Tolerance through Law

Tolerance through Law Tolerance through Law Self Governance and Group Rights in South Tyrol Edited by Jens Woelk, F...

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Tolerance through Law

Tolerance through Law Self Governance and Group Rights in South Tyrol

Edited by

Jens Woelk, Francesco Palermo and Joseph Marko European Academy Bozen/Bolzano

LEIDEN • BOSTON 2008

This book is printed on acid-free paper. Library of Congress Cataloging-in-Publication Data A C.I.P. record for this book is available from the Library of Congress

ISBN 978 90 04 16302 7 Copyright 2008 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishing, IDC Publishers, Martinus Nijhoﬀ Publishers and VSP. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. printed in the netherlands

CONTENTS

Editors’ preface Tolerance through Law ........................................................................

xi

Part One Framework Chapter 1 History of the South Tyrol Conﬂict and its Settlement ........ Emma Lantschner I. Introduction ................................................................................ II. (South) Tyrol: A Land of Transit .................................................. III. Fascist Oppression in South Tyrol ................................................ IV. The First Autonomy Statute: An Unsatisfactory Solution ............. V. The Second Autonomy Statute: The Powers to the Provinces ........ VI. Conclusions ................................................................................. Chapter 2 Protection of Minorities under International Law and the Case of South Tyrol ................................................................................. Roberta Medda-Windischer I. Introduction .............................................................................. II. The International Anchoring of the South Tyrol Issue .................. III. The International Settlement of the South Tyrol Dispute ............. IV. Concluding Remarks ................................................................... Chapter 3 South Tyrol’s Special Status within the Italian Constitution ............................................................................................ Francesco Palermo I. Italian Asymmetric Regionalism and its Evolution ....................... II. The ‘Peripheral’ Position of South Tyrol .......................................

3 3 4 6 9 13 15

17 17 19 28 30

33 33 45

Part Two Self-Governance Chapter 4 Institutions of Self-Government .......................................... Giuseppe Avolio I. Introduction ................................................................................. II. Institutions ...................................................................................

53 53 54

vi

Contents III. Legislative Procedure .................................................................... IV. Concluding Remarks ....................................................................

71 76

Chapter 5 Legislative and Administrative Autonomy ............................ Sara Parolari and Leonhard Voltmer I. Legislative Powers ......................................................................... II. Administrative Powers ..................................................................

77

Chapter 6 The Financial System of the Autonomous Province of Bolzano/Bozen ........................................................................................ Thomas Benedikter I. The General Framework of Financing Italy’s Regions with a Special Statute .............................................................................. II. The Financial System of the Province of Bolzano/Bozen Today .... III. The Development of Provincial Revenues 1990–2005 .................. IV. Some Concluding Remarks .......................................................... Chapter 7 What it Means to be Special in Relations with the Central State: Institutions and Procedures ............................................... Jens Woelk I. Introduction ................................................................................ II. Italy’s Cooperative Regionalism: Procedures and Institutions ....... III. South Tyrol’s Special Position in Italy’s Regional System ............... IV. Relations with the State in European Aﬀairs ................................. V. Perspectives: After the Constitutional Reform of 2001 ................. Chapter 8 Implementation and Amendment of the Autonomy Statute ..................................................................................................... Francesco Palermo I. Introduction ................................................................................ II. Implementation of the Autonomy Statute .................................... III. The Amendment Process of the Autonomy Statute ....................... IV. Looking for the Core of the South Tyrolean Autonomy ............... Chapter 9 Cross-border Cooperation between Historical Legacies and New Horizons .................................................................................. Alice Engl and Carolin Zwilling I. Introduction ................................................................................ II. A Look Back on the Development of Cross-border Cooperation between Tyrol, South Tyrol and Trentino ..................................... III. The Legal Bases for Cross-border Cooperation between Tyrol, South Tyrol and Trentino ............................................................. IV. Soft-Law Cooperation as Best Functioning Solution ....................

78 94

105

105 108 114 117

121 121 124 127 136 140

143 143 143 153 156

161 161 162 169 175

Contents Chapter 10 Regional Autonomies Providing Minority Rights and the Law of European Integration: Experiences from South Tyrol ................... Gabriel N. Toggenburg I. Introduction: Regional Autonomies and Minority Groups as Shadows Within the EU System ................................................... II. Concrete Experiences of the South Tyrolean Autonomy ............... III. Conclusion: Regional Autonomies and Minority Groups as Increasingly Important Entities within the EU System .................

vii

177

177 181 197

Part Three Minority Rights Chapter 11 Individual and Group Rights in South Tyrol: Article 2 as ,Grundnorm‘ of the Autonomy Statute ................................................ Jens Woelk I. Introduction ................................................................................ II. The Basic Compromise: the Gruber-Degasperi Agreement .......... III. The ‘Grundnorm’: Establishing Balances ...................................... IV. From the Agreement to the Autonomy Statute: Dual Nature and Gaps ..................................................................................... V. Balances as Essential Core and Substance ..................................... Chapter 12 Quota System, Census and Declaration of Aﬃliation to a Linguistic Group ..................................................................................... Emma Lantschner and Giovanni Poggeschi I. Introduction ................................................................................ II. The Quota System ....................................................................... III. The Normative Background to the Census and the Declaration of Linguistic Aﬃliation ................................................................ IV. Conclusions ................................................................................. Chapter 13 The Educational System in South Tyrol ............................. Siegfried Baur and Roberta Medda-Windischer I. Introduction ................................................................................ II. Historic and Socio-linguistic Conditions of School Policy in South Tyrol .................................................................................. III. Important Aspects of Education Policy since 1972 ....................... IV. Foreign Pupils and the Educational System in South Tyrol .......... V. Conclusions .................................................................................

203 203 204 206 208 217

219 219 220 226 232 235 235 238 241 250 258

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Contents

Chapter 14 Linguistic Rights and the Use of Language ........................ Cristina Fraenkel-Haeberle I. Origins of the Problem ................................................................ II. Separation as the Instrument for Stabilization .............................. III. The Public Administration ........................................................... IV. Trials and Proceedings ................................................................. V. Toponymy ................................................................................... VI. Forms of Protection ..................................................................... VII. Future Prospects: the Value of Multilingualism ............................ Chapter 15 A ‘Minority within a Minority’: the Special Status of the Ladin Valleys ........................................................................................... Günther Rautz I. Introduction ................................................................................ II. Historical and Geographical Background of the Ladins in Italy ... III. The Status of the Ladins in Italy ................................................... IV. The Ladins as a ‘Minority within a Minority’ ............................... Chapter 16 South Tyrol’s Special Status in Private Law: the ‘Entailed Farm’ and the ‘Grundbuch’ Systems ......................................................... Giovanni Poggeschi I. Introduction ................................................................................ II. The System of the ‘Entailed Farm’, the Austrian Law of 1900 and the Act of the Province of Bolzano/Bozen of November 2001 ...... III. The Legitimacy of the System of the ‘Entailed Farm’ According to the Constitutional Court ............................................................. IV. The ‘Grundbuch’ System of Registration of Real Properties .......... V. Conclusions .................................................................................

259 259 261 262 266 271 274 276

279 279 280 281 289

291 291 291 295 298 299

Part Four Lessons to be Learned Chapter 17 South Tyrol’s Consociational Democracy: Between Political Claim and Social Reality ......................................................................... Günther Pallaver I. Consociational Democracy .......................................................... II. The Principle of Ethnic Division .................................................. III. The Breaches in the Model ........................................................... IV. The Erosion of the Logic in the System of Ethnic Separation ....... V. The Tense Relationship between the Collective Rights of Minorities and Individual Rights .................................................

303 303 308 313 321 324

Contents Chapter 18 Complex Power Sharing as Conﬂict Resolution: South Tyrol in Comparative Perspective .................................................. Stefan Wolﬀ I. Introduction ................................................................................ II. Complex Power Sharing and Existing Theories of Conﬂict Resolution ................................................................................... III. Complex Power Sharing beyond South Tyrol: an Empirical Analysis ....................................................................................... IV. Conclusion: Complex Power Sharing Lessons from South Tyrol and Beyond ................................................................................. Chapter 19 Is there a South Tyrolean ‘Model’ of Conﬂict Resolution to be Exported? ........................................................................................... Joseph Marko I. Segregation or Integration? The Main Issues Surrounding the Regulation of Conﬂict in the Balkans .......................................... II. The Complementary Functions of Segregation and Integration in the South Tyrolean Model ........................................................... III. South Tyrol on the Way to a Multi-ethnic European Region: Problems Related to the Transfer from Territorial to Functional Autonomy ...................................................................................

ix

329 329 331 339 362

371

371 377

386

Appendix ................................................................................................. 389 Alice Engl and Alexandra Tomaselli Editors .................................................................................................... 409 Authors ................................................................................................... 410 Index ....................................................................................................... 415

EDITOR’S PREFACE

TOLERANCE THROUGH LAW Joseph Marko, Francesco Palermo and Jens Woelk

The Autonomous Province of Bolzano/Bozen-South Tyrol in Northern Italy is generally considered to be one of the most successful examples of the accommodation of minorities through territorial self-government. After a long-lasting dispute between Austria and Italy, in 1992 the international conﬂict regarding South Tyrol was settled: the full implementation of the autonomy system and a satisfying protection of its German-speaking minority were oﬃcially acknowledged. The autonomy arrangement for South Tyrol, which was designed and implemented in diﬀerent steps, is strongly characterized by detailed legal safeguards and strong guarantees, creating its special and unique position within the Italian legal system, which is also highly interesting in a broader and comparative perspective. For decades, its principles have remained basically unchanged; however, the autonomy has been further extended and developed as well as considerably changed in some of its important features. Consequently, the contributions to this volume pay particular attention to the evolution of the characteristic legal instruments and institutions of self-governance and minority protection. Although they did not have a direct impact on the autonomy arrangement, the reforms of the Italian Constitution in 2001 have deeply changed the general context within which the South Tyrolean autonomy is situated, due to the further emancipation of the regional level of Italian governance and the beginning of a federalization process. This book presents the results of a research project carried out over several years by a multinational group of mostly legal scholars at the European Academy, a research institute in South Tyrol. The volume is structured into four parts: ‘Framework’ (I); ‘Self-governance’ (II); ‘Minority Rights’ (III); ‘Lessons to be Learned’ (IV). It oﬀers a profound analysis of the foundations, the special position and the evolution of the South Tyrolean autonomy within the Italian, European and international contexts, providing an in-depth analysis of the ‘constitution’ of this very special regime of autonomy and minority protection. In the ﬁrst part of the volume—‘Framework’—an illustration of the historical evolution of the conﬂict and its settlement (Emma Lantschner) is followed by two chapters providing for the contextualization of today’s autonomy: while the ﬁrst focuses on the international guarantees behind the autonomy (Roberta Medda-Windischer), the second analyzes its constitutional dimension and special status within Italy (Francesco Palermo).

xii

Joseph Marko, Francesco Palermo and Jens Woelk

The volume’s second part—‘Self-governance’—introduces the complex institutional setting of an autonomous province under the roof of an autonomous region and its institutions (Giuseppe Avolio). After the actors have been presented in that way, the chapter on legislative and administrative powers provides an overview of what these can eﬀectively do (Leonhard Voltmer and Sara Parolari); this is followed by an analysis of the generous ﬁnancial arrangements that enable the province to make eﬀective use of its powers (Thomas Benedikter). As autonomy is only one side of the coin, the arrangements in the province’s relations with the central government are also of particular importance for the successful integration of the province into wider state structures ( Jens Woelk). The analysis of these relations demonstrates once more the high degree of diﬀerentiation that forms the basis for South Tyrol becoming a special (and protected) legal system in Italy. This conclusion is conﬁrmed by the study of the procedures for the implementation and amendment of the Autonomy Statute (ASt) (Francesco Palermo): the secret of successful implementation was the bilateralization of the province’s relations with the state through special joint commissions. New horizons could be opened by cross-border cooperation (Alice Engl and Carolin Zwilling). This is, however, still burdened by the historical legacies of the conﬂict; signiﬁcant progress in this ﬁeld can thus be expected only if the functional aspects and gains of such cooperation are not sacriﬁced in favour of symbolic issues. Increasingly, European integration is also having its eﬀect on the South Tyrolean autonomy. Although it did not directly help resolve the conﬂict, the very fact that Italy and Austria have both been members of the EU for more than a decade and the consequent practical disappearance of the former border between the two countries has improved the situation considerably. However, EU law and its primary focus on economic liberties might contrast with the special provisions of the autonomy system, as the relevant chapter demonstrates (Gabriel Toggenburg). The third part of the volume—‘Minority Rights’—looks deeper into the “special provisions for the safeguard of ethnic and cultural characteristics” of the groups (Art. 2 ASt). Due to the historic political status of the former Austrian region, the German language and aspects of Austrian/German culture still prevail in South Tyrol. In addition, Italian control of the region after 1919 has resulted in the growth of a large Italian community. The powers of the autonomous province provide speciﬁcally for the preservation of the German (and Ladin) language and culture through educational and cultural bodies. After an overview of the system of group rights established in the province ( Jens Woelk), the declaration of aﬃliation to a language group and the ethnic quota system are illustrated in their individual as well as collective dimensions (Emma Lantschner and Giovanni Poggeschi). The educational provisions eﬀective in the province are key to the preservation of the minority languages, as is discussed in a chapter on the South Tyrolean school system (Siegfried Baur and Roberta Medda-Windischer). Most importantly, extensive checks and balances have been implemented in the form of local educational administrative bodies, in order to ensure that the provisions are fulﬁlled. In addition, further steps to preserve the language, such as bilingual-

Tolerance through Law

xiii

ism in communications with the public authorities and in the courts, ensure that the South Tyrolese are able to retain their distinct culture, despite their position within the larger Italian state (Cristina Fraenkel-Haeberle). The third and smallest group, the Ladins, constitutes a ‘minority within a minority’ concentrated in two Dolomite valleys; consequently, a special status has been established in the ﬁve Ladin municipalities providing for the protection and promotion of this particular group (Günther Rautz). The last chapter of this part is dedicated to two speciﬁc institutes of private law, which are remnants from South Tyrol’s Austrian past but continue to be used and applied also in the Italian legal system: the ‘entailed farm’ and the land registry (Giovanni Poggeschi). The three chapters of the volume’s ﬁnal part—‘Lessons to be Learned’—try to answer the following questions: how was today’s autonomy reached and successfully implemented? What are the major changes to be observed? An analysis of the South Tyrolean experience from a political scientist’s perspective provides some concrete answers (Günther Pallaver). What are the objectives to be realized through minority protection and autonomy after a period of immediate conﬂict settlement and stabilization? Theoretical approaches and comparative experiences are discussed in the penultimate chapter drawing on the concept of power-sharing or consociational democracy (Stefan Wolﬀ ). Finally, which are case-speciﬁc features and what lessons can be learned and applied to other situations? Can South Tyrol provide a ‘model’ for the solution of ethnic conﬂicts (Joseph Marko)? Although the answer to the last question has to be negative, at least if one desires a perfect blueprint for other situations, the analysis of the South Tyrolean experiences gathered during decades of implementation and working autonomy provide valuable insights regarding the state and the evolution of this speciﬁc case, as well as for the general tendencies, potential and limits of the development of territorial autonomy and minority protection. The book provides information, analysis and insights regarding one of the most articulated, complex and successful experiences of accommodation of ethnic difference through territorial self-government, as well as an appendix containing the most relevant facts and ﬁgures (Alice Engl and Alexandra Tomaselli). It oﬀers useful hints for scholars, practitioners and all people interested in learning more about conﬂict resolution. Finally, we would like to thank all those who made this publication possible with their contributions, and in particular Ms Alice Engl for her energy and commitment in coordinating this volume. Our initial editor at Martinus Nijhoﬀ/Brill Publisher, Dr Arthur Koedam, was enthusiastic about the project from the outset and unfailingly helpful in negotiating the hurdles necessary to ensure the publication of the volume. His successor, Ms Caroline van Erp, provided just the right mixture of assistance and insistence to bring the volume to completion. In compiling this volume, our thoughts often turned to Antony E. Alcock, a noted scholar on South Tyrol with whom we have had many fruitful discussions, who passed away last year. We would very much have liked to also be able to discuss this volume with him. He will be remembered.

xiv

chapter two

The most important achievement of South Tyrol’s peculiar experience is the slow but permanent trust-building process based on extremely detailed legal arrangements. It shows that mutual trust can be built on legal guarantees: tolerance through law. Bolzano/Bozen, April 2007

Joseph Marko, Francesco Palermo and Jens Woelk

PART ONE

FRAMEWORK

CHAPTER ONE

HISTORY OF THE SOUTH TYROL CONFLICT AND ITS SETTLEMENT Emma Lantschner

I. Introduction In late summer 2006, politicians and historians in South Tyrol and its southern neighbouring province Trentino argued about whether or not to celebrate an anniversary. It was the anniversary of the Gruber-Degasperi Agreement concerning the fate of the German-speaking population living in Italy, signed 60 years before by the Italian Prime Minister Alcide Degasperi and the Austrian Minister of Foreign Aﬀairs Karl Gruber in the wake of World War II. The Agreement is unanimously considered to be the document that made today’s autonomous system possible. However—and on this point opinions diﬀer considerably—was the signing of this Agreement an event that should be celebrated? Some claimed that the autonomy based on this Agreement was and still is only the ‘second-best’ solution because, by accepting it, the South Tyrolese relinquished their right to (external) self-determination. Others argued that only the people living in Trentino had a reason to celebrate, as the Agreement brought much more advantage to them than to the people living in South Tyrol.1 For an outsider, these discussions may seem surprising, being faced with a region that is listed in eighth place in a ranking of the richest regions in Europe, with a GDP that amounts to 160% of the EU25 average,2 an unemployment rate close to zero and (at least) three ethnic groups living together in (relative) peace.

1

Toni Ebner, “Nicht feiern—nicht vergessen”, Dolomiten, 5 September 2006; Gabriele Di Luca, “Settembre 1946: il trionfo della mediazione”, Corriere dell’Alto Adige, 5 September 2006; Francesco Palermo, “60 anni fa. L’atto di nascita della nostra autonomia”, Alto Adige, 5 September 2006; Marco Dibona, “I ladini in lutto per i sessant’anni degli accordi De Gasperi-Gruber”, Il Gazzettino, 5 September 2006; Interview with Michael Gehler, “Das Mimimum vom Minimum”, Die neue Südtiroler Tageszeitung, 5 September 2006; Franco de Battaglia, “Degasperi non ha ingannato nessuno”, Trentino, 7 September 2006; Karl Zeller, “Kein Geschenk Degasperis”, ﬀ-Südtiroler Wochenmagazin, 7 September 2006. After having provided extensive coverage about the Agreement and the discussions surrounding it, the daily newspaper Die neue Südtiroler Tageszeitung conducted a survey among the South Tyrolean youth to ﬁnd out what they knew about the Agreement. Although the survey was very limited, it is quite telling that only one out of six knew about the content of the Agreement and its implications for South Tyrol. See Noemi Bonell, “Keine Ahnung aber dafür”, Die neue Südtiroler Tageszeitung, 23–24 September 2006. 2 According to this ranking, the Autonomous Province of Bolzano/Bozen is Italy’s richest ‘region’. See Eurostat, News Release 63/2006, 18 May 2006, referring to the data of 2003. In 2006, South Tyrol was listed on the 22nd place in a ranking of the richest regions in Europe.

4

Emma Lantschner

This ﬁrst positive impression might be largely conﬁrmed even after a second, deeper glance but might also leave unnoticed the fact that, on the one hand, the autonomous system is getting on in years and some features might call for reconsideration, while, on the other hand, the province is still faced with an ethnically divided society in which it is still quite easy—and unfortunately quite common—for political parties, supported by the divided media, to play the ethnic card to their advantage. The present contribution sets out to shed light on the history of the South Tyrol conﬂict, concentrating, therefore, mainly on the events after the end of the First World War, when South Tyrol became a part of Italy. However, a short section (II) will be dedicated to the period before the annexation by Italy in order to get an idea of the initial situation. The history of South Tyrol after the annexation can be roughly divided into three main periods: the period of fascism (1922–1943), which will be dealt with in section III, the period of the ﬁrst (regional) autonomy (1948–1972) and the period of the second (provincial) autonomy (1972 to present), which will be discussed in sections IV and V, respectively.

II. (South) Tyrol: A Land of Transit South Tyrol has always been a land of transit. Up until the early Middle Ages, today’s South Tyrol was populated by a variety of Germanic tribes: Celts, Goths, Franks and Lombards. Romans also settled in this area and left their idiomatic marks in the south-eastern part of the territory in particular, where, to this very day, some 20,000 people speak Ladin.3 During the course of the thirteenth century, the Earls of Tyrol uniﬁed several counties with the historical Tyrol, which created an area that consisted of today’s (North and East) Tyrol (the current Austrian Bundesland ), South Tyrol and Trentino (which was then—being the most southern part of the county—called South Tyrol). From 1363 until the end of the First World War, this whole area was part of the Austro-Hungarian Empire. This period was interrupted only once, in the early nineteenth century (1805–1813), when Tyrol was incorporated into Bavaria, an ally of Napoleon. From this period stems the saga of Andreas Hofer, a South Tyrolese who led the Tyrolese in their ﬁght against Bavarian and French troops. Three battles were won but ﬁnally the Tyrolese were defeated, Andreas Hofer captured and shot. His ﬁghting spirit and heroic behaviour during the execution became a legendary symbol of Tyrolese

3 Ladin is a Romance language, very similar to the Rhaeto-Romanic spoken in Switzerland. For more details about the Ladins and their protection in the autonomous system, see the contribution by Günther Rautz in the present volume. See also Bettina Awakowicz, “Die historische Entwicklung des Gebietes Alto-Adige/Südtirol in Bezug auf seine sprachliche Emanzipation bzw. Erreichung der oﬃziellen Zweisprachigkeit”, Diploma Thesis, Universität des Saarlandes (1996), 9.

History of the Conﬂict and its Settlement

5

resistance and he still plays an important role in the construction of myths in South Tyrol.4 At the turn of the nineteenth century and in the early twentieth century, only around 4% of the population of today’s South Tyrol were Italian speakers, whereas Trentino was predominantly Italian. Under the inﬂuence of European nationalism and after Italy’s uniﬁcation in 1861, geographers and historians discussed the question of whether or not the land south of the alpine watershed was geographically or historically Italian.5 Whereas some argued for the inclusion of the whole area up to the watershed at the Brenner (the alpine pass dividing South Tyrol from North Tyrol),6 others, like the irredentist Cesare Battisti (himself from Trentino), only argued for the integration of Trentino into the Kingdom of Italy. When the First World War broke out, Italy initially remained neutral. In 1915, the Allied powers succeeded in convincing Italy to enter the war on their side. As a ‘reward’, Italy was promised, amongst other territories, the area of Trentino and South Tyrol.7 The war ended with the defeat of the Axis and the break-up of the Danube monarchy. Although US President Woodrow Wilson’s famous 14 points foresaw “a readjustment of the frontiers of Italy [. . .] along clearly recognizable lines of nationality”,8 the territory up until the Brenner Pass was ceded to Italy and completed with the annexation in October 1920—with no provision whatsoever concerning the protection of the German- and Ladin-speaking population living in those areas.

4 For a very critical perspective towards the events of 1809 and the myths around Andreas Hofer, see Egmont Jenny, “Geschichte lernen . . .” 22(3) Südtiroler Nachrichten, Mitteilungsblatt des Südtiroler Kulturringes (2006), at ; and Dietmar Larcher, “Language, Myths and the Misuse of History. The Case of South Tyrol”, Paper Presented at the Summer Academy on ‘European Integration, Regionalism and Minorities’, European Academy of Bolzano, 20 August 2002. 5 Julian Minghi, “Boundary Studies and National Prejudices: The Case of the South Tyrol”, 15(1) The Professional Geographer (1963), 4–7, 4; as cited in Thomas Kager, “South Tyrol: Mitigated but not Resolved”, 1(3) Online Journal of Peace and Conﬂict Resolution (1998), 2. See also Melissa Magliana, The Autonomous Province of South Tyrol: A Model of Self-Governance? (European Academy of Bolzano, Bozen/Bolzano, 2000), 26–29. 6 Among them Giuseppe Mazzini, a leading ﬁgure in Italian nationalism, and Ettore Tolomei, who was a fervent advocate of the idea that the German-speakers in South Tyrol were in reality a Germanized population of Roman origin that had to be “liberated and returned to their rightful culture”. On Tolomei’s theory, see, among others, Antony Alcock, “The South Tyrol Autonomy. A Short Introduction”, May 2001, 2, available at . 7 These arrangements are laid down in the secret treaty of London of 26 April 1915. The relevant extracts of the secret treaty (in particular its Arts. 2 and 4) can be read at . 8 Woodrow Wilson, “Fourteen Points”, Address to the US Congress, 18 January 1918, at .

6

Emma Lantschner III. Fascist Oppression in South Tyrol

While the Italian governments of the immediate post-war period were initially quite liberal, even announcing their plans for cultural autonomy,10 fascist aggression against the German-speaking population in South Tyrol had already begun during those years. Before a decision as to how to govern the newly acquired territory was made, the fascists, led by Benito Mussolini, came to power in 1922. Concerning South Tyrol, the main goal of the fascist leaders was the Italianization of the whole territory by means of repression of the German language and culture, mass migration of Italian speakers into the province, encouraged mainly through industrialization, and, ﬁnally, the resettlement of the German-speaking population. These various attempts marked diﬀerent phases between 1922 and 1943. A. Repression of the German Language and Culture According to the fascists, the everyday life of the South Tyrolese had to be Italianized. As a ﬁrst measure—and in order to prevent the establishment of a province with a German-speaking majority—South Tyrol was absorbed by the province of Trento in 1923. Two months later, King Vittorio Emanuele III ordered the Italianization of public inscriptions and place names, according to the catalogue developed by the nationalist Ettore Tolomei. Even prior to the takeover by the fascists, Tolomei had started to create a catalogue of Italian names for all places, mountains, rivers, etc., in South Tyrol. For some of them, there existed a historical root, others were literally translated and others were pure inventions by Tolomei. Altogether, the catalogue contained 16,735 such names, which were oﬃcially adopted by the Italian state on 29 March 1923.11

9 On this period, see Gottfried Solderer (ed.), Das 20. Jahrhundert in Südtirol. Band II 1920– 1939: Faschistenbeil und Hakenkreuz (Edition Raetia, Bozen/Bolzano, 2000). 10 Prime Minister Giovanni Giolitti emphasized the intention of the government “to be considerate of the population of German tongue [. . .] to respect their language and everything that makes up their culture. We have to behave in such a way that these Germans [. . .] become friends of Italy.” Translation by the author from Rolf Steininger, Südtirol im 20. Jahrhundert. Vom Leben und Überleben einer Minderheit (Studien Verlag, Innsbruck, 1997), 48. On the various backgrounds of the quite minority-friendly behaviour, see Leopold Steurer, Südtirol zwischen Rom und Berlin. 1919–1939 (Europaverlag, Wien, München, Zürich, 1980), 59–60. 11 For the text of the Decree of the King, see Walter Freiberg, Südtirol und der italienische Natinalismus. Dokumente (Universitätsverlag Wagner, Innsbruck, 1990), 265–275. See on this topic Alexander Langer, “Glockenkarkopf o Vetta d’Italia”, in Siegried Baur and Riccardo Dello Sbarba (eds.), Alexander Langer. Aufsätze zu Südtirol. Scritti sul Sudtirolo. 1978–1995 (Alpha & Beta, Meran, 1996); and Steininger, op. cit. note 10, 91–93; Egon Kühebacher, Die Ortsnamen Südtirols und ihre Geschichte (Athesia, Bozen/Bolzano, 2nd ed. 1995). Notwithstanding the fact that today in South Tyrol every street sign is bilingual (and in the Ladin valleys even trilingual), until this very day only the Italian names are oﬃcial. It is within the province’s competence to adopt a law that would legalize the German names but this would potentially also abolish some Italian names. For this reason, it has so far been impossible to ﬁnd a political consensus on the issue.

History of the Conﬂict and its Settlement

7

Also, the name ‘South Tyrol’ and any reference that included the word ‘Tyrol’ were forbidden. Even given names and family names were Italianized, German names removed from graveyards and replaced by their Italian equivalent or a translation. Italian was introduced as the only oﬃcial language. German-speaking civil servants were dismissed. The only language allowed in public administration and at courts was Italian. The German-language press was eliminated. The fascist intervention into the school system was particularly severe: a school law of 1923, the so-called ‘lex Gentile’, resulted in the total collapse of German schooling in South Tyrol. As of 1928, there were no longer any schools that taught in German, except for the teaching of religion. Those religious classes also provided—to the extent that was possible—some instruction in the German language. In a much more hidden way, so-called ‘catacomb’ schools were organized as a sort of substitute for schools teaching in German. Pupils and teachers met in lofts, basements and stables, teaching material was smuggled from across the border, and teachers were poorly trained in simulated sewing courses. Although the fascists severely prosecuted any suspect, they did not manage to destroy the catacomb schools. They dissolved only in 1940, when German was oﬃcially reintroduced into the school system.12 The fascists had to accept that the assimilation attempt had failed.13 B. Industrialization and Migration Policy As the fascists began to realize that it was impossible to change the South Tyrolese,14 a second phase of attempted Italianization of the province started in the mid to late 1920s. Huge numbers of Italians were settled in South Tyrol, in order to gradually turn the demographic balance upside down. They were, for example, attracted by job opportunities within the public administration and postal services. Also, a lot of construction projects on railways and roads were initiated in order to encourage Italians to settle in the north. Thousands of workers from northern Italian regions came to South Tyrol in order to engage in the construction of hydro-electrical power plants. The key factor in the process of Italianization through immigration, however, was supposed to be the industrial zone, established in the mid-1930s in the southern part of Bolzano. Anybody who wanted to work in the industrial area had to be at least from Verona, or further south.15 The workers received apartments in houses expressly built for them. Industrial enterprises were promised preferential treatment and subventions in order to convince them to build up their factories 12 Maria Villgrater, Katakombenschule. Faschismus und Schule in Südtirol (Athesia, Bozen/ Bolzano, 1984); and Oswald Sailer, Schule im Krieg: dt. Unterricht in Südtirol 1940–1945 (Athesia, Bozen/Bolzano, 1985). 13 Alcock, op. cit. note 6, 3. 14 Steininger, op. cit. note 10, 113. 15 See Alessandra Zendron, “Option”, in Reinhold Messner (ed.), Die Option (Piper, München, 1995), 181.

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in the distant and relatively unattractive (because industrially underdeveloped) location. Within a relatively short time, an aluminum mill, a magnesium mill and a steel mill had been established, despite the fact that none of the necessary resources were present in the area. The fascists wished to change the demographic structure of the countryside too. For that purpose, the so-called ‘entailed farms’16 were abolished, in order to allow Italian farmers to buy farms and to destroy the traditional agricultural structure. This attempt was, however, unsuccessful, not only because South Tyrolese farmers managed to circumvent the problem but also because Italian farmers were not used to the working conditions and methods in the mountainous area. Although this latter attempt had only limited results, the heavy inﬂow of Italian workers in the industrial zone and civil servants changed the South Tyrolean demography considerably. The 4% of the population who were Italian speakers in South Tyrol at the turn of the century had increased to 24% by 1939.17 The Italian state also wanted to demonstrate its presence through a number of monuments and town planning measures. For example, the Victory Monument on the homonymous square in Bolzano was erected between 1927 and 1928, although no battle had ever been fought here. It bears the provocative inscription: “[h]ere are the borders of the fatherland. Put down our weapons [i.e., stop our advance]. From here we brought to the others language, laws and arts.” A sculpture of the goddess of victory is pointing her arrow towards the north, implying that the fascist state will always defend this territory against any enemy to the north.18 Although a proposed change in the name of the square from Victory Square to Peace Square—an attempt at reconciliation by the then mayor of Bolzano—was turned down by a referendum in 2002,19 by this time it was ﬁnally possible to place an inscription that explains the historical background to the monument.20 C. The Radical Solution: The ‘Option’ In March 1938, after the annexation of Austria by Nazi Germany, many South Tyrolese hoped that Hitler would very soon also save them from the Italian 16 For more on the particularities of the situation in South Tyrol, see the contribution by Giovanni Poggeschi in the present volume. 17 Kager, op. cit. note 5, 2. 18 For more on the Victory Monument and the destruction of Tyrolean monuments, see Rolf Steininger, South Tyrol. A Minority Conﬂict of the Twentieth Century (Transaction Publishers, New Brunswick, London, 2003), 35–42. 19 The demographic composition of Bolzano is approximately inversely proportional to the overall population of South Tyrol: 72.59% Italian speakers and 26.62% German speakers. 20 Those explanatory plates had to be placed across the street from the monument and not on the monument site itself because the national oﬃce for monument conservation was of the opinion that such plates would not be reconcilable with the maintenance of the historical and artistic-architectonical value of the monument. On the unsuccessful coming to terms with the past, see Egmont Jenny, “Denkmäler und Symbole” 22(2) Südtiroler Nachrichten, Mitteilungsblatt des Südtiroler Kulturringes (2006), at .

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fascists.21 However, Hitler had never given any reason for such a hope. He considered the Brenner border to be the untouchable border of Italy. Mussolini, on the other hand, had to realize that his attempts at assimilation had failed. The two leaders therefore agreed in 1939 that the German-speaking South Tyrolese (unlike the Ladins, who were considered to be Italians)22 should be given the choice between Germany or Italy. Opting for Germany meant giving up their homeland and being resettled somewhere in the German Reich, whereas opting for Italy meant giving up their German identity and accepting assimilation. Massive pressure was exerted on the population by both the Nazis and the Italian fascists to opt for emigration. People who opted for the German Reich were promised farms of the same quality and a compact settlement with the people of the village they had to leave in South Tyrol, whereas the South Tyrolese who decided to stay in Italy were threatened with deportation to Sicily. South Tyrol’s population was deeply divided on this option. In the end, around 86% of the German-speakers (some 200,000) decided to leave. The outbreak of the Second World War stopped the complete implementation of the option, which would have amounted to ethnic cleansing. ‘Only’ about 75,000 actually left and many of them returned after the war.23

IV. The First Autonomy Statute: An Unsatisfactory Solution In 1943, Mussolini was forced from power and Italy changed sides in the war. On 9 September of that year, German troops began the occupation of South Tyrol and northern Italy. The majority of the South Tyrolese initially celebrated the arrival of German troops as a liberation from Italian fascist oppression. However, the Germans brought not only the German language and culture back to South Tyrol but also terror of a diﬀerent kind: those who had opted to stay in Italy were persecuted, some of them were deported to the concentration camp in Dachau, others were sent to the front.24 After Germany’s capitulation, the Italian authorities regained power over the occupied areas in the north and were conﬁrmed in their oﬃce by the US. This meant a direct continuation of fascist politics. During the peace negotiations, the Allied powers had an interest in keeping Italy on their side. The fear that Austria might end up under the total control 21 Conrad F. Latour, Südtirol und die Achse Berlin-Rom, 1938–1945 (Deutsche Verlagsanstalt, Stuttgart, 1962), 22; and Steurer, op. cit. note 10, 290–296. 22 Alcock, op. cit. note 6, 3. 23 For more on the option, see Stefan Lechner, “Gehen oder bleiben: Die Option 1939”, in Solderer, op. cit. note 9, 282–295; id., “Über den Brenner: Die Umsiedlung ins Deutsche Reich”, in Gottfried Solderer (ed.), Südtirol im 20. Jahrhundert. Band III 1940–1959: Totaler Krieg und schwerer Neubeginn (Edition Raetia, Bozen/Bolzano, 2001), 12–27; Messner, op. cit. note 15; and Various Authors, “Südtirol 1939–1945: Option, Umsiedlung, Widerstand”, addition to Sturzﬂüge (1989) No. 29/30. 24 On this period, see Martha Verdorfer, “Vertrauter Faschismus: In der Operationszone Alpenvorland”, in Solderer, op. cit. note 23, 48–59.

