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There is no shortage of stories on Italian institutional crises originated in the context of a parliamentary system with multi-party inclinations and a misfit electoral law. And Italy is not even an isolated case of hard processes of formation of government after troubled elections: the cases of the Netherlands and Belgium may be easily recalled. But this crisis was a particularly dark and stormy night. The role played by President Sergio Mattarella in vetoing the appointment of an Eurosceptic finance minister has left many commentators bewildered, including both those more inclined to recognise the presidential power to influence political decisions and those less willing to support a government of parties with a clear populist rhetoric.
The bewilderment is justified by the absence of precedents, but the President’s conduct corresponds to his constitutional powers. In terms of political convenience and in light of recent developments, Mr. Mattarella’s choice was wise, even if it boosted populist rhetoric for almost five uninterrupted days. In terms of legal argument, the same choice is a sound interpretation of his role as pictured in the Constitution.
There is a second reading level of the Italian stormy night: the President’s conduct signals that there is a kind of pro-Europe militant attitude. The question is if this attitude is a constitutionally tenable argument when the ‘will of the people’ seems to point in another direction. The Italian institutional crisis then is a mirror of a more general constitutional issue in times of European turmoil: how true is it that sovereignty lies entirely in the people?
To proceed with the arguments, a few lines on the complicated plot are needed. The President’s first decision not to appoint Giuseppe Conte as Prime Minister was explained in a public statement in the evening of Sunday May 27th: the majority parties’ unwillingness to offer an alternative name to retired economics professor Paolo Savona as finance minister represented an unacceptable imposition. The two majority parties were essentially pushing the President to appoint a minister who, he believed, could convey a wrong message regarding Italy’s commitments towards the international arena, i.e. partners, investors, EU institutions and Member States.
Two days of institutional turmoil followed: Carlo Cottarelli, the former commissioner for the spending review, was designated as Prime Minister, charged with the task of finding support for a technocratic ‘President’s Government’ (Governo del Presidente), while the Movimento 5 Stelle invoked the impeachment (messa in stato di accusa) for the Head of State. On Thursday, the Movimento 5 Stelle and Lega agreed on suggesting Giuseppe Conte again. Most importantly, the two parties decided to “move” Paolo Savona from the Ministry of Finance to the Ministry of European Affairs. On Friday, the Head of the State finally appointed a Movimento 5 Stelle-Lega government, led by Professor Conte.
The storm is over, the government in charge. What is left is the precedent of the Head of State’s refusal to appoint a minister on the basis of his political views. There are two ways to look into this institutional crisis. One entails a straightforward question: “Can the President veto an appointment on such a ground?” The answer to this question is straightforward. The Constitution and constitutional practice both make it clear that the President has no such power. This question, though, does not mirror what happened in the Italian stormy night. It should rather be rephrased as follows: “Can the President veto an appointment on the grounds of the consequences the appointment may determine in terms of constitutional interests?”
To answer the question from this second perspective, we should start from the Constitution. Article 92, cl. 2 of the Italian Constitution states that: “The President of the Republic appoints the President of the Council of Ministers and, on his proposal, the Ministers.” The clause may be interpreted as to leave the President a minimum margin of choice. Italian constitutional scholarship is nearly unanimous in restricting presidential maneuvering to legal and formal considerations as to the propriety of certain designations (i.e. cases of open conflicts of interests). Constitutional practice points in the same directions. The decision not to appoint a minister then has nothing to do, in principle, with determining or influencing political choices pertaining to the Government or, more precisely, to the Parliament-Government circuit.
The constitutional design of the Presidency supports such a reading. The President is the guarantor of the Constitution, the transmission belt in times of constitutional crisis, and a role player in many executive decisions (including the enactment of normative acts), but nothing in the Constitution authorises the President to exercise powers that express personal political preferences.
But President Mattarella’s choice can hardly be presented as a personal political preference. He used the power conferred upon him by Article 92, without bringing his role as the ultimate keeper of the Constitution into the debate. The Head of State resorted to a quite different substantive argument. He explained that the designation of the finance minister is an ‘instant message’ to international partners and investors. The possible appointment of a finance minister who would actively question European commitments or even work towards exiting the Eurozone had already determined factual consequences in terms of distrust in the stability of the Italian economic system. Such financial consequences would impact both Italian small savers and foreigner investors and ultimately the State’s ability to support social welfare. What should be recalled is that both the safeguard of savings (Article 47) and social welfare are constitutional imperatives (Articles 29-34). Hence, factual consequences impacting on constitutionally protected interests and rights are the reasons for pushing parties to find an alternative name for the Ministry of Finance.
So if we circle back to the nature of the refusal to appoint the finance minister, it does not amount to an attempt to influence the economic policy of the government (in the end even the newly-appointed minister of finance, Giovanni Tria, has expressed harsh criticism towards the EU economic governance). The refusal is rather the exercise of a constitutionally mandated power, aimed at pushing parties to confront the factual consequences of their choices. The fact that those parties have populist inclinations makes it even more important to have them facing the already visible implications of a controversial aspect of their agenda.
There is a further reading of the Italian stormy night. The President did not conceal that the Italian membership to the EU is hardly a negotiable commitment. He mentioned the lack of an open public debate, during the electoral campaign, on the possibility to exit the EU as a reason to veto the appointment of a finance minister who may be driven by Euroscepticism. He then clarified that Italy is a founding member of the EU and one of the leaders of EU developments. The Movimento 5 Stelle reacted by stating that the Head of State was implying that EU membership is an undisputable matter.
From a legal standpoint, the President’s clear preference for European membership is grounded on constitutional provisions such as Article 11 (listed among fundamental principles) and Article 117. The former authorises transfer of sovereignty to international institutions for the promotion of peace and international cooperation. The latter prescribes that the exercise of legislative power shall conform to the Constitution and to international and European obligations. Of course international commitments can be withdrawn, but the nature of the European membership as well as the level of political and economic integration that EU has reached require an open and deep debate to discuss the consequences any choice may determine.
Against this backdrop, the Italian Constitution is not perfectly neutral on international commitments. The Constitution expresses a kind of constitutionalism which does not fit the sovereignty-based arguments of the two parties that form the current government. In the Italian constitutional frame, popular sovereignty is coupled with the openness towards the international community. Openness means renouncing exercising spheres of sovereignty under some circumstances (reciprocity) and in light of specific purposes (namely peace and cooperation). This is another way to say that the Constitution looks at the real circumstances of social and political life, by acknowledging that States need forms of cooperation which may be required by historical contingencies as well as by economic, social and political changes. The Constitution does not require Italy to be a member of the EU forever. It does require sovereignty to be exercised not in isolation, but in a constant dialogue with international partners. The reason for the dialogue is the building of a ‘world order ensuring peace and justice’ (again, Article 11). So there is a constitutional preference to build the EU in light of such purposes, rather than to leave the European project. This does not amount to a constitutional mandate. The ‘will of the people’ may well determine that the EU does not fit the kind of international organisation promoting peace and justice. But even at the second reading level of the story, the President is legitimately suggesting that political choices must confront the actual circumstance of life. This attitude may be the only key to exposing populist parties.
Graziella Romeo is Assistant Professor of Constitutional Law at Bocconi University (Milano).
(Suggested citation: G. Romeo, ‘It Was a Dark and Stormy Night: The Italian Institutional Crisis and Europe’, U.K. Const. L. Blog (5th Jun. 2018) (available at https://ukconstitutionallaw.org/))