo Renzi, officially announced the date of the referendum. The referendum was a mandatory step for the approval of the proposed constitutional amendments. This was due to the nature of the Italian Constitution which is a “rigid law” as it contains an “entrenchment clause”.

In a nutshell, the draft Constitutional Law aims at simplifying and speeding-up the legislative procedure, whose current organization often causes delays in the approval of new laws. Alongside the significant modifications to the current legislative procedure, the “Boschi Law” would modify certain competences of the State and the Regions, affecting, among others, the Environmental, Health and Safety (EHS) regulatory spheres.

One of the main aspect of the proposed constitutional reform concerned the modifications of the State’s and the Regions’ legislative competences.

The current repartition of competences is the result of a previous amendment made to the Constitution in 2001. Article 117 of the Constitution identifies three different types of competences. The State has exclusive legislative competences in specific regulatory fields, such as foreign policies, immigration, as well as the environment. There are other areas (for example, occupational health and safety and energy), where the Regions and the State have shared competences. In these cases, the State is, strictly speaking, the primary legislator (i.e. it can enact framework provisions), while the Regions have the responsibility to detail or further elaborate some aspects of the laws. All the areas that are not specified under either of the two categories are under the competence of the Regions (the so called “residual competences”).

For years, this kind of repartition of competences has been recognised to be rather chaotic. In 2015 alone, the Constitutional Court delivered more than a hundred rulings on this topic, especially for disputes that arose between the State and the Regions when exercising shared competences.

The “Boschi Law” intended to repeal the current “shared competences” system (which would, however, continue to exist, only under different circumstances). The reform had the objective to increase the areas of exclusive competence of the State and introduce a more detailed list of legislative competences under the exclusive competence of the Regions. Also, according to the draft constitutional amendments, whenever a national interest should arise, the State would be empowered to take over the regulatory competence, even where the latter was assigned to the Regions.

In addition to the modifications concerning the regulatory procedure, the main changes affecting the environmental and occupational health and the safety law would derive from the proposed modifications to Title V of the Constitution.

Among other things, the modifications of the current repartitioning of competencies, between the State and the Regions, would ideally prevent time-consuming disputes before the Constitutional Court. This would result, as mentioned above, from a more uniform and standardized regulatory system, which would give more powers and competencies to the central Government.

For example, some regulatory competencies that currently fall under the shared competence exercised by the State and the Regions (including occupational health and safety, ecosystem and landscape protection, as well as energy matters) would fall under the exclusive competence of the State. This would result in a more centralized regulatory system (such as, the creation of a national energy policy), as well as in the rearrangement of the competences currently exercised by the Regions, in many areas.

For example, with the shift of competences in the fields of energy production and transport, the Regions will no longer be the competent authority to issue the Integrated Pollution and Prevention and Control permit (Autorizzazione Integrata Ambientale – IPPC/AIA) for certain types of energy plants, which will likely fall under the competences of the central Government. This will possibly signify the revision of the list of activities whose permit must be granted at the central level by the Government (currently set out under Annex VIII and XII to Part II of Legislative Decree n.152 of 3 April 2006).

Overall, the Regions would cease to play a relevant role in the setting up of local land use and development plans, in the protection of the local landscape, as well as in the energy policies. This could equate, to a certain extent, to a decreased involvement by the local population in the decision-making processes, who would no longer have a say in matters of primarily local interest.


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