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of Russia was another reason why there was a general tendency towards keeping the Brenner border as it was. Russia, in turn, wanted to satisfy Yugoslavia’s claim upon Istria and Dalmatia. As Italy couldn’t be truncated too much, it was considered to be impossible to reintegrate South Tyrol into Austria.25 Subsequent direct negotiations between Austria and Italy resulted in the abovementioned GruberDegasperi Agreement, which was annexed to the Paris Peace Treaty.26 Its main points were: – equality of rights with Italian-speaking inhabitants for the German-speaking population; – special provisions to safeguard the ethnic character of “the German-speaking element”; – autonomous legislative and executive powers; – an appropriate ethnic employment proportion in public services; – education in the mother tongue; – the equal status of the German and Italian languages. This Agreement constitutes the international basis for the South Tyrolean autonomy. Austria, as a party to that treaty, was given the role of protecting power, which it was able to exercise properly only after the Austrian State Treaty of 1955, with which it regained its total sovereignty. The ﬁrst problem with the implementation of the international obligation was the delimitation of the territory to which the autonomy had to be applied. The Italian Constitution of 1948 cut short further discussion, as it created the Autonomous Region of Trentino-Alto Adige. On 26 February 1948, the ﬁrst Autonomy Statute was adopted. That the autonomy was not granted to the province of Bolzano only, where the majority of the German-speaking minority lived, was justiﬁed by the fact that, according to the Constitution, autonomy was granted to regions and not to provinces. Herein lay the basic problem of the First Autonomy Statute. Most of the competences were given to the region, in which the Italians made up 71.5% of the population. The German-speakers were again in a minority situation and 25 See Rolf Steininger, “Back to Austria? The Problem of the South Tyrol in 1945/46”, 7 The European Studies Journal (1990), 51–83; and id., op. cit. note 18, 77–96. 26 For the authentic English text of the Gruber-Degasperi Agreement see Autonome Provinz Bozen Südtirol, Das neue Autonomiestatut (Bozen/Bolzano, 2005), 12–13, at . See also Eckart Conze, Gustavo Corni and Paolo Pombeni (eds.), Alcide De Gasperi: Un percorso europeo (il Mulino, Bologna, 2005); Hans Heiss and Gustav Pfeifer (eds.), Südtirol—Stunde Null? Kriegsende 1945–1946 (Studienverlag, Innsbruck, 2000); Giorgio Delle Donne (ed.), A 50 anni dall’accordo Degasperi-Gruber (Provincia Autonoma di Bolzano, Bozen/Bolzano, 1999); Michael Gehler (ed.), Verspielte Selbstbestimmung? Die Südtirolfrage 1945/46 in US-Geheimdienstberichten und österreichischen Akten (Universitätsverlag Wagner, Innsbruck, 1996); Theodor Veiter, “Grundgedanken zum Selbstbestimmungsrecht der Südtiroler”, in Franz Hieronymus Riedl et al. (eds.), Tirol im 20. Jahrhundert. Festschrift für Viktoria Stadlmayer (Athesia, Bozen, 1989), 235–251; Benedikt Erhard (ed.), Südtirol und der Pariser Vertrag. Geschichte und Perspektive (Haymon Verlag, Innsbruck, 1988).

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could easily be outvoted in regional decisions. The province received legislative competences only in the ﬁeld of culture, administrative autonomy and became a separate electoral district. Besides, education in the German language could be imparted only by mother tongue speakers and German and Italian received equal status in relation to public administration. With these provisions, Italy considered the Gruber-Degasperi Agreement as being fulﬁlled. However, not only were the provisions themselves quite limited but also implementation was totally lacking.27 In particular, in schooling and social housing, the situation resembled more a continuation of the fascist denationalization policy. Internal communication in public administration continued to be in Italian. In 1957, Silvius Magnago became the chairman of the South Tyrolean People’s Party (Südtiroler Volkspartei, SVP). The party was founded on 8 May 1945.28 Initially, its main goals were to assert claims to self-determination and to ﬁnd a solution to the question of how to deal with those who had opted to emigrate to the German Reich but after the war had desired to return to South Tyrol. Over the course of the 1950s and, in particular, after Magnago became the chairman of the party, the calls for provincial autonomy became stronger and stronger within the SVP. Since its inception, the South Tyrolese had disliked the union with Trentino. The peak of the protest was reached in 1957, when 35,000 South Tyrolese called for “Los von Trient” (Away from Trento) during a rally at castle Siegmundskron where Magnago gave a memorable speech. Their standpoint was that as long as autonomy was not granted to South Tyrol alone, the Gruber-Degasperi Agreement would not be fully implemented.29 The South Tyrolese were supported in their endeavours by Austria, who, as a state party to the Gruber-Degasperi Agreement, had an interest in seeing the complete implementation of the Agreement. In 1960, Austria’s Minister of Foreign Aﬀairs Bruno Kreisky brought the South Tyrol question for the ﬁrst time onto the agenda of the UN General Assembly. In two resolutions,30 the General Assembly urged the two parties concerned “to resume negotiations with a view to ﬁnding a solution for all diﬀerences relating to the implementation of the Paris [Gruber-Degasperi] agreement” and to settle

27

See Alcock, op. cit. note 6, 6–8. An interesting analysis of the elements of political success of the party is given in Günther Pallaver, “Die Südtiroler Volkspartei: Erfolgreiches Modell einer ethnoregionalen Partei. Trends und Perspektiven”, Paper Presented at the 11th Congress of Austrian Ethnic Groups, Klagenfurt, 22 September 2000, at . See also Anton Holzer, Die Südtiroler Volkspartei (Kulturverlag, Thaur, 1991). 29 According to Hannum, the granting of the autonomy to the region including Trentino violated “at least the spirit of the agreement”. See Hurst Hannum, Autonomy, Sovereignty, and Self-Determination. The Accommodation of Conﬂicting Rights (University of Pennsylvania Press, Philadelphia, 1996), 433. 30 UN General Assembly Resolutions 1497 (XV) of 31 October 1960, “The Status of the German-Speaking Element in the Province of Bolzano, Implementation of Paris Agreement of 5 September 1946”; and No. 1661 (XVI) of 28 November 1961, “The Status of the German-Speaking Element in the Province of Bolzano (Bozen), at . 28

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the conﬂict.31 The conﬂict was thereby brought back from the international to the bilateral level.32 However, the conﬂict was fought out not only on the diplomatic parquet. Beginning in the mid-1950s and continuing until the end of the 1960s, bomb attacks were directed against symbols of Italian state authority. In the so-called ‘ﬁre-night’ of 11 to 12 June 1961, 37 electricity pylons were blown up, interrupting the power supply to the bulk of the northern Italian industrial region. Later, similar attacks also resulted in some human victims. Some called the people involved in those attacks ‘freedom ﬁghters’, others simply considered them to be ‘terrorists’. After the ﬁre-night, some 150 men were arrested. Complaints about inhuman treatment of interrogation and even torture were not followed by serious investigations: the only trial against policemen for inhumane treatment ended with acquittal or pardon. On the other hand, many South Tyrolese were convicted and sentenced to high prison sentences; the question of amnesty for some of them remains a delicate issue today.33 The nexus between these attacks and the so-called ‘Commission of Nineteen’, established in 1961 on the initiative of the Italian Minister of the Interior Scelba, remains a topic of considerable debate. Scelba himself said that he established the Commission not because of but despite the bomb attacks. The Commission consisted of 12 Italian, six German and one Ladin representatives and was given a mandate to investigate the South Tyrol question and make proposals to the Italian government as to its solution. The counterpart to the Italian government in this Commission was not Austria but the South Tyrolean People’s Party, which was recognized by the Italian state as the legitimate representative of the German- and Ladin-speakers of South Tyrol. The Commission delivered a ﬁnal report in 1964, which served as the basis of the so-called ‘Package’.34 The Package is a catalogue of 137 measures, the majority of which aimed at a reform of the First Autonomy Statute. The core of the changes was that the regional autonomy should be substituted by an extensive autonomy for the two provinces. Under Constitutional Law No. 1 of 10 November 1971, the Second Autonomy Statute was adopted and entered into force on 20 January 1972.

31

Steininger, op. cit. note 18, 117–122. On this topic, see Michael Gehler, “Vollendung der Bilateralisierung als diplomatisch-juristisches Kunststück”, in Siglinde Clementi and Jens Woelk (eds.), 1992: Ende eines Streits. Zehn Jahre Streitbeilegung im Südtirolkonﬂikt zwischen Italien und Österreich (Nomos, Baden-Baden, 2003), 17–82. 33 The most recent publication on the bomb attacks is by Hans-Karl Peterlini, Südtiroler Bombenjahre. Von Blut und Tränen zum Happy End? (Edition Raetia, Bozen/Bolzano, 2005). 34 The Package was presented for vote to the delegates of the SVP in the memorable meeting of 23 November 1969 in Meran/Merano. After heated discussions between supporters and opponents, the Package was accepted with a relatively slim majority of 52.8%. The main argument of the opponents was the assumption that accepting the Package meant ultimately giving up on the possibility of rejoining Austria. The supporters, on the other hand, were of the opinion that this claim was unrealistic and that it was therefore most important to get away as much as possible from the province of Trento. Excerpts of the 18 hour debate can be found in Rolf Steininger, “Südtirolfrage”, in id. and Michael Gehler (eds.), Österreich im 20. Jahrhundert. Band 2 (Böhlau, Wien, Köln, Weimar, 1997), 498–510. 32

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V. The Second Autonomy Statute: The Powers to the Provinces The most important amendment contained in the Second Autonomy Statute was the fact that the majority of the competences were no longer given to the region but to the two provinces, which both separately received autonomous status. The provinces of Bolzano and Trento are therefore the only two provinces in the Italian constitutional system with autonomous legislative and administrative powers. In practical terms, this meant that the two provinces had exclusive legislative competence in the ﬁelds of regulation of provincial oﬃces and their personnel, place names, local customs and traditions, town planning, artisan activities, fairs and markets, housing, roads and public works, communication and transport, agriculture and vocational training, to mention just a few of the competences listed under Article 8 of the Autonomy Statute. Article 9 lists the ﬁelds in which the provinces have secondary (concurrent) competence to legislate.35 The region retained a marginal number of primary and secondary competences, which, as the years passed by, were mostly devolved to the provinces. Besides this crucial shift of competences from the region to the province, the new Autonomy Statute introduced some special measures for the protection of the Ladin population, as well as made compulsory the teaching of the second language, starting from the second or third year of elementary school. For the implementation of the Autonomy Statute and other measures contained in the Package, two committees were established: the Joint Committee of 12 and the Joint Committee of 6, with mandates to consult the government in respect of the elaboration of enactment decrees for the region and the provinces, respectively.36 Although the Autonomy Statute stated that all enactment decrees should be issued within two years of the coming into eﬀect of the Statute, it took 20 years before the Statute was considered to be fully implemented. In 1973, the administration of schools was handed over to the province and, in 1976, the enactment decree for the distribution of jobs in public administration according to the strength of the respective linguistic groups in the population (the so-called ‘ethnic quota’) was adopted.37 The end of the 1980s was marked by 35 Examples of such competences are: local urban and rural police, primary and secondary education, commerce, apprenticeship, promotion of industrial production, hygiene and health care. 36 For more on the composition, function and impact that these committees, in particular the Joint Committee of 6, have had on the autonomous system, see the contribution by Francesco Palermo (Implementation and Amendment of the Autonomy Statute) in the present volume. 37 For more on the declaration of aﬃliation and the ethnic quota principle, see the contribution by Emma Lantschner and Giovanni Poggeschi in the present volume. The fact that the proportion of Italian-speakers dropped from more than 33% to 28.7% between the years 1971 and 1981 as well as that “Italians had to realize that former privileges no longer applied to them” (Kager, op. cit. note 5, 4) were very likely some of the reasons why the neo-fascist party Italian Social Movement (Movimento Sociale Italiano, MSI) has been so successful in elections since 1985. It won 22.6% of the votes in the municipal elections in Bolzano and, since its ﬁrst participation in provincial elections in 1988, it has become the strongest Italian political party, having been renamed the National Alliance in 1992 (Alleanza Nazionale, AN).

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a new wave of bombings due to concerns about the slow implementation and the erosion of previously granted rights. Finally, in November 1989, the enactment decree to Article 99 et seq. came into force, which regulates the details of the use of the German and Ladin languages in relations with public administration and in judicial proceedings.38 Decisions about a new regulation concerning electoral districts for the elections to the Italian senate, the often deferred establishment of a local section of the Higher Provincial Court and a Juvenile Court in Bolzano delayed the ﬁnal settlement of the conﬂict. A new chairman of the SVP, as of 1991, and an Italian government willing to bring the implementation to its conclusion brought new impetus to the negotiations, which were ﬁnally concluded in 1992. In June 1992, the ambassadors of Austria and Italy handed over to the UN Secretary General the documents oﬃcially closing the conﬂict that had been open between the two states since the adoption of the two General Assembly resolutions back in the early 1960s.39 Since, with the formal conﬂict settlement, Austria recognized that Italy had fulﬁlled its international obligations arising from the Gruber-Degasperi Agreement, the question has often been raised as to whether Austria continues to have a legitimate role as protecting power of the German-speakers in South Tyrol. In theory, Austria could still take Italy to the International Court of Justice in case of severe violations of the provisions of the Gruber-Degasperi Agreement or of the Package (which can be considered as part of the international obligations Italy entered into with the Paris Agreement). However, considering the functioning institutional dialogue, such a possibility is quite abstract.40 From the years after the formal conﬂict settlement till today, three major issues (among others) have been of importance. The ﬁrst is not only of political but also of psychological relevance. With Austria’s accession to the EU in 1995 and the Schengen Agreement becoming eﬀective between Italy and Austria in 1997, the Brenner border, which for nearly 80 years divided North from South Tyrol, became practically irrelevant. The second issue, also related to the European Union, concerns discussions around the compatibility of some elements of the South Tyrolean autonomy with EU law. In two decisions, the European Court of Justice conﬁrmed, in principle, the conformity of the relevant norms with EU

38

Presidential Decree No. 574 of 15 July 1988. For more information on this topic, see the contribution by Cristina Fraenkel in the present volume. 39 On the conﬂict settlement, see Clementi and Woelk (eds.), op. cit. note 32. 40 Interview with Francesco Palermo, “Palermo: sarà un garante teorico”, Alto Adige, 15 November 2002. The position as protecting power for the South Tyrolese might also be contained in the draft of the new Austrian Constitution. The South Tyrolean daily newspaper Dolomiten reported on its ﬁrst three pages on the positive vote in the Austrian parliament to have a clause to that end included in the Draft Constitution. See Dolomiten, 22 September 2006, 1–3. From the Italian side, this has been received with skepticism: a former Italian minister called it an “unacceptable interference”. See Paolo Cagnan, “Tutela, si di Vienna: è polemica”, Alto Adige, 22 September 2006, 1 and 13. Also the national media dedicated attention to this vote. See Alessandro Trocino, “Alto Adige, si riapre la ferita ‘Austria potenza tutrice’. Roma: ‘Un anacronismo’ ”, Corriere della Sera, 5 September 2006.

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law.41 Finally, political discussions centred around the question of how to further develop and strengthen the autonomous system. In fact, the enactment decrees passed in the last decade covered new areas not foreseen in the Autonomy Statute, such as, for example, schools, roads and energy. This practice contributed to a dynamic understanding and evolution of the autonomy.42

VI. Conclusions What are the speciﬁc features of the history of the South Tyrol conﬂict and which are the elements that ﬁnally led to today’s situation? First, in the case of South Tyrol, it was clearly an advantage that the SVP, with some outstanding personalities, was backed by the overwhelming majority of German speakers and was, as such, considered to be the legitimate counterpart for negotiations to the Italian government. A second important point pertained to the international anchoring. This meant that Austria could bring the issue to the attention of the United Nations and, later, exert ‘soft’ pressure on the Italian government to fulﬁll its obligations. The necessity of a formal declaration of conﬂict settlement was an important incentive for Italy to keep the process of implementation of the Second Autonomy Statute alive.43 Thirdly, the Joint Commission of Six played a crucial role in the implementation process, as it was a forum for negotiation where representatives of the state and of the province met on an equal footing. In general, it has to be underlined that the overall process of implementation has been marked by compromise and negotiation. Over the years and with the growth of competences and ﬁnancial subsidies by the state in order to make these competences work, the South Tyrolean economy also started to ﬂourish, which further contributed to appeasement. Last but not least, the dimension of time must not be forgotten. The full implementation of the Gruber-Degasperi Agreement took nearly half a century and the reconciliation process and the rapprochement of the various ethnic groups is still not concluded. Is the conﬂict settled? In large part, yes, but the autonomous system continues to be work in progress.

41 For more details on these discussions see the contribution by Gabriel N. Toggeburg in the present volume. 42 Jens Woelk, “From Compromise to Process. The Implementation of the South Tyrolean Autonomy Arrangement”, Paper Presented at the Expert Meeting Kreddha & UNESCO Catalunya, Barcelona, 9–13 May 2003, 9. 43 Ibid., 9–10.

CHAPTER TWO

PROTECTION OF MINORITIES UNDER INTERNATIONAL LAW AND THE CASE OF SOUTH TYROL Roberta Medda-Windischer

I. Introduction The case of South Tyrol—an ethnic conﬂict in which a minority group (Germanspeaking South Tyrolese) challenged the Italian state over its discriminatory policy in a territory that had been annexed to Italy after World War I—epitomizes the development of minority protection under international law.1 The concept of protection of minorities is one of the oldest concerns of international law, ﬁnding its origin in the rise of the nation state, when many treaties were concluded for the beneﬁt of speciﬁc minority groups.2 The ideas underlying the protection of minorities have since the League of Nations been twofold: to allow minorities to live in a country alongside the rest of the population in a position of equality and to preserve the characteristics and the separate identity of minorities.3 Yet the protection of ethnic, linguistic and religious minorities has been longneglected by international lawmakers largely because of fears that claims to special protection would inexorably lead to demands for autonomy and, eventually, secession or terrorism—a danger to the integrity and security of the state. Hence, most of the peace and human rights treaties signed after World War II did not contain clauses protecting minorities but only general rules on non-

1 For an analysis of the historical facts of the South Tyrol case, see the chapter by Emma Lantschner on the history of the South Tyrol dispute in this volume. 2 The Treaty of Paris of 30 March 1856 that settled the Crimean War between Russia and the alliance of the Ottoman Empire, France and the United Kingdom contained, for example, provisions referring to the protection of Christian minorities in the Ottoman Empire, or the Treaty of Berlin of 13 July 1878 between the United Kingdom, Austria-Hungary, France, Germany, Italy, Russia and the Ottoman Empire accorded a special legal status to some religious groups. See Thomas Buergenthal, International Human Rights in a Nutshell (West Publishing Company, St. Paul, 3rd ed. 2002), 7. 3 This double-track system of protection was conﬁrmed by the Permanent Court of International Justice, in particular in its leading case on the Minority Schools in Albania. In this case, the Permanent Court introduced the concept of equality in law and fact: “Equality in law precludes discrimination of any kind: whereas equality in fact may involve the necessity of diﬀerent treatment in order to attain a result which establishes an equilibrium between diﬀerent situations [. . .] The equality between members of the majority and of the minority must be an eﬀective, genuine equality.” PCIJ, Minority Schools in Albania, Advisory Opinion, 6 April 1935, 34th Session, Series A-B, No. 64, 19.

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discrimination with emphasis on individual rights and freedoms rather than on group protection; history had shown that states such as Germany had relied upon minority provisions in treaties to intervene militarily. The abuse of minority treaties by Germany4 and the consequent failure of the League of Nations had thus left minority clauses with a poor reputation. The only instrument that was seen as positive for a minority in that period was the Paris Agreement signed by the Italian Prime Minister Alcide Degasperi and the Austrian Foreign Minister Karl Gruber (also known as the Gruber-Degasperi Agreement) in favour of the German-speaking South Tyrolese group in 1946 and annexed to the Italian Paris Peace Treaty of 1947. The Paris Agreement represented a compromise among the parties involved: Italy sacriﬁced full sovereignty over a section of its territory; Austria sacriﬁced the re-annexation of the province; while the German-speaking South Tyrolese sacriﬁced de facto the right to ‘external’ self-determination.5 Besides, the Italian government had to bear in mind the eﬀect that the autonomy for South Tyrol would have had on similar minority situations elsewhere in the country, primarily the French minority in the Aosta Valley and the Slovene minority in the area of Trieste. Indeed, it took almost two years until, on 29 January 1948, the Constituent Assembly of Italy approved the Autonomy Statute for South Tyrol. The 1948 Autonomy Statute was considered by the German-speaking population in South Tyrol to be inadequate and insuﬃcient in regard to content and vis-à-vis the ultimate objective of self-determination.6 Moreover, the implementation of the Paris Agreement was particularly disappointing because Italy for a long time obstructed the enactment of the laws necessary to implement the Autonomy Statute.

4 The Polish Minorities Treaty between the Principal Allied and Associated Powers and Poland, signed at Versailles on 28 June 1919, provided (Art. 8): “Polish nationals who belong to racial, religious or linguistic minorities shall enjoy the same treatment in law and in fact as the other Polish nationals.” Consolidated Treaty Series, Vol. 225, 412. See Patrick Thornberry, International Law and the Rights of Minorities (Clarendon Press, Oxford, 1991); Jacob Robinson et al. (eds.), Were the Minorities Treaties a Failure? (Austin Press, New York, 1943); Inis L. Claude, National Minorities, an International Problem (Harvard University Press, Cambridge, MA, 1955); and Antonio Cassese, International Law (Oxford University Press, Oxford, New York, 2nd ed. 2005). 5 Günther Pallaver, “South Tyrol, the ‘Package’ and its Ratiﬁcation”, 2(1/2) Politics and Society in Germany, Austria and Switzerland—Journal of the Association for the Study of German Politics and the Institute of German, Austrian and Swiss Aﬀairs (1990), 70–79, at 74; Peter Hilpold, “Sezession und humanitäre Intervention—völkerrechtliche Instrumente zur Bewältigung innerstaatlicher Konﬂikte?”, 54(4) Zeitschrift für Öﬀentliches Recht (1999), 529–602. 6 Stefan Wolﬀ, “Settling an Ethnic Conﬂict Through Power-sharing: South Tyrol”, in Ulrich Schneckener and Stefan Wolﬀ (eds.), Managing and Settling Ethnic Conﬂicts—Perspectives on Successes and Failures in Europe, Africa and Asia (Hurst and Company, London, 2004), 57–76, at 60; Peter Hilpold, “Die völkerrechtliche Absicherung der Südtirolautonomie”, in Joseph Marko et al. (eds.), Die Verfassung der Südtiroler Autonomie (Nomos, Baden-Baden, 2005), 38–46, at 40–41; id., “Aspetti Internazionali dell´Autonomia dell´Alto Adige”, in Joseph Marko, Sergio Ortino and Francesco Palermo (eds.), L‘ordinamento speciale deﬂla Provincia autonoma di Bolzano (Cedam, Padova, 2001), 89–100, at 91–92.

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The Second Autonomy Statute of 1972, under which South Tyrol received a greatly improved autonomy, was preceded in 1969 by the so-called ‘Package’ agreement reached between the three parties—Austria, Italy and the Germanspeaking population in South Tyrol represented by the South Tyrolean People‘s Party (Südtiroler Volkspartei, Minorities under International Law and in South Tyrol), the predominant and, for a long time, the only German-speaking party in the area. Moreover, both governments committed themselves to a sequence of events (the ‘Operational Calendar’) referring to precise individual items of the South Tyrol autonomy, whose implementation would eventually lead the Austrian government to submit a formal declaration before the United Nations to the eﬀect that the Austro-Italian dispute over South Tyrol was over.7 As will be argued in this chapter, it is evident that the necessity of a formal conﬂict settlement declaration—by Austria but with the approval of the German-speaking South Tyrolese—before an international forum after the implementation process had been concluded was a central incentive for Italy to settle the conﬂict.

II. The International Anchoring of the South Tyrol Issue The South Tyrolean autonomy is the result of a long process in which various actors were actively involved. In the following section, we will analyse, in particular, the role that two external actors—the United Nations and the kin-state8 (Austria)—had in this process and the impact that the so-called ‘international anchoring’ had in the successful conclusion of the South Tyrol dispute. Yet, at the outset, it is important to note that the international dimension and the resulting guarantees of South Tyrol’s autonomy was the source of bitter debates among the parties concerned.9 In particular, the Italian government, in an attempt to maintain the South Tyrolean issue as an entirely domestic aﬀair, long 7 The German-speaking party was the ﬁrst of the three to approve the ‘Package’ with a marginal majority (52.4%) within the SVP at a congress party in 1969. See Hansjörg Kucera and Gianni Faustini (eds.), Ein Weg für das Miteinander—20 Jahre Neue Autonomie in Südtirol (Athesia, Bozen/ Bolzano, 1992), 27. See also Andrea Di Michele, Francesco Palermo and Günther Pallaver (eds.), 1992. Fine di un Conﬂitto. Dieci anni dalla chiusura della questione sudtirolese (Il Mulino, Bologna, 2003). 8 A kin-state is a state where co-ethnics of minority groups living in another state—the home state—live and form the majority of the population. On the role of kin-states in the protection of minority groups, see Emma Lantschner and Roberta Medda-Windischer, Protection of National Minorities through Bilateral Agreements in South-Eastern Europe (Council of Europe, Strasbourg, 2001). 9 See Antonio Cassese, Self Determination of Peoples. A Legal Appraisal (Cambridge University Press, Cambridge, 1995), 102–108; Karl Zeller, Das Problem der völkerrechtlichen Verankerung des Südtirol-Paketes und die Zuständigkeit des Internationalen Gerichtshofs (Braumüller, Wien, l989), 39; and Peter Hilpold, “La soluzione graduale di conﬂitti del diritto internazionale: la via altoatesina nel contesto europeo”, in Di Michele, Palermo and Pallaver (eds.), op. cit. note 7, 165–178, at 166–173.

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followed a line of interpretation according to which only the ﬁrst Autonomy Statute (1948), which had been largely inadequate in terms of eﬀective implementation of South Tyrol’s autonomy, was argued to have an international character due to its basis in the Paris Agreement. In contrast, the Second Autonomy Statute of 1972, which mandated a broad autonomy for South Tyrol, was considered to be a domestic instrument based on national constitutional law. This interpretation would have barred Austria from using its veto power as ‘protecting power’ (infra) in case of substantial amendments, lack of implementation or even abrogation of the Second Autonomy Statute. Conversely, Austria and South Tyrol argued that the international guarantee of the Paris Agreement extended also to the 1972 Autonomy Statute.10 It follows that, for Austria, the way Italy applies (or fails to apply) those measures is an internationally relevant matter and can be submitted to the International Court of Justice. A. The Role of the United Nations: an Appraisal The failure of the 1948 Statute and its implementation to provide an institutional framework within which the interests of the Italian and German-speaking groups could be accommodated in a mutually satisfactory manner led to various initiatives at the international level. One of the ﬁrst acts that aimed to internationalize the South Tyrol issue dated back to 1957 when the Legal Committee of the Consultative Assembly (now Parliamentary Assembly) of the Council of Europe (CoE), prompted by some circles in the CoE, particularly Scandinavian representatives, set up a sub-committee to examine the situation in South Tyrol.11 The Legal Committee reported in October 1957 that it was desirable to ensure satisfaction of the collective interests of minorities “to the fullest extent compatible with safeguarding the essential interests of the states to which they belong”.12 This was one of the exceptional occasions—and rather limited in terms of eﬀectiveness—in which a European organization intervened in the South Tyrol issue.13 Indeed, the most eﬀective reference to an international organization was the referral by Austria of the South Tyrol case to the United Nations. On this occasion, Austria complained about a series of points of the Paris Agreement that were still open, such as the use of the Italian and German languages to conduct

10

Ibid. Anthony E. Alcock, “The Protection of Regional Cultural Minorities and the Process of European Integration: The Example of South Tyrol”, 11(1) International Relations (1992), 17–36, at 24. 12 Council of Europe, Consultative Assembly, Doc. 1002, 30 April 1959, paras. 30–31. 13 The historian Steininger reports that Austria had also planned to raise the South Tyrol issue again before the Council of Europe on the occasion of the tenth anniversary of this regional organization on 20 April 1959. However, the intervention of the Italian representative in the Council of Europe and the Belgian chairman convinced the then-Austrian foreign minister to drop the issue. See Rolf Steininger, South Tyrol. A Minority Conﬂict of the Twentieth Century (Transaction, New Brunswick, London, 2003), 118. 11

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oﬃcial government business, the school system and employment in the public sector.14 The Austrian request to the United Nations stated the following: In virtue of Art. 10 and Art. 14 of the UN Charter, Austria, therefore, requests the GA to consider the Austrian-Italian dispute that has arisen from Italy‘s refusal to grant autonomy to the province of Bozen and, in the spirit of the Charter, to bring about a just settlement based on democratic principles, by which the Austrian minority in Italy is conceded a true autonomy so as to enjoy the self-administration and self-government it has asked for and, indeed, it needs for the protection of its existence as a minority.15

After heated discussions between Austria and Italy before the UN, during which Italy even threatened to withdraw from the UN,16 ﬁnally both parties accepted the British compromise to discuss: “The Status of the German-speaking Element in the Province of Bolzano (Bozen). Implementation of the Paris Agreement of 5 September 1946.”17 After considering a number of drafts, the UN General Assembly on 31 October 1960 unanimously—even with Italy’s consent—adopted Resolution 1497/XV.18 The resolution called upon Italy and Austria to resume their negotiations in order to achieve a friendly solution to all the diﬀerences relating to the implementation of the Paris Agreement, thereby resolving the South Tyrol question.19 If, however, these negotiations should not be successful within a reasonable amount of time, the resolution admonished both treaty signatories to make use of ‘peaceful means’ provided for in the UN Charter, including the referral to the International Court of Justice.20 The UN General Assembly session of 1961 returned to the issue but merely referred the parties back to the resolution adopted a year earlier.21 Following the internationalization of the South Tyrol issue resulting from the referral to the United Nations and the subsequent General Assembly resolutions, coupled with the alarming deterioration of the political situation in the province with a series of bomb attacks in the late 1960s,22 the Italian government was ﬁnally prompted to resume talks on the South Tyrol autonomy not only with the Austrian government but also with the main representatives of the South Tyrolese, the SVP.23 As a result, on l September 1961, the so-called ‘Commission of

14

Ibid., 117. UN Doc. A/4395 of 6 July 1960, Explanatory Memorandum, 5. 16 Steininger, op. cit. note 13, 121. 17 Ibid. 18 UN Doc. GA Resolution 1497 (XV) of 31 October 1961, Oﬃcial Records Suppl. No. 16 (A/4684). 19 Steininger, op. cit. note 13, 121. 20 Ibid. See, in particular, Art. 1 para. 3, Art. 33 and Art. 36 para. 3 of the UN Charter, adopted on 26 June 1945, entered into force on 24 October 1945. 21 UN Doc. GA IX Resolution 1661 (XVI) of 28 November 1961, Oﬃcial Records Suppl. Vol. 2, No. 17 (A/5100). 22 Steininger, op. cit. note 13, 122–129. 23 Michael Feiler, “South Tyrol-Model for the Resolution of Minority Conﬂicts?”, 47(3) Aussenpolitik (1996), 287–300, at 294. 15

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Nineteen’ (consisting of 11 Italians, seven German-speakers and one Ladinspeaker) was appointed with the task of investigating possible solutions to the South Tyrol question. This ﬁnally, as noted earlier, led to the so-called ‘Package’ of legislative measures in favour of the inhabitants of the Province of Bolzano/ Bozen.24 Despite the minimal content of the UN resolutions, which did little more than call for increased negotiations between Italy and Austria, the UN involvement in the South Tyrol question had an impact that went far beyond initial expectations. In this regard, a number of observations outlining the results prompted by this involvement are worthy of mention. Firstly, the Austrian decision to refer the case to the United Nations lent a new quality to the entire question: the South Tyrol question had deﬁnitely become an international issue, resulting in pressure to ﬁnd a peaceful solution exerted by the international community on the parties involved, particularly on Italy. The UN resolutions conﬁrmed therefore that South Tyrol was a problem and that Italy could no longer ignore Austria’s concern and South Tyrol’s protests but, rather, that the issue needed to be addressed. As seen earlier, Italy responded to this pressure by establishing the Commission of Nineteen as a means to seek a solution to the problem. Secondly, by calling for further bilateral talks, the UN resolutions conﬁrmed the legitimacy of Austria’s being involved in the South Tyrol issue, which Italy had called into question in its attempt to maintain the South Tyrol case as a domestic aﬀair: in other words, the UN reaﬃrmed Austria’s role as protector of South Tyrol before the international community. In fact, the UN General Assembly’s decision was considered “one of the greatest Austrian foreign policy successes after the war”.25 Finally, the UN resolutions, with their minimal content (simply encouraging bilateral negotiations and suggesting the use of the International Court of Justice), lack of direct intervention or predeﬁned solutions, were, retrospectively, a very suitable instrument: on the one hand, they put pressure on the parties involved to negotiate and compromise; and, on the other hand, they led the parties to ﬁnd a solution on their own instead of imposing one, thereby rendering the process and the resulting outcomes increasingly more stable. Another aspect of the crucial role of the UN in the South Tyrol case is linked to the so-called ‘Operational Calendar’ that, as seen earlier, contained the course of action to be taken by both governments to settle the South Tyrol dispute: only by completing all steps outlined in the calendar could an oﬃcial settlement of the Austro-Italian dispute before the United Nations be declared to be accomplished. This oﬃcial settlement was ﬁnally achieved in 1992 with the oﬃcial letters by

24

Steininger, op. cit. note 13, 125–135. Waldemar Hummer and Karl Zeller, “Der Abschluss der Durchführung des ‘Südtirol-Pakets’: Chronologie und aktuelle Probleme”, Österreichisches Jahrbuch für Internationale Politik (1988), 57–101, at 58. 25

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both governments to the Secretary-General of the UN regarding the fulﬁlment of the 1960 UN Resolution.26 In this case as well, the role of the UN should not be underestimated: by internationalizing the South Tyrolean issue, the UN put discreet pressure on the parties to respect the Operational Calendar, contributing in this way to the achievement of a solution through peaceful means, as provided by the UN Charter. B. The Role of the Kin-state: Protection of Minorities or Self-determination? As South Tyrol’s kin state—or, following Austria’s own deﬁnition in this context, ‘protecting power’—Austria has always had an interest in following the situation of its kin group living, since the aftermath of World War I, in Italy, immediately beyond the border.27 After World War II, with the signing of the State Treaty in 1955, Austria regained its sovereignty and the freedom to act on its own in foreign policy matters. At this point, South Tyrol became over the next several years one of the central issues of Austrian foreign policy, in particular as a result of massive pressure from Innsbruck.28 In addition to its independence, in 1955 Austria declared also its neutrality: yet, unlike the neutrality declared by Switzerland, Austria adopted an ‘active’ form of neutrality allowing for more political activism, such as membership of the UN (1955) and the CoE (1956), and humanitarian intervention in Hungary (1956/1957).29 From this perspective, the ‘active’ Austrian neutrality did not hinder the exercise of its function as ‘protecting power’ in favour of South Tyrol, for instance through surveys, referral to the UN, etc.30 A factor that rendered the exercise of the role of Austria as protecting power more diﬃcult was the fact that the South Tyrol question long constituted the prime cause of tension with the Italian government, thereby hindering the entrance of Austria into the European Union (then EEC).31 Indeed, in 1967,

26 UN Doc. A/46/939 and 940 of 17 June 1992. Oﬃcial declarations on the settlement of the dispute were also addressed by the heads of both governments to their parliaments followed by parliamentary motions on the issue and an Austrian declaration that the dispute had been settled. See Wolﬀ, op. cit. note 6, 65. 27 See Peter Hilpold and Christoph Perathoner, Die Schutzfunktion des Mutterstaates im Minderheitenrecht (NWV/Athesia/BWV/Stämpﬂi Verlag, 2006). 28 On 21 June 1955, Bruno Kreisky, the Austrian Socialist state secretary in the foreign oﬃce, made clear the relevance of the 1955 State Treaty for South Tyrol: “Austria, as a free and sovereign state, would now be in a better position to fulﬁl its obligations as laid out in the Treaty of Paris to look after the interests of the South Tyroleans vis-à-vis the government in Rome”. Cited in Steininger, op. cit. note 13, 117. 29 Michael Gehler, “Compimento del bilateralismo come capolavoro diplomatico-giuridico: La chiusura della vertenza Sudtirolese fra Italia e Austria nel 1992”, in Di Michele, Palermo and Pallaver, op. cit. note 7, 23–119, at 31. 30 Ibid. 31 Ibid., 37; and Alain Fenet, “La Fin du Litige Italo-Autrichien sur le Haut Adige-Tyrol du Sud”, 39 Annuaire Français de Droit International (1993), 357–376, at 359.

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Italy vetoed the Austrian application for entrance into the EU.32 Eventually, in 1995, Austria joined the European Union and in 1997 the Schengen Treaty was adopted, an event which transformed the border between Italy and Austria into a mere administrative boundary reducing the divide between the two countries.33 As discussed earlier, the Italian government was for a long time of the opinion that, following the adoption of the 1948 Autonomy Statute, Italy had fulﬁlled the requirements stated in the Paris Peace Treaty and that, therefore, Austria was no longer in a position to get involved in the South Tyrol issue. The Italian obstructions to the implementation of an eﬀective autonomy system for South Tyrol led Austria to bring the South Tyrol dispute before the UN General Assembly (supra) and to ﬁle an inter-state complaint under the European Convention on Human Rights.34 Before the United Nations, Austria presented the South Tyrol problem as a problem of minority rights and not in terms of self-determination. Austria was aware that claiming self-determination for South Tyrol would be regarded as unreasonable and perhaps even threatening.35 The then-Austrian Foreign Minister Bruno Kreisky, who brought the issue before the UN, was perfectly aware of this situation when he noted: “[. . .] satisfactory solution of the South Tyrol problem would be achieved only by application of the principles of the right on self-determination [. . .] [however] any attempt to settle the problem on that basis would seriously disturb democratic Europe and be harmful to the interests of all concerned.”36 Accordingly, Austria did not claim or advocate for the re-annexation of South Tyrol to Austria but, on the contrary, its line of reasoning was based on the distinction between ‘external’ and ‘internal’ self-determination: the former would provide the right to determine one‘s international status and was rejected as a feasible goal while the latter was based on full autonomy for the province within

32 Italy used its veto to block Austria’s negotiations with the EEC in retaliation for the alleged complicity of Austria with the terrorist attacks in the late 1960s. See Steininger, op. cit. note 13, 128. 33 See Jens Woelk, “From Ethnic Minority Protection to Cohabitation”, in Agency of Local Democracy-Subotica (ed.), Essays on Regionalisation. A collection of Reports Submitted at the International Conference: Regionalisation in Southeast Europe—Comparative Analysis and Perspectives (Agency of Local Democracy, Subotica, 2001), 107–128. On the problems connected with the freedom of movement of EU workers and the South Tyrol system of ethnic proportion in the public sector, see Gabriel Toggenburg’s chapter in this volume. 34 In its application, Austria complained against Italy about the proceedings against a group of South Tyrolese activists. The Austrian government complained of irregularities in the proceedings, which it alleged had infringed the principle of fair trail (Art. 6 ECHR). In its report, the Commission expressed its opinion that no violation had occurred. European Commission of Human Rights, Austria v. Italy, Appl. No. 788/60, Report of 30 March 1963, Yearbook of the European Convention on Human Rights 6/742). This opinion was endorsed by the Committee of Ministers in its Resolution of 23 October 1963, (63) DH 3, Yearbook 6, 796. 35 Cassese, op. cit. note 9, 105. 36 UN GA VIIth Session, Special Political Committee, 289th Meeting, 15 November 1961, para. 3.

