The “leggi provvedimento” and EU Law. The Disappearing Bulwark
Matteo Corti Professore ordinario di Diritto del lavoro, Università Cattolica del Sacro Cuore
Dopo aver rapidamente contestualizzato la problematica delle leggi provvedimento nel Diritto del lavoro, ravvisandone le ragioni della proliferazione nel passaggio dallo stato liberale classico allo stato sociale, l’autore rileva come il fenomeno non sia prettamente italiano, ma diffuso anche in altri Paesi, quali, esemplificativamente, la Germania. Il saggio prosegue con l’esame di alcuni limiti alle leggi provvedimento, intese nel significato ampio di atti normativi a carattere speciale, settoriale o locale: il focus dell’attenzione è centrato sul diritto della concorrenza dell’UE, sia sub specie di contrasto ai monopoli statali, sia con riguardo alla disciplina degli aiuti di Stato. L’analisi si conclude evidenziando come il diritto antitrust dell’UE abbia costituito un efficace antidoto a taluni tipi di leggi provvedimento soltanto in una fase iniziale, quando la costruzione europea era centrata sugli aspetti mercantilistici, mentre i più recenti sviluppi hanno visto rapidamente scemare tali effetti. Pertanto, occorre ritornare al diritto interno: qui la Corte Costituzionale può giocare senz’altro un ruolo più attivo nel controllo di ragionevolezza di tutte le tipologie di leggi provvedimento.
After having rapidly contextualised the issue of the so called “leggi provvedimento” in the field of labour law, finding the reasons of their spreading in the transition from the classical liberal State to the welfare State, the author notes that the phenomenon is not typically Italian, but it is well known even in other Countries, such as, for example, Germany. The essay goes on by examining some limits to the leggi provvedimento, understood in the broad meaning of special, sectoral, and local normative acts: the attention is focused on EU competition law, both the antitrust one and the regulation of State aids. The analysis ends by pointing out that the EU competition law was an effective remedy against some kinds of leggi provvedimento only at an initial stage, when the European construction was centred around the mercantilist aspects, whereas with the most recent developments those effects have quickly waned. Therefore, it is necessary to get back to the internal law: here the Constitutional Court is able to play a more active role in the control over the reasonableness of all types of leggi provvedimento.
Keywords: Leggi Provvedimento (special, sectoral, and local laws) - Labour Law - Welfare State - Codetermination in Germany - EU Competition Law - EU Antitrust Law - control of constitutionality - principle of reasonableness.
1. The “leggi provvedimento” and Labour Law: introductory remarks from Italy and Germany - 2. Limits to the “leggi provvedimento” from the EU: Competition Law and ... - 3. ... State Aids regulation - 4. Conclusions: the ball is back in the court of the Italian Constitutional judges - NOTE
1. The “leggi provvedimento” and Labour Law: introductory remarks from Italy and Germany
This paper deals with the so-called “leggi provvedimento”, with particular reference to Labour Law. The subject is really challenging, and also quite new for Labour Law scholars: in fact, constitutional scholars are usually more concerned with pieces of legislation of this kind . Classical “leggi provvedimento” contain provisions focused on one or on a very small number of cases, and there are a certain number of examples in the field of Labour Law as well. Let’s mention the legislative interventions done to save the national flag carrier (Alitalia, recently reborn as ITA) , or to secure the continuity of the Steel Plant in Taranto , or again the third subsection of sect. 8, decree law n. 138 of 2011, which specifically aimed at granting juridical support (namely the general effect) to the FIAT plant level agreements signed before the intersectoral agreement of 28 June 2011 . This last case is very interesting, because the name of FIAT was not mentioned, but it was clear for everybody that the provision had been specifically introduced for this purpose. The phenomenon is not limited to Italy. In the German legal order, the “Volkswagen Law”, which dates to 1960 , still contains some provisions conferring employee representative on the supervisory board a right to veto in case of setting up, relocation or closure of company plants (sect. 4, subs. 2). All these decisions must be made through a [continua ..]
2. Limits to the “leggi provvedimento” from the EU: Competition Law and ...
And now it is time to examine one of these limits to the “leggi provvedimento”, which is set by European Union law. In particular, this contribution to the debate will be devoted to the competition law of the European Union . In general, it must be said that section 101 and the following ones of the Treaty on the Functioning of the European Union (hereafter: TFEU) aim at putting all the European enterprises on equal foot, by doing away with all the artificial obstacles which can fetter the competition, be they of private nature or created by the Member States. As far as the “leggi provvedimento” are concerned, provisions on national monopolies and on State aids are for sure the most relevant. Let’s start from provisions on monopolies created by the Member States. Section 106 of TFEU does not prevent Member States from setting up and maintaining monopolies, but it obliges them to respect all treaty rules, comprising antitrust ones. In particular, national monopolies charged with providing services of general economic interest have to respect antitrust rules only to the extent where such rules do not hinder them from fulfilling their specific mission (subsection 2). In the 90’s of the last century social monopolies started to be scrutinised in light of these provisions, with very interesting results. Indeed, in those years the case-law of the European Court of Justice contributed to the dismantling of national monopolies in [continua ..]
3. ... State Aids regulation
TFEU contains no absolute ban on State aids . According to section 107, State aids are divided into two categories: those which are automatically compatible with the internal market, such as aids to consumers which do not make differences according to the origin of the products; and those which are not automatically compatible, and must be preliminarily approved by the European Commission, such as aids aimed at easing the development of certain activities or economic regions, provided that they do not alter the competition in a way, inconsistent with the common interest. It is interesting to note that the notion of State aid contained in the Treaty is quite vague. State aids are «granted by a Member State or through State resources in any form whatsoever», are aimed at «favouring certain undertakings or the production of certain goods», and distort or threaten «to distort competition», while affecting «trade between Member States» (section 107, subsection 1). This vagueness has left considerable room for manoeuvre both to the Commission and to the Court of Justice on the subject. Moreover, the discretionary power conferred by the Treaty to the Commission on the approval of State aids has allowed it to develop a comprehensive European policy. In the beginning the Commission set down its orientation in Guidelines, and then started involving the Council in laying down regulations on sectoral State aids which do not [continua ..]
4. Conclusions: the ball is back in the court of the Italian Constitutional judges
It is time to conclude this contribution to the debate on the “leggi provvedimento”, by summing up the preliminary results reached so far. The starting point was the evaluation of “leggi provvedimento”, in the broader sense of the expression. These pieces of legislation, whose content is limited to individual, special, sectoral, or local cases, are a natural consequence of the transition from the classical liberal State to the Welfare State. The first pursues the formal equality of the citizens (all citizens are equal under the law), whereas the second one aims at creating the conditions for the effective, substantial equality of all citizens. And this creation requires the adoption of legislative acts targeted at specific, sectoral, local situations. There is constant tension between the two dimensions of equality: since the “leggi provvedimento” may occasionally be a vehicle for abuse and unjustified preferences, it is always necessary to check their reasonableness, that is their justification in light of the general principle of formal equality. The system of multi-level governance to which Italy belongs helps the Country in many ways. The analysis was focused on the competition law of the European Union. This legislation aimed from the beginning to create a level playing field for all the enterprises in the internal market, by controlling and limiting, among other things, national monopolies and State aids. In this way, European [continua ..]