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the framework of minority protection.37 This approach, based on the distinction between external and internal self-determination, was acknowledged by the United Nations. The debates that took place in New York and the General Assembly resolutions conﬁrmed, on the one hand, that ethnic, religious or linguistic groups have no right to ‘external’ self-determination and, on the other hand (at least the view was not challenged), that those groups are entitled to ‘internal’ self-determination, which may be or should be implemented by the granting of ‘complete autonomy’ to those groups.38 The right to ‘external’ self-determination was thus ‘sacriﬁced’ by the Germanspeaking South Tyrolese group in order to obtain a full system of territorial autonomy.39 The South Tyrolese German-speaking group was, however, extremely split on the subject because some believed that the right to self-determination was an inherent right included in the Paris Peace Treaty, while others considered South Tyrol’s autonomy contained in the ‘Package’ as a compromise engendering a lasting peaceful solution for the South Tyrol question, abandoning in this way any claim to external self-determination.40 In this regard, it is worth noting that the International Covenant on Civil and Political Rights (ICCPR)41 and the International Covenant on Economic, Social and Cultural Rights (ICESCR)42 provide the right to self-determination for all ‘peoples’.43 According to commonly accepted principles of international law, the right to self-determination is recognized for ‘peoples’ only and not for (minority) groups.44 As a result, many governments were—and still are—reluctant to use the

37

Cassese, op. cit. note 9, 106. Ibid., 107. 39 Pallaver, op. cit. note 5, 74; Hilpold, op. cit. note 6, 40–41; id., op. cit. note 6, 91–92. 40 See Alcock, op. cit. note 11, 28. As seen earlier, in South Tyrol, the German-speaking party was the ﬁrst of the three to approve the ‘Package’ with a marginal majority (52.4%) within the SVP at a congress party in 1969. See Kucera and Faustini, op. cit. note 7, 27. 41 UN International Covenant on Civil and Political Rights, adopted by General Assembly Resolution 2200 A (XXI) of 16 December 1966, entered into force on 23 March 1976. 42 UN International Covenant on Economic, Social and Cultural Rights, adopted by General Assembly Resolution 2200 A (XXI) of 16 December 1966, entered into force on 3 January 1976. 43 Both Covenants declare: “All peoples have the right of self-determination. By virtue of that right they freely determine their political statures and freely pursue their economic, social and cultural development”. Art. 1 common to ICCPR and ICESR. Note that the competence of the Human Rights Committee to receive individual complaints on alleged violations of the ICCPR is limited to the substantive articles of the ICCPR, thus Article 1 on the right of peoples to selfdetermination is excluded from the competence of the HRC. See HRC, CCPR, General Comment No. 23, The Rights of Minorities (Art. 27), CCPR/C/21/Rev.1/Add.5, 8 April 1994, paras. 2–3.1. See also Art. 1 and Art. 55 of the UN Charter, in which reference is made to the “right to selfdetermination of peoples”. 44 Self-determination appears ﬁrmly entrenched in the corpus of international law in only three areas: as an anti-colonialist standard, as a ban on foreign military occupation and as a requirement that all racial groups be given full access to government. Current international law on self-determination is thus blind to the demands of ethnic groups (not constituting a racial group) and national, religious, cultural or linguistic minorities. See Cassese, op. cit. note 4, 60–64. See also David J. Harris, Cases and Materials on International Law (Sweet and Maxwell, London, 4th ed. 1991), 116–125; and Hurst Hannum, Autonomy, Sovereignty, and Self-Determination: the Accommodation of Conﬂicting Rights (University of Pennsylvania Press, Philadelphia, 1996). 38

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term ‘peoples’ because of a fear that it might be used to assert a right to self-determination.45 These concerns are reﬂected in most recent international documents concerning minorities, in which, while it is acknowledged that the promotion and protection of rights of minorities contributes to the stability of states, it is pointed out that minority rights cannot serve as a basis for claims of secession or dismemberment of the state, and special mention is made of the principles of sovereignty and territorial integrity.46 However, what constitutes a minority and the diﬀerence between ‘minorities’ and ‘peoples’, as referred to in Article 1 common to the two UN Covenants, remains a highly controversial issue.47 Some scholars raised the question of whether, when the SVP recognized the Gruber-Degasperi Agreement as the framework in which the German-speaking minority could develop its autonomy within the Italian state, it had in fact surrendered the idea of exercising the right to self-determination.48 In other words, was there a contradiction between the agreement to operate within the Italian state and the potential exercise of the right to self-determination that might lead to secession from Italy?

45 From this perspective, see the discussion at the 1993 Vienna Conference on Human Rights on whether reference in two controversial passages of the Concluding Document had be to indigenous ‘people’ or indigenous ‘peoples’. The former of the two prevailed. See United Nations, General Assembly, Vienna Declaration and Programme of Action, World Conference on Human Rights, Vienna, 14–25 June 1993, A/Conf.157/23, 12 July 1993, paras. 28–32. Another example of the relevance of the issue is given by the discussion on the title of the UN Declaration on the Rights of Indigenous Peoples, which remained long unsettled: the Intergovernmental Commission on Human Rights had for a long time refrained from using the term ‘rights of indigenous peoples’, preferring to refer to a draft ‘declaration of indigenous rights’. UN Commission on Human Rights, Resolution 1993/31, Report of the Forty-Ninth Session, adopted on 5 March 1993. Most recently, during the intergovernmental negotiations on the Declaration on the Rights of Indigenous Peoples that took place in September 2004, the UK repeatedly proposed that the term ‘indigenous peoples’ should be replaced with ‘indigenous individuals’. See Minority Rights Group International, Press Release, 21 September 2004, at . For an overview of the issue, see Nigel S. Rodley, “Conceptual Problems in the Protection of Minorities: International Legal Developments”, 17 Human Rights Quarterly (1995), 48–71; Thomas D. Musgrave, Self-Determination and National Minorities (Oxford University Press, Oxford, 2002), 148–179. 46 Art. 21 of the CoE Framework Convention for the Protection of National Minorities, adopted on 1 February 1995, entered into force on 1 February 1998, ETS No. 157; Art. 8 para. 4 of the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, adopted by General Assembly Resolution 47/135 of 18 December 1992. 47 According to the working deﬁnition of ‘indigenous peoples’ given by the UN Special Rapporteur José Martinez Cobo in his report to the then Sub-Commission on Prevention of Discrimination and Protection of Minorities, Study of the Problem of Discrimination Against Indigenous Populations, UN Doc. E/CN.4/Sub.2/1986/87, which led to the creation of the Working Group on Indigenous Populations, indigenous peoples are those peoples native to the place in which they live, have a historical continuity with pre-invasion and pre-colonial societies that developed on their territories but have lost their independent character as a result of colonial invasion. Clearly, it is not easy to distinguish between a group that calls itself an ‘indigenous people’ and a minority group that recognizes itself as being native to a given territory and that invokes that characteristic in order to obtain its rights. See also the Draft Declaration on the Rights of Indigenous Peoples, adopted by the UN Commission of Human Rights, Sub-Commission on the Prevention of Discrimination and Protection of Minorities on 26 August 1997, UN Doc. E/CN.4/1995/2. 48 Alcock, op. cit. note 11, 28.

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According to the Austrian constitutionalist Theodor Veiter, referring to the 1935 Advisory Opinion of the League of Nations’ Permanent Court of International Justice in the Minority Schools in Albania case,49 the right to self-determination refers primarily to ‘internal’ self-determination, namely the right of a people or group to decide freely what legislative and administrative powers in the cultural and other ﬁelds it should have in order to enable it to maintain its cultural characteristics and separate identity, and the right to obtain these from the host state. Only if these legitimate demands are denied should secession or ‘external’ self-determination be sought as a last resort.50 Accordingly, following this line of reasoning, South Tyrol’s acceptance of the 1969 ‘Package’ agreement was already an exercise of the right of ‘internal’ self-determination.51 As discussed earlier, the involvement of Austria in the South Tyrol issue was pivotal for settling the South Tyrol question. Without the participation of the Republic of Austria in the Gruber-Degasperi Agreement an international treaty would not have been adopted and this, as a result, would have led the UN General Assembly to conclude that, since the matter belonged to the domestic jurisdiction of Italy, it had no authority to discuss it (in fact, Italy was not being accused of gross, large-scale and systematic breaches of human rights).52 By performing its function of ‘protecting power’, Austria guaranteed that negotiations and talks could take place, especially in the 1950s and 1960s when bilateral talks were carried out between the two states, while German-speaking South Tyrolese leaders had only indirect contacts with Italian leaders.53 Besides, Austria was able to channel the claims and interests of the South Tyrolese German-speaking population before international fora and its Italian counterpart and to convince at least a part of the SVP that pleading for self-determination was impractical and, in those circumstances, even harmful. Even after the adoption of the 1972 Autonomy Statute, Austria has continued to advocate for its role as guarantor for South Tyrol, in order to ensure that the autonomy status does not change in the future. This perspective sheds signiﬁcant light on the recent recommendation of the Austrian parliament, adopted on

49

PCIJ, op. cit. note 3. Theodor Veiter, Das Menschenrecht (Bramüller, Wien, 1970), 12. 51 Ibid. Alcock argues, however, that this reasoning has been disputed mainly on the grounds that in accepting the ‘Package’ the SVP had pronounced on the issue of autonomy, not self-determination. Alcock, op. cit. note 11, 28. Indeed, the SVP Programme endorses the “inalienable right to self-determination” of the South Tyroleans: “Die SVP bekräftigt die Unverzichtbarkeit des Selbstbestimmungsrechtes der Südtiroler”. SVP Programme, Core Values for the Future (A), 8 May 1993, 2, at . 52 A consistent pattern of gross violations of human rights would have activated speciﬁc UN mechanisms of investigation. ECOSOC Resolution 1235, ESCOR, 42nd Session, Suppl. 1, 1967; ECOSOC Resolution 1503, ESCOR, 48th Session, Suppl. 1A, 1970. See Harris, op. cit. note 44, 602–604. 53 Melissa Magliana, The Autonomous Province of South Tyrol. A Model of Self-Governance?, (European Academy Bozen/Bolzano, Bozen/Bolzano, 2000), 128. 50

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21 September 2006, to include in the Preamble of the future new Austrian Constitution a reference to the role of Austria as ‘protecting power’ for South Tyrol.54 If Austria clearly played a central role in the settlement of the South Tyrol issue, this does not mean that, as a general rule, minority situations are better resolved by the involvement of a kin-state. On the contrary, overbearing kin-state activism can also be disruptive and provoke an escalation of ethnic tensions.55 Yet it remains to be seen whether the existing international mechanisms for minority protection, from the OSCE High Commissioner on National Minorities to the CoE Advisory Committee on National Minorities, are actually able to guarantee an eﬀective protection for minorities without the engagement of a powerful kinstate ready to intervene to protect the interests of its kin-group. The coordinated action of kin-states and international and/or regional organizations—as objective and neutral third parties—seems to hold the most promising potential for the peaceful solution of minority issues.

III. The International Settlement of the South Tyrol Dispute Despite mutual reservations and great scepticism, the foundations for the completion of the ‘Package’ were nevertheless laid in spring 1988, when a fundamental political agreement was achieved between the SVP and the Italian government.56 Admittedly, one third of the SVP’s party committee voted against it and spoke out against a submission of the declaration by Austria of the end of the dispute before the United Nations.57 Those against the agreement complained, among others things, about the fact that the Italian government did not regard the measures of the ‘Package’ as acts implementing the Paris Agreement and, thus, as acts based on domestic law and unilaterally adopted and implemented by Italy, they could not be brought before the International Court of Justice.58

54 This decision, supported by a petition signed by almost all mayors in South Tyrol, provoked resentment and disappointment among the Italian population in South Tyrol and reactions, among others, from the Italian foreign minister. After the Austrian elections in October 2006, the new parliament is free in its decision to reform the Federal Constitution and, if so, to include the South Tyrol clause. 55 See Arie Bloed and Pieter van Dijk, Protection of Minority Rights Through Bilateral Treaties. The Case of Central and Eastern Europe (Kluwer Law International, The Hague, Boston, London, 1999); Lantschner and Medda-Windischer, op. cit. note 8. On the recent tendencies and problems of legislation in Europe concerning the preferential treatment by states of their kin-minorities abroad, with particular reference to the so-called Hungarian Status Law of 19 June 2001 concerning the status of Hungarians living in neighbouring countries, see CoE, European Commission for Democracy Through Law (Venice Commission), Report on the Preferential Treatment of National Minorities by their Kin-states, CDL-INF (2001) 19, Strasbourg, 22 October 2001. 56 Pallaver, op. cit. note 5, 77. 57 Ibid. 58 Ibid.

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In 1992, however, Italy changed its position in this regard. Before the adoption of the declaration of conﬂict settlement by Austria, the Italian government informed the Austrian government with an oﬃcial note about the implementation of the ‘Package’ measures.59 On this occasion, the Italian government presented the ‘Package’ and the ensuing implementing measures as intimately intertwined with the Paris Agreement, thereby acknowledging the international dimension of the 1972 Autonomy Statute and even indicating that the international anchoring of the South Tyrol autonomy existed also in the context of the OSCE (the CSCE, at that time).60 The instruments adopted within the framework of this pan-European organization were in fact mentioned as standards against which the South Tyrol autonomy could be reviewed. The linkage made between the OSCE’s far-reaching instruments on minority protection and the South Tyrol autonomy marked an important change in the Italian perspective on the South Tyrol issue, which was ﬁnally recognized as having an international dimension. From this point onwards, in various international fora, Italy will always refer to the South Tyrol autonomy as a model and source of inspiration for other minority-like situations.61 Following this change of position, coupled with the implementation of the remaining provisions of the ‘Package’ and the endorsement by the SVP and by the Regional Assembly of Tyrol (Austria), on 11 June 1992, Austria submitted before the United Nations the oﬃcial declaration of conﬂict settlement.62 Austria would, however, continue to exercise the function of protector of South Tyrol, as sanctioned by the Paris Agreement.63 Besides, it was made clear that any controversy on the interpretation and implementation of the Autonomy Statute and the Package measures, in particular, was covered by the jurisdiction of the International Court of Justice and that the mechanisms of control of the OSCE (then CSCE) could also ﬁnd application.64 59 Note of the Italian Foreign Minister to the Austrian Embassy in Rome dated 22 April 1992. The text is reported by Gehler, op. cit. note 29, 93. See also Italian Constitutional Court, Judgment No. 242/1989, para. 8.1, in which the Court notes that the autonomy of the region Trentino-South Tyrol and, in particular, the autonomy of the Province of Bolzano/Bozen, is based on the Paris Agreement. On this point, see also Hilpold, op. cit. note 9, 171–172. 60 Ibid. 61 See, among others, the speech by the Italian foreign minister at the Helsinki OSCE (then CSCE) Conference in July 1992. See Steininger, op. cit. note 13, 144. 62 Note that the Austrian government had requested a number of opinions by international experts, in particular by the most prominent international Austrian scholars Felix Ermacora and Franz Matscher, who conﬁrmed that the Package measures were implementing acts of the Paris Agreement, with the exclusion of a number of provisions, for instance, those pertaining to the Ladin-speaking minority group, which were not mentioned in the Gruber-Degasperi Agreement, and that most provisions fell under the jurisdiction of the International Court of Justice. See Gehler, op. cit. note 29, 52–56. For an overview on the conclusion of the South Tyrol dispute before the United Nations, see Di Michele, Palermo and Pallaver, op. cit. note 7; Andreas Khol, “Zur PaketÜbergabe am 22, April 1992: Südtirol—ein abgeschlossenes Kapitel?”, in Österreichisches Jahrbuch für Politik (1991), 223–251; Karl Zeller, “Die Beendigung des österreichisch-italienischen Streits vor den Vereinten Nationen. Ist die Südtirolfrage endgültig gelöst?”, Österreichisches Jahrbuch für Internationale Politik (1992), 48–91; and Fenet, op. cit. note 31. 63 Pallaver, op. cit. note 5, 79; and Steininger, op. cit. note 13, 143. 64 See Gehler, op. cit. note 29, 93.

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The settlement of the South Tyrol dispute before the United Nations was fostered by various factors, including some events that took place at the international level. Firstly, in 1989–1990, the end of the Cold War provoked the end of the communist ‘threat’ and determined the resurgence of various unresolved internal conﬂicts.65 In particular, the crisis in the former Yugoslavia and the claim of selfdetermination by Croatia and Slovenia renewed the debate on self-determination in South Tyrol. This debate was particularly alarming in Italy because Germany and Austria took a clear stand in favour of the declaration of self-determination by the two former Yugoslav Republics. Secondly, Austria was eager to end the dispute with Italy on South Tyrol so as not to have to fear a veto from Italy on its attempt to join the European Union, something similar already having occurred once in the 1960s. Despite the fact that this preoccupation was not based on expressed positions manifested by Italy, it is certain that the South Tyrol dispute and Austrian membership in the EU were implicitly closely connected.66 The settlement of the South Tyrol dispute and, more generally, the South Tyrol autonomy has always had an international dimension, as proven by the fact that the oﬃcial declaration of conﬂict settlement was communicated not only to the United Nations but also to the International Court of Justice, the Council of Europe, the European Union and the OSCE (then CSCE), which in turn conveyed their oﬃcial acknowledgment.67 The linkage with various international organizations was not limited to a formal exchange of notes: their involvement was indeed a guarantee, especially for the future, that the South Tyrol issue was not merely a domestic aﬀair, as Italy had long claimed. This international ‘guarantee’ proved to be satisfactory for the German-speaking group, as evidenced by the large majority (82.86%) of the SVP that approved, on 30 May 1992, the settlement of the dispute, provided that an international guarantee was included.68 Yet, some members of the SVP expressed their disappointment at the declaration of the end of the international dispute, which they perceived as a defeat vis-à-vis the right to self-determination.69

IV. Concluding Remarks Questions concerning whether and how the rights of minorities should be recognized in politics and how to maintain and strengthen the bonds of community in ethnically diverse societies are among the most salient and vexing on the political agenda of many societies. The growing diversity of national communities has 65

Ibid., 35–36; and Pallaver, op. cit. note 5, 79. Gehler, op. cit. note 29, 37; Pallaver, op. cit. note 5, 76. 67 Ibid., 71. 68 Ibid., 67. 69 Alfons Benedikter, “Kapitulation Österreichs”, 4 Präsent (1993), 1; Alfons Benedikter, “Worauf wurde verzichtet? Zum österreichisch-italienischen Rahmenabkommen”, 6 Präsent (1993), 6. On the right to self-determination, see above in this chapter. 66

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generated pressures for the construction of new and more defensible forms of accommodation of social cohesion and diversity. States seem increasingly more convinced that it is not enough to ensure ‘equality’ to ethnic, cultural, linguistic and religious minorities living within their borders, and that minorities are entitled to a variety of measures aimed at enhancing their culture, their language and their religion. However, if it was relatively easy to reach a general agreement on the prevention and punishment of genocide and on the elimination of racial discrimination (subjects for which there exist important and widely-ratiﬁed instruments, such as the UN Genocide Convention70 and the Convention on the Elimination of All Forms of Racial Discrimination),71 there are still states that manifest the view that minority claims are subversive and a danger to the integrity of the state and that minority rights and diversity need to take second place to imperatives of state security and unity.72 The ‘securitization’ of ethnic relations has been indeed the main short-term concern behind most international treaties and declarations on the protection of minorities. Avoiding violence and civil war was, in fact, the original agenda behind the internationalization of minority rights.73 From this perspective, the South Tyrol case is not an exception and avoiding the escalation of an ethnic conﬂict was one of the successes of the entire negotiating process, together with the protection of the German- and Ladin-speaking minority groups living in South Tyrol. Moreover, in this process a pivotal role was played by the United Nations and the kin-state, Austria. Various favourable conditions facilitated the settlement of the South Tyrol dispute. Among others was the fact that the issue was presented as a matter of minority protection instead of (external) self-determination with full respect for the territorial integrity of the Italian state both by the German-speaking group in South Tyrol and by all Austrian governments since 1946.74 Secondly, it was essential that the parties involved accepted that an institutionalized and structured form of negotiation was the best means to achieve the settlement of the

70 UN Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the General Assembly of the United Nations in 1948, entered into force on 12 January 1951. 71 International Convention on the Elimination of All Forms of Racial Discrimination, adopted by General Assembly Resolution 2106 A (XX) of December 1965, entered into force on 4 January 1969, 660 UNTS 195. 72 For an overview, see CoE, European Commission for Democracy through Law, Self-determination and Secession in Constitutional Law, CDL-INF (2000) 2, 12 January 2000. 73 Ole Waever, “Securitization and Desecuritization”, in Ronnie D. Lipschutz (ed.), On Security (Columbia University Press, New York, 1995). 74 Currently, only a few political parties in South Tyrol, the Union für Südtirol and the Freiheitlichen, with two and one councillors in the Provincial Assembly, respectively, actively support the right to self-determination. In the SVP’s Programme, reference is made to the “inalienable right to self-determination” of the South Tyroleans, op. cit. note 51. However, according to the SVP Senator Oskar Peterlini, self-determination is not present in the political agenda of the SVP. Communication by Oskar Peterlini before the Italian Senate on 2 February 2006, at .

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dispute and the accommodation of the interests at stake and that all issues had to be resolved within this agreed institutional framework. Moreover, all parties were prepared to make compromises to accommodate each other’s core demands and showed a willingness and ability to cooperate as they realized that the settlement of the dispute was mutually beneﬁcial.75 Accordingly, the interest in achieving a common goal strengthened the entire process and prevented potentially destabilizing developments. Clearly, a system of minority protection is a dynamic process and must be ﬂexible enough to accommodate all interests at stake. The South Tyrol autonomy is based on an institutionalized, ‘compulsory’ form of dialogue among the parties involved, which has progressively produced a system of minority protection and accommodation of all interests involved, which went well beyond initial expectations. As Hilpold notes, in this case, the ‘dialogue’ was not only a means to achieve a given goal but a value in itself.76 Yet, although the declaration of conﬂict settlement had concluded the international dispute and, thus, the ‘Package’ measures can be considered fully implemented, some claim that the South Tyrol issue is far from being deﬁnitively settled, as the current debate on various open questions, such as toponyms (place names) and the more general question of a genuine ‘reconciliation’ among the main ethnic groups, demonstrate.77 It remains to be seen whether the form of compulsory and institutionalized dialogue and the international supervision and safeguard featuring the South Tyrol autonomy will also be able to respond to these new challenges and accommodate the interests of all ethnic groups in the population, including those of new minority groups originating from migration.78

75 Thomas Kager, “South Tyrol: Mitigated but not Resolved”, Online Journal of Peace and Conﬂict Resolution (1998), 1. 76 Hilpold, op. cit. note 9, 172. 77 Jens Woelk, “Reconciliation Impossible or (Only) Undesirable? The Case of South Tyrol. A Study on the Much Quoted Example of South Tyrol”, Center for European Policy, 31 May 2006, at . 78 At the end of 2005, the number of non-EU citizens resident in South Tyrol was 3.8% (18,717 non-EU citizens out of a total population of 485,042), while in 1990 this percentage was below 0.1%. ASTAT (Provincial Institute for Statistics), “Gli stranieri in provincia di Bolzano—2005”, June 2006, No. 17. For an overview, see Roberta Medda-Windischer and Orsolya Farkas, The Province of Bolzano/Bozen, Regional Report of the EU-funded LISI project (Legal Indicators of Social Inclusion of New Minorities Generated by Immigration), 30 January 2003, at .

CHAPTER THREE

SOUTH TYROL’S SPECIAL STATUS WITHIN THE ITALIAN CONSTITUTION Francesco Palermo

I. Italian Asymmetric Regionalism and its Evolution A. Regionalism in Italy: Origins and Evolution Italy was the ﬁrst country to experiment with devolutionary asymmetry—a model invented by the Spanish Republican Constitution of 1931 but not implemented there because of the immediately subsequent Franco revolution. The 1948 Italian Constitution had to face a complex situation with regard to regional diversity. On the one hand, international obligations imposed by the Paris Peace Treaty had to be taken into account, such as the Gruber-Degasperi Agreement on the protection of the German-speaking minority in South Tyrol, mandating a substantial amount of self-government for this national minority; on the other hand, concrete fears of the possible secession of parts of the national territory1 as well as geographical reasons2 made the establishment of a strong sub-national level of government in at least ﬁve areas inevitable: Trentino-South Tyrol, the Aosta Valley, Friuli-Venezia Giulia (three relatively small alpine regions where ethnic minorities are settled), and Sicily and Sardinia (the two main islands facing economic and social problems). In order to avoid too strong an asymmetry between these areas and the rest of the country and to experiment with a ‘third way’ between a federal and a unitary system, regions were foreseen for the whole country, although enjoying a much lesser degree of autonomy than the ﬁve named above. The development of Italian regionalism can be roughly divided into three stages: 1. The early period (1948–1972); 2. The implementation of regional autonomy (1972–1999); and 3. The new constitutional framework (1999 onwards), which is still in the process of implementation.

1

This was the case in the Aosta Valley (a small region in the northwest of the country, which had a long tradition of self-government and which had even by 1943 elaborated a plan for a strong autonomy) and in Sicily, which elaborated its own Constitution as a possible independent state in 1946, before the Italian Constitution was drafted. 2 As in the case of Sardinia, which, at that time, was quite isolated from the rest of the country.

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1. The Early Period (1948–1972) In 1948, the democratic Constitution established twenty regions (Art. 131), ﬁve of which enjoy a higher degree of autonomy (Art. 116). These ﬁve so called ‘special’ or ‘autonomous’ regions have their own ‘basic law’ (statuto, hereinafter “Autonomy Statute”, ASt), which have each been approved as a constitutional law of the state, have received much more legislative, administrative and ﬁnancial autonomy, and can negotiate their own by-laws directly with the national government, bypassing the national parliament.3 In addition, the powers of each region and, to some extent, even the governmental structure are diﬀerent in each special region. The remaining ﬁfteen so-called ‘ordinary’ regions enjoyed only a limited amount of legislative power in speciﬁc ﬁelds listed by the national Constitution (Art. 117), their autonomous statutes were less ﬁrmly guaranteed, being formally approved only by the ordinary law of the state, and all had a very similar if not identical governmental structure. Moreover, for complex political reasons, they remained on paper only for more than twenty years: only in 1970 were the ordinary regions established and only in 1972 were the ﬁrst laws devolving some legislative power enacted. The following process of implementation lasted for at least two decades. During this ﬁrst era of Italian regionalism, therefore, only the special regions existed. They developed rather diﬀerent political systems in each of them and, even more importantly, each special region developed bilateral relationships with the central government. 2. Legislative and Judicial Implementation (1972–1999) Between 1972 and 1999, a long and complex process of implementation of the autonomy regimes of both ordinary and special regions gradually took place. In the early 1970s, the ordinary regions were established (1970) and the election of their bodies took place (1972).4 In 1977, eﬀective powers ﬁnally began to be transferred to the ordinary regions. These regions, however, were lacking in political culture as well as governmental experience. Moreover, no speciﬁc cooperation instrument between these regions and the state was provided: therefore, the power-sharing between the state and the regions envisaged by the Constitution pretty soon showed its inadequacy, especially in terms of cooperative mechanisms and division of powers. All this led to a profound cleavage between the constitutional provisions and reality.5 The more active regions tried to ‘force’ the central government towards a more benevolent interpretation and more autonomy whereas the weaker regions were left behind. Thus, the case-law of the Consti3 See the chapter by Francesco Palermo on the implementation of the Autonomy Statute in this volume. 4 At the same time, the most autonomous special region (Trentino-South Tyrol) was profoundly changed in its structure with the new Autonomy Statute (1972), establishing two autonomous provinces that are, de facto, two diﬀerent autonomous regions. 5 Roberto Bin, “Veri e falsi problemi del federalismo in Italia”, in Luigi Mariucci et al. (eds.), Il federalismo preso sul serio (Il Mulino, Bologna, 1996), 61–78, at 68.

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tutional Court became much more relevant in determining the real powers of the regions than the laws and the wording of the Constitution itself. In other words, it immediately became clear that the real rules that govern the relationship between the levels of government were not to be found in the Constitution but rather in ordinary legislation, administrative acts and, primarily, in the constitutional adjudication. As a consequence, regional interests could not be guaranteed by the Constitution and each region had to actually negotiate them with the central state. This process, on the one hand, strengthened the asymmetrical features of Italian regionalism but, on the other, made a reform of the constitutional provisions on the regional system necessary. The political consensus over the need to strengthen the system of regional government was growing. The creation and growth of federalist parties has been both a cause and an eﬀect of parliamentary activity, giving rise to three committees with a mandate to work out a proposal for the reform of the organizational section of the Constitution,6 in addition to numerous other initiatives, including governmental proposals and numerous study sub-committees established by parliament over the last two decades. None of these proposals, however, came to fruition. Political support for the creation of a system of regional self-government was increasing but did not produce practical results in terms of constitutional changes. However, many very important laws reforming public administration and the system of self-government have been approved in the last ﬁfteen years. What could not be achieved through a (politically impossible) constitutional reform was rather successfully pursued by means of legislation. The legislative reforms succeeded in modifying the general administrative structure, thus encouraging regions to really develop their potential for self-government. The largest set of reforms began with the law on reorganization of ministerial bureaucracy (Law No. 400 of 1988), rationalizing numerous decision-making procedures and formalizing the role of the “Standing Conference of the State and Regions”, a cooperative body established to discuss decisions with regard to matters of regional interest.7 This law was followed by the reform of local self-government (Law No. 142 of 1990), containing a number of groundbreaking provisions aimed at improving the eﬃciency of municipalities and provinces. Closely connected with that law was the new set of rules on administrative procedures (Law No. 241 of 1990), which simpliﬁed and rationalized the functioning of state, regional, provincial and municipal administrations. Law No. 81 of 1993 was, politically, a

6 The ﬁrst bicameral committee (1982) produced modest results from a legal point of view, were given little political support and therefore failed to drum up the political will needed to bring their reforms to fruition. The second committee (1992) led to far more concrete conclusions, which were also politically plausible. The suggestions were not acted upon only because of the early dissolution of parliament. A third committee (1997) seemed to produce more concrete results, at least in terms of the successful outcome of its work, but parliamentary approval of its proposal was suddenly stalled for political reasons. 7 See the contribution by Jens Woelk in this volume.

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very signiﬁcant step toward raising awareness of local self-government, with the introduction of direct elections for mayors and provincial presidents. Law No. 46 of 1995 then introduced a technically complicated and totally impractical arrangement, which nonetheless introduced a direct popular vote for regional presidents too. Also, political attitudes towards decentralization changed radically and the ‘regional issue’ was brought to the fore and put back on the political stage. Considering the political obstacles to constitutional reforms, in 1997 a diﬀerent way was chosen: instead of amending the Constitution, four ordinary laws (i.e., not requiring a qualiﬁed majority for approval) were passed by the centre-left majority, reﬂecting a real revolution in the relationship between the state and the regions (these were the so-called ‘Bassanini-laws’). These laws constituted not a formal but certainly a substantive constitutional change, especially because they redesigned the division of legislative and administrative competencies, enumerating the state’s competencies and making the regions responsible for all the rest. 3. Narrowing the Gap between Ordinary and Special Regions: the 1999–2001 Reforms The introduction of a de facto federal system by means of parliamentary (and to some extent even governmental) legislation bypassed some political problems but obviously created legal ones. In particular, the constitutionalization of the new principles was necessary. Giving up—for political reasons—on the attempts to realize an organic amendment of the Constitution, individual constitutional laws have been approved, modifying speciﬁc aspects of regional self-government. In 1999, in order to enhance political stability in the ordinary regions,8 the ﬁrst constitutional reform (Constitutional Law No. 1/1999) introduced the direct election of the regional president in these regions9 and changed the procedure for approving the regional statutes. All ordinary regions now adopt their own statute by means of a special regional law, approved by the regional parliament (and no longer by the national one, as was the case before) with a special, entrenched procedure that resembles that for constitutional laws at a national level: two approvals with absolute majority by the regional parliament and a possible referendum if requested by a number of voters or by 1/5 of the members of the regional parliament (Art. 123 Constitution). The second, related reform occurred in 2001 (Constitutional Law No. 3/2001), when the division of legislative and administrative powers between state and

8 Until 1995, the average duration of regional governments was 542 days; in many regions it was less than one year. Also, some special regions suﬀered from the same political instability, such as Sicily (365 days) and Sardinia (324 days). Data from Salvatore Vassallo and Giulia Baldini, “Sistemi di partito, forma di governo e politica di coalizione nelle regioni italiane”, 21(3–4) Le istituzioni del federalismo (2000), 533–573. 9 Followed by Constitutional Law No. 2/2001, which provided the same for the special regions, except for South Tyrol and the Aosta Valley. Italy is therefore the only European country where direct election of the heads of sub-national governments is provided.

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regions was drastically changed: the legislative powers of the state as well as the ﬁelds of concurrent legislation (i.e., those in which regions can legislate only within the framework of general guidelines laid down in a national law) are now listed in the Constitution (Art. 117). All remaining legislation belongs to the regions, resembling the typical residual power clause of federal constitutions. The overall outcome of the constitutional reforms was an increase in the powers of the 15 ordinary regions, reducing the gap between them and the ﬁve special ones. Although the 1999–2001 reform is not yet fully completed, since some important regions have not yet adopted their new autonomy statute (as of July 2007) and some crucial aspects, such as the ﬁnancial provisions, have not yet been fully implemented, some scholars argued that, due to the new constitutional reality, asymmetry has lost importance in the Italian regional framework, since the constitutional autonomy of the ordinary regions puts them in a more favourable position compared to the special ones.10 However, asymmetry and the principle of diﬀerentiation between the regions does not necessarily mean a better treatment for the special regions but rather a diﬀerent one, depending on a number of historical, cultural and economic reasons that must be justiﬁed in each case.11 Therefore, although legislative powers are now more or less the same for the special and the ordinary regions, there is still a profound constitutional (and political) diﬀerence between these two types of regions. B. The Special Regions: Essential Features Due to the absence of the 15 ordinary regions, in practice, for at least two decades, until the early 1970s, regionalism in Italy was implemented only in the ﬁve special regions and, in practice, this situation lasted until the 1990s.12 Some of the special regions, however, never did really develop their autonomy consciousness: in particular, Sicily and Sardinia concentrated more on developing political ties with the central government and on beneﬁting from the consistent ﬁnancial aid from the state than on making use of their institutional autonomy; Friuli-Venezia Giulia was established much later (in 1963), only after the end of international control over the city of Trieste, and received a comparatively smaller degree of autonomy. Therefore, it is fair to say that, in practice, Italy’s only real autonomous areas have for a long time been (and to some extent still are) the two small alpine and minority-populated regions of Trentino-South Tyrol and the Aosta Valley,13

10 See Paolo Caretti, “La faticosa marcia di avvicinamento ad un assetto razionale del regionalismo italiano”, Le Regioni (2000) No. 5, 795–798; and Antonio Ruggeri, “Le Regioni speciali”, Foro italiano (2001) Nos. 7–8, 203–206. 11 See Sergio Bartole, “Articolo 116”, in Giuseppe Branca (ed.), Commentario alla Costituzione—Arts. 114–120 (Zanichelli, Bologna, Roma, 1985), 55–101. 12 For a broader picture, including the societal reasons, see Robert D. Putnam, Making Democracy Work: Civic Traditions in Modern Italy (Princeton University Press, Princeton, NJ, 1993), 52. 13 As pointed out by Roberto Bin, “L’autonomia e i rapporti tra esecutivo, legislativo e le commissioni paritetiche”, in Andrea Di Michele, Francesco Palermo and Günther Pallaver (eds.), 1992.

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which together represent less than 3% of the national population and less than 4% of the national territory. This was the situation at least until the 1999–2001 reforms, which reduced the institutional disparities between special and ordinary regions, giving the latter an amount of power analogous to that enjoyed from the very beginning by the special regions. In institutional terms, however, there are still profound diﬀerences between these two types of regions. At least four main elements make the special regions diﬀerent from the others: the constitutional rank of the regional basic law; the scope of legislative and administrative autonomy; special ﬁnancial arrangements; speciﬁc cooperation procedures. The diﬀerent exercise of these peculiarities between the various special regions has increased not only the difference between the special and ordinary regions but also the diﬀerences between each of the ﬁve special regions. The regional autonomy statute is the basic law of each region. In order to increase the level of security for the special arrangements, the national Constitution provides that the autonomy statutes of the special regions must be adopted by the national parliament with a constitutional law (Art. 116 para. 1). This makes it more diﬃcult to change them, with a twofold consequence: on the one hand, special regional autonomy is certainly more ﬁrmly guaranteed and is given high-ranking legal status, thus being recognized as a fundamental constitutional principle;14 on the other hand, however, such a strong guarantee can become a ‘golden cage’, making it too diﬃcult to update the regional autonomy statutes.15 In the original constitutional design, special regions also enjoyed a much broader legislative and administrative power than the ordinary ones. Whereas the latter could legislate in a rather limited number of ﬁelds (listed by Art. 117 of the Constitution) and only after a national law had framed the guidelines for regional legislation, the special regions had a much wider jurisdiction (the competence ﬁelds are listed in their respective regional autonomy statutes) and, in most cases, they could legislate without the prior adoption of a national framework law. This diﬀerence between the two types of regions has now been substantially eliminated following the 2001 Constitutional Reform, which ‘elevated’ the ordinary regions to the same level as the special regions in terms of legislative powers. However,

Fine di un conﬂitto. Dieci anni dalla chiusura della vicenda sudtirolese (Il Mulino, Bologna, 2003), 205–218. 14 Valerio Onida, “Le costituzioni. Principi fondamentali della costituzione italiana”, in Giuliano Amato and Augusto Barbera (eds.), Manuale di diritto pubblico, Vol. I (Il Mulino, Bologna, 1997), 77–116, 112. 15 This is demonstrated by the fact that none of the special regional autonomy statutes have been substantially changed since their adoption, with the exception of that of Trentino-South Tyrol, which was profoundly revised in 1972 after a long-lasting and complex agreement with the German-speaking minority of South Tyrol, leading to the substantial (although not formal) abolishment of the region and the transfer of all legislative and administrative powers to the two autonomous provinces of Trentino and South Tyrol, respectively. These two provinces now practically enjoy the status of two special regions.

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the sources of law are still diﬀerent: whereas only the national Constitution provides rules for the division of powers between the state and the ordinary regions, the powers of the special regions derive from both the national Constitution and each individual autonomy statute of the special regions, making the picture fairly complex and sometimes even contradictory. In South Tyrol, for instance—European legislation excluded—there are at present eight distinct types of legislative powers: exclusive state powers (Art. 117 para. 2 of the Constitution), concurrent legislative powers (Art. 117 para. 3 of the Constitution) exclusive regional legislation (Art. 4 of the ASt), exclusive provincial legislation (Art. 8 of the ASt and Art. 117 para. 4 of the Constitution), concurrent regional legislation (Art. 5 of the ASt), concurrent provincial legislation (Art. 9 of the ASt), provincial laws enacting national provisions (Art. 10 of the ASt) and regional or provincial delegated legislation (Art. 17 of the ASt). Such a confusing and, to some extent, schizophrenic situation will last until a new special autonomy statute is adopted or, at least, the current one is substantially amended. As to ﬁnances, each special region has a diﬀerent agreement with the state, mostly regulated in its respective regional autonomy statute. In general, all ﬁnancial arrangements are very generous towards the special regions compared to the others.16 In particular, the Aosta Valley, Trentino and South Tyrol are practically excluded from the nationwide grants-in-aid system, meaning that they receive back from the state almost all the revenues directly or indirectly collected in their own territory.17 This, of course, creates some jealousy in the ordinary regions, which ﬁnd the high costs for the special regions unjustiﬁed and exert political pressure to reduce their ﬁnancial beneﬁts. Finally—and perhaps more importantly from the institutional point of view— all special regions can negotiate with the state the concrete developments of their autonomy, bilaterally and on an equal footing. For each of the ﬁve special regions, a joint body of state and regional representatives (in equal number) has been established, with the crucial task of drafting the enactment decrees implementing the regional autonomy statues. These drafts are submitted to the national government, which approves them in the form of governmental decrees. The decrees are by-laws of the autonomy statute and cannot therefore be abrogated or amended by the laws of the national parliament. This is due to the so called ‘principle of specialty’, according to which special regions have a privileged status

16

For details, see Enrico Buglione, “Aspetti ﬁnanziari della specialità delle Regioni a statuto diﬀerenziato”, in Antonio Ferrara and Giulio Maria Salerno (eds.), Le nuove specialità nella riforma dell’ordinamento regionale (Giuﬀré, Milano, 2003), 205–242. As to the case of South Tyrol, see the chapter on ﬁnances by Thomas Benedikter in this volume. 17 Adding to that sum the costs for state competencies (such as, for example, the army, the police or the judiciary), the autonomous territory as such receives more than it produces in terms of ﬁscal revenue.

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with particular regard to negotiations with the state,18 which are carried out in a way that is similar to international relations: either there is consensus among the parties involved or the agreement cannot be reached. In other words, the relations between the state and the special regions are not based on hierarchy but, in principle, on parity. Put diﬀerently, the existence of two categories of regions cannot be abolished even by means of a constitutional reform.19 In fact, the use of the enormous potential provided by the status of special regions has always been very diﬀerent in practice from one region to another, depending on the respective political culture. Again, as a matter of fact, only South Tyrol, the Aosta Valley, Trentino and, to a lesser extent, Friuli-Venezia Giulia have broadly used these instruments, whereas the others, in practice, have not.20 Asymmetry is thus still very strong not only between special and ordinary regions but also among special regions themselves. C. Recent and Future Transformations Due mainly to the abovementioned bilateral procedures, the special regions— and, among them, those who were politically more active and inﬂuential, such as, particularly, South Tyrol—have always been able to negotiate (in a more or less satisfactory way) their own destiny with the central government. This was not the case for the ordinary regions. For at least two decades after their establishment, the ordinary regions lacked political culture as well as governmental experience and the division of power between the state and the regions designed by the Constitution showed the latter’s inadequacy. All this led to a profound schism between the constitutional provisions and reality.21 For this reason, in the early 1980s the ﬁrst attempts were made to ‘update’ the constitutional design of the Italian regional system. In 1983, a bicameral commission was set up but its draft reform was never discussed by the parliament. Since then, reform attempts have spilled over without producing any practical result. Parallel to the rather sterile political debate on constitutional reforms, the practical relationship between the regional and the national level of government was increasingly determined by constitutional adjudication, on the one hand,

18

This principle is constantly stated in the case law of the Constitutional Court. See, among others, Judgments No. 20/1956; 22/1961; 151/1972; 180/1980; 237/1983; 212/1984; and 160/1985. 19 See, for this interpretation, Silviano Labriola, “Il principio di specialità nel regionalismo italiano”, in Sergio Ortino and Peter Pernthaler (eds.), La riforma costituzionale in senso federale. Il punto di vista delle autonomie speciali (European Academy, Bolzano-Trento, 1997), 61–84, at 65; and Onida, op. cit. note 14, 112. 20 To use an example, during the 1996–2001 legislative period, Trentino-South Tyrol adopted 27 enactment decrees, Friuli-Venezia Giulia nine, the Aosta Valley eight, Sardinia six and Sicily only four. See Danilo Postal, “L’autonomia speciale del Trentino-Alto Adige/Südtirol a la Commissione paritetica dei dodici—Riﬂessioni intorno ad un’esperienza”, Trento, Provincia autonoma, Documenti autonomia 1/2001. 21 Roberto Bin, op. cit. note 5, 68.

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and by political practice, on the other. Like a vicious circle, this made constitutional reform ever more urgent and ever more diﬃcult to achieve.22 In order to cut the Gordian knot, in 1997 the government initiated a deep reform by means of ordinary legislation. Without abandoning the idea of a constitutional change, the legislative reform sought to activate a federalizing process and a substantial administrative reform,23 following the positive example of previous changes in administrative practices in the early 1990s.24 The idea underpinned by the 1997 reform was to stimulate a substantial—although not yet a formal—constitutional reform ‘from the bottom up’. According to the 1997 legislation, a ‘federalist’ division of powers between the state and the regions was introduced (vesting the state with only enumerated powers and transferring all other legislative and administrative powers to the regions) and a new procedural framework for intergovernmental cooperation between the state and the regions was established. In parallel, a new bicameral commission for constitutional reform was set up. This commission was supposed to adopt the necessary amendments to the Constitution that had already been substantially introduced by means of the ordinary legislation. Like all previous attempts, however, the last commission also failed, leaving the legislative reforms without constitutional coverage.25 Due to the impossibility of reaching a broad political consensus on the constitutional reforms, the alternative was thus to adopt much more humble reforms, typically adopted by absolute majority in the parliament and therefore subject to popular vote by referendum, according to the provisions of Article 138 of the Constitution. Thus, constitutional reform was again brought to the fore and, in the end, the abovementioned set of constitutional amendments was adopted between 1999 and 2001. However, for this reason, the 1999 and the 2001 reforms (as well as the failed 2006 reform bill)26 were constitutional changes in

22 The reasons for a constitutional change, however, were not only legal but also—and probably even more so—of a political nature. In the 1990s, some large, rich and politically inﬂuential northern regions started to develop an increasing political consciousness. At the same time, a ‘federalist’ and, on occasion, ‘secessionist’ political party, the Northern League (Lega Nord ), increased its power and became politically important in the formation of the national government. 23 See above. 24 Laws No. 142/1990 and 241/1990, see above. 25 The Constitutional Court, however, considered that the profound changes introduced by the ordinary legislation did not violate the Constitution (at least in strict legal terms). See Judgment No. 408/1998. 26 One of the most relevant legacies of the government led by Silvio Berlusconi and supported by the Northern League (2001–2006) was a far-reaching constitutional reform that aimed at amending 53 out of 139 provisions of the Constitution. The proposed changes addressed all institutional aspects of the Constitution, such as the powers of the government, of the parliament and of the head of state, the composition of the Constitutional Court and the legislative procedure. In the political debate, however, the bill was known as ‘the federalist reform’, due to the strong support of the Northern League. The parliament adopted the bill by absolute majority (i.e., with support only from the majority supporting the government) in November 2005. The bill was submitted to popular referendum for conﬁrmation in June 2006. An overwhelming majority of voters (63%) rejected it. The draft thus never entered into force.

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bits and pieces. They were not able to provide a systematic and coherent normative base to the new Italian regionalism. As a consequence, the main deﬁciencies of the original constitutional design were not eﬀectively addressed and the practical development of Italian regionalism is still determined to an always increasing extent by the Constitutional Court. Moreover, these reforms were conceived, drafted and approved having the ordinary regions in mind only and forgetting about the special ones. In terms of asymmetry, two aspects must be outlined. The ﬁrst is political in nature: especially since the 1990s onwards—and much more so after the 2001 reforms—a strong factual, economical and political asymmetry among the ordinary regions has emerged, mirroring the cultural and economic divide between the north and the south of the country. The regions, particularly the major ones, are increasingly relevant in political discourse, regional politicians play a much bigger role in national politics than before and the regional economies, also due to the newly acquired powers, are crucial to determining national welfare. The second fact, which is clearly a consequence of the ﬁrst, is of a legal nature. The constitutional reform of 2001 took into account the ‘diﬀerential aspirations’ of the regions. The strong northern regions in particular—which were also envious of the privileged treatment enjoyed by the special regions, particularly in ﬁnancial terms—exerted increasing political pressure in order to achieve some constitutionally guaranteed special status. However, besides that, these regions do not have historical, geographical or ethnic peculiarities like the special regions and it is particularly from the economic point of view that their recognition as special regions was not feasible: it is obvious, indeed, that the ﬁnancial arrangements found for South Tyrol (with less than half a million inhabitants) or Aosta Valley (approximately 150,000 inhabitants) could not be applied to Lombardy (population 11 million) or the national ﬁnancial system would collapse. As a consequence, a compromise was reached. The 2001 constitutional reform added a provision to the ‘special autonomy article’, Article 116, establishing that special forms of autonomy could be attributed to individual ordinary regions at their request but respecting two conditions. Firstly, that this form does not mean special autonomy but merely an additional transfer of legislative powers in areas otherwise vested with the state. Secondly, legislative powers in these ﬁelds can be transferred from the state to the concerned ordinary region by means of a national law adopted on the basis of a previous agreement between the state and the region concerned (Art. 116 para. 3 of the Constitution). This provision thus allows for additional asymmetry in powers also among the ordinary regions. However, asymmetry in powers does not automatically mean special status. After such a transfer of powers, the beneﬁciary regions remain ordinary in their nature: what resembles special status is only the negotiation procedure between each individual region and the state. Therefore, as an outcome of the reform, there might be—in future—three categories of regions. At the ﬁrst level, there are the special regions, each of them

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diﬀerent from the others in terms of powers, governmental structure and capacity for self-government. At the second level, there are the ordinary regions that have made use of the new opportunity to achieve more powers in the abovementioned areas.27 At the third level, there are the ordinary regions that will not acquire more powers but will nevertheless be able to accommodate their special needs by approving their own autonomy statutes.28 This opportunity is giving rise to a very complex and diﬀerentiated asymmetrical regional system. Asymmetry in Italian regionalism is thus not only a consequence of historical developments, of political negotiations and of the existence of more or less consistent minority groups but also of a constitutional ‘duty’ for some regions and now an opportunity for all of them. D. The “State of the Art” of Italian Asymmetrical Regionalism In brief, after the recent constitutional reforms, Italian regionalism can be deﬁned as “devolutionary asymmetric federalism in the making”.29 “Devolutionary” because powers are transferred from the state to the regions; “asymmetric” because the essential feature of the whole system seems to be the diﬀerent degree of its implementation in the various parts of the country, both because the Constitution allows and even mandates this, and because of the totally diﬀerent political attitude in the various regions towards their role; and “federalism in the making” because in the present Constitution the term “federalism” never appears, thus indicating the self-perception of the Italian constitutional system as a transitional

27 However, six years after the adoption of the reform providing this ‘diﬀerential’ opportunity for the ordinary regions, no law has yet been adopted following the procedure laid down in Art. 116 para. 3 of the Constitution: the ﬁrst procedure was initiated in this respect by Tuscany but it did not meet with the required consensus from the national government. Quite surprisingly, after having pushed for a constitutional amendment to increase their powers, the ordinary regions have not taken advantage of the new opportunity. There are several reasons that might explain this regional inactivity. Firstly, the ﬁnancial aspects of such a transfer of powers is far from clear and negotiations could easily stop before they even start if there is no agreement as to who is responsible for the costs of the devolved activities; secondly, only a few regions (the richest ones in the northern part of the country) were expected to take advantage of this procedure for achieving a larger legislative autonomy and they might have had diﬀerent political priorities; thirdly, immediately after the approval of the 2001 reform, a new government was elected (which included the Northern League), whose programme involved a new and more profound constitutional reform. When the reform was rejected by popular referendum in June 2006 (see above), some regions (Lombardy and Veneto) eventually initiated the ‘diﬀerential’ procedure under Art. 116 para. 3. 28 This is gradually happening. To date (July 2007), twelve out of ﬁfteen ordinary regions have adopted their new autonomy statute. However, none of the ﬁve autonomous regions has done it so far, due to the diﬀerent procedure in their case, which involves the national parliament too. 29 Francesco Palermo, “Italy’s Long Devolutionary Path Towards Federalism”, in Sergio Ortino, Mitja Žagar and Vojtech Mastny (eds.), The Changing Faces of Federalism. Institutional Reconﬁguration in Europe from East to West (Manchester University Press, Manchester, 2005), 182–201.

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and open-ended one, which will need to be determined step by step, starting with the approval of the new statute of each region. Put diﬀerently, the present constitutional setting does not establish a federal form of government but yet a federal form of governance. Under the past system, all of the regional constitutions were almost identical and so were governmental structures, especially where ordinary regions were concerned, whereas a higher degree of asymmetry could be observed between the special regions, which already had diﬀerent powers and diﬀerent legitimization of the government. The newly adopted regional statutes did not fully take advantage of their asymmetric potential: the recent statutes of the ordinary regions are very similar in regard to powers and institutional structure, showing limited constitutional creativity and a high degree of political conformism. However, some interesting diﬀerential attempts have been made as to the guarantee of additional fundamental rights and the governance machinery at the regional level, especially in regions such as Tuscany and Emilia Romagna. It can thus be said that, so far, asymmetry among the ordinary regions is not fully developed in its institutional potential but is strongly increasing, especially in political terms. At the same time, additional asymmetric features are to be expected from the oncoming reform process of the autonomy statutes of the special regions. The future of Italian regionalism will thus have its strong blueprint in its asymmetrical nature, which, in part, is mandated by the Constitution (where special regions are concerned) and, in part, is delegated to the regional initiatives by means of the ‘asymmetric potential’ of their own autonomy statutes and diﬀerential policies. For our purposes, this has at least two fundamental constitutional and political consequences. First, most of the exclusive powers retained by the state are not competences in the strict sense of the term. Issues like relations with the EU, competition protection, civil and criminal law, basic level of beneﬁts relating to civil and social entitlements where civil and social rights are concerned (Art. 117 of the Constitution) are above all policy ﬁelds which, depending on the political development of Italian regionalism, can either limit in a substantive way the realm of regional self-government or, on the contrary, accommodate regional diﬀerences. The new system is thus a very ﬂexible one, practically allowing to distinguish between macro-policies (reserved to the state and, even more, to the EU) and micro-policies, in which regional diversity can come to the fore. There will thus be more and more room for asymmetry, not only in constitutional but also—and increasingly so—in political terms. In other words, political asymmetry, the practical exercise of regional powers and the desire to develop diﬀerent regional systems is allowed by the Constitution and the practical degree of asymmetry is left to the political initiative of each single region. Consequently, the Italian case shows the importance of the political perception of sub-national self-government. Not all the regions provided with more autonomy were able to take advantage of this and not all of the ordinary regions are in fact weak political units. Therefore, it can be said that one of the deﬁciencies of Italian regionalism has been (until now) the lack of true, locally-developed regional policies

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and politics. A self-awareness of the importance of regional policy was, on the other hand, always a prerogative of some special regions, in particular those where national minorities are settled (in particular, again, Trentino-South Tyrol and the Aosta Valley) and is increasing to a very diﬀerent degree in the others, depending on their political, institutional and economic situations. In other words, Italian regionalism works as a federal system in some parts of the country, as a fairly decentralized system in some others and as a strongly unitary state in the rest. Second, asymmetry is enshrined as a fundamental principle in the Italian Constitution, as conﬁrmed also by the constitutional jurisprudence and by the legal doctrine. This makes the establishment of a complex institutional setting unavoidable, both for practical and for legal reasons. As a matter of fact, such a diverse country with so many regional diﬀerences in political, historical, economic and cultural terms cannot eﬀectively function (and stay together) without allowing for a high degree of institutional diﬀerence.30 As a matter of law, the Constitution mandates the establishment of a diﬀerentiated system—at least where the special regions are concerned—and allows for more nuanced diﬀerentiation also among the ordinary ones. In the Italian context, therefore, asymmetry is legally and practically unavoidable and, all in all, it has proven to work well in accommodating diﬀerent (and diﬀerential) needs, at least where the opportunities arising from such a system have been properly used. This, however, does not provide an answer to the question of the limits to be placed upon asymmetry. The balance between unity and diversity is never reached and needs constant adjustments. No ‘onesize-ﬁts-all’ solution is possible and this makes diﬀerential treatment not only a legal mandate but also a logical premise.

II. The ‘Peripheral’ Position of South Tyrol A. The ‘Principle of Special Treatment’ and the Safeguards Against State Unilateralism The Autonomous Province of Bolzano/Bozen-South Tyrol consciously played only a marginal role in these national developments. The rules governing its relations with the Italian state have not been deﬁned through the mentioned constitutional reforms but mostly elsewhere: ﬁrstly, through political negotiation (the ‘Package’ of 1969), afterwards by means of the Autonomy Statute of 1972 and, ﬁnally, in the enactment decrees implementing the Statute. It is true that the recent constitutional reforms provide for some new potential also for the development of the autonomy of South Tyrol, making it possible to broaden its legislative and

30 Such a process-oriented but unobtained attempt of combining unity and diversity is clearly mirrored in Art. 5 of the Constitution: “The Republic, one and indivisible, recognizes and promotes local autonomy [and is based on] decentralization”.

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administrative powers and to expand the scope of self-government: as a transitional provision, Article 10 of Constitutional Law No. 3/2001 provides that, as long as the new Autonomy Statute is not adopted, all new legislative and administrative powers transferred to ordinary regions also apply to the special regions. However, it is fair to say that, all in all, the impact of the constitutional reforms on the South Tyrolean autonomy has been marginal. Article 4 of Constitutional Law No. 2/2001, by stating that South Tyrol, like any other region, is free to determine its “form of government” (i.e., in essence, to decide whether the president shall be elected directly or by the local parliament) does not change the electoral system, which remains proportional as it was in the past (Art. 25 of the ASt).31 The amended Article 47 of the ASt makes it possible to enhance direct democracy32 and some minor changes were made where the political representation of Ladins is concerned.33 All the rest remained essentially the same. How can the lack of impact of the constitutional reforms on the autonomy of South Tyrol be explained, given the importance they had for all other regions, including the neighbouring Autonomous Province of Trento, which is based on the very same Autonomy Statute?34 The answer to this question contains both political and legal reasons. Politically, South Tyrol—and particularly its German-speaking political elite— never really considered itself to be a part of the Italian ‘nation’; moreover, the political and numerical weight of South Tyrol in the national arena (representing less than 1% of the Italian population and less than 1.5% of the national territory) made it pointless to play on the same ground as other bigger and more uniform regions. The region’s relationship with the central government was thus always consummated on a bilateral basis, by undermining the (already quite underdeveloped) multilateral mechanism for cooperation between the state and the regions

31

This is due to the fact that the Constitutional Court had aﬃrmed that a proportional electoral system represents a better guarantee as far as a fair representation of minorities is concerned. See Judgment No. 356/1998; and the comments by Emanuele Rossi, “Di interesse a ricorrere e (mancato) bilanciamento, di travi e pagliuzze”, Le Regioni (1999) No. 2, 281–290; and Roberto Toniatti, “Un nuovo intervento della Corte in tema di rappresentanza politica preferenziale delle minoranze linguistiche: il consolidamento della democrazia consociativa etnica nel Trentino-Alto Adige”, Le Regioni (1999) No. 2, 291–307. See also Carlo Casonato, “La Corte costituzionale alle prese con la “rappresentanza autentica di lista”, Foro italiano (1999) 1399–1405. 32 The subsequent Provincial Law No. 5/2005 did not, however, fully develop this opportunity. 33 For the Province of Trento, some relevant rights are conferred to the Ladin population (see Art. 15 of the ASt). Where South Tyrol is concerned, the amended provisions now allow a Ladin representative to become president of the provincial or regional parliament and makes it easier for a Ladin representative to become a member of the provincial government (see Arts. 30, 36, 48, 50 and 62 of the ASt.). 34 As already mentioned elsewhere in this volume, the Autonomy Statute of 1972 is still the basic law for the region Trentino-South Tyrol as a whole. Given the decreasing institutional role of the region, the Autonomy Statute became the ‘Constitution’ of the two Provinces of Trento and Bolzano/Bozen, together composing the Autonomous Region Trentino-South Tyrol. Constitutional Law No. 2/2001, for instance, amended the Autonomy Statute only where the Province of Trento was concerned, by introducing, among others, the direct election of the president. The provision on the election of the president of South Tyrol, instead, was not changed.

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in the Italian system.35 Bilateral negotiations, on the one hand, and the ability to give often decisive political support to weak national governments, on the other, made the South Tyrolean negotiating position vis-à-vis the state always much more powerful than it would have been within the general framework of Italian regionalism. Put diﬀerently, South Tyrol’s interest was always focused on bilateral negotiations rather than on the development of more eﬃcient cooperation procedures for all Italian regions. In legal terms, it must again be pointed out that all of the constitutional reforms of the last decade lacked a systematic approach and were adopted having only very contingent goals in mind. In particular, the two more important reforms (in 1999 and in 2001) tried to address, respectively, the instability of regional governments (by introducing the direct election of regional presidents) and the deﬁcits in the regional legislative and administrative powers (by substantially increasing regional autonomy). These problems were totally alien to South Tyrol: its government is far from unstable, due to the fact that the South Tyrolean People’s Party (SVP) has maintained an absolute majority in the provincial parliament since 1948,36 and the region’s autonomous legislative and administrative powers have covered almost all possible areas since the Second Autonomy Statute was adopted in 1972. In other words, there was no need to change the Autonomy Statute where it was already working.37 Moreover, the role played by the constitutional principle of special treatment must be outlined. Such a principle provides for an essentially bilateral autonomy. Therefore, the stronger the region’s diversity and, by consequence, its special status (this is particularly true in the case of South Tyrol and, to a lesser extent, the Aosta Valley and Trentino), the less can the national legislator impose legislative or even constitutional amendments. All reforms aﬀecting the special autonomies (and, among them, particularly the ‘special among the special’, such as South Tyrol) must be bilaterally negotiated not only in political but also in legal terms, following strict procedural patterns. This explains why the autonomy statutes of the special regions (and their amendments) still have to be adopted by means of national constitutional laws: this is certainly an additional procedural burden compared to the ‘easier’ procedure for the adoption of autonomy statutes for the

35

See further the chapter by Jens Woelk in this volume. Whereas, as already mentioned above, until the mid-1990s the governments in the other regions changed on average every 542 days (1.5 years), South Tyrol has only had four presidents since 1948 (Karl Erckert 1948–1955, Alois Rupp 1956–1960, Silvius Magnago 1960–1989 and Luis Durnwalder 1989 to present) and never was a government dismissed by the provincial parliament. 37 It is not by chance that a very similar development took place in the Aosta Valley, another highly autonomous region sharing several features with South Tyrol. Similarly, in Aosta the regional governments have never been unstable and legislative and administrative autonomy was also fully developed there from the very beginning. It is not surprising, therefore, that the constitutional amendments of 1999 and 2001 did not provide for much change in that region either. As a matter of fact, South Tyrol and the Aosta Valley are the only two regions whose president is still elected by the parliament, as was the case before the constitutional reforms. 36

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ordinary regions but, at the same time, such a procedural burden guarantees the essence of the principle of special treatment, i.e., the bilateral and thus mutually balanced decision-making between the state and the autonomous regions where the essential features of the special autonomy are concerned. B. South Tyrol Envisaging a Process of Internal Reform The special safeguards of self-government against unilateral state interventions, together with the political attitude favouring bilateral negotiations instead of a nationwide implementation of the regional system, established a fundamental constitutional guarantee for South Tyrol and, although to a lesser extent, also for all other Italian special autonomies. Recent experience with constitutional reforms has shown that the ‘normal’ regions are still exposed to one-sided intervention by the state, even if—as was the case in 1999 and in 2001—this has been for their own beneﬁt. One can say that the relationship between the state and the ordinary regions is still paternalistic, whereas the relationship with the special regions (and even more so with the ‘more special among the special’, such as South Tyrol) is more reminiscent of the ties existing between adults. As to the former, the state can still intervene to tell the ordinary regions what is good for them and thus help them to grow up: this was clearly the case in the recent reforms, when the state imposed a more stable governmental system in the regions and a wider degree of self-government and, by doing so, took a crucial step towards a more mature regional system. By means of these reforms, the ordinary regions were ‘upgraded’, evolving from irresponsible children to more mature teenagers. The adult relationship between the state and South Tyrol, instead, was not substantially aﬀected by the reforms due to the will of both parts. For South Tyrol, like for all adults, the other side of this coin is that the responsibility for making fundamental decisions cannot be delegated. The process of South Tyrol’s emancipation from its ‘constitutional parents’, Italy and Austria, lasted at least 20 years, from the Second Autonomy Statute in 1972 to the settlement of the international issue in 1992, and was reaﬃrmed in its entirety by the constitutional reforms of 1999 and 2001. Now it is clear that further steps for the development of South Tyrolean autonomy have to be made in and by South Tyrol itself, with the other subjects in the process (the Italian state and, to some extent, as to its monitoring role, Austria) playing just a minor role in safeguarding that the fundamental limits rooted in the very birth of the South Tyrolean autonomy (the Gruber-Degasperi Agreement in 1946) will be respected: substantial and ever increasing autonomy within the framework of Italian constitutional sovereignty. After having successfully fought for guarantees of an adult status, the real challenge for South Tyrol is now to develop responsible and participatory instruments for the development of its autonomy and self-government. Being free from possible paternalistic interventions by the state is certainly an important step but it has its consequences in terms of responsible choices. In particular, the slow and

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still undeﬁned process for the amendment of the Autonomy Statute, making it ﬁt for the challenges of the new millennium, could become a burden for the harmonious development of self-government and for the relations between the diﬀerent language groups living in South Tyrol. The responsibility for such a process lies entirely in South Tyrol and its steps and achievements will be a litmus test for the ripeness of the system and for its model function also for other areas where conﬂicts have to be resolved by means of power-sharing and regional autonomy.

PART TWO

SELFGOVERNANCE

CHAPTER FOUR

INSTITUTIONS OF SELFGOVERNMENT Giuseppe Avolio

I. Introduction The special institutional organization of the region Trentino-South Tyrol has its origins in the Constitution of the Italian Republic, in force from 1 January 1948, in which Article 116 recognizes that Trentino-South Tyrol, together with four other regions, has special structures and conditions of autonomy according to a special Autonomy Statute (ASt) enacted by a constitutional law. The First Autonomy Statute of Trentino-South Tyrol was approved by the Constitutional Assembly through Constitutional Law No. 5 of 28 February 1948 and the ﬁrst regional elections took place on 28 November 1948. In this phase, the autonomous powers devolved by the state to the region were less than those provided for in the Gruber-Degasperi Agreement and were vested in the region (in which the German-speaking group continued to form a minority), which could then delegate powers (agriculture, crafts, commerce, etc.) to the two provinces, which only had a quarter of the regional budget. This system of organization suﬀered a crisis in the 1950s and 1960s, during which there were moments of opposition and strong tension,1 only ﬁnally reaching a solution at the end of the 1960s with the approval of a ‘Package’ of legislative and administrative measures (with an operative agenda for their implementation). The approval of the ‘Package’ opened the way for a review of the Autonomy Statute, which was enacted by parliament through Constitutional Law No. 1 of 10 November 1971. The Autonomy Statute of 1948 was profoundly amended and was rewritten in a single text enacted by Decree No. 670 of the President of the Republic on 31 August 1972 (also referred to as the ‘Second’ or ‘New’ Autonomy Statute). With the statutory review of 1971, a new period of autonomy began, characterized by an intense review and extension of the implementation laws and by a strong recovery of the functions of government at the provincial level (with a notable increase in legislative and administrative powers) to the detriment of the region, which (together with a minimum nucleus of competences) only maintained a limited function in regulating some institutions that were common to both provinces.

1

See the chapter by Emma Lantschner on the history of the South Tyrol conﬂict in this volume.

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In the second half of the 1990s—as a consequence of a wider reform process, which aﬀected the Constitution and the legal systems of the local and regional authorities—there was a new phase of revision of the Autonomy Statute, which culminated in Constitutional Law No. 2 of 31 January 2001. This law, as well as demanding governability—for example, the direct election of the president of the province in Trentino—caused an enormous upset to the relationship between the region and the provinces by providing for the election of two provincial councils and no longer that of the regional council. Constitutional Law No. 3 of 18 October 2001 can be classiﬁed in the same way (amendments to Title V of the second part of the Constitution), as it conﬁrms the special autonomy of the region with its new bilingual denomination (region Trentino-South Tyrol) and its special constitution (the region is made up of the two autonomous provinces: for the ﬁrst time, the two autonomous provinces are named in the Constitution). Constitutional Laws No. 2 and No. 3 of 2001 therefore lay down the foundations for a redeﬁnition of the strategic laws of the provincial legal system and a new phase of statutory reform. This reform can only take place through the adaptation of the Autonomy Statute to the new constitutional principles regarding the regional and local legal systems.

II. Institutions The organs that are named in the Autonomy Statute for the region and the province are the council (and related presidents and vice-presidents), the government and the president.2 At ﬁrst sight, the council can be singled out as the legislative organ (Art. 26 ASt); the executive or administrative is the government (Arts. 44 and 54 ASt); while the president is the organ of representation and political address (Arts. 40 and 52 ASt).3 Moreover, additional organs, other than those provided for, cannot be surreptitiously created by enacting an ordinary law. This is because such an enactment would be seen as an implementation of the special Autonomy Statute, adopted by a constitutional law and therefore only amendable through a law of equal rank.4 Such a reform is represented in the Constitutional Law amending special autono-

2

Arts. 24 and 47 ASt. Members of the council should be added to these, because in the legal system of TrentinoSouth Tyrol (the same as in the other regions with a special statute) the members of the council have special external relevance due to the fact that they hold their own competences. See Livio Paladin, Diritto regionale (Cedam, Padova, 1992), 377. 4 Art. 47 para. 2 ASt, introduced by Constitutional Law No. 2 of 2001, still allows the province to determine (with a provincial law) its own form of government, which is able to legitimize legislative interventions made to integrate the institutional framework, just like those that led to the creation of the Council of the Local Municipalities. See below, section II, part D. 3

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mous statutes (No. 2 of 31 January 2001).5 The law contains amendments to the statutes of all the ﬁve special regions. Article 4 is dedicated to the Trentino-South Tyrol region. A. Council(s) The provincial councils (of Bolzano and Trento) are the organs of direct popular ordination through elections. This has happened in the wake of the statutory reforms of 2001. Previously, the election of the provincial council did not take place through the electoral process itself but through the election of the Regional Council of the region Trentino-South Tyrol. For the election of the latter, in fact, the region was divided between the two provincial electoral districts of Trento and Bolzano, which corresponded to the territory of the two autonomous provinces. The members of the regional council elected in the provincial district of Trento contemporaneously formed the Provincial Council of Trento and those of the provincial district of Bolzano formed the Provincial Council of Bolzano. Therefore, as an indirect consequence, the two provincial councils were also automatically and contemporaneously elected through the election of the regional council. Therefore, every member of the regional council was also contemporaneously a member of one of the two provincial councils. With the reforms of 2001, the relationship between the regional council and the provincial council was totally upset: in the new statutory system, the provincial councils are directly elected and the members of each provincial council also form part of the regional council.6 1. Region The regional council is the electoral organ of the region, which has been accorded the exercise of legislative powers;7 however, regulatory powers have been taken away from it.8 It oversees the operation of the regional government, which is elected together with the president of the regional council internally by secret ballot and absolute majority (Art. 36 ASt). The laws that regulated the elections of the members of the council, prior to the recent reform of the Autonomy Statute, were those established by Article 25 of the Autonomy Statute, as well as the appropriate regional electoral laws.9 This

5 Published in the Oﬃcial Gazzette No. 26 of 1 February 2001. Regarding the impact of this reform on Italian regionalism, see Francesco Palermo, “Il nuovo regionalismo e il ruolo delle autonomie speciali”, Rassegna parlamentare (2000) No. 4, 935–971. 6 See the graphs illustrating the institutional set-up in the Appendix to this volume. 7 Enzo Reggio d’Aci, La Regione Trentino-Alto Adige (Giuﬀré, Milano, 1994), 362. 8 On the anomaly of such a solution with regard to the preceding system of the region by ordinary statute, see Alessandro Pizzorusso, “Le fonti del diritto regionale”, Regione e governo locale (1989) No. 4, 3–37, at 28. 9 L.R. No. 7 of 1983.

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law and its successive amendments, collated in a uniﬁed text in 1987,10 provides for the implementation of the electoral laws provided in the same statute. This normative body is one of the most signiﬁcant parts of the special autonomy: it creates landmarks in the electoral system—for example, the necessary representation of the Ladin group and the requirements of the exercise of the right to vote—and today it relates to the election of the provincial councils. For this reason, it will be extensively discussed in the following pages. The characteristics that make the regional council—even symbolically—a sort of ‘condominium’ organ of the province are quite peculiar. The following provisions highlight such characteristics: Article 27 of the ASt states that the activity of the regional council shall be carried out in two sessions of equal duration, each one to be held (alternatively) in the cities of Trento and Bolzano; Article 25 of the ASt deﬁnes both Trento and Bolzano as being on an equal basis under the proﬁle of territorial representation, where it is provided that the regional council is composed of the members (35 each) of the provincial councils of Trento and Bolzano and prescribes the equal representation of the linguistic groups through the mechanism of rotation of the top oﬃces. The regional council elects the president and the two vice-presidents from its members. The president and the vicepresidents serve a two and a half year period in their appointments; in the ﬁrst 30 months of service the president is elected from the members of the council who belong to the Italian linguistic group. For the subsequent period, the president is elected from the members of the council who belong to the German linguistic group11 and the vice-presidents are elected from those members belonging to a diﬀerent language group to that of the president (Art. 30 ASt). To completely understand the lack of importance of the regional council, it is enough to say that the constitutional legislator in 2001 did not in fact really care about it, except to prescribe that the elections of the provincial councils of Trento and Bolzano should take place at the same time (Art. 48 para. 1 ASt) and that after that they should go on to form part of the regional council. It is true that the main functions of the regional council—the election of the president of the regional government and legislative power—were formally safeguarded by the reform (if we look at Art. 60 ASt). However, it has deﬁnitely been reduced to an almost accessorial nature. So much so that there is no provision for the event that the regional council should become incapable of forming a majority, in stark contrast to the sanctioning of an early dissolution foreseen for each provincial council in the same situation, 90 days after the election (Art. 47 para 2 ASt). This means that the entire legitimization of trust at the regional level now has its origins in the political and institutional dynamics that take place internally within the provincial councils.

10

D.P.G.R. No. 2/L of 29 January 1987. A member of the council that belongs to the Ladin language group may be elected, with prior consent, for the respective periods, by a majority of the members of the council of the German or Italian language groups. 11

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2. Province(s) (a) Electoral Systems As previously mentioned, until 2001 the people in Trentino-South Tyrol directly elected the regional council (an event that took place 12 times). The regional council was made up of 70 members, which, then, automatically split up into the two provincial councils, each composed of 35 members.12 This was laid down in Articles 25 and 48 of the 1972 Autonomy Statute. Constitutional Law No. 2 of 31 January 2001 upset this framework, by amending the two abovementioned articles and by introducing the direct election of the two provincial councils, each with its own rules, provided for in an entrenched provincial law,13 to be passed by an absolute majority (Art. 47 para. 2 ASt). This was a revolutionary move, which made the historical-institutional path complete, starting with the ﬁrst Autonomy Statute, in which special autonomy was conferred on the entire region, to the approval of the Second Autonomy Statute, which transferred nearly all the legislative and administrative powers of the region to the two provinces; the only thing lacking was power over the electoral system: parliament in 2001 completed this circle, however. The laws that regulated the elections of the members of the regional council prior to the recent reform of the Autonomy Statute were those laid down in the very same Article 25 of the Autonomy Statute, as well as the appropriate regional electoral law.14 This law and its successive amendments, compiled into a uniﬁed text in 1987,15 had to transpose the electoral laws in the statute. These limitations upon the normative powers of the regional legislator (today provincial), resulting from the special regime to protect the language groups, have remained unchanged in the actual statutory organization, except that now they no longer refer to the election of the regional council but to the two provincial councils. Therefore, the most important statutory provisions were the choice of the proportional electoral system, maintained by the Province of Bolzano (as will be discussed below), while in the Province of Trento the choice was passed over to the provincial council, which was to decide by a law passed with an absolute majority (it opted for the direct election of the provincial president). Also, the

12 For a historical overview of the electoral results for the Province of Bolzano, see ; and, for the Province of Trento, . 13 In legal commentary, this source has been deﬁned as a “legge statutaria” [statutory law]. See Rosanna Tosi, “Le leggi statutarie delle Regioni ordinarie e speciali: problemi di competenza e procedimento”, in Antonio Ruggeri and Gaetano Silvestri (eds.), Le fonti del diritto regionale alla ricerca di una nuova identità (Giuﬀrè, Milano, 2001), 43–75, at 44; and Antonio Ruggeri, Le fonti del diritto regionale: ieri, oggi e domani (Torino, Giappichelli, 2001), 83. Marco Olivetti uses the expression “legge di governo” [laws of government]. See Marco Olivetti, Nuovi statuti e forma di governo delle Regioni (Il Mulino, Bologna, 2002), 491. 14 L.R. No. 7 of 1983. 15 D.P.G.R. No. 2/L of 29 January 1987.

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number of elected members of the regional council was set at 70;16 the necessary representation in the council of the Ladin language group was conﬁrmed;17 and a requirement of residency in the provincial territory for an uninterrupted period in order to exercise one’s right to vote (four years in the Province of Bolzano and one year in the Province of Trento)18 is now required for both the active (right to vote) and passive (right to be elected) electorate. The allocation of electoral seats among the constituencies, according to the pre-reform electoral law, was calculated by dividing the number of inhabitants of the region (taken from the last general census of the population) by 70 and distributing the seats in proportion to the population of each constituency on the basis of complete quotients and the highest remainders (the D’Hondt method). The reform did, however, legally set the number of members of the regional council at 35 per province and in this way relieved the political and institutional burden of the two entities in the region from the periodic veriﬁcation of the census.19 Voting takes place according to the list of candidates presented by the parties or political groupings in each of the two provinces. The reciprocal autonomy of the lists is useful to the special institutional organization of the autonomous region, where the members of the council are seated in both the regional assembly and the provincial council of the respective constituency that they belong to. Moreover, the Autonomy Statute of Trentino-South Tyrol conditioned and conditions the exercise of the right to vote (in the elections of the provincial council20 and in the elections for the municipal councils of the Province of Bolzano) upon the requirement of residence on the regional territory for an uninterrupted period of four years (Art. 25 ASt).21 This special electoral regime22 was, and still is, one of the important elements of the system to protect the ethnic minorities in the Province of Bolzano;23 the Constitutional Court upheld the provision, actually citing the principle of protection of minorities, considering that the statutory text would evidently be eﬀective in preventing, through last-minute hasty and false electoral roll inscription, the “thin[ning] out” of the German and

16

Art. 25 ASt. Art. 48 ASt and the amendments under the constitutional reform, ex Art. 62. 18 Art. 25 ASt and the amendments under the constitutional reform, paras. g) and h). 19 The last censuses of 1991 and 2001 led to a distribution of seats of 35 for the constituency of Trento and 35 for Bolzano. Historically, there was a diﬀerent distribution of seats with, in the elections of 1948, 1952, 1956 and 1960, the allocation of 22 seats to the Province of Bolzano; in those of 1964 and 1968, 25 seats. However, with the entry into force of the Second Autonomy Statute, there were 34 seats in the elections of 1973 and 1978 while, since the elections of 1983 the number has remained at the present level of 35. 20 Art. 25 para. 4 ASt. 21 See Reggio d’Aci, op. cit. note 7, 275; Alberto Roccella, “La residenza in Trentino-Alto Adige quale requisito per l’elettorato attivo”, Le Regioni (1987) No. 4, 710–711, at 711; Elio Gizzi, Manuale di diritto regionale (Giuﬀré, Milano, 1991), 125; Paladin, op. cit. note 3, 316. 22 Rule 50 of the ‘Package’ of 1969, which derogates the general principle that registration on the electoral role was only connected to residency, without any time limitation. 23 Roccella, op. cit. note 21, 712. 17

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Ladin language minority groups.24 The only other regime that partly reﬂects such a principle can be found in the Autonomy Statute of the Valle d’Aosta,25 which simply contains an authorizing provision that allows the legislature to introduce a residence requirement for the exercise of the right to vote.26 However, this provision has never been utilized. This special discipline expanded the First Autonomy Statute, which, analogously to the provisions of the Valle d’Aosta Autonomy Statute, stated that, in order to exercise the right to vote, the requirement of residence on the regional territory for an uninterrupted period of no more than three years27 should be established. The draft electoral law of the region, proposed to give practical realization to such a statutory provision, however, was declared to be unconstitutional by the Constitutional Court, which held that it was in conﬂict with fundamental principles of national law in electoral matters.28 Therefore, it may be presumed that a political desire to make the right to vote more diﬃcult in the new Autonomy Statute may have stemmed from such a judgment, directly imposing the requirement of an uninterrupted residence (and no longer simply authorizing the regional legislator to introduce this requirement) and raising it from three to four years and, eventually, also extending it in the same terms to municipal council member elections in the Province of Bolzano.29 This right to vote regime was criticized on two fronts: ﬁrstly, the doubtful compatibility of such a compression of electoral rights vis-à-vis the constitutional principle of equality; and, secondly, the lack of evidence (among the laws and special conditions of autonomy guaranteed in Art. 116 of the Constitution for the special regions) that special regions could adopt such a diﬀerent regional arrangement in comparison with the idea of the region laid down in the Constitution itself, which does not provide that the regions and the provinces have ‘citizens’ in the real sense of the word, unlike the Trentino-South Tyrol Autonomy Statute.30 The new arrangement that arose from the recent constitutional reform—the transition from the election of the regional council to that of the two provincial councils—has not resolved these doubts concerning the compression of electoral rights; however, it has raised new points to reﬂect upon. These include the requirement of an uninterrupted period of residence for one year for the right to

24

Constitutional Court Judgment No. 240 of 1975. Art. 16 of the Autonomy Statute of Aosta provides that for the right to vote in the election of the regional council, the requirement of residence in the territory of the region may not be set for longer than one year. 26 Antonia Tassinari, “Esercizio del diritto di voto per le elezioni del Consiglio regionale e dei Consigli comunali della Provincia di Bolzano”, in Autonomous Region Trentino-Alto Adige and Università degli Studi di Trento (eds.), Commentario delle norme di attuazione dello statuto speciale di autonomia (Regione Trentino-Alto Adige, Trento, 1995), 29–40, at 31. 27 Art. 19 para. 4 ASt; Constitutional Law No. 5 of 1948. 28 Constitutional Court Judgment No. 26 of 1965. 29 Tassinari, op. cit. note 26, 31. 30 See Livio Paladin, “Nota alla sentenza della Corte d’Appello di Trento 10 dicembre 1974”, Le Regioni (1975) No. 1, 476–479. 25

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vote in the Province of Trento and the compulsory assignment of a seat to the territory of the Ladin municipalities, a measure that shows a clear attempt to promote the representation of the Ladin-Dolomite linguistic group of Fassa, due to its prevalence in that territory.31 Thus, for the Province of Trento, a criterion for the protection of minorities based on territorial rather than personal characteristics was chosen, unlike the protection of the Ladin linguistic groups in the Province of Bolzano. The most recent special element to result from the reform in electoral rights is the statutory provision that provides that in the Province of Bolzano each candidate must indicate the language group to which he/she belongs.32 The Supreme Court33 intervened on this point, especially regarding the terms upon which such a declaration must be made. It decided that a candidate who had not made any declaration regarding his/her language group in the regional Council elections of 21 November 1993 should be excluded. The question put to the Court was to clarify if the citizen “who had fulﬁlled all the other requirements requested by the regional laws and had indicated the language group he belonged to in the declaration of acceptance of the candidature, but had omitted on the general census of the population to declare if he belonged or was associated with one of the three language groups” had less right to be a candidate in the elections for the regional council. The argument used to decide on this point of law was taken from the jurisprudence of the Constitutional Court,34 which requires passive suﬀrage to be a political right that is fundamentally recognized and inviolable. The Supreme Court continued and said that, in this way, having the value of an intangible right, it can be disciplined by general laws, which can only limit it with a view to accomplishing other constitutional interests that are both fundamentally and generally of equal status. In light of the constitutionally guaranteed promotion of the exercise of political rights, the Court concluded by stating that a failure to declare belonging to a group on the census does not invalidate the declaration made for the acceptance of the candidature35 (tamquam non esset) and therefore the declaration must then be made upon such acceptance. In electoral matters, a later judicial intervention was made by the Constitutional Court, which in 199836 declared Regional Law No. 5 of 15 May 1998 to be illegitimate. This law served as an important amendment to a prior regional law on the election of the regional council. It tended to introduce an electoral threshold to accede to the allocation of seats, stating that only those lists that had passed a threshold of 5% in the constituency of Trento could participate in such

31

Art. 4 para. z) Constitutional Reform 2001. Art. 22 ASt. 33 Supreme Court Judgment No. 11048 of 1999. 34 See, a pluribus, Constitutional Court Judgments No. 235 of 1988 and No. 539 of 1990. 35 Breach prescribed by Arts. 4 and 5 of the Uniﬁed Text of the Regional Laws for the Elections of the Regional Council. In this case, the candidate in fact made a declaration of belonging when accepting the candidature. 36 Constitutional Court Judgment No. 356 of 1998. 32

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an allocation, while in the constituency of Bolzano the number of valid votes had to be at least equal to the natural quota.37 The Court held that such a threshold violated Article 25 of the Autonomy Statute and that this law, in view of the abovementioned corrections, blocked a list representing the Ladin language group from gaining representation in the Regional Council. However, the way in which the question was put before the Court38 is worthy of mention. In fact, great weight was given to the statutory provisions39 that foresee the possibility of the majority of one of the linguistic groups40 in the regional council challenging a regional or provincial law that has been held to be harmful to the equality of rights between citizens of diverse linguistic groups, or to the ethnic and cultural characteristics of the same group. Secondly, with reference to the implementation of this procedure, a precedent from 199541 was also raised with regard to the issue of the Ladin linguistic group in the regional council and concerned analogous questions.42 The precedent in Constitutional Court Judgment No. 438 of 1993 provides that “there is a constitutional guarantee for minorities (especially of German and Ladin language) and also a constitutional guarantee for the right to express political representation itself in conditions of eﬀective equality”. The question raised concerned the application of the threshold of 4% provided as the proportional quota of the electoral system for the national parliament. Though lacking a precise indication from the Court on how to protect the representation of linguistic minorities, who were clearly penalized by a law that, in practice, banned them from representation in the national parliament where proportional representation was concerned,43 the judge held that the group has a constitutionally legitimate right to proper representation as an ethnic party44 representing a linguistic

37 Calculated by dividing the total number of valid votes taken from all the lists by the number of members of the council to be elected in the constituency. 38 This is highlighted in Emanuele Rossi, “Di interesse a ricorrere e (mancato) bilanciamento, di travi e pagliuzze”, Le Region (1999) No. 2, 281–290. 39 Art. 56 ASt. 40 On the idea of an advisory linguistic group, see Reggio d’Aci, op. cit. note 7, 366; while for the way in which it may be formed and on the procedure of challenges, see Emanuele Rossi, “Il giudizio di costituzionalità delle leggi in via principale”, in Roberto Romboli (ed.), Aggiornamenti in tema di processo costituzionale (Giappichelli, Torino, 1996), 215–298, at 225. 41 Consitutional Court Judgment No. 261 of 1995. 42 The judgment of the Court has been commented upon by Roberto Toniatti, “La rappresentanza politica delle minoranze linguistiche: i ladini fra rappresentanza ‘assicurata’ e ‘garantita’ ”, Le Region (1995) No. 6, 1271–1290. For further considerations, see also Id., “Un nuovo intervento della Corte in tema di rappresentanza politica preferenziale delle minoranze linguistiche: il consolidamento della democrazia consociativa etnica nel Trentino-Alto Adige”, Le Region (1999) No. 2, 291–308. 43 The then electoral law provided that 57% of the seats were to be distributed according to the ﬁrst past the post system and 25% according to the proportional system, with a 4% threshold. The complaint was addressed against this second provision. 44 Toniatti, “La rappresentanza . . .”, op. cit. note 42.

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minority.45 A second decision of 199446 held the regional law that extended the mechanism of guaranteed representation (today in force for the Ladin population of South Tyrol)47 to the Ladin minority of Trentino to be illegitimate. A third judgment of 1995,48 also addressing matters regarding the Ladin minority in the Province of Bolzano, distinguished between a guaranteed ethnic representation through the quota system “when that is suﬃcient, in itself, to make the group emerge to the level of public organs” and a merely political guaranteed ethnic representation “when the circumstances are such that they require a speciﬁc guarantee, even beyond that of the quota criteria and the principle of equality of vote”,49 which are given in the Autonomy Statute only for the regional council and the Province of Bolzano.50 The judgment of 1998 referred to the logic of guaranteed representation, as the Court sharply reinforced, for which: [T]he complete quotients and the highest remainders system, to which article 25 of the autonomous statute refers, does not have the purpose of requesting or even guaranteeing representation of the linguistic groups; however at the same time it does not allow the introductory provisions which exclude or make it more diﬃcult for the representation of the linguistic groups (taken into consideration by the same statute) who intend to run in the electoral competition.51

Moreover, the Autonomy Statute provides for the possibility of early dissolution of provincial or regional councils (Arts. 49-bis, 47 and 50 ASt). The reasons for such a dissolution include: the promulgation of acts that run contrary to the Constitution, serious violations of the laws and considerations of national security. In addition, the councils may be dissolved if they do not substitute the government or the president of the province in the event that they have undertaken acts contrary to the Constitution or serious violations of the law. The provincial council is therefore dissolved whenever it is unable to function due to an inability to form a majority following certain criteria. Finally, the dissolution of the provincial council may also incur the resignations of the majority of its members. The dissolution is ordered by decree from the president of the republic after a decision from the council of ministers. This does not imply the dissolution of the regional council or of the other provincial council. A commission of three mem-

45 See Sergio Bartole, “Ancora un caso di ‘inquietante inammissibilità’ ”, Giurisprudenza Costituzionale No. 1 (1994), 424–429; and Paolo Carrozza, “L’inammissibilità per discrezionalità del legislatore. Spunti per un dibattito sui rischi di una ‘categoria a rischio’ ”, Le Regioni (1994) No. 6, 1701–1722, 1703. 46 Consitutional Court Judgment No. 233 of 1994. 47 Art. 62 ASt provides that the laws on the elections of the regional council and the provincial one in Bolzano shall guarantee the representation of the Ladin linguistic group. Such a result is reached by the mechanism in which the candidate belonging to the Ladin linguistic group with the highest number of individual votes is elected to the detriment of the other linguistic groups with the least number of votes, even if the latter is actually higher in real terms. 48 Consitutional Court Judgment No. 261 of 1995. 49 Toniatti, “Un nuovo intervento . . .”, op. cit. note 42, 292. 50 Art. 62 ASt. 51 Judgment No. 356 of 1998.

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bers is nominated (provided for in the same dissolution decree) with the task of arranging the elections of the new council and of adopting measures relating to the competence of the government that cannot be delayed. The members of the regional council belonging to a dissolved provincial parliament shall continue to remain in oﬃce until the election of the new provincial council. (i) Trento Under the system of statutory commitments, the Province of Trento, in Provincial Law of Trentino No. 2 of 5 March 2003, has regulated both the electoral system in the strict sense (the right to vote and passive suﬀrage, the regime of ineligibility and incompatibility, electoral procedure, calculation of seats, etc.) and the fundamental content of the formation of the provincial government (the constitution of the government, the status of the members of the government, fundamental relations between the statutory organs, ﬁduciary relations, etc.). The emergent electoral system is based on a quota system with compensation regarding the allocation of seats and provides for the following cornerstones: a single constituency at the provincial level; a guarantee of the representation of the Ladin minority, when, as mentioned above, a seat is allocated to the list that has obtained the requisite number of overall valid votes in the Ladin municipalities; the residence requirement for the right to vote where the voters are those citizens who, at the date of the publication of the election manifesto, had been living on the territory of the province for an uninterrupted period of at least one year; and the election of the president of the provincial council, which is based on the ﬁrst past the post model, with a compensatory mechanism in favour of the majority party. (ii) Bolzano The Province of Bolzano, unlike that of Trento, has not drafted a new electoral law for itself after the Constitutional Reform of 2001. The present political debate records the discussion on merits in a draft electoral bill elaborated by the party of absolute majority (the Südtiroler Volkspartei (SVP)), whose controversial points were: the possible introduction of a threshold; the incompatibility between the role of a member of the council and a minister; and the limitation of the powers of the executive. (b) Functions The principal task that the Autonomy Statute reserves to the council, as well as the Constitution to the parliament, is the exercise of the legislative function: in fact, it is the council that passes the laws of the province in the diverse topics of competence of the province itself.52

52 With reference to the catalogue of competences, see the chapter by Leonhard Voltmer and Sara Parolari in this volume.

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Another important function of the provincial council of the Province of Bolzano, which derives from the fact that it is the only organ that is directly elected by the population and therefore is the expression of popular sovereignty, is that of creating the other two statutory organs of the province, which are the president of the province and the provincial government. The provincial council moreover has the function of controlling the activity of the provincial government. The function of control is exercised by the individual members of the council through questions with written answers: questions on actual topics, collation of information as well as inquiry commissions. The directives of the provincial government are mainly exercised through the instrument of motions and orders of the day. A motion is an advisory act of political guidance, a document that each member of the council can present to promote a debate and a decision of the council on a certain topic/argument. One particular form of motion is a motion of no conﬁdence, which, due to its own particularity, has the connotations of being an instrument with a ‘control and check’ function upon the council rather than simply an instrument of political guidance. In fact, the motion of no conﬁdence is a particular type of political act directed at bringing into discussion, before the legislative assembly, the ﬁduciary relationship that exists between the council itself and the president of the province, the entire provincial government or the individual ministers of the latter. Beyond the legislative functions of creation, control and political guidance, the provincial council exercises a series of other functions, which can be especially attributed by the Autonomy Statute or by national and provincial laws. Such functions may be catalogued as follows: appointments and designations; opinions; challenges before the Constitutional Court; votes and bills addressed to the parliament; and initiatives for amendments to the Autonomy Statute. Among the appointments and designations of competences of the provincial council, the following may be highlighted: the appointment of two members of the joint commissions (the ‘Commission of Six’ and the ‘Commission of Twelve’) for the implementation of the Autonomy Statute, according to Article 107 of the Autonomy Statute; the designation of seven members of the Permanent Commission for the Problems of the Province of Bolzano (created by the presidency of the council of ministers) referred to in Measure 137 of the ‘Package’; the appointment of the Ombudsman under Provincial Law No. 14 of 10 July 1996; the appointment of half of the magistrates of the Regional Administrative Tribunal Bolzano Sector, under D.P.R. 426/1984, and its subsequent amendments and transpositions; the appointment of four of the members of the Provincial Committee for Communications under Provincial Law No. 6 of 18 March 2002; the designation of three eﬀective members and three substitute members, respectively, in the Electoral Commission of the Administrative District of Bolzano. The autonomous provinces have the power to appeal to the Constitutional Court against a national law (or that of another region) that invades and violates the provincial competences (Art. 127 Constitution). This power relates to safe-

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guarding the sphere of competence guaranteed by the Constitution and by the Autonomy Statute. The challenge must be made by the president of the province or the legal representative of the province itself, after a prior decision of the provincial council. Due to the fact that the period for appeal is short (within 60 days of the publication of the law intended to be challenged), there is now a common practice under which the decision to challenge (of the provincial council), which functions as a support to the appeal presented by the president of the province, is adopted by the provincial government and then ratiﬁed by the provincial council. Such practice is based on a speciﬁc norm of the Autonomy Statute (Art. 54 para. 1 lett. 7 ASt), which provides the government with the power to adopt provisions that fall under the competence of the council in cases of urgency, provided that the council ratiﬁes them in its ﬁrst successive session. B. President 1. Region The president of the region53 represents the region,54 presides over the regional government and is elected by the regional council within its members by secret ballot and by absolute majority.55 This organ intervenes in the sessions of the council of ministers, with questions that aﬀect the region,56 although without the right to vote.57 Further functions of the president are the passing of regional laws and of regulations enacted by the government.58 These are both duties of the president.59 With the institutional weakening that the region suﬀered in the Constitutional Reform of 2001, there has been an aﬃrmation in the current legislation of the conventional principle of alternating the two presidents of the autonomous provinces to lead the region. This is a political agreement between the provincial presidents approved by the regional council. This choice determines the concentration of representative functions of the territory at the top only to the presidents of the provinces.

53 The constitutional reform of the special statutes has thus substituted the term “President of the Regional Executive Committee”, highlighting the representative function of this entity. 54 See T.R.G.A., Trentino-Alto Adige, Judgment No. 2 of 1989, T.A.R. (1989), 937; and C.d.S., Section IV, No. 417 of 1981, Consiglio di Stato (1981), 861. 55 Art. 36 ASt is interesting with regard to the lack of provision in the recent constitutional reform for the election or the possibility of the direct election of this organ, analogous with that provided by the province. 56 Art. 40 ASt; Constitutional Court Judgments No. 206 of 1985 and No. 70 of 1987. 57 Art. 19 D.P.R. No. 49 of 1973. 58 Art. 43 ASt. 59 Art. 42 ASt.

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2. Province(s) One important innovation in the constitutional law of the reform of the Autonomy Statute (Constitutional Law No. 2 of 2001) revolved around the ﬁgure of the president of the province itself, which with regard to the Province of Bolzano, may be elected directly following a provincial law approved by the majority of two thirds of the members of the council. As long as this does not happen, the president of the province will continue to be elected by the council, while that of the Province of Trento will be elected directly. With Provincial Law No. 2 of 5 March 2003 (laws for the direct election of the Provincial Council of Trento and the president of the province), the Province of Trento has regulated the fundamental content for the formation of the provincial government (constitution of the government, status of the members of the government, fundamental relations between the statutory organs, ﬁduciary relationships, etc.); among these, the direct election of the provincial government stands out. Therefore, the reform of the Autonomy Statute poses diﬀerent limits with regard to the two autonomous provinces: extremely high for the Province of Trento, in which a direct election is imposed (for the transitive period) and required (as a rule) but at a minimum for Bolzano, in which direct election is a facultative option, totally at the discretion of the provincial law.60 Unlike the Province of Trento, there is no provision for the ordination of the head of the executive for the Province of Bolzano (who is elected together with the government by the provincial council). This measure, which was introduced into Trentino to improve governability, is not necessary in the Province of Bolzano, which is characterized by a historically high degree of political stability (four presidents of the province in 55 years is unique in Italy). Due to the ethnic social political cleavage in the Province of Bolzano, the German language group identiﬁes itself with the German ethnic party: the SVP, having always more than 50% support, has eﬀectively guaranteed political-administrative continuation in the province. Therefore, even if in the Province of Bolzano the only direct election is to the council, there is actually an implicit direct ordination of the head of the executive, who is the member of the SVP with the most of the votes. The president of the province61 himself takes on the functions exercised by the president of the region;62 however, there are a number of important additional

60

Palermo, op. cit. note 5, 944. A term that substitutes “President of the Provincial Executive Committee” ( giunta provinciale). See para. b) Constitutional Reform 2001. 62 Except for that of the management of the administrative functions delegated from the state, which is futile due to the fact that this entity is directly recognized and not connected to national assignation. 61

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attributes that originate from being a provincial organ and national organ at the same time. Regarding the president’s functions, regarding which we can recall the ﬁgure of the president of the region, these include: representation of the province;63 passing laws and regulations;64 the right to intervene in the sessions of the council of the ministers and the inter-regional commissions when dealing with matters concerning the province;65 and the distribution of aﬀairs between current individual ministers with a decree that should be published in the Oﬃcial Journal of the Region.66 The president of the provincial government is also given administrative powers beyond those listed, which question the characterization of this institution as a mere provincial organ, revealing as they do a partly national nature. The wording in the Autonomy Statute fairly faithfully reﬂects some parts of the national law on police,67 the statutory legislator made speciﬁc reference to this law and, consequently, policing activities are subdivided between the president of the province and the ﬁgure of the Chief Commissioner of Police (the title-holder of the remaining national competences).68 C. Government 1. Region The regional government is the executive organ of the region. The following are all carried out by the government: decisions concerning regulations for the execution of regional laws; administrative activity in regard to aﬀairs of regional interest; administration and control of the property of the region; the adoption, in the event of urgency, of provisions that fall under the competence of the council, which should be ratiﬁed by the council itself in its ﬁrst successive session; and other attributes of the government required by statute or by other provisions.69 The regional government is composed of a president, two vice-presidents belonging to the Italian linguistic group and the German linguistic group, respectively, and of current and substitute members of the council.70 The election of the government is reserved to the regional council among its own members by secret ballot and absolute majority71 and the result must be appropriately notiﬁed in the

63

Art. 52 para. 1 ASt. Art. 53 ASt and Art. 15 D.P.R. No. 49 of 1973. 65 Art. 52 ASt. 66 Art. 52 para. 3 ASt. 67 R.D. No. 773 of 1931. 68 Instead of the Chief Oﬃcer, as it should be according to the common discipline. See Art. 20 para. 3 ASt. 69 Art. 44 ASt and Art. 121 Constitution. 70 Art. 36 ASt. 71 Art. 36 para. 2 ASt. 64

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Oﬃcial Journal.72 The president of the government, in light of the special Autonomy Statute, determines through his/her own decree the distribution of aﬀairs between the individual members of the government73 and chooses which vicepresident should be called to replace him/her in the event of absence or inability. The regional government, under the provisions of the special Autonomy Statute, remains in charge as long as the regional council lasts and, after the expiry of the latter and until the appointment of the new government, it may only proceed with the urgent aﬀairs of ordinary administration.74 Moreover, the composition of the regional executive must be adjusted according to the composition of the linguistic groups that are represented in the regional council, always guaranteeing the representation of the Ladin group, even to the detriment of proportional representation.75 This important liability that is imposed on the formation of the regional executive and the presence of a prevalently ethnic-cultural cleavage of the party system organization both mean that the government of the region is, deﬁnitely, committed to the necessary agreement between such political groups and this also applies in the event that, in theory, one of these groups has the absolute majority.76 2. Province The provincial government of Bolzano is composed of the president, two vicepresidents, one belonging to the Italian linguistic group and the other from the German group, and a variable number of members of the council. The numerical composition of the government is not ﬁxed by the Autonomy Statute but falls within the discretion of the council and is established during the course of coalition negotiations between the coalition parties. The members of the provincial government of Bolzano are elected by the council within its members, by secret ballot with absolute majority,77 and must be adjusted to reﬂect the composition of the linguistic groups as they are represented in the council. The consequence of this provision is the necessity to form a coalition every time with other parties whose members of the council belong to the other linguistic groups, even if a coalition party like the SVP reaches an absolute majority. Whenever a coalition is not possible, due to lack of accord on the coalition programme, an agreement must nevertheless be reached in order to guarantee the representation of the other linguistic groups at the heart of the government. In such a situation (which has never actually arisen), the presence

72

Art. 11 D.P.R. No. 49 of 1973. Art. 42 ASt. 74 Art. 37 ASt. 75 Art. 4 para. t) Constitutional Reform 2001; new Art. 36 para. 3 ASt. 76 Reggio d’Aci, op. cit. note 7, 374. 77 Art. 50 ASt. The situation is diﬀerent for the Province of Trento, for which there is no analogous provision. 73

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of such linguistic groups in the government need not entail consequent political responsibilities, however, only ethnic representation. Art. 50 of the Autonomy Statute provides that the representation in the provincial government of Bolzano of the Ladin linguistic group may be recognized even to the detriment of exact proportional representation; moreover, the statutory reform introduced the possibility of electing government ministers who are not members of the council. These must be elected by the council with a majority of two thirds of its members on the proposal of one or more members of the council groups, on the condition that there is a consensus among the members of the linguistic group of the candidates but limited to the members that constitute the majority in the government.78 With regard to the functions of the provincial government, many of these are the same as those of the regional government, to which we have already referred; other functions, however, are more or less speciﬁc.79 One provision of particular relevance regards the power of oversight and protection of municipalities, public institutions of social security and welfare institutions, ad hoc consortia and other local bodies and institutes, including the ability to suspend and dissolve their organs according to the law and excluding only the adoption of extraordinary measures in this regard due to reasons of public order and referring to municipalities of more than 20,000 inhabitants (therefore, only Bolzano and Merano).80 Therefore, this is an ultra vires administrative power (or, in other words, an administrative function that is not reﬂected by any normative power recognized as belonging to the province).81 The principal attributes of the government are the implementation of the provincial laws, the management of the administrative activity of the province, the administration of the property of the province, as well as the oversight and indication of the fundamental objectives that the provincial administration should pursue, giving out general directives to achieve such objectives and verifying their related results.82 In other words, the government carries out the politicaladministrative guidance of the province. The right to legislative initiative is of notable importance, as well as the power to draft the provisional budget of the province. The provisional budget, in particular, is an act of fundamental priority, as it secures the resources upon which the province must base its political activities throughout the year. The Autonomy Statute (Art. 54 para. 7) authorizes the

78 This has already been criticized by scholars. See, for example, Palermo, op. cit. note 5, 947, which states that, according to this law, “a personality is conferred to the hybrid and until now (fortunately) unknown ﬁgure of the members of the council of the linguistic group of designated people, limited to the members that constitute the majority in the Executive”. 79 The themes indicated by the region under Art. 44 paras. 1, 2, 3, 4, and 5 ASt correspond to the province in Art. 54 paras. 1, 3, 4, 6 and 7. 80 Art. 54 para. 5 ASt. 81 On this point, see Reggio d’Aci, op. cit. note 7, 307. 82 L.P. No. 10 of 1992 and L.P. No. 11 of 1981.

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provincial government, in the event of urgency, to adopt the competence provisions of the council but, in any event, such provisions must be subsequently ratiﬁed by the council (Art. 54 ASt). In any event, passing legislative acts is excluded.83 In light of the statutory provisions regarding the distribution of aﬀairs of the government among the individual members of the council by way of a decree of the president of the government and the obligation to account for such a distribution through publication in the oﬃcial journal, some scholars have pointed out that the members of the council might have external relevance.84 Even though it has a highly discretional content, the decree on distribution of powers remains a necessary act, due to the fact that even if the president of the government omits to designate some aﬀairs to the members of the council and reserves their treatment for himself, he cannot refuse to pass the decree of distribution or, in other words, to carry out a distribution that, in fact, is practically irrelevant either in quality or quantity.85 D. Council of Municipalities To implement the Constitutional Reform of 2001, two years later, in 2003, the Provincial Council of Bolzano enacted Provincial Law No. 10, with an absolute majority. This law contained the ‘Provisions Regarding the Councils of Municipalities’.86 This organ of representation of the local authorities is interpreted in terms of multi-level governance, where it is deﬁned as an organ of consultation between the Autonomous Province of Bolzano/Bozen and the local authorities of the provincial territory; in other words, it is not directly situated within a provincial organ (president, government or council) but performs the function of consultation between the levels of government. In terms of composition, the council of municipalities is made up of 16 members, elected by the general assembly of mayors of the province, according to the criteria of linguistic proportions and representation of the territory of each involved; additionally, the president of the most representative organization of the local authorities of the provincial territory always forms part of the council of municipalities, in his/her capacity as president. Naturally, the description of its attributes and functions is at the heart of the discipline of the council of municipalities: regarding its own competences or powers delegated from the local authorities, the council of municipalities is heard with regard to draft laws presented to the provincial council and on proposals of regulations and administrative acts presented to the provincial government.

83 84 85 86

On this point, see . See Reggio d’Aci, op. cit. note 7, 38. Ibid., 385. B.U. No. 25 of 2003.

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At the end of the catalogue of attributes of the council of municipalities, there is a general power to intervene, which can be translated into the ability to formulate proposals, opinions or observations for the council or for the provincial government on the question of local authority interests or those above the local authority; the president of the council of municipalities or one of its delegates, whenever requested, is also heard by the legislative commissions of the provincial council. In its ﬁrst mandate, the council of municipalities has concentrated on matters of local public services, public construction, territorial planning and the provincial health services. In the Province of Trento, on the other hand, a diﬀerent model has been chosen, closer to the provisions of the constitution, with the institution of a council of local authorities that is not only representative of the municipalities but of the entire system of local government in the province.

III. Legislative Procedure A. Provincial (and) Regional Legislation in the Council(s) Title III of the Autonomy Statute is dedicated to the approval, promulgation and publication of regional and provincial laws. The provisions are common to both the regional and the provincial legislative procedures. The Autonomy Statute of 1972 provides no indication of legislative initiative, only a generalized reserve of the regional law for popular initiative, given as a proposal. The recent statutory reform, in the rewriting of Article 47, provides that the exercise of the right of popular initiative should be disciplined by a law approved by the provincial council with an absolute majority of its members. Naturally, popular initiative is not the only nor the most important of the instruments used to activate legislative procedure. The Autonomy Statute is silent upon the internal regulations of the regional and provincial councils in recognizing the powers of legislative initiative to each individual member of the council, as well as the respective government.87 This type of initiative should consist of a draft proposal of law (a coordinated text of laws), as well as an illustrative report that narrates the objectives and that must be addressed to the president of the provincial council.88 The president of the council, after receiving the draft proposal, communicates it in the next session and after its distribution sends it to the relevant legislative commission that is competent on that subject.89 These commissions are auxiliary

87 Art. 86 Council Decision of the Autonomous Province of Bolzano/Bozen No. 4 of 12 May 1993, published in the Oﬃcial Journal No. 25 of 1 June 1993. 88 Art. 87 para. 1 Reg. interno. [rules of procedure of the council]. 89 Whenever a draft law concerns matters that are not expressly contemplated in those indicated

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organs of the provincial council. They operate on appointment of the plenary assembly and their task is to examine the presented draft proposals of law from a technical point of view, before they are dealt with in plenary, where the text of the draft proposal, released by the competent commission, will be examined.90 In addition to the preliminary examination of the draft proposals assigned to them by the president of the provincial council, the legislative commissions present, on matters of their competence, the reports and the proposals that they consider appropriate or that have been requested by the council. The commissions also have the ability to formulate, as a re-elaboration, the coordination and the implementation of additional draft proposals of law concerning the same matters, to present their own text to the council and, additionally, in all the commissions each member has, as an individual, the full right to make such proposals.91 The numbers of legislative commissions, their competences and the number of their members are established by a resolution of the provincial council.92 The composition of each of the legislative commissions must be consistent with the composition of the linguistic groups that are represented in the provincial council and, whenever possible, with that of the members of the political parties represented in the council. The sessions of the legislative commissions are not public but it is provided that people who do not belong to the commissions may participate: as experts or other persons held to be useful for consultation,93 as well as the right of participation of the person who proposed the draft law or, if this was eﬀected by popular initiative, then the ﬁrst person who signed the initiative or one of his/her delegates.94 The procedure to examine the draft proposal of law may in fact follow two paths, an ordinary path and an urgent one. The point that distinguishes these two diﬀerent approaches simply concerns the terms of the procedure: the phases of discussion and approval remain substantially unchanged. The implementation of an urgent procedure comes as the result of a vote from the council itself, thus stimulated by a deﬁnite request from a proposing member of the council or from the government, which must request the urgent address of the draft law in the course of the session in which the president gives the communication to the council of the presentation.95 The plenary assembly is competent to provide approval of the draft laws. The draft law is approved by a simple majority. One peculiarity in the legislative procedure is the possibility for the linguistic groups as such to vote. Whenever a majority of the members of the council in the sphere of competence of the existing legislative commissions, the president of the council defers its examination to the commission, which deals with analogous or connected material, See Art. 87 para. 4 Reg. interno. 90 The internal law regulates the legislative commissions in Charter IV. 91 Art. 39 para. 2 Reg. interno. 92 Art. 22 para. 1 Reg. interno. 93 Art. 44 para. 1 Reg. interno. 94 Art. 41 para. 2 Reg. interno. 95 Art. 87 para. 3 Reg. interno.

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belonging to a linguistic group determines that a draft proposal of law is harmful to the equality of rights between citizens of diﬀerent linguistic groups or ethnic and cultural characteristics of the same group, the majority may ask for a vote of the linguistic groups. In the event that the request is accepted, if the draft proposal of law is approved despite a contrary vote of two thirds of the members of the linguistic group that formulated the request, the majority of this group may challenge the law before the Constitutional Court. In any event, however, the challenge does not have a suspensive eﬀect, which means that the law will come into force even though it is challenged (Art. 56 ASt). It is also worth noting the procedure that governs the approval of the budget of the region and the Province of Bolzano by a regional or provincial law. Upon request of the majority of a linguistic group, a vote on the individual entries of the budget must take place for each linguistic group96 and each entry needs to be approved by a triple majority. This procedural hardship is explained by the importance that the budget has for the lives of the local population and the linguistic groups, as it determines the distribution of resources that, in some areas (public buildings, schools, etc.), are also governed according to proportional criteria. For the entries of the budget that are not approved, a singular administrative procedure is provided. In the ﬁrst place, a joint commission, in which the Italian and German groups are represented (excluding the Ladin group), must be established within 15 days, with a binding decision upon the council, the deﬁnition and the deﬁnite total sum of the entries. Whenever an agreement is not reached in the joint commission, the decision is sent over to the autonomous section of the Provincial Administrative Tribunal of Bolzano, which must pass judgment within 30 days on the denomination of the non-approved entries and the total sum of the relative allocations.97 In addition, still looking at the procedure, it must be highlighted that the Autonomy Statute provides a further hardship for the approval of the budget laws and the balance sheets of the Province of Trento and that of the Province of Bolzano. This means that it may be necessary to have ﬁve majorities for the approval of these important regional laws: the majority of the Italian linguistic group, the majority of the German linguistic group, that of the Ladin group, the majority of the members of the council elected in the electoral district of Trento and, ﬁnally, those elected in the district of Bolzano. In the event that the latter two majorities are not reached, the Autonomy Statute demands approval from an organ at the regional level98 to re-examine the budgets and the balance sheets of the region Trentino-South Tyrol.99 This has, however, never been the case so far because the budget has always been approved. With the Constitutional Reform of 2001, preventative control by the national government, which the draft proposal of law was subject to after its approval by

96 97 98 99

Art. 84 ASt. Art. 84 para. 5 ASt. Art. 84 ASt. See Constitutional Court Judgment No. 611 of 1987.

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the provincial council and before its promulgation, has been abolished. Previously, in fact, proposals of law approved by the council had to be transmitted through the commissioner of the government of Bolzano to the national government, which had a power of control over these proposals. The government could control those proposed laws that exceeded the competences of the province or conﬂicted with national interests or the interests of the Province of Trento, of the region Trentino-South Tyrol and of the other regions. Only after this national control (which followed a diﬀerent procedure) had been surpassed, the legislative procedure could be concluded. Through this national preventative control, the provincial law could be blocked for years. After the constitutional reform, the state may only challenge previously published provincial law before the Constitutional Court. Finally, the regional and provincial laws are passed by the president of the region and the president of the province, respectively, and approved by the commissioner of the government.100 The legislative process is perfected through the publication of the law in the Oﬃcial Journal of the Region in Italian, as well as in German,101 while the publication in the appropriate section of the Oﬃcial Gazette of the Republic,102 speciﬁed as having a mere value of publicity, does not aﬀect the entry into force of the regional or provincial legislative acts, which, except for provisions to the contrary, takes place on the ﬁfteenth day after the publication in the Oﬃcial Journal. B. Direct Democracy Article 47 paragraph 2 of the Autonomy Statute, introduced by Constitutional Law No. 2 of 2001, allows the province to determine through provincial laws its form of government and, speciﬁcally, to determine the method of election of the provincial council, the president of the province and the members of the council, the relationships between the organs of the province, the presentation and the approval of motions of no conﬁdence regarding the president of the province and cases of ineligibility and incompatibility of the abovementioned oﬃcers, as well as the exercise of the right of popular initiative of the provincial laws and referendum. The regulation of the referendum at the provincial level is today governed by L.P. No. 11 of 2005, which diﬀerentiates between the various types. Apart from the special majorities requested for the approval of the laws that regulate the abovementioned subjects, these laws may also be subjected to a conﬁrmation referendum: that is, a referendum where the citizens are called to decide upon the introduction of the laws in question and must be carried out according

100 Art. 55 ASt. With regard to promulgation, the formulas to be used are those textually stated in Art. 15 D.P.R. No. 49 of 1973. 101 Art. 57 ASt, even if, in practice, it is in the sense of limiting bilingual publication only to regional laws and those of the Province of Bolzano. 102 Art. 59 ASt.

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to the norms introduced by the appropriate provincial law. The Autonomy Statute only provides that within three months of the publication of the law, 1/50 of the electors or 1/5 of the members of the provincial council, whenever it is a law approved by an absolute majority of the members of the provincial council or 1/15 of the electors (and only these), or if it is a law approved by a majority of two thirds of the members of the provincial council, may request a referendum. The legislative referendum on provincial laws oﬀers the electing citizens the chance to decide whether a provincial law or an individual provision should remain in force. Tax laws or budget laws may not be subjected to a legislative referendum, nor the regulation of emoluments of personnel and organs of the province, nor provisions that concern questions related to the rights and protection of the linguistic groups. Moreover, there is a popular initiative under which the population is given the possibility of initiating legislative procedure, subject to the same restrictions. The ‘proposing referendum’ (referendum propositivo) refers to a referendum in which the citizens may propose the introduction of a provincial law. There are two sub-types of the ‘consultative referendum’. The ﬁrst has as its subject the local authorities of the region, which, after hearing the interested populations, may create new local authorities and may modify constituencies or denominations of local authorities. The second, recently introduced, is for provincial laws, which, when passing a provincial law, the provincial council may decide upon with an absolute majority of its members, for a consultative referendum to be called on the project of law being discussed. The ﬁnal consideration that inhibits the use of this instrument for the treatment of the requirements of linguistic groups has great importance. Based strictly on the principle of majority, the instruments of direct democracy represent an element of distortion of the internal dynamics of the formation of the ethnic powersharing government. In the provincial legal system, this fact is pushed to the point of also seeing the referendum as a potential instrument of distortion of the relationships between the linguistic groups. There is a vast grey area regarding the provincial attributes of ‘linguistic’ implications, which indiscriminately and potentially embraces many numerous expressions of the provincial powers.103 It is interesting to note that the ﬁrst test for direct democracy at the provincial level will probably be the revision of the laws that regulate the institutes. A

103 See, for example, the troublesome case of a referendum held in the city of Bozen/Bolzano in 2001 on the denomination of a square. The municipal authorities held that it was right for the subsistence of an exclusive competence of the local authority relating to changing names of squares or streets and it settles the statutory condition that imposes that the referendum requirements should pertain to “problems or provisions of general interest” (Art. 50 ASt), conﬁrming that the “entire citizenship made up of three ethnic groups is interested in the solution to the problem relating to the name of Piazza della Vittoria or Piazza della Pace”. In this case, the majority of the population of the city of Bozen/Bolzano voted against the proposal to change the name of a contested square from ‘Victory Square’ (indicating the Italian victory in World War I against Austria that led to the attachment of South Tyrol to Italy) into ‘Peace Square’.

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committee, claiming that the provincial laws pay little attention to the demands of use, has started the procedure to call a proposing referendum in order to change the present provincial law, which should be voted upon in the autumn of 2009.

IV. Concluding Remarks By analyzing some of the elements that characterize the regional and provincial constitutional organization—for example, the proportional formula of the electoral laws laid down in the ASt;104 the representation of the linguistic groups that is guaranteed in the government; the composition of the regional government, consistent with the composition of the linguistic groups “which are represented in the council of the Region” and always guaranteeing the Ladin representation;105 and the fact that the vice-presidents each belong to the German linguistic group and the Italian linguistic group—one can reach a classiﬁcation of such institutional systems. Given the presence of a type of prevalently ethnic-cultural cleavage in the arrangement of the party system, some scholars have deﬁned the regional and provincial system as an ethnic power-sharing democracy.106 The essential elements of this form of government are the electivity of the assembly by universal suﬀrage, direct, secret and with a proportional electoral system; the election of the members of the governments by the councils; the revocability by the council of the president and the members of the governments;107 and the conferral on the president of the government of the power to distribute aﬀairs among members. Even though the Province of Bolzano has obtained from parliament the competence to intervene directly in its own political-institutional organization, it has chosen to conserve the status quo, starting from the indirect election of the president of the province, which is typical of the parliamentary system and, in this case, bears the ethnic power-sharing hallmark. Such an organization has thus far guaranteed governability, which is evidently due to the presence of a solid absolute majority at the head of the SVP and the eﬀect of one of the fundamental laws of making up the provincial government formation: the necessary composition of the provincial government with regard to the consistency of the linguistic groups themselves, which are represented in the provincial council, a mechanism that, in itself, also absorbs the possible disharmony of merits or ideological inspiration.108

104

We can ﬁnd this already in the First Autonomy Statute, Art. 19 ASt 1948 and Art. 25 ASt

1972. 105

Art. 36 ASt. Marco Brunazzo, Trentino-Alto Adige. Un unico sistema di partito?, Le istituzioni del Federalismo (2000) No. 3–4, 615–630, at 622. See also Sergio Fabbrini, Quale democrazia? L’Italia e gli altri (Laterza, Roma-Bari, 1999). 107 Arts. 38 and 51 ASt. 108 See Roberto Toniatti, “L’evoluzione statutaria dell’autonomia speciale nell’Alto Adige/Südtirol”, in Josef Marko, Sergio Ortino and Francesco Palermo (eds.), L’ordinamento speciale della Provincia autonoma di Bolzano (Cedam, Padova, 2001), 34–88, at 61. 106

CHAPTER FIVE

LEGISLATIVE AND ADMINISTRATIVE AUTONOMY Sara Parolari and Leonhard Voltmer *

The Autonomy Statute as promulgated in 1972 gave the South Tyrolese much, if not all, of what they had always wanted. They did not obtain the break up of the Region and the elevation of the Province of Bozen/Bolzano into a Region in its own right. Nor did they obtain an end to the system by which provincial legislation required approval and co-ordination by Rome through Executive Measures. That would come later in 2001 with a further extension of constitutional reform.1

The desire to run one’s own aﬀairs independently and eﬀectively is the primary concern of each quest for autonomy; thus, these powers can be regarded as one of the key elements of successful conﬂict transformation. This chapter will present an overview of South Tyrol’s quite outstanding autonomous powers (outstanding even when compared with its northern neighbour, Tyrol, a member state of federal Austria), both in the legislative (Section I) and administrative ﬁelds (Section II). After the First Autonomy Statute (ASt) (1948) had reserved all relevant legislative power to the Autonomous Region, the Second Autonomy Statute (1972) introduced a radical shift2 by granting extensive legislative powers to the two Provinces of Bolzano (i.e., South Tyrol) and Trento. In order to distinguish their special status from the mere administrative provinces in the rest of Italy,3 the former actually became ‘autonomous provinces’, a concept thus far unknown in Italian constitutional and regional law. While the ‘common’ roof-structure of the region remained in place, it was gradually emptied of its powers through their

* Section I (Legislative Powers) was written by Leonhard Voltmer and Section II (Administrative Powers) by Sara Parolari. 1 Antony Alcock, “The South Tyrol Autonomy—A Short Introduction”, Booklet of the Autonomous Province of Bolzano/Bozen, County Londonderry, Bolzano/Bozen (2001), 11, at . 2 Through numerous amendments to the statute and the following measures of their implementation, in particular the enactment decrees. See the chapter on amendment and enactment by Francesco Palermo in this volume. For a historical perspective, see the chapter by Emma Lantschner on the history of the South Tyrol conﬂict. 3 The Italian Republic is composed of 20 regions: 15 with ordinary statute and ﬁve ‘autonomous’ regions (i.e., with special statute and powers). Each region is subdivided into intermediate administrative bodies, the provinces; their number ranges from none (Valle d’Aosta) to twelve (Lombardia).

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transfer to the autonomous provinces.4 The provisions regarding legislative and executive powers apply to both autonomous provinces in the same way. After the full implementation of the ‘Package’ in 1992, the autonomy entered into a further phase, characterized by the concept of ‘dynamic’ autonomy, as a number of state powers, both legislative and administrative, have been additionally transferred to the provinces by agreement with the state.5 This enlargement of the autonomous powers, substantially via bilateral negotiation between province and central government, was consolidated by the constitutional reform in 2001, which deeply changed the pattern of distribution of powers between state and regions, aiming at a substantial strengthening of the regional level. However, as the focus of this reform was on the regions with ordinary statute (with new catalogues of subject matters in Art. 117 Italian Constitution), a number of diﬃculties arose regarding the determination of the actual powers of the autonomous regions (and provinces), as their powers are speciﬁcally listed and guaranteed in their respective autonomy statutes, which have now to be reinterpreted and harmonized with the new powers guaranteed for all regions.

I. Legislative Powers A. The Distribution of Legislative Powers between the State and the Regions The main diﬀerences between the ﬁve autonomous regions and the 15 ordinary regions are in the diﬀerent nature and rank of their respective statutes,6 as well as in the diﬀerent degree of legislative powers. While the legislative powers of the ordinary regions were listed in Article 117 of the Italian Constitution, those of the autonomous regions were (and continue to be) speciﬁcally described in their respective autonomy statutes; in addition, the latter also diﬀer among those ﬁve 4 Among the remaining legislative powers of the region are social welfare, social insurance and regional oﬃces and staﬀ. The future of the region is widely debated, with largely diverse opinions ranging from its abolition to giving it new, sharply delineated competences. However, any change requires constitutional amendments. For more, see . 5 In particular, in the framework of the so-called ‘Bassanini’ reforms in the late 1990s, a package of laws and decrees by which constitutional reforms and the federalization of Italy were anticipated at the level of ordinary law. Their main objective, the allocation of executive powers according to the principles of subsidiarity and eﬃciency, should transform the regions (and the municipalities) into the principal actors in the administrative sphere. See Section II of this chapter and the chapter by Jens Woelk on the relations with the central government in this volume. 6 The autonomy statutes were adopted in the form of constitutional laws by the national parliament after consultation with the concerned region, whereas the statutes of the ordinary regions had been deliberated by the respective regional council (i.e., assembly) and afterwards adopted by the national parliament as an ordinary law. These procedures have changed following the constitutional reform of 2001, strengthening the participation of the regional council in the autonomous regions (including the right of initiative and a binding opinion) and providing for an exclusive adoption of the ordinary statutes by the regional council with a special procedure, under Art. 123 Italian Constitution (as amended by Constitutional Law No. 1 of 1999).

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regions. The constitutional rank of the competence catalogues was intended as a guarantee of the regional competences, in particular against interventions by the state legislator.7 In principle, until 2001 and in the system of the autonomy statute, three categories of regional competences could be distinguished: − original or exclusive (‘potestà legislativa primaria, piena’); − secondary or concurrent (‘potestà legislativa concorrente, bipartita’); and − ‘additional’ legislative powers Under the original system, only the autonomous regions (and, after 1972, the two autonomous provinces) were vested in their respective statutes with exclusive legislative powers due to their constitutionally guaranteed autonomy. All regions, ordinary as well as autonomous ones, can adopt regional laws within matters of secondary or concurrent legislation listed in Article 117 of the Italian Constitution (and for the autonomous regions, again, speciﬁcally in their statutes). This basic type of competence can also be regarded as a divided one, as the regional legislator has to respect the guidelines and principles laid down in state legislation. It reﬂects the origins of Italian regionalism, as former state competences have been transferred to the ordinary regions, which had been established as functioning entities with considerable delay. The scheme is completed by a third category—‘delegated’, or ‘additional’ competences—which allowed the state to delegate legislative powers to the regions when there was no interest in a uniform rule for the whole territory or, in other words, when regional diﬀerences require diﬀerent laws. Regional legislation in these cases is most often implementation of a state law and thus bound by respect for its provisions, as well as by the explicit delegation by which state authorities determine the actual scope of application and limits. All residual powers were vested at the state level. With the constitutional reform (2001), this simple picture has become much more complex. In line with the aim of federalizing the country, the distribution of legislative powers in Article 117 of the Italian Constitution has been completely reframed: the biggest innovation is the reversal of residual powers, which are now vested with the ordinary regions (para. 4). Consequently, now the exclusive legislative powers of the state are expressly listed (para. 2), followed by the ‘concurrent’ competences, i.e., matters for which “legislative powers are vested in the Regions, except for the determination of the fundamental principles, which are laid down in State legislation” (para. 3).

7

Corresponding is the possibility for the regions to challenge state legislation in front of the Constitutional Court. In practice, there have been many ways for the state to invade or, at least, inﬂuence matters of regional competence (see the chapter by Jens Woelk on the relations with the central government in this volume); thus, the jurisprudence of the Constitutional Court has determined the true shape of the regional sphere of legislative power.

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The reform of the Constitution enlarged the autonomy of ordinary regions considerably, while the autonomous regions, with their sphere of powers deﬁned in their respective autonomy statutes, remained protected by a clause declaring only ‘more favourable provisions’ applicable to their autonomy systems.8 This ‘salvatory clause’ regarding preferential treatment for the autonomous regions (and provinces) makes it necessary to ‘read in’ the new constitutional provisions into the old system established in the Autonomy Statute before deciding in each individual case what concrete type and matter is to be considered as ‘more favourable’, i.e., adding to the current level of autonomy. B. Areas of Autonomous Legislation Both the First and the Second Autonomy Statute contained a list of all subject areas in which regional laws could be passed (Art. 4 ASt). Those subject areas were, above all, a mirror of the Italianization policy of the fascist past. This is obviously the case in regard to certain politically delicate ﬁelds in which most of the assimilationist policies had been carried out, such as place names (toponomastics), school policy and urban planning,9 but there are also apparently neutral areas like infrastructure (electricity, hydroelectric power, roads, etc.), hunting and ﬁshing. From a systematic point of view, the original competences of the Autonomous Province as listed in the Autonomy Statute can be subdivided into exclusive (or primary), secondary and additional powers. The main diﬀerence lies in the limits set to these powers (see below). While Article 4 contains the legislative powers (originally) vested with the Autonomous Region (and subsequently devolved to the two autonomous provinces), Article 8 lists the powers to be exercised by the autonomous provinces. Thus, the following system of competence matters emerges from the Autonomy Statute: Primary (exclusive) competences of the Autonomous Provinces (Art. 8 ASt): 1. Regulation of provincial oﬃces and their personnel; 2. Place names, without prejudice to the requirement for bilingualism in the territory of the Province of Bolzano; 3. Protection and preservation of the historic, artistic and popular heritage; 4. Local customs, traditions and cultural institutions (libraries, academies, institutes, museums) at the provincial level; local artistic, cultural and educational events and activities and, in the Province of Bolzano, which may be promoted also through the media of radio and television but without the power to set up radio and television stations; 5. Town planning projects and town planning schemes; 8 9

Art. 11 Constitutional Law No. 3 of 18 October 2001 (transitional provision). See Emma Lantschner’s chapter on the history of the South Tyrol conﬂict in this volume.

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6. Protection of the countryside; 7. Common rights; 8. Regulation of smallholdings in accordance with Article 847 of the Civil Code; regulation of ‘entailed farms’ and family holdings governed by ancient statutes or customs; 9. Artisan activities; 10. Housing, totally or partly subsidized by public funds, including facilities for construction of public housing in areas struck by disaster and activities undertaken in the Autonomous Province by extra-provincial bodies with public funds; 11. Lake harbours; 12. Fairs and markets; 13. Prevention and emergency measures in the event of public disasters; 14. Mines, including mineral and thermal waters, quarries and peat bogs; 15. Hunting and ﬁshing; 16. Alpine pastures and parks for the protection of ﬂora and fauna; 17. Roads, aqueducts and public works in the Autonomous Province; 18. Communications and transport in the Autonomous Province, including the technical regulation and management of cable-car systems; 19. Direct engagement of public services and their management through special agencies; 20. Tourism and the hotel industry, including guides, alpine bearers, ski instructors and ski schools; 21. Agriculture, forests and forestry personnel, cattle and ﬁsh breeding, plant pathology institutes, agricultural consortia and experimental stations, hail protection services, land reclamation; 22. Expropriation for public use for all matters of provincial competence; 23. Establishment and functioning of municipal and provincial commissions for assistance and advice to workers on employment; 24. Third, fourth and ﬁfth category water works; 25. Public assistance and welfare; 26. Nursery schools; 27. School welfare in regard to those educational sectors in which the Autonomous Provinces have legislative competence; 28. School buildings; 29. Vocational training. Secondary competences (Art. 9 ASt): 1. Local urban and rural police; 2. Primary and secondary education (middle schools, classical, scientiﬁc, teachertraining, technical, further education and artistic secondary schools); 3. Commerce; 4. Apprenticeship; employment cards; categories and qualiﬁcations of workers;

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5. Establishment and functioning of municipal and provincial control commissions on employment; 6. Public entertainment insofar as public safety is concerned; 7. Commercial businesses, without prejudice to the requirements of state laws for obtaining licences, the supervisory powers of the state for reasons of public safety, and the power of the Ministry of the Interior to annul in accordance with national legislation the provisions adopted in the matter, however deﬁnitive. Ordinary appeals procedure against such action shall take place within the framework of the provincial autonomy; 8. Increase in industrial production; 9. Use of public waters, except for large-scale diversions for hydroelectric purposes; 10. Hygiene and health, including health care and hospital assistance; 11. Sport and recreation with relative facilities and equipment. Additional competences: Article 10 ASt: employment and work placement. Article 4 ASt: regional legislative powers (since 1972 gradually devolved to the Autonomous Provinces): 1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

Regulation of regional oﬃces and their personnel; Regulation of para-regional bodies; Regulation of local authorities and their relative subdivisions; Expropriation for public use, except for works mainly or directly the responsibility of the state and matters of provincial competence; Establishment and maintenance of land registers; Fire prevention services; Regulation of health bodies and hospitals; Regulation of Chambers of Commerce; Development of cooperatives and their supervision; Improvement grants for public works carried out by other public bodies within the region.

In addition, since 2001, the new distribution of legislative competences between state and (ordinary as well as autonomous) regions has to be “read in” (Art. 117 Constitution), according to the ‘most favourable treatment’ clause, if these add to the high degree of autonomy already enjoyed by the autonomous regions and provinces, or due to the fact that now regions are vested with a residual power of legislation, by contrast with the previous situation.10 10

Thus, there are altogether more than seven diﬀerent types of legislative competences: this new complexity (and the political controversies regarding the implementation of the reform) gives rise to an enormous increase in constitutional litigation between the state and the regions.

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Thus, the original and general distinction has become much less clear. In practice, there are very few ﬁelds where the province is entirely excluded from ruling into it in one way or another. One of the (few) ﬁelds where the province(s) remain deﬁnitively excluded is taxation. However, although foreign policy and external relations seem to be examples of matters that clearly used to be exclusively vested with the central government, nowadays even in these ﬁelds the province can actually become active in respect of certain procedures.11 C. Limits and Control The discussion of the diﬀerent types of competences is not only important in regard to how South Tyrol is able to adopt legislation autonomously but it also deﬁnes how far such autonomy extends, as every competence comes with a speciﬁc limitation. Exclusive competences can be freely exercised while respecting the Constitution, international obligations and the basic principles of the Italian legal system, as well as fundamental principles of socio-economic reforms. The ‘national interest’ of Italy may be a limit too but—as a counterlimit—it is expressly stated that the national interest “includes the protection of local linguistic minorities”.12 In addition to the abovementioned limits, provincial legislation in the matters of secondary legislative powers also has to respect the ordinary laws of Italy.13 These limits have been substantially conﬁrmed by the constitutional reform of 2001;14 the complete picture is summarized in the following table:15 Primary competence

Constitution, principles of the legal system and socio-economic reforms15

Art. 8 ASt Art. 4 ASt

Secondary/ concurrent competence

State legislation (principles) and European Community Law, as well as international obligations

Art. 9 ASt and Art. 117 para. 1 Constitution 2001

11 See the chapter by Alice Engl and Carolin Zwilling on cross-border cooperation in this volume. 12 Art. 4 ASt. 13 After the full implementation of the Second Autonomy Statute and the declaration of conﬂict settlement before the UN in 1992, the autonomous province, in negotiations with the Italian center-left governments, obtained the devolution of a large number of additional competences (e.g., roads, electricity, teachers and school staﬀ ), which had not been foreseen and guaranteed in the Autonomy Statute. 14 Although the ‘national interest’ is not any longer mentioned expressly in the amended text of the Constitution, which has given rise to a dispute over whether this has consequences for the interpretation of the Autonomy Statute, according to the ‘most-favorable treatment’ clause. 15 “In conformity with the Constitution and the principles of the legal system of the Republic, and respecting international obligations and national interests—among which is included the protection of local linguistic minorities —as well as the fundamental principles of the socio-economic reforms of the Republic, the Region has the power to issue laws on the following matters: [. . .]”. Art. 4 ASt.

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Table (cont.)

Delegated competence

According to the content of the state law delegating the competence

Art. 17 ASt

Additional competence

State law to be integrated (implicit)

Art. 10 ASt

Residual competence

Within the frame of principles set by national legislation

Art. 117 para. 4 Constitution 2001

Until 2001, a commissioner of the central government in Trento or Bolzano/Bozen had been in charge of preventive control of regional and provincial legislation.16 Only if the government did not veto the bill of a regional or provincial piece of legislation could it be promulgated by the president of the regional or provincial government. The commissioner had to examine within thirty days whether the bill exceeded the powers or was in conﬂict with the interests of the republic or the other province in the region. However, in these cases, the council could override the veto by an absolute majority vote, leaving the central government with the possibility of challenging the law before the Constitutional Court.17 The reform of the Italian Constitution in 2001 also abolished this preventive and suspensive veto power on the part of the central government. Today the central state can challenge a provincial (or regional) law on the abovementioned grounds only after promulgation and has to do so before the Constitutional Court.18 D. Use of Competences: an Overview The provincial government, composed of the president of the province and ten ministers,19 is responsible for the 41 divisions in which the provincial administration is structured. Of the provincial budget (in 2006, EUR 4,525 billion), nearly 30% is spent on welfare and health care, and 15% on education and culture.20 In the following overview, these competences are illustrated ﬁrst, followed by the minority-relevant sectors of the media and telecommunications. The aim is to give a general impression of the range of possible autonomous activities and their use.

16

See the chapter by Jens Woelk on the relations with the central government in this volume. Art. 55 ASt. See also Arts. 56–60. 18 Constitutional Law No. 3 of 2001, in force since 10 November 2001. Before the reform, the regional legislator had an inferior position and the state power was responsible for controlling the constitutionality of the dissections of the republic. With the federalist reform, the regional lawmaker has acquired sovereignty and its laws can only be challenged with the same procedure applicable to national bills. 19 Assessori (Italian) or Landesräte (German); see the homepage of the South Tyrolean government, at . 20 For statistical data on the budget, see the appendix to this volume. 17

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1. Welfare The province has full control over public welfare.21 The Autonomy Statute also provides that in matters concerning public assistance and social insurance, the region has the right to enact legislative norms to adopt state laws and to establish appropriate autonomous institutions or facilitate their establishment.22 Existing health insurance institutions in the region that were absorbed by the Institute for Workers’ Health Insurance may, under the Autonomy Statute, be reestablished by the regional council.23 Provinces may also enact legislation in respect of hygiene and public health, including health and hospital services.24 Recently, the health sector has been restructured, putting all health centres (including the seven hospitals in the province) under a common administrative roof and into a network with a common goal.25 2. Education The provinces have legislative control over kindergartens, school construction, professional education and vocational training.26 The Autonomy Statute delineates educational powers and linguistic protections. As already established by the 1946 Paris Agreement, a fundamental principle of South Tyrol’s autonomy is that elementary and secondary education be provided in the mother tongue of the child. Consequently, instruction in South Tyrol is given in separate German and Italian schools.27 Language instruction in the second language of the province is mandatory. Furthermore, all teachers must be native speakers of their teaching language. Ladin is taught in kindergartens and elementary schools; however, German and Italian are mandatory. In principle, parents are able to choose the school system that they would like their children to attend; a child can be refused only because of insuﬃcient knowledge of the language of instruction in order to guarantee the character of the school and the eﬃciency of the lessons. School administration is under the authority of the province. Also, teachers who had been state employees have become personnel of the provincial administration. The administration of the board of education, secondary schools, inspectorates of schools and individual school administrations have come under the authority of the province.28

21

Art. 8 para. 25 ASt. Art. 6 ASt. 23 Art. 6 ASt. 24 In accordance with the fundamental legislative norms of the state, according to Art. 9 para. 10 ASt. The legislative authority over health services and hospitals is vested instead with the region. See Art. 4 para. 7 ASt. 25 Provincial Law No. 9 of 2 October 2006. 26 Art. 8 paras. 26–29 ASt. 27 Art. 19 ASt. 28 Art. 19 ASt. 22

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The Italian, German and Ladin language groups are represented on a Provincial Educational Council.29 Teacher representatives are selected in proportion to the number of teachers of the respective language groups, including not less than three Ladin representatives.30 The Council creates and dissolves schools, determines school programmes and hours as well as curricula and content of courses.31 After decades-long discussions, in 1997 the Free University of Bolzano was founded. It has departments for economics and management, education, computer science, design and art, and a bachelor programme of science in logistics and production engineering. The University of Bolzano is co-ﬁnanced by the province and the Italian state and will initially be able to accommodate approximately 5,000 students. In the School of Economics, courses are held in German, Italian and English, in a way that all students have working knowledge of all three languages when graduating. The university is one of the ﬁrst institutions in the cultural sphere that caters to all three language groups. 3. Culture The province retains full legislative control in respect of the preservation and safeguarding of the province’s historic, artistic and cultural heritage.32 It may enact laws in respect of local customs and usage, and cultural institutions of provincial interest, as well as local artistic, cultural and educational performances and activities. In regard to culture, the Italian-, German- and Ladin-speakers enjoy groupprotection.33 Each group protects and promotes its cultural characteristics through their own cultural oﬃce, their own schools and proportionally allocated ﬁnancing. The ﬁnancial resources for culture are divided into three portions, in relation to the three cultural and linguistic groups on the territory, and administered separately.34 The responsibility for cultural activities that have no connection to one language (e.g., music, sculpture, etc.) or to more than one language at the same time (e.g., intercultural activities) is vested in no clear authority; they might be ﬁnanced by several, one or none of the three institutions. An illustrative example of the proportional quota principle in practice is the case of libraries. There are about 200 public libraries and one main library for 29

Ibid. Ibid. 31 Ibid. 32 Art. 8 para. 3 ASt. 33 Art. 2 ASt, which states that the parity of rights of citizens of all language groups is recognized and “their ethnic and cultural characteristics are protected”. Within the groups, all decisions require a wide consensus. 34 The budget is not only split into shares in the case of culture: “The Province of Bolzano shall use its own funding allocated for welfare, social and cultural purposes in direct proportion to the extent of each linguistic group”, Art. 15 para. 2 ASt. See also the chapter by Roberta Medda-Windischer and Siegfried Baur on schools and instruction in this volume. 30

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each of the three languages. There are three administrative entities with three different ministers in the provincial government. Museums, on the other hand, are administered together by the department of German culture—a system which leads regularly to political controversies. 4. Media It is very important for minorities to have access to media in their own language. To provide access to complementary information, in addition to press, radio and television in the Italian language, two diﬀerent strategies have been applied. The ﬁrst was to make foreign media in the German language accessible in South Tyrol: special receivers and antennas were set up in the 1970s to guarantee, despite the mountainous terrain, access to the Austrian public TV-channels ORF1 and ORF2 (watched by one third of the population), radios Ö1, Ö2, Ö3 and Radio Tirol (reaching one third of South Tyrolese), the German public TVchannels ARD and ZDF (watched by one sixth of the population) and the Swiss TV-channel SF1 (watched by one twentieth of the population),35 which provide, together with the print media of those countries, complete media coverage. However, they refer to their respective countries and cover Italy from the perspective of a foreigner. Therefore, domestic media in the German language are ﬁnanced: RAI (Italy’s public TV and broadcast channel) has a section of its own in Bolzano and broadcasts 550 hours of television programming36 and 4,715 hours of radio in German, and 39 hours of television and 352 hours of radio in the Ladin language, with shares of 44% for the TV and 31% for the radio.37 Provincial newspapers in German sell more than 70,000 copies per day and another 70,000 copies of German magazines are produced in and for the province.38 In conclusion, German-, Ladin- and Italian-speakers have excellent access to media and culture in their respective languages, with the diﬀerence that this happens for the German- and Ladin-speakers against a provincial background, whereas for Italians against a rather national background. 5. Telecommunications The telecommunications system in South Tyrol was regulated and administered by the Italian government. Nonetheless, the consent of the province has to be sought in cases concerning concessions for communications where lines cross the

35 Irene Ausserbrunner, “Erhebung der Hör- und Sehgewohnheiten in Südtirol 2001/Indagine sull’ascolto radiotelevisivo in Alto Adige 2001”, Landesinstitut für Statistik/ASTAT, Autonome Provinz Bozen-Südtirol/Provincia Autonoma di Bolzano-Alto Adige, Bozen/Bolzano (2001), 28, at . 36 See . 37 There are a number of private radios in the German language as well. 38 For precise names and ﬁgures, see Giuseppe Avolio and Leonhard Voltmer, “Übersicht über die Autonome Gesetzgebung”, in Joseph Marko et al. (eds.), Die Verfassung der Südtiroler Autonomie. Die Sonderrechtsordnung der Autonomen Provinz Bozen-Südtirol (Nomos, Baden-Baden, 2005), 146.

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territory of the province.39 As part of the state administration, the telecommunications company was also subject to the ethnic quota system. After its privatization in 1993, the Constitutional Court ruled that the quota system could no longer be applied to a private company.40 This was reversed by an amendment of the enactment decree, which explicitly extended the proportional quota system to all formerly state-owned and now privatised enterprises.41 6. Spatial and Urban Planning The ruling on the use of space—especially for public buildings and housing—had been controversial since the owners of the space were, a century ago, mainly German-speakers, and the state’s interventions had favoured the migration of Italian-speakers to the province. The general line taken in the autonomy arrangement was therefore a restrictive regime to protect: a) the mere 6% of constructible space; b) the mountain areas from farm abandonment and abusive constructions; and c) the environment, characterized by the absence of industry. The autonomous restrictions were successful: migration has come to a balance, in spite of the considerable attraction of a booming economy; emigration from the mountains has been stopped in complete contradiction to nearly all other alpine spaces in Italy and the Alpine Arc; and abusive constructions are no problem in South Tyrol, in visible contrast to Italy in general and the south in particular. The ﬁrst reason for this remarkable success was the fact that the restrictions started in South Tyrol right after World War II, whereas other places started only after they had experienced the negative impact of construction liberalism.42 A second reason was that South Tyrol also inﬂuenced all state constructions by a ‘coordination’ procedure, and even the military, an important factor because of the main land border of Italy, makes concessions to a counselling Joint Commission. A third reason for the success is the inﬂuence that South Tyrol has when state laws are transformed (e.g., some sanatory clauses were not introduced in South Tyrol) and administered (control of construction is now even eﬀected by satellite oversight in South Tyrol, whereas in South Italy many abusive constructions are actually inhabited, indicating that control is not simply late but, in certain instances, never occurred at all). 7. Environment The Autonomy Statute explicitly grants the Autonomous Provinces of Bolzano and Trento control over protection of the environment:43 it allows for the creation

39

Art. 14 ASt. Constitutional Court Judgment No. 260 of 1993. 41 Under the new Art. 32-bis of the enactment decree on the proportional quota system, D.P.R. 752/1976. 42 South Tyrol requested a construction permit for al constructions in 1960, Italy only in 1967. 43 Art. 8 para. 6 ASt. 40

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of parks and alpine pasturage for the protection of ﬂora and fauna; it also gives the provinces power over agriculture, forestry, the Forest Ranger Service, livestock and ﬁsh breeding. Environmental protection is another example where South Tyrol has nearly always ruled earlier and more restrictively than Italy or the EU’s minimum standards. All public or private land above 1,600 metres above sea level is under openend landscape protection. Together with special protection for parks and biotopes more than one third of the land is protected against human intervention.44 The forest administration is responsible for 10% of the territory and insures the sustainable management of forests, meadows and alpine meadows. This success through restriction comes at the price of a relative lack of construction area—the Autonomous Province is also in charge of town and country planning. The demand for housing in Bolzano and the surrounding areas, in Merano and in the Dolomite valleys, has never been met by suﬃcient supply. The real estate market is, for a long list of reasons, thoroughly spoilt. One reason is the provincial subsidy to rents for all households of low income. These subsidies are allocated in relation to the linguistic group. Although public housing (the Autonomous Province now owns more than 11,000 apartments) should generally respect the proportional quota principle (i.e., issuing resources to group members in proportion to the numerical strength of the groups), it has to consider the principle of the greatest need in the ﬁrst place and over recent decades a considerable credit for the German-speakers has been built up, which will be used up through special projects for this linguistic group. 8. Commerce and Industry The Autonomy Statute confers powers on the provinces in respect of commerce, subject to regional regulations for credit agencies, agricultural institutions, banks and credit agencies of a regional character.45 The regional government retains the right to regulate chambers of commerce and develop and supervise cooperative associations, in accordance with the economic structure of the state.46 Under the Autonomy Statute, South Tyrol is assigned quotas of the annual appropriations written into the budget of the state to carry out state laws that grant ﬁnancial intervention for the development of industrial activities. The Ministry of Industry, Commerce and Handicraft assigns quotas, which are determined by consultation with the province, taking into account the sums appropriated in the state budget and the needs of the interested population.47 The province may enact its own employment legislation and make use of the local branch oﬃce of the Ministry of Labour in exercising administrative powers.48

44 45 46 47 48

Also all wild plants (except trees) and a long list of animals are generally protected. Art. 9 ASt. Art. 4 ASt. Art. 15 ASt. Art. 10 ASt.

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It may also authorize the opening and transfer of banking branches of local credit agencies, after consultation with the Ministry of the Treasury.49 There are forms of preferential treatment for residents regarding the assignment of private jobs by the labour administration. South Tyrol depends on a share of the national quotas of migrant workers from non-EU countries, which are important for its economy, in particular in tourism and agriculture. Commerce is another sector where important restrictions maintain South Tyrol’s traditional structure. To preserve the characteristic capillary retail structure with shops in all remote mountain areas with low population density, small vendors are privileged and shopping malls and large discounters are discouraged.50 In this way, all small agglomerations, so typical of the alpine space, can satisfy people’s basic needs and the sector employs 13% of South Tyrol’s total work force. The positive repercussions on mobility and traﬃc, on tourism and handcraft, on agriculture and the quality of life in the villages are quite obvious. On the other hand, it is clear that such restrictions are constantly on the verge of breaking superior law, especially the market-liberal EU-law. The same general policy of favouring small and medium businesses, which are more adapted to a mountainous territory and the historical population, is applied to industry. All these measures help ensure that the destination of South Tyrol continuously sells well. The province enhances this eﬀect with the marketing of the brand ‘Südtirol ’,51 a measure which contributes also to the creation of a provincial identity both in the eyes of its inhabitants and of travellers. 9. Traﬃc Tourism creates traﬃc problems and here the competence of the province is considerably larger than what could be inferred from the text of the ASt alone. In fact, the Autonomous Province has full control over transportation within the province.52 In addition, the judgment of the provinces must be sought for concessions for transport crossing the territory of the Autonomous Province.53 In the late 1990s, the province took over the competences concerning state roads on its territory, including the respective maintenance personnel.

49

Art. 11 ASt. The ‘MeBo Center’, a shopping mall near Bolzano, had been built without the previous concession of a retailing license: the building has remained empty for ten years now. Other examples are the popular shopping trips to Innsbruck or Aﬃ, the closest shopping centres to the north and south, where on any Saturday, when most shops are closed in Bolzano, the main language of customers is the South Tyrolean dialect. 51 See <www.suedtirol-marketing.info>. Both brand and corporation carry exclusively the German name, containing the word ‘Tirol’ and not, as in the Italian name, ‘Alto Adige’, a reference to the Italian river ‘Adige’. The choice of this name has raised criticism and, in January 2007, the Italian government appealed to the Constitutional Court because of the exclusive use of the German name. 52 Art. 8 para. 17 ASt. 53 Art. 14 ASt. 50

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Both national roads and trains are integrated into a provincial traﬃc concept. Of course, it may seem inappropriate to splinter a competence where even the national level is too small to matter but the competence of the province comprises the right to negotiate with the neighbouring regions in Switzerland and Austria. The province holds also a major share in the society owning and controlling the important Brenner expressway and is participating in a century project: the ‘Brenner Basis Tunnel’ (BBT), two train tunnels from Innsbruck to the southern borders of the province. The 55 kilometre tunnel, the longest in the world, will connect Munich and Verona with a high speed train. The two hours travel from Innsbruck to Bolzano, today basically on the tracks of 1867, will drop to ﬁfty minutes through the tunnel. Currently, its costs are estimated at EUR 4 billion for the Italian side, EUR 2.5 billion for the state and EUR 0.7 billion for the province, with EUR 0.8 billion coming from the EU. The tunnel should be ready by 2015 but the progression of works and the public discussion insinuate that all ﬁgures will be higher in the end. 10. Water Administration Another example where it would be misleading to assume powers from the text of the ASt is the competence for waterworks and hydroelectric exploitation.54 In the late 1990s, South Tyrol gained the fortune of a 5.4 billion KW per year hydroelectric power production. Hydroelectricity was started by the Austrians, continued by the Italian state and now by a special company under provincial control. Hydroelectric power washes billions of Euros into the provincial budget; apart from the EUR 19 million per year for the use of water. Nevertheless, the legislative competence itself is becoming worthless, as the EU has ordered the sector to be liberalized. Still, the provinces have control over mining, including mineral waters and hot springs, quarries and peat bogs.55 11. Entailed Farms Finally, there is also a unique legal concept amongst the competences, the concept of ‘geschlossener Hof ’, ‘maso chiuso’ or ‘entailed farm’. This tradition dates back to a law for Tyrol of 1900, which was abolished in 1929 and reintroduced in 1954. The idea is to prevent the subdivision of agricultural units, especially through property division amongst all heirs. The division of land through many generations has led to migration into cities and abandonment of mountain areas elsewhere. According to the ‘entailed farm’ principle, the land, means of agricultural production and the farm house can neither be divided through inheritance nor contract. Economically, the sole heir of an ‘entailed farm’ has to pay out the other heirs but this is facilitated through the legal ﬁction that not the market

54 55

Art. 9 para. 9 ASt. See also Art. 13. Art. 8 para. 14 ASt.

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value but only the production value has been handed down. All ‘entailed farms’ are recorded in a property register, which is in itself an exception in Italy. It had been used in Austria and Germany and is only used in the region; it is unknown in the rest of Italy.56 12. Civil and Political Rights The South Tyrolese are citizens of Italy. However, only four years of uninterrupted residence in the Province of South Tyrol (one year in Trentino) give a person the right to vote in that province. Therefore, the right to vote in South Tyrol is not limited to a speciﬁc number of German- and Italian-speakers (historically, there was a fear that if many Italians were to move into the area, the German-speakers would be outnumbered). Today, with decreasing numbers of security forces personnel and after the closure of the few large industrial plants, there is hardly any fear of a mass immigration of Italians from other provinces; the residency clause is currently under political debate. The citizens from other EU member states residing in the province have the right to vote at the municipal level. EU citizens have to be treated equally, which may cause incompatibilities that may often only be resolved by privileging them (there are some 4,000 EU citizens in the region, most of them from Austria or Germany). Diﬀerent treatment of Italian citizens from other provinces does usually neither contrast with EU law nor—in cases of public interest and justiﬁcation as a proportionate measure—with domestic Italian law (e.g., the equality principle). There is also an increasing number of non-EU citizens (with 28,000 residents, this already amounts to more than the Ladin population), which provides for a cheap labour force. Not having Italian or EU citizenship, they are excluded from political rights, even if they have legal residence in the province. 13. State Symbols The Italian and the European ﬂag must be used in South Tyrol. However, the region Trentino-South Tyrol and the provinces of Trento and Bolzano may have their own oﬃcial ﬂags and seals, approved by decree of the Italian president.57 Since November 2001, the German name ‘Südtirol ’ has been added to the region’s name ‘Trentino-Alto Adige’ in the Italian Constitution.58 14. Administration of Justice Criminal and civil justice is administered by the Italian government, under Italy’s uniﬁed national court system. The regions administer a regional administrative

56 57 58

See the chapter by Giovanni Poggeschi on the ‘entailed farm’ system in this volume. Art. 3 ASt. Art. 116 Italian Constitution, as amended by Constitutional Law No. 3 of 2001.

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court only and some personnel of the justice of the peace. The transfer of additional administrative powers to the provinces or the region is under political debate. 15. Law and Order Within the limits of state law, the provinces have control over local city and rural police.59 The president of the provincial government exercises the function of public order authority and sets forth existing laws in the ﬁelds of dangerous industry, noisy and inconvenient trades, establishments open to the public, agencies, printing houses, peddlers, workers and domestic servants, the mentally ill, alcohol and drug addicts, beggars and minors.60 Other functions of public order in the provinces are coordinated by the government’s commissioner. The provinces have the power to enforce laws, using the same penalties as the state.61 E. Brief Evaluation of the Use of the Legislative Autonomy: Some Conclusions It is no trivial task to evaluate the importance of these competences. Some of them seem futile splinters (ﬁshing, hunting, etc.), suggesting that the most important parts must be still with the state, such as security, defence and social policy. The various limits and constraints of autonomous legislation have to be considered and the implicit restraint that the impact of provincial laws is conﬁned to a small territory compared to the state’s. Nevertheless, for the following reasons, these provincial competences provide for abundant real power: 1. Closer to the people: provincial laws rule most everyday situations: schools, language, culture, housing, roads, subsidies (sports, agriculture, languagelearning, etc.) and jobs depend on public money. The impact of the province is felt much more than the rather abstract subjects of national concern: foreign policy, state budget, etc. 2. More money in loco for using the competences: the exercise of a competence usually costs money. Following a rule of thumb, the state has little money and the province much.62 Therefore, the state uses competences to a lesser degree than the province, with the eﬀect that concurrent competences are taken charge of by the province, something that the state tolerates. 3. The state collects and the province spends: one of the main exclusive state competences left is taxation. The province, however, receives 90% of most of the taxes and can distribute this money. Thereby, the state is the taker and the

59 60 61 62

Art. 9 para. 1 ASt. Art. 20 ASt. Arts. 20–23 ASt. See the chapter by Thomas Benedikter on ﬁnances in this volume.

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province the giver; thus, it is no wonder that the province’s laws are seen in a milder light than the state’s. 4. The province uses competences to become competitive: even if the original motivation for conceding autonomous legislation was the minority question, these competences were also used to create wealth and education and, through this, a stronger power position. The province rules and administers often more eﬃciently than the state and therefore the inﬂuence of the province’s autonomous legislation has inﬂuenced South Tyrol much more than what could be expected from the text. 5. Statistics show consistently and over a long period a very diﬀerent development for South Tyrol than for the rest of Italy (and even a comparable part of it). This indicates that the province has enough levers to govern suﬃciently diﬀerently and escape from the state’s general poor performance. In addition to the wide range of powers aﬀecting the citizens’ everyday life, South Tyrol’s strong legal autonomy is founded on the negotiating power of its stable and reliable political system as well as on its economic power and suﬃcient ﬁnancial resources for the eﬀective use of its wide-ranging powers, which permit it to ﬁll the competences with life. In the end, even South Tyrol’s overstaﬀed administration contributes, ensuring that all laws are thoroughly applied and controlled.

II. Administrative Powers After analyzing the legislative powers of the Autonomous Province of Bolzano/ Bozen, its administrative competences should be discussed. Considerations regarding legislative power are preliminary to any reﬂection on the administrative side, as the two proﬁles are strictly linked. In the Italian legal system, legislative competence includes also the power to decide on the allocation of administrative functions.63 Generally, the legislators at the national, regional as well as provincial levels (meaning the Autonomous Provinces) decide the criteria that are decisive for the attribution of administrative competences among the various levels of government. However, by doing so, they have to observe the limits set by the Italian Constitution.

63 Paolo Urbani, “L’allocazione delle funzioni amministrative secondo il Titolo V della Costituzione: una prima lettura”, in Silvio Gambino (eds.), Il ‘nuovo’ ordinamento regionale: competenze e diritti (Giuﬀrè Editore, Milano, 2003), 85–97, at 85. The author believes that the principle is conﬁrmed by Art. 97 of the Italian Constitution, providing that public oﬃces are organized according to the provisions of law, so as to ensure the eﬃciency and impartiality of administration. In this regard, see also Sergio Bartole et al., Diritto Regionale (Il Mulino, Bologna, 2005), 163.

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A. The General Picture: Distribution of Administrative Powers in Italy With regard to administrative functions, the main principles inspiring the Italian Constitution can be found in its Article 5,64 supporting administrative decentralization, institutional pluralism and local autonomy.65 In particular, the principle of institutional pluralism requires identifying the criteria for the distribution of administrative functions among the various levels of government. Before 2001, the allocation of administrative functions was regulated by Article 118 of the Italian Constitution. This Article stated—as a general principle—that regions could exercise administrative functions only if they were attributed legislative power, which means in the subject matters listed in the version of Article 117 of the Italian Constitution prior to 2001 (the so-called principle of parallelism between legislative and administrative functions).66 Even in this case, administrative functions could be attributed by state legislation to provinces, municipalities and other local entities, if they concern subject matters having an exclusive local interest. Moreover, Article 118 provided that a state legislation could delegate to regions further administrative functions.67 Finally, it declared that regions usually exercised administrative functions by delegating them to provinces, municipalities and other local entities or making use of their oﬃces. The scheme drawn by this provision clearly reveals that, before 2001, the exercise of administrative functions by the state should have been considered to be a residual option. As a matter of fact, the state could exercise administrative functions only if the regions were not attributed legislative power or if it was necessary to safeguard a unitary interest. Nevertheless, the criteria singled out by the old version of Article 118 have not been fully respected. In certain cases, the state disregarded the rules of Article 118 by exercising the administrative functions theoretically attributed to the regions,68 while the regions did not suﬃciently delegate functions to the provinces, municipalities and local entities.69 64 Art. 5 of the Italian Constitution states: “[t]he Republic, one and indivisible, recognizes and promotes local autonomies, and implements the fullest measure of administrative decentralization in those services which depend on the State. The Republic accords the principles and methods of its legislation to the requirements of autonomy and decentralization.” 65 Fabrizio Fracchia, “Le funzioni amministrative nel nuovo articolo 118 della Costituzione”, in Giuseppe Franco Ferrari and Gianpaolo Parodi (eds.), La revisione costituzionale del Titolo V tra nuovo regionalismo e federalismo: problemi applicativi e linee evolutive (Cedam, Padova, 2003), 159–177, at 160. 66 The principle, elaborated by the jurisprudence, regards only the regions and not the local entities that do not have any legislative power. See Roberto Bin, “La funzione amministrativa nel nuovo Titolo V della Costituzione”, Le Regioni, (2002) No. 2–3, 365–382. 67 It means in subject matters outside the remit of Art. 117 Italian Constitution. 68 The Italian Constitutional Court intervened in order to limit the use of this power by the state, for example, in Case No. 408 of 1998. 69 In fact, administrative functions were rarely delegated by the Trentino-South Tyrol region to

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In this context, in the second half of the 1990s the Italian parliament issued two laws (No. 59 and No. 127 of 1997)70 that aimed at transferring—without changing the Constitution—a large number of administrative functions from the state to the regions and the local entities. In particular, Law No. 59—in contrast with the abovementioned principle of parallelism—vested regions and local entities with administrative competence even with regard to subject matters of state legislative power.71 In 2001, Constitutional Law No. 3 served to modify also the articles of the Italian Constitution on administrative functions. First of all, the reform of 2001 modiﬁed Article 114 of the Italian Constitution, which now recognizes that the republic is composed of municipalities, provinces, metropolitan cities72 and regions. These are autonomous entities, having their own statutes, powers and functions,73 according to the principles laid down in the Constitution. Furthermore, Constitutional Law No. 3 of 2001 reformed Article 118 of the Italian Constitution, identifying the new criteria to follow in order to distribute the administrative functions among the various levels of government. In particular, the new Article 118 of the Italian Constitution states: Administrative functions are attributed to Municipalities, unless they are attributed to Provinces, Metropolitan Cities and Regions or to the State, pursuant to the principle of subsidiarity, diﬀerentiation and proportionality, to ensure their uniform implementation. Municipalities, Provinces and Metropolitan Cities carry out administrative functions of their own, as well as the functions assigned to them by state or by regional legislation, according to their respective competences.

the Province of Bolzano/Bozen. This is, among others, a reason that explains the growing demand for autonomy by the province. In 1957, the tense relationship between the province and the region culminated in the so-called ‘Los von Trient’ (Away from Trento) demonstration. On that occasion, 35,000 South Tyrolean people called for the withdrawal of South Tyrol from the regional government. See Alcock, op. cit. note 1, 10. See also the chapter by Emma Lantschner on the history of the South Tyrol conﬂict. For a general overview, see Temistocle Martines, Antonio Ruggeri and Carmela Salazar, Lineamenti di diritto regionale (Giuﬀrè, Milano, 2005), 221; and Giandomenico Falcon, “Modello e transizione nel nuovo Titolo V della parte seconda della Costituzione”, in Giandomenico Falcon (ed.), Sviluppo e Mutamento della Costituzione: il regionalismo italiano e la speciale autonomia del Trentino e dell’Alto Adige/Südtirol (Cedam, Padova, 2003), 67–109, at 88. 70 The so-called ‘Bassanini’ reform, followed by the legislative decrees putting into eﬀect the reform (among others, Law No. 112 of 1998). 71 Alfonso Celotto and Agostino Sarandrea, “Le funzioni amministrative”, in Tania Groppi and Marco Olivetti (eds.), Regioni ed enti locali nel nuovo Titolo V (Giappichelli Editore, Torino, 2003), 177–196, at 179. For more, see the chapter by Jens Woelk on the relations with central government in this volume. 72 Metropolitan cities have been formally introduced by Law No. 142 of 1990 (then reformed by Laws No. 436 of 1993, No. 265 of 1999 and No. 267 of 2000, the so-called Testo Unico sulle autonomie locali ). According to this legislation, they should have been local entities corresponding to large metropolitan areas, with administrative functions. To date, they have not yet been established. See Nicola Vizioli, “Le città metropolitane e Roma capitale”, in Groppi and Olivetti, op. cit. note 72, 221–226. 73 To be interpreted respectively as legislative (provinces and regions) and administrative (municipalities and metropolitan cities).

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State legislation shall provide for co-ordinated action between State and Regions in the subject matters provided by Article 117, paragraph two, letters b) and h), and also provide for agreements and co-ordinated action in the ﬁeld of cultural heritage preservation. State, Regions, Metropolitan Cities, Provinces and Municipalities shall promote the autonomous initiatives of citizens, both as individuals and as members of associations, relating to activities of general interest, on the basis of principle of subsidiarity.

The new Article 118, therefore, is no longer based on the principle of parallelism (as was its previous version) but establishes, as a general rule, the administrative competence of the municipalities. Nevertheless, this is not an absolute principle, as paragraph 1 admits that the administrative functions are attributed to provinces, metropolitan cities, regions and the state if it is necessary to guarantee their uniform implementation, pursuant to the principles of subsidiarity, diﬀerentiation and proportionality.74 The principle of subsidiarity means—in general terms—that what the lesser entity can do adequately should not be done by the higher entity, unless it can do it better.75 The administrative competence attributed to the local level by Article 118 is a clear expression of this principle.76 The other two principles are strictly connected. Diﬀerentiation means that municipalities can exercise administrative functions only if they can do it satisfactorily;77 proportionality means that municipalities can exercise administrative functions only if they can achieve eﬃcient and eﬀective results.78 On the contrary, administrative competence is attributed to the higher level (for example, the provincial level). The model introduced by the constitutional reform of 2001 gave rise to a consistent number of interpretative problems. Without going into details, it is just worth mentioning that Article 118, after stating that the administrative functions are attributed to the local level,79 declares that municipalities, provinces and metropolitan cities have administrative functions of their own, as well as functions assigned to them by state or regional legislation.80

74 See Enrico Follieri, “Le funzioni amministrative nel nuovo Titolo V della parte seconda della Costituzione”, Le Regioni, (2002) No. 2–3, 439–458. 75 Bartole et al., op. cit. note 64, 186. 76 The principle has to be interpreted both as vertical and horizontal subsidiarity. The latter is well expressed by Art. 118 para. 4 Italian Constitution. 77 This principle reﬂects the varied picture of the Italian municipalities. In fact, small municipalities are not always able to exercise eﬀectively the administrative functions and to guarantee the public services. 78 Urbani, op. cit. note 64, 87; Fracchia, op. cit. note 66, 171; Giancarlo Rolla, “L’autonomia dei comuni e delle province”, in Groppi and Olivetti, op. cit. note 72, 207–219. 79 Art. 118 para. 1. 80 Ibid. The Italian version speaks of ‘funzioni amministrative proprie’ and ‘funzioni conferite con legge statale o regionale’. The debate is still open about the interpretation of the diﬀerent types of administrative functions included in Art. 118, as well as the distribution of the administrative

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The Italian Constitutional Court intervened in order to clarify the content of the constitutional provisions in Case 303 of 2003 (conﬁrmed by Case 6 of 2004).81 First of all, the Court declared that Article 118 paragraph 1 introduced a dynamic system, which has relevant consequences even on the legislative ﬁeld, making less strict the distribution of legislative powers between the state and the regions.82 Article 118 provides that the state can exercise administrative functions instead of the municipalities (provinces and regions), pursuant to the principles of subsidiarity, diﬀerentiation and proportionality, and, when it is necessary, to safeguard a national interest. In these cases, according to the principle of legality, the state is entitled to exercise both administrative functions and the corresponding legislative power.83 As a matter of fact, it is not possible for distinct regional laws to regulate the administrative competence attributed to the state level. This function can indeed only be exercised at the state level. However, in these cases, the exercise of the legislative power by the state is subject to a speciﬁc procedure. The state’s discipline can enter into force only after having reached an agreement between the state and the regions.84 What are the consequences of these changes in the national context (especially of new Article 118 of the Italian Constitution) for the special status of the Autonomous Province of Bolzano/Bozen? B. Administrative Powers in South Tyrol In the autonomous regions,85 the rules, which discipline administrative competences, are partly diﬀerent from the principles introduced by the constitutional reform in the regions of ordinary statute. According to this reform, administrative competence is generally attributed to the municipalities, whereas legislative power is exercised by the regions. On the contrary, the autonomy statutes are still based on the principle of parallelism.86 This means that the autonomous regions hold administrative compe-

functions pursuant to the principles of subsidiarity, diﬀerentiation and proportionality. See Bartole et al., op. cit. note 64, 187; Urbani, op. cit. note 64, 95; Fracchia, op. cit. note 66, 169; and Celotto and Sarandrea, op. cit. note 72, 183. 81 A summary of both the cases can be found in Francesco Marcelli and Valeria Giammusso, Tra Stato e Regioni: guida all’orientamento, sintesi di 350 pronunce della Corte Costituzionale (2002–2005) (Quaderni di documentazione, Servizio Studi Senato della Repubblica, Roma, 2005), 195–204. 82 Martines, Ruggeri and Salazar, op. cit. note 70, 249. 83 As the principle of legality means that the administrative functions have to be organized and regulated by the law. 84 It seems, thus, that the principle of subsidiarity has still to be respected, even if from a procedural point of view. 85 Friuli-Venezia Giulia, Sardegna, Sicilia, Valle d’Aosta and Trentino-Alto Adige/Südtirol are regions having special forms and conditions of autonomy pursuant to their special statutes. See Art. 116 Italian Constitution. 86 An attempt not to strictly apply this principle has been recently made by the Autonomous Province of Trento, passing a Law (No. 3 of 2006), which attributes, in the name of subsidiarity, more administrative functions to the local level.

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tence in the subject matters to which they were attributed legislative power; in practice, they usually delegate it to the municipalities (and other local entities) or make use of their oﬃces.87 This is the principle in force also in the Autonomous Province of Bolzano/ Bozen,88 according to Article 16 of the Autonomy Statute of Trentino-South Tyrol: 1. For the matters and within the limits in which the Region or the Province may issue laws, the relative administrative powers which, on the basis of previous regulations, were vested in the State, shall be exercised respectively by the Region and the Province. 2. The powers granted to the Provinces under laws currently in force shall remain unaltered in so far as they are compatible with the present Statute. 3. The State may also delegate by law its administrative functions to the Region, to the Province and to the local public bodies. In this case the cost of carrying out these functions shall be borne by the State. 4. The delegation of administrative functions of the State, even if conferred by the present law, may be modiﬁed or revoked by ordinary law of the Republic.

Moreover, Article 18 ASt provides that the Trentino-South Tyrol region usually exercises the administrative functions by delegating them to the provinces and the municipalities, or by making use of their oﬃces.89 Given the peculiarity of the autonomous regions, it was necessary to ﬁnd a way to harmonize the provisions of their statutes with the new Article 118 of the Italian Constitution. To this end, Article 10 of Constitutional Law No. 3 of 2001 states that, until they change their statutes, the autonomous regions will beneﬁt from the higher degree of autonomy recognized by the constitutional reform. This provision implicitly safeguards the special status of the autonomous regions. At the same time, it declares the necessary enforcement in those regions of the beneﬁts introduced by the constitutional reform and the need that the autonomy statutes conform to the new constitutional system.90 It is evident that, without Article 10, the autonomous regions would be in a worse position than

87

Antonio D’Atena, Le Regioni dopo il big bang, il viaggio continua (Giuﬀrè, Milano, 2005),

174. 88 It is worth remembering that the Autonomous Provinces of Trento and Bolzano/Bozen have a constitutional status that can be assimilated to the autonomous regions. Therefore, any consideration regarding the autonomous regions are valid even with regard to the autonomous provinces. 89 Art. 18 states: “1. The Region shall normally exercise its administrative functions by delegating them to the Provinces, the Municipalities and other local entities, or making use of their oﬃces. Delegation to the Provinces is compulsory for ﬁre protection services. 2. The Provinces may delegate some of their administrative functions to the Municipalities or other local entities or make use of their oﬃces.” 90 Fulvio Cortese, “Le competenze amministrative nel nuovo Titolo V: sussidiarietà, diﬀerenziazione ed adeguatezza come criteri allocativi”, in Giuseppe Avolio and Francesco Palermo (eds.), La riforma del Titolo V, parte seconda, della Costitutione Italiana, analisi ed eﬀetti per la Provincia Autonoma di Bolzano (Quaderni, Eurac Research, No. 46, Bolzano/Bolzen, 2004), 43–94, at 92.

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the regions with ordinary statute, being unable to take advantage of the reformed constitutional provisions.91 Article 10 of Constitutional Law No. 3 of 2001 has to be read together with Article 11 of Law No. 131 of 2003, the ordinary law implementing the details following from the constitutional amendments of 2001. First of all, Article 1 of this law conﬁrms that in the autonomous regions the autonomy statutes remain valid. What is even more relevant is that Article 2 states that, with regard to the subject matters in which autonomous regions have legislative power according to Article 10 of Constitutional Law No. 3 of 2001, the enactment decrees of the autonomy statutes92 regulate the transfer of resources from state to regions in order to exercise even the corresponding administrative functions.93 The provisions of Article 10 of Constitutional Law No. 3 of 2001 and Article 11 of Law No. 131 of 2003, instead of clarifying the framework, however, gave rise to many problems of interpretation. First of all, it is not clear whether the principles introduced by these two articles have to be applied only to the autonomous regions and the autonomous provinces or also to their local entities. In the ﬁrst case, administrative competence would be regulated by the principle of parallelism. In the second, administrative functions would be distributed, as in the regions with ordinary statute, according to Article 118 of the Italian Constitution. As a consequence, the principle of parallelism would be abandoned and administrative competence would be attributed, as a general rule, to the municipalities, according to paragraph 1 of Article 118. Most authors believe that the ﬁrst option should be preferred, thus concluding that the principle of parallelism and the entire system resulting from the autonomy statutes are still in force in the autonomous regions and in the autonomous provinces.94 Furthermore, there are doubts whether the principle of parallelism has to be applied both to the administrative functions attributed to the autonomous regions

91

D’Atena, op. cit. note 88, 175. They are legislative decrees proposed by joint commissions, called Commissioni Paritetiche, which are provided by the statutes of the autonomous regions. 93 On the enactment decrees of the Autonomy Statute of the Trentino-South Tyrol region, see Provincia Autonoma di Bolzano-Alto Adige, Statuto di autonomia e norme di attuazione, (Provincia Autonoma di Bolzano, Bolzano/Bozen, 2004); and Regione Autonoma Trentino-Alto Adige and Università degli studi di Trento, Dipartimento di Scienze Giuridiche, Commentario delle norme di attuazione dello statuto speciale di autonomia (Regione Autonoma Trentino-Alto Adige, Trento, 1995). See also Carlo Carruba, “L’allocazione delle funzioni amministrative dal 1948 ad oggi: il quadro costituzionale e la legislazione ordinaria. Uno sguardo alle Regioni a Statuto Speciale”, in Luca Mezzetti (ed.), La Costituzione delle autonomie, le riforme del Titolo V, Parte II, della Costituzione (Edizioni Giuridiche Simone, Napoli, 2004), 99–155, at 135–141. 94 See Cortese, op. cit. note 91, 93; Guido Meloni, “Il decentramento delle competenze amministrative nelle Regioni a Statuto Speciale e il nuovo modello costituzionale dell’amministrazione”, in Amministrazione in cammino, Rivista elettronica di diritto pubblico, di diritto dell’economia e di scienza dell’amministrazione a cura del Centro di ricerca Vittorio Bachelet, at ; and D’Atena, op. cit. note 88, 175. 92

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according to Article 10 of Constitutional Law No. 3 of 2001 and the (original) administrative functions provided by the autonomy statutes.95 In this regard, the Italian Constitutional Court (in Case 236 of 2004) declared that only the latter should be attributed according to the principle of parallelism. Conversely, the distribution of administrative functions attributed according to Article 10 should follow the criteria of the new Article 118 of the Constitution.96 Regardless of the diﬀerent opinions, what clearly emerges from the above are the many questions arising from the constitutional reform of 2001 with regard to the administrative competence of the autonomous regions and the Autonomous Provinces of Trento and Bolzano/Bozen. It is therefore strongly desirable, as indirectly provided even by Article 10 of Constitutional Law No. 3 of 2001, for a review of the autonomy statutes to take place, including the one for TrentinoSouth Tyrol, in order to reach a more uniform discipline between the autonomous regions and the regions of ordinary statute in the distribution of administrative functions. Finally, it is worth mentioning that, for the time being, even though the Autonomous Provinces of Trento and Bolzano/Bozen have received larger administrative functions, they have rarely delegated them to the municipalities and other local entities (as intended by the reforms). C. Public Administration in South Tyrol The ministers of the provincial government97 have the power to oversee administration in those areas of provincial competence but they can also exercise speciﬁc functions as individual organs. To this end, the Autonomy Statute explicitly provides that the president of the province shall decide on the allocation of responsibilities to individual ministers according to a decree published in the Oﬃcial Bulletin of the Region.98 The president of the province and the ministers that compose the provincial government are responsible for the 11 departments and the 41 divisions in which the provincial administration is structured. Particularly, besides the department headed by the president of the province (department for local entities, ﬁre prevention, agriculture and hydraulic and forestry experimentation), the other departments are: the department for German education and for German and Ladin professional training; the department for Italian professional training and education, research and innovation; the department for agriculture, informatics and the land registry oﬃce; the department for estate administration, Italian culture and housing; the department for handicraft, ﬁnance and the budget; the

95

Bartole et al., op. cit. note 64, 191. Martines, Ruggeri and Salazar, op. cit. note 70, 225. 97 See Art. 47 ASt and the chapter by Giuseppe Avolio on institutions of self-government in this volume. 98 Art. 52 para. 3 ASt. 96

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department for family, arts and German culture; the department for urban planning, environment and energy; the department for Ladin culture, education and for public works; the department for health and welfare; and the department for human resources, tourism and transport. In 2004, the number of civil servants employed in the provincial administration and in the provincial council was 9,438. In the same year, there were 7,191 teachers, 7,414 people employed in the independent provincial administrations, 7,191 in the local health authorities, 4,051 in the municipalities and 2,129 in the districts and other local administrations.99 At that time, therefore, the people employed in the provincial administration and in the provincial council represented 30.4% of the total number of civil servants, those employed in the munici-palities 12.7%, in other provincial administration 11.9%, in the local health authorities 22.5% and the teachers 22.4%. 69.2% of the provincial/local civil servants belonged to the German language group, 27.3% to the Italian language group and the remaining 3.5% to the Ladin language group. Furthermore, always referring to the data of 2004, in South Tyrol national civil servants numbered 7,693 (5,250 employed in ministries, 398 in social insurance institutions, 24 in the Italian Automobile Association, 863 in the railway company, and 1,158 in the post oﬃce). According to the enactment decree implementing Article 89 ASt (D.P.R. No. 752 of 26 July 1976), the Government’s Commissioner for the Province of Bolzano/Bozen is responsible for the supervision of state personnel operating in the autonomous province, as well as for the application of the rules relating to the proportional quota system and bilingualism.100 To better understand public administration in South Tyrol, we have also to consider the role of municipalities, which should exercise all the administrative functions of local interest. There are 116 South Tyrolean municipalities. Each municipality has its own charter, which provides the fundamental rules regarding the organization of its oﬃces, the powers of its internal organs, citizens’ participation in its activities and citizens’ access to information and to administrative procedures. Each municipality, as an autonomous corporation, has its own organs. The mayor is the head and the representative of the municipality; the municipal council is the political-administrative directing and control body; and the municipal committee, with the mayor at its head, is responsible for carrying out all administrative activities. The duties of the municipalities involve all the administrative powers that aﬀect its population and territory, particularly in the social service sector, area planning and economic development. Social functions include the maintenance of pub99 See Annuario Statistico della Provincia di Bolzano 2005, at . As the data in the appendix show, the civil service is the backbone of South Tyrolean labour force. 100 See the chapter by Jens Woelk on the relations with the central government in this volume; and Antonio Lampis, “Il Commissario del Governo per la Provincia di Bolzano”, in Joseph Marko, Sergio Ortino and Francesco Palermo (eds.), L’ordinamento speciale della Provincia Autonoma di Bolzano (Cedam, Padova, 2001), 558–564.

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lic security and order (the municipal police), responsibility for the ﬁre brigade, health care, sports facilities, rubbish disposal, etc. Cultural functions involve the building and maintenance of schools, theatres, museums, libraries and archives. Economic functions involve traﬃc arrangements, provision of energy and water, public lighting and general promotion of the economy. In order to ensure that the municipalities are in a ﬁnancial position to achieve the objectives and carry out the functions prescribed by law, Article 81 paragraph 2 ASt states that the Province of Bolzano/Bozen (as well as the Province of Trento) shall provide them with the necessary ﬁnancial means, the exact ﬁgure to be agreed between the president of the province and their joint representation.101 At the moment, the ordinary municipalities budget is made up of subsidies from the autonomous province, even if a local business tax and a building tax have been introduced. South Tyrol also has eight districts (comprensori). The organs of the districts are the president, the district committee and the district council. The powers of the districts include, among others, the implementation of supra-municipal building plans (schools, sewers, roads, homes for the elderly, etc.), the examination and resolution of supra- and inter-municipal problems, the preparation of plans for the economic, social and cultural development of the area, as well as the management of social services.102 Apparently, municipalities seem therefore to have wide administrative powers but, in reality, they are limited by the dominant position of the autonomous province. This is a corollary, among other things, of the predominance of the Südtiroler Volkspartei (SVP) in the South Tyrol political framework. Since 1948, this party has gained the majority of votes in local and provincial elections in South Tyrol.103 As a consequence, mayors tend to be inﬂuenced by the party directives coming from the provincial level, aﬀecting their autonomy also in the administrative ﬁeld.104 Besides some open issues, particularly with regard to the relationship between provincial and municipal autonomy, all in all the legislative and administrative powers in South Tyrol are fully developed and implemented. This also contributes to the establishment of tolerance through legal mechanisms, the key to the overall success of the South Tyrolean Autonomy.

101 See Giuseppe Negri, “I Comuni. Ordinamento, Competenze e Disciplina Elettorale”, in ibid., 452–471. 102 See Antonio Paolo Arman, “Le Comunità Comprensoriali”, in ibid., 487–496. 103 See the chapter by Günter Pallaver on consociational democracy in this volume. 104 The SVP holds 113 out of 116 mayoral seats in the province and is part of the governing coalition in all of them. Moreover, in 2006, 113 mayors signed a petition elaborated by the Schützen (local traditional association standing up for the protection of Tyrolean traditions and values, historical Tyrolean sites and interests) asking the Austrian parliament to include in the Austrian Constitution a clause attributing Austria the role as kin-state.

CHAPTER SIX

THE FINANCIAL SYSTEM OF THE AUTONOMOUS PROVINCE OF BOLZANO/BOZEN Thomas Benedikter

I. The General Framework of Financing Italy’s Regions with a Special Statute Italy’s regions are divided into two distinct groups: the regions with an ordinary statute (hereinafter “ordinary regions”) and the regions with a special statute (hereinafter “special regions”). Apart from the fundamental constitutional diﬀerences, the two classes or categories of regions clearly diﬀer also in their ﬁnancing system. While the ﬁnances of the ordinary regions are settled in a uniform manner by the Italian Constitution (Title V Art. 119 and, with secondary importance, Art. 117) and by the corresponding national acts and decrees, the ﬁve special regions have a diﬀerent ﬁnance system, each regulated by a distinct national act along with the rules given by the respective autonomy statutes. Although they have a speciﬁc ﬁnancing system established by a speciﬁc state act, the regions with a special autonomy share certain fundamental features in terms of their ﬁnancing mechanism. All of them, in fact, are based on the participation of the autonomous regions to the state’s tax revenue collected on their respective territory. Both the kind of taxes to be ceded to the region and the percentage of participation (or ‘cession’, if seen from the central state’s perspective) varies from region to region. Further minor revenues of the special regions ﬂow as direct transfers from the central state budget to the special regions and from regional fees and taxes proper. However, no special region in Italy has achieved major powers to legislate and manage its own taxes, let alone to regulate a regional tax system on its own. The basic features of the Italian tax system are homogeneously set by the state on the whole territory of the state. This ﬁnance system, based on the region’s participation in the state’s tax revenues collected on their territory, initially was in force only in Sicily (Presidential Decree No. 1074/1965) and later was extended also to the Aosta Valley (State Act No. 670/1981), to Sardinia (State Act No. 122/1983), to Friuli-Venezia Giulia (State Act No. 690/1984) and ﬁnally also to the region and two autonomous provinces of Trentino-South Tyrol (State Act No. 386/1989). In terms of tax revenues per head of the region’s population and in terms of the respective spending capacity of the autonomous bodies, this system has provided a level of resources clearly higher than the average spending capacity of the ordinary regions. In 2004, for example, the special regions, on average, could spend an overall sum of

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4,856 EUR per head (6,256 EUR per head in the three northern special regions), in comparison with the per head expenditure of the ordinary regions of 2,521 EUR per year. Of course, when comparing the ﬁnance systems, the revenues and the expenditures of the two groups of regions, the diﬀerences in their powers and responsibilities should always be duly kept in mind.1 While the ﬁnancing system of the special regions during the 1980s gradually shifted from a derivative ﬁnance (direct transfers from the central state’s budget linked to the general chapters of its expenditures) to a system based on a ﬁxed percentage of participation in the state’s tax revenues, the special regions gradually lost the resources that stemmed from the direct transfers from the central state. However, this form of direct transfer is still the major source of revenue of the ordinary regions. The ‘phasing out’ of most of the direct transfers from the state’s budget started with State Act No. 40/1989,2 which concerned all special regions but in a diﬀerent manner. It caused, for example, the exclusion of the Aosta Valley from the National Health Fund and the Fund for Regional Development. For the region Trentino-South Tyrol and the two autonomous provinces, it produced a straight reduction of the so-called ‘variable quota’. During the 1990s, all of the special regions, following the new system of participation in the state’s regionally collected tax revenue, lost the right to cash in the transfer sums from national funds, as they could beneﬁt from around 90–100% of the tax revenues collected by the state tax oﬃces in their territories. Nevertheless, today some special regions still receive direct transfers from Rome for special development purposes, Sicily and Sardinia being notable examples. Table 1: Quota of Participation of the Special Regions in the State’s Tax Revenues Collected on their Territory Sicily

Kind of tax

Aosta Valley Sardinia

FriuliVenezia Giulia

Trentino-South Tyrol and Provinces of Bolzano/Bozen and Trento

D.P.R. L. 690/1981 L.122/1983 L. 457/84 Region 1074/65 L.386/89

Provinces L.386/89

IRPEF (income tax)

10/10

9/10

7/10

4/10

9/10

IRPEG (corporate tax)

10/10

9/10

7/10

4/10

9/10

Local income tax

10/10

9/10

1 Only a so-called territorial consolidated account of public revenues and expenditures can provide reliable information on the relative ﬁnancial setting of a region and allow correct and fair comparisons. Such a consolidated account takes account of all revenues and expenditures at all levels of government operating in a territory, eliminating each form of double counting. 2 “Norme in materia di ﬁnanza regionale”, at .

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Table 1 (cont.) Sicily

Aosta Valley Sardinia

FriuliVenezia Giulia

Trentino-South Tyrol and Provinces of Bolzano/Bozen and Trento

Tax on interests/ capital

10/10

9/10

9/10

Tax on companies gains

10/10

Tax on subsidies of public entities

10/10

Tax on lotteries and gambling

10/10

9/10

Fiscal amnesties

10/10

9/10

Tax ﬁnes

10/10

9/10

Tax on public exhibitions

10/10

9/10

Public register fee

10/10

9/10

9/10

VAT

10/10

9/10

Variable q.

Tax on stamps

10/10

9/10

9/10

Substitute tax on stamps

10/10

9/10

Tax on the public register

10/10

9/10

Mortgage tax

10/10

Radio and TV fees

10/10

Tax on public allowances

10/10

9/10 9/10

9/10

9/10

9/10

9/10

9/10 4/10

2/10

7/10 9/10

10/10

9/10

9/10

9/10

9/10

9/10

Sources: Relevant state acts.

Compared with autonomy systems in other European countries, this ﬁnancing system can be considered to be fully based on the regional capacity but to an extraordinary extent, as the central state still covers the costs of some important public services in the respective provinces (e.g., police, judiciary, tax administration, etc.) without retaining a signiﬁcant share of the overall tax revenue. Due to this system, the revenues of the special regions earned from the participation in state taxes collected on their territories are marked by a steady and respectable growth. From 8,692 million EUR in 1990 (17,1765 billion Lire) they rose to 19,031 EUR in 2004, hence doubled this kind of revenue within just 15 years. The loss of most direct ﬁnancial transfers from the state’s budget, therefore, has been more than compensated by the new source of ﬁnance, linked to the ﬁscal capacity of the relevant autonomous territory. Of course, apart from this principal source of revenue, the special regions beneﬁt from other kinds of revenues as

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regional taxes and fees, revenues from property and services, EU transfers, loans and credits, etc. Compared with the devolved state’s taxes, however, all of these forms of revenues are of secondary importance. True autonomous powers to establish additional taxes or to modify some of the central state’s taxes are very limited. The special regions, as explicitly noted in Article 47 of the Autonomy Statute of Friuli-Venezia Giulia and Article 7 of the Autonomy Statute of Sardinia, “have their own ﬁnance systems, but co-ordinated with that of the state”. This is conﬁrmed by Article 73 of the Autonomy Statute of Trentino-South Tyrol (ASt), which states that “the Region and the Provinces have the power to establish their own taxes in harmony with the principles of the tax system of the state on subjects of their respective competencies”.3 In summation, before illustrating the central legal features of the ﬁnance system of South Tyrol’s autonomy, there is a double asymmetry in the ﬁnancial systems of Italy’s regions. First, there is a basic diﬀerence in the very key element of ﬁnancing the region: whereas the special regions can comfortably rely on the revenues of most state taxes collected on their territory, the ordinary regions, based on the newly revised Article 119 of the Constitution, participate only to a very limited degree in the general tax revenues. However, the detailed regulation of the ‘ﬁscal federalism’ to be accorded to the normal regions is still to be deﬁned by a state act. On the other hand, in four out of ﬁve special regions (the exception being Friuli-Venezia Giulia), the degree of participation in state taxes by the special regions touches or exceeds 90% of the total revenues. Second, there is an asymmetry among the ﬁve special regions themselves. There are three special regions in the north with a GDP per capita at the top of Italy’s ranking, while the two islands in the south, Sicily and Sardinia, have a much less developed ﬁscal capacity, similar to the rest of Italy’s Mezzogiorno. However, this obvious diﬀerence has had no inﬂuence in regulating the percentage of the participation in the state’s regionally collected tax revenue.

II. The Financial System of the Province of Bolzano/Bozen Today A sound and stable ﬁnancial system is one of the key factors for the implementation of each autonomy regime. South Tyrol’s special autonomy does not encompass the ﬁeld of taxation, except some few cases provided by the Autonomy Statute in which it can exercise a limited tax sovereignty. Generally, in Italy, the central state has still retained all of the main responsibilities for regulating taxation and tariﬀs by state laws and collecting the tax revenue through its own ﬁnancial administration. Hence, the ﬁnances of the Province of Bolzano, along with

3

The Autonomy Statute of the Autonomous Region of Trentino-South Tyrol can be found at .

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those of all Italian regions, provinces and municipalities, depend largely on the transfer from the central state’s budget but, compared with the regions with an ordinary statute, the ﬁnances of the Province of Bolzano have followed a diﬀerent and much more advantageous pattern. The Autonomy Statute includes detailed provisions on the ﬁnancial resources available to the province (Arts. 69–86 ASt) but the decisive ﬁnancial regulations are contained in an ordinary state act (State Act No. 386 of 30 November 1989).4 The Autonomy Statute lays down three important principles: 1. The province is entitled to receive nearly all the tax revenue collected by the central state within the provincial territory, as well as the tax revenue collected outside, insofar as the income or expenditure involved relates to activities connected somewhere within the territory of the province. The state merely retains a portion of the tax revenue (usually 1/10) in order to cover the assessment and collection costs. On average, the province’s participation share determined by law is 9/10. In the case of VAT it is 7/10, as 2/10 are reserved for the Autonomous Region of Trentino-South Tyrol. The revenue from mortgage tax is entirely devolved to the Autonomous Region of Trentino-South Tyrol. In addition to the funds from the state tax revenue, the province is also entitled to beneﬁt from direct transfers from the state’s budget and the European Union in order to carry out speciﬁc programmes (social, structural, agricultural EU funds and similar). 2. The allocation of ﬁnancial resources to the province must take place at regular periods and for the most part is in no way earmarked. In the ﬁeld of expenditure, therefore, the province has complete budgetary freedom, while the responsibility for collecting taxes continues to lie with the central administration. 3. The ﬁnancial system of the Autonomous Province of Bolzano cannot be altered without the agreement of the province. Hence, there are three kinds of revenues in the provincial budget: a) Automatic revenues: all revenues stemming from the state’s tax revenues in a ﬁxed share along with the revenues from the province’s own taxes. b) Revenues linked to periodical agreements with the central state, with the EU and the region Trentino-South Tyrol (so-called ‘variable quotas’ on the participation in taxes), programme-linked contributions and the ﬁnancing of the devolved administration. c) Revenues from public property, assets and services. In 2000, for example, the revenues of the Autonomous Province of Bolzano were fed by the following sources. As shown in the following table, more than 85% of all revenues stemmed from tax revenues collected in the province, based on a 4 For more details, see Ines Pellegrini and Gennaro Pellegrini, “Die Finanzverfassung der Autonomen Provinz Bozen”, in Joseph Marko et al. (eds.), Die Verfassung der Südtiroler Autonomie (Nomos, Baden-Baden, 2005), 227–238.

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ﬁxed ratio of participation and therefore linked to the general development of the provincial economy. The variable part of the revenue—state and EU transfers—which is earmarked to speciﬁc purposes, amounts to just 10% of the total revenues, whereas loans and indebtment are negligible. Table 2: Revenues of the Autonomous Province of Bolzano/Bozen, 2000 (millions EUR) Kind of revenue Transfer of state tax revenues collected on the territory (participation in state taxes)

Total revenue

In % of the Province’s total revenue

2,667

72.6%

‘Own taxes and tariﬀs’ (established by state law, collected by the province)

470

12.8%

Transfer of funds from the state and the EU and others (earmarked to speciﬁc expenditures)

363

9%

Income from property and public services

36

1%

121

3.2%

12

0.3%

6

0.2%

3,680

100

Transfer of capital from various entities and other kinds of capital gains Other forms of revenues Loans and indebtment Total

Source: ASTAT, Statistical Yearbook 2005 (ASTAT, Bolzano, 2006), 448.

All in all, the state taxes that are shared by the state with the autonomous provinces come from not less then 84 single taxes but 84% of the revenue is produced by just four major taxes: the income tax on individuals (IRPEF ); the income tax on companies and corporations (IRPEG); VAT; and the mineral oil tax. As for the total amount of the tax revenue collected in the Province of Bolzano, still no exact ﬁgures are published. In 2003, the total net tax revenue of the state in South Tyrol was 3,024 million EUR. 2,599 million EUR consequently was transferred to the Province of Bolzano (1,727 million EUR in direct taxes, 1,224 million EUR in indirect taxes). Regarding the item ‘own taxes and tariﬀs’, it should be noted that these taxes are allocated to all Italian regions no matter whether ordinary or special, being regulated by state acts but administered by the regions or other local entities. Three of these taxes make up more than 90% of the total revenue: the Regional Tax on Productive Activities (IRAP); the addizionale IRPEF (an additional tax rate on the income tax, currently 0.90% in the Province of Bolzano); and the tax on the property of motor vehicles. The latter tax produces about 50 million EUR

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111

per year, whereas the IRAP, the major in terms of yearly revenue, accounts for a revenue of about 350 million EUR. With regard to participation in the state tax revenues, the most signiﬁcant item of the province’s revenues, a distinction should be made between the ‘ﬁxed share’, which is ﬁxed by the provisions of the Autonomy Statute, and the ‘variable share’, which depends on periodical agreements between the central government and the president of the province. Both revenues are devolved without earmarking speciﬁc expenditures. A. The Fixed Share The tax revenues transferred in a ﬁxed share have to be collected within the provincial territory (Arts. 70, 71 and 75 ASt) or have to be related to economic activities based on its territory, even if the tax is cashed in outside of the province (Art. 75 para. 2). A special case is the division of the revenue of the value added tax (VAT). 7/10 of the revenue from the VAT (VAT on imported goods excluded) collected in the region is devolved to the Provinces of Bolzano and Trento, while 2/10 is transferred to the Autonomous Region Trentino-South Tyrol as a separate institution with its own separate budget. Just 4/10 of the revenue of the VAT on imported goods is reserved for the two provinces, which is divided between them on the basis of a ratio of 53% for the Province of Bolzano and 47% for the Province of Trento (Art. 75 ASt). B. The Variable Share The participation of the Autonomous Province of Bolzano/Bozen in the state revenues as a variable share, as seen in the table before, is rather of secondary importance for the overall ﬁnancing of the province. Article 78 of the Autonomy Statute provides that a part of the annual revenue of the VAT on imported goods (up to a maximum of 4/10) is left to annual negotiations between the central and the provincial governments. Also in this case, the division ratio of the total amount of that revenue between the two provinces is 53% for the Province of Bolzano and 47% for the Province of Trento.5 This agreement, in order to ensure ﬁnancial certainty and accountability of the annual revenues of the provinces, has to be stipulated not later than in February of the corresponding budget year. If no agreement is reached, the variable share will, however, be released with an amount of 80% of the equivalent item of the previous year. The province obtains ﬁnancial transfers from the central state also in order to carry out “devolved functions”, according to Article 16 paragraph 2 of the

5 This provision has been precisely regulated by Art. 10 of the Enactment Decree on Financial Issues, contained in Legislative Decree No. 268 of 16 March 1992, amended by Legislative Decree No. 432/1996.

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Autonomy Statute; the state is in charge of covering the corresponding ﬁnancial burden. For many years, the state, instead of transferring the full power in legislative terms, in many sectors has devolved just the administrative and executive responsibility to the province (e.g., for school personnel, public roads, labour market services, etc.). C. The Guarantee Clause This clause, introduced by Article 6 of State Act No. 386/1989, refers mainly to the variable share (VAT on imported goods) and aims to safeguard in time the amount of ﬁnancial resources devolved to the province against changing regulations in the international taxation system. Should an EU regulation or a geographical shift of customs oﬃces would have resulted in a reduced revenue for the autonomous provinces, the state would provide for a recovery of the losses by a substitutive revenue from this speciﬁc source. Also, this mechanism is to be agreed by both the provincial and central government, as the guarantee clause will be activated only in case of modiﬁcations set by political institutions, not just due to economic variations. The provinces have insisted on such a form of compensation, as, in 1993, the creation of the European free market signiﬁcantly reduced the revenue stemming from VAT on imported goods. D. Provincial Taxes and Tariﬀs The taxes established in the Province of Bolzano by a provincial act under the power conferred by Article 73 ASt have relatively little importance for the total ﬁnancial capacity of the province (just 12% in 2000). Within this group of taxes, two major forms are to be distinguished. On the one hand there are taxes regulated by a provincial act, such as the tax on the depositing of solid waste, taxes on the property of motor vehicles, taxes on the insurance of motor vehicles, etc. On the other hand there is the revenue from some taxes that are established by state law but whose revenue is exclusively and entirely devolved to the provinces, such as the additional tax on the consumption of energy, the tax on the added value of enterprises (IRAP ) and the provincial additional rate on the income tax (addizionale IRPEF ). The latter group of taxes, according to a recent verdict of the Constitutional Court, cannot be considered to be “genuine provincial taxes”, as they are not established by a provincial (or regional) act but by the state, although its revenue is attributed to the provinces.6

6 Constitutional Court Judgment No. 296/2003 on the IRAP and No. 297/2003 on the Motor Vehicle Tax.

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E. The Special Procedure for Amendment of the Financial Provisions The principles of the ﬁnancing of the autonomous provinces, being a part of the Autonomy Statute, have a constitutional rank. Nevertheless, the corpus of ﬁnancial provisions has been transposed through an ordinary state act (State Act No. 386/1989). The Autonomy Statute itself, in Article 104, oﬀers the possibility to amend the issue by ordinary state act, after an agreement stipulated between Bolzano and Rome. Thus, this act could be considered to be a ‘negotiated act’, which ensures a certain degree of ﬂexibility in a matter frequently adapted by state ﬁscal policy. After having relied for decades on direct ﬁnancial transfer from the central government, connected with the general state expenditures in all autonomous sectors, the key factor since 1988 has become the yearly revenue of the state taxes collected in the territory of the Autonomous Province (or in the whole territory of the region Trentino-South Tyrol). On the other hand, the autonomous powers of the province and the region to regulate taxation on their own are rather scarce. The Autonomous Region Trentino-South Tyrol and the Autonomous Province of Bolzano/Bozen have the power to approve their own taxes and tariﬀs, according to Article 10 of State Law No. 386/1989, which aﬃrms that any “autonomous tax” has to be in harmony with the state’s taxation system.7 The Autonomous Province of Bolzano/Bozen has not yet made use of this power, mainly for two reasons: ﬁrstly, to avoid the risk of increasing the general tax burden on the province’s citizens, which, in comparison with the EU average, is already high. Secondly, State Act No. 386/1989 only oﬀers a fairly narrow space to establish new additional taxes, while the province is not allowed to burden economic issues already subject to state taxes with provincially established taxes (such as, for example, individual income tax or the general added value tax). There is a third obvious reason why neither the autonomous provinces nor the region have ever applied this power: the relative abundance of public funds available, ensured by the system of participation in the state’s tax revenues collected on the provincial territory. A good example is the so-called tourism tax, which is generally established by Article 9 of the Autonomy Statute. According to the enactment decrees (D.Lgs. No. 268/1992, modiﬁed by D.Lgs. No. 432/1996), taxable activities do not only comprise tourist activities but all activities “inherent or related to tourism”.8 Hence, not only the classical core subjects of tourism business in accommodation facilities is concerned but all branches of industry that beneﬁt from tourism, such as trade, services, crafts, etc. Thus, the tourism tax could yield potential revenue

7

“The Region and the Provinces have the right to establish by act their own taxes in harmony with the principles of the tax system of the state in the subjects under their respective power.” Art. 10 State Act No. 386/1989, now Art. 73 ASt. 8 See Ivo Winkler and Lukas Bonell, L’autonomia dell’Alto Adige (Autonomous Province of Bolzano/Bozen, Bolzano, 7th ed. 2005), 90–92, at .

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as a trade tax on a vast sector of the service sector. This tax, ﬁrst introduced in South Tyrol in 1993, was abolished on 1 January 1995 and deﬁnitely abandoned in 2006. Consequently, the Autonomous Province of Bolzano/Bozen actually is not using most of its narrow space to frame its own taxes. On the other hand, the Province of Bolzano also refrains from using its taxation powers when it comes to alleviating the existing state tax burden under the legal powers provided by state acts and the Autonomy Statute, as is evident from the case of the IRAP tax. This regional tax on productive activities refers to a combination of the turnover and net proﬁts of economic corporations and produces a net revenue of about per year. It has been contested by the entrepreneurial associations as a tax that duplicates VAT; however, to date, the autonomous government has refused to reduce the rates applied for the IRAP. In case of a reduction or abolishment of the IRAP, as a countermove the government claimed for a cut of the subsidies granted annually to the companies in South Tyrol out of the provincial budget, which was not accepted by the economic lobbies.

III. The Development of Provincial Revenues – The 1989 reform of the rules on ﬁnance for the autonomy (State Act No. 386/ 1989) allowed the Autonomous Province of Bolzano/Bozen a substantial and immediate improvement of its budgetary power. Already, in the ﬁrst year of (anticipated) application in 1988, the provincial budget expanded by approximately 300 million EUR, which has been consolidated in the following years. In 2005 and 2006, the provincial budget has reached the overall amount of 5 billion EUR. The increased revenue, however, was counterbalanced by a major number of responsibilities on the part of the autonomous province in terms of administrative functions and corresponding expenditures. For instance, beginning in 1989, the autonomous province had to cover all expenses for local ﬁnance (ﬁnancial transfers to the municipalities) and other previously state-administered sectors, such as the civil transport system, state roads, employment services, schools and universities, public waters, etc. From the point of view of the central state, this transfer of administrative powers linked to the new ﬁnance system (based chieﬂy on the participation n the local tax revenues referred to the provincial territory) has been a more slim and rational management. From the perspective of the autonomous province, it brought about new responsibilities and burdens. The autonomous province, however, is interested to obtain those functions deﬁnitely as ‘autonomous powers’, not just in the form of ‘delegated state powers’. Beginning in 1989, the provincial budget has been burdened by other factors too. The provinces contribution to the ‘National Health Care Fund’, used to cover local health care expenditures, has been progressively reduced, until being deﬁnitely extinguished in 1996. Today, the whole cost of the health care system

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is drawn from the provincial budget. Recently, the province has approved a new tariﬀ covering a small share of the cost of individually-consumed health services, while the lion’s share is still covered by the general budget. Finally, especially during the 1990s, the autonomous provinces lost signiﬁcant amounts of funds due to continuous delays in the ﬁnancial transfers from the central Ministry of Finance. Being forced to cover the expenses temporarily by public debt, the province had to spend huge sums in bank interest rates. Now the situation has regularized, as Rome has returned to making regular payments. Table 3: Consolidated Public Expenditures by Functions of Local Administrations, 1994–2000 (millions EUR) 1994

1995

1996

1997

1998

1999

2000

Current expenditures

1,528

1,633

1,758

1,981

2,292

2,473

2,605

Capital goods/investments

1,194

1,210

1,313

1,432

1,591

1,632

1,957

Total expenditures

2,722

2,843

3,071

3,429

3,883

4,105

4,562

Source: ASTAT, Statistical Yearbook 2005 (ASTAT, Bolzano, 2006), 452.

The general development of the revenues of the Autonomous Province of Bolzano/Bozen, since the entering into force of the new ﬁnancing system in 1989, steadily increased during the 1990s, while it has grown more quietly since 2000, coming to stagnate in 2005 and 2006. It should be pointed out that, within the Province of Bolzano, at least ten distinct public bodies, such as the municipalities, the public health authorities (Azienda sanitaria-Sanitätsbetrieb) and the district administrations, are involved in activities with distinct budgets. Therefore, only a comprehensive analysis in the form of a “consolidated regional public expenditures account”9 can provide complete information about the status of public ﬁnance in South Tyrol’s economic system. Last but not least, the central state still responding to cover the costs of some important branches of the public service, such as the judiciary, external and internal security, the tax administration and some other functions.10 The overall level of public spending in South Tyrol is well above the 50% mark of the provincial GDP (or added value).

9

For an explanation of this concept, see note 1. 5,672 public employees in the central administration (state railway and post service excluded), against at least 36,000 employees working in local public administrations. See ASTAT, Statistical Yearbook 2005 (ASTAT, Bolzano/Bozen, 2006), 198. 10

Thomas Benedikter

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Table 4: Overall Public Expenditures and Added Value in South Tyrol, 1998–2000 (millions EUR) Years

a) Public expenditures

b) Added value in the Province

A/b in %

1998

5,634

9,597

58.7

1999

5,587

9,768

57.2

2000

5,582

10,224

54.6

Source: ASTAT, Statistical Yearbook 2005 (ASTAT, Bolzano, 2006), 446.

This circumstance is bringing about a relatively high share of public employees on the total number of labour force. In fact, about 36,000 employees are working for the local administrations out of 222,000 persons in work (16.2% of all persons employed).11 In 2006, the provincial budget of 4.9 billion EUR only slightly exceeded the previous budget in 2005, although South Tyrol’s economy is growing faster than the national average. In 2006, for the ﬁrst time also, Italy’s autonomous regions were compelled to obey by the ‘National Stability Pact’,12 in order to bring Italy’s public ﬁnance in line with the requirements of the Stability and Growth Pact of the European Monetary System in terms of reducing its heavy stock of public debt and expenditures in interests. Thus, the central government insisted on a cut of 1% in the number of public employees, in order to reduce the running costs of the local and regional administrations. The Autonomous Province of Bolzano/Bozen, prior to 2004, had never had to incur debts in any serious amount; however, in 2005 and 2006, it acceded to a major loan in order to run a particularly costly ﬁnancial operation. The autonomous province is attempting to purchase a major share of the companies (Montedison and the state-owned company ENEL) that run most of the hydroelectric power plants in South Tyrol, now on sale due to the liberalization provisions of the EU in the energy sector. This energy deal would enable the province both to regain control of South Tyrol’s hydropower system and to obtain a long-term proﬁtable source of revenue. In general terms, the actual ﬁnance system of the Autonomous Province of Bolzano/Bozen provides suﬃcient funds to cover the expenditure requirements of the autonomy. Therefore, the ruling political forces do not see any urgency in enlarging the ﬁnancial autonomy towards a full taxation autonomy that includes legislative powers in taxation. From the point of view of public ﬁnance, the present system of ﬁnancing the autonomy, primarily based on the participation of the province in the state’s tax

11 12

For ﬁgures for 2004, see ibid., 199.

For the legal sources for the Stability Pact, see the Ragioneria dello Stato website, at .

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regime collected on its territory (or “with reference to its territory”) responds to several fundamental interests. Firstly, it ensures the unity of Italy’s ﬁscal system, where regional taxation powers are limited to very narrow fringes. Also, in the upcoming process of ﬁscal federalism, which is meant to ensure a major share of tax revenues to every region, the central role of the unitary ﬁscal system is not questioned. On the other hand, this system grants stability and accountability to South Tyrol’s public budgets at all levels, as they all depend largely upon the autonomous province’s transfer. The current ﬁnancial system has given way to a kind of ‘virtuous cycle’, as the growth of provincial funds is directly linked to the growth of the local economy and employment. In turn, the amount and the stability of the public expenditures have become one of the backbones of the South Tyrolean economy. As the autonomous province can cash in and spend about 90% of all the tax revenue collected in the province’s territory and the central state’s administration is carrying on paying for some branches of the public service (police, defense, postal service, judiciary, tax administration, etc.), the autonomous province is enjoying the comfortable situation of public surplus spending without incurring debt. In this regard, South Tyrol can be compared with some structurally weaker regions of southern Italy with one key diﬀerence: by income per head South Tyrol is among the top three of Italy’s regions and has been among the top eight of all EU regions. In other words, the Autonomous Provinces of Bolzano/Bozen and Trento are net receivers without displaying the social and economic features that would legitimate this position. In Italy, only the Autonomous Region of Sicily and the Autonomous Region of Aosta have ﬁnance regulations similarly as advantageous as the one accorded to South Tyrol (and Trentino). However, it is still unclear whether the regions with special statute will also have to share the eﬀorts of the Italian state to get its public ﬁnance and debt under control.

IV. Some Concluding Remarks In summing up the main features of the ﬁnancing of South Tyrol’s autonomy, ﬁve issues should be recalled.13 Firstly, the province’s budget is fed by almost the entire revenues of taxes and tariﬀs collected in the province, although the central state is still charged with several important and costly public services. Hence, as a matter of fact, South Tyrol can spend more public money than its tax payers are paying to the Exchequer. Secondly, the ﬁnancial regulations are entrenched in the Autonomy Statute and, as such, are a part of the Italian Constitution but they can, after agreement with the autonomous province, be amended by an ordinary state act in order to maintain a certain degree of ﬂexibility. Hence, single reforms of the state’s taxation

13

See also Pellegrini and Pellegrini, op. cit. note 4, 238.

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rules can more easily be integrated without recourse to the complex procedure of an amendment of the Autonomy Statute and the Constitution. Apart from that, the basic rule of the province’s participation in the state’s taxation system automatically changes its revenues according to the yearly variations of the state’s taxation provisions and ﬁscal policy. Thirdly, there is a quite low risk of the autonomous province suﬀering major cuts to its revenues if the central state sticks to ﬁscal austerity, which is the current tendency and is required by the European Monetary System. Paradoxically, the raising of taxes aimed to reach a budget balance in the national accounts increases the revenues of the Province of Bolzano, which is without any signiﬁcant indebtment. Fourthly, the ﬁnancial system entails a very limited autonomy in regard to taxation in legislative and administrative matters. The autonomous province can neither vary signiﬁcantly the terms of state taxation nor can it inﬂuence the means of tax administration. Being reliant on the existing convenient system of ﬁnancing, the autonomous province is not even interested in taking charge of such responsibilities. Fifthly, this system of ﬁnancing generates built-in positive dynamics in the provincial economy. The continuous inﬂow of additional ﬁnancial means for public services reduces the relatively higher growth rate of the provincial GDP, as the province’s revenues are dependent upon economic growth, they automatically grow. Today, the ﬁnancial situation of the Autonomous Province of Bolzano/Bozen appears in general terms to be stable and aﬄuent, compared with the situation of Italy’s regions with ordinary statute. The tortuous route that Italy’s ﬁscal system has taken towards a more federally shaped division of powers in taxation and public ﬁnances (which runs under the label of “federalismo ﬁscale”)14 has recently opened some conﬂicts within the Italian regions, namely between the regions with special autonomy, such as Trentino-South Tyrol, and the neighbouring regions with ordinary statute, like Veneto, Lombardia and Piemont. The latter regions have criticized the alleged ‘ﬁnancial privileges’ enjoyed by the regions with special autonomy in northern Italy, which, in terms of economic performance and ﬁscal capacity, no longer need any preferential treatment by the central state. Indeed, a striking gap in the spending capacity per head of the resident population can be observed between the three northern Autonomous Regions of Trentino-South Tyrol, Aosta Valley and Friuli-Venezia Giulia and their neighbouring regions, also in terms of consolidated accounts. In the context of growing interregional competition regarding economic attractiveness and having to suﬀer continuous cutting of state ﬁnancial transfers, Italy’s northern ordinary regions are no longer willing to sustain the burden of being the only net payers in Italy’s ﬁnancial system. Some municipalities, lured by the higher spending capacity and yearly 14 There are scores of publications on this issue. One signiﬁcant example is Giuseppe Vitaletti and Luca Antonini, “Il grande assente: il federalismo ﬁscale”, at .

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transfers oﬀered by Trentino-South Tyrol and Friuli-Venezia Giulia, have already expressed their wish by popular referendum to change their region. In reaction, the Region of Veneto has oﬃcially and provocatively claimed to be annexed to the region of Trentino-South Tyrol. If the central government in Rome cannot ﬁnd an acceptable solution for the devolution of ﬁscal powers to the ordinary regions, this interregional conﬂict is also bound to exacerbate. In times of shrinking public funds and of a still enormous net deﬁcit in the Italian state budget, the government is forced to share its eﬀorts at rationalizing public spending with the regions, including those with a special autonomy. Last but not least, Italy is obliged to fully respect the European Stability and Growth Pact, stipulated by all members of the Euro-area, in order to control inﬂation. Hence, Rome is involving all regional and local territorial bodies in adopting budgetary policies in line with preﬁxed spending limits in speciﬁc chapters. Recently, for instance, the central government has frozen the allowed maximum expenditures for public civil servants and employees at a certain level, a stricture that the regions with special autonomy also have to abide by. Being vested with abundant ﬁnancial sources, fed by their ﬁxed share of participation in the local state tax revenue, those regions and provinces are unwilling to respect such limits, denouncing them as illegitimate interference in their budgetary autonomy. Finally, the issue of full autonomy of taxation is still pending but the request of autonomous powers for the region and the Provinces of Bolzano and Trento to regulate their own taxation system is still not on the agenda either of the central government or of the autonomous provinces. The central government ﬁrst has to tackle the reform of the ﬁnance of the ordinary regions, moving towards a ﬁscal federalism, which has to contain elements of some regional powers on taxation and strengthen the responsibility of the autonomous regions for their own revenues. If there are privileges on the side of the special regions and if the ordinary regions have to get a share of the taxes collected on their territory, an equilibrium can be reached if both sides will move together. However, in the Italian context of public ﬁnance, securing the base of tax revenues for the state does not allow major concessions on tax autonomy. Equally, the autonomous regions that are cashing in the state taxes collected on their territory without responding in terms of taxation legislation and administration are in a quite comfortable situation. By their regional electorate, the special regions are mainly perceived as spending agencies with abundant resources, whereas the central state is perceived as the tax authority responsible for burdening the citizen with an ever more heavy tax burden.

CHAPTER SEVEN

WHAT IT MEANS TO BE SPECIAL IN RELATIONS WITH THE CENTRAL STATE: INSTITUTIONS AND PROCEDURES Jens Woelk

South Tyrol has a peculiar position in the asymmetrical design of the Italian regional system; its particular features are a result of the constitutional implementation of Italy’s international obligations realized in a process of bilateral relations between the state and the autonomous province.1 However, by contrast with independence, even far-reaching autonomy requires some degree of integration into the larger context of the state. This chapter illustrates the peculiar institutions and procedures in the relations with the central state, which have to guarantee both, autonomy, by means of their adaptation to the speciﬁc situation for the sake of respecting diversity, as well as the compatibility of the special legal system in South Tyrol with the legal system of Italy (i.e., the integrative function). The relations between South Tyrol and the centre, however, are far from being static: the progressive and dynamic evolution of the Italian regional system often required innovative solutions, diﬀerent from those applied to the other regions.

I. Introduction According to the original outline in the Italian Constitution of 1948, the relations between the state and the regions were based upon the strict separation of their respective spheres of powers. Both the state and the regions were supposed to operate on diﬀerent, separate and parallel tracks. Powers in legislation should also determine administrative functions (Art. 118 Constitution). However, in its practical realization, this theoretical approach was confronted very soon with the emerging (necessity and) practice of a ‘cooperative regionalism’,2 characterized— like the similar evolution in federal systems—by numerous interferences, overlaps and entanglements. This evolution favoured a dominance of interests rather than the respect of competence-lists for the determination of the competent level of

1 See in particular the chapters by Francesco Palermo on South Tyrol’s special status within the Italian Constitution as well as on the procedures of implementation and amendment of the Autonomy Statute. 2 The constitutional reforms (1999–2001) changed the original approach, deﬁnitively conﬁrming the transformation of the Italian regional system into a cooperative one.

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territorial government. Especially in the beginning, the ﬂexible management of the distribution of powers played into the hands of the central government, thus weakening the autonomous areas of the young and inexperienced regions. The evolution of Italian regionalism so far can be subdivided into ﬁve ‘seasons’; the implementation of the South Tyrolean autonomy system is closely linked to this larger context: 1. Of the 20 regions foreseen by the Constitution in 1948 (Art. 131), only four ‘special’ or ‘autonomous’ regions, including Trentino-South Tyrol, had been established immediately.3 In the 1950s and 1960s, these remained the only actors on the stage. Regarding South Tyrol, this was the period of the—unsatisfactory—‘ﬁrst’ autonomy, leading to mass protests and bombing attacks. 2. Only in the 1970s did the whole system unfold: in addition to the (then, ﬁve)4 autonomous regions, 15 ‘ordinary’ regions were established in the late 1960s;5 the ﬁrst regional elections took place only in 1970 and ﬁnancial resources were transferred even later by the central government, which continued to control also the transfer of powers. The new regions only had limited legislative power in speciﬁc ﬁelds listed by the national Constitution (Art. 117), in which the state could still legislate on principles. After consultation and acceptance of the ‘Package’, this general, nationwide regionalization eﬀectively supported the transformation of the South Tyrolean autonomy from the region-based ‘ﬁrst’ autonomy to the implementation of the ‘second’ Autonomy Statute (ASt) with the autonomous provinces as the main actors. 3. The 1980s were characterized, on the one hand, by continuous attempts at central interference, as well as by increasing cooperation between the regions and the centre, on the other. An important role was exercised by the Italian Constitutional Court, which acted as an arbiter in numerous controversies, thus developing a cooperative model of regionalism. As a result, a certain emancipation of the regions can be registered. Running in parallel to this was the development in South Tyrol: the full implementation of the ‘second’ autonomy took 20 years and was accompanied by numerous controversies and litigation in front of the Constitutional Court.

3 Aosta Valley, Trentino-South Tyrol, Sardinia and Sicily; due to the international status of Trieste, Friuli-Venezia Giulia followed only in 1963. All autonomous regions have their own ‘basic law’ (called: statuto, hereinafter, “Autonomy Statute”, ASt), approved as a constitutional law of the state. They enjoy considerable legislative, administrative and ﬁnancial autonomy, including exclusive legislative powers. These powers are diﬀerent in each special region. The implementation of their statutes is negotiated bilaterally with the national government in joint commissions. See the chapter by Francesco Palermo in this volume. 4 Including Friuli-Venezia Giulia. 5 The statutes of these regions were less guaranteed, being formally approved by an ordinary law of the state; all were thus close to identical in their governmental structures (a council elects the executive).

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4. The deep crisis of the political system in the early 1990s also aﬀected the relations between the state and the regions. It required new orientation and reforms, also in reaction to the (changing) demands of the Northern League,6 ﬁrst at the administrative level and afterwards in a growing debate on ‘federalization’ and a number of proposals and commissions. 1992 also marked a major step in European integration (the Maastricht Treaty and the Common Market)7 as well as the formal declaration of the settlement of the controversy regarding South Tyrol before the United Nations. However, the recognition of full implementation of the autonomy also raised the question of new objectives. The 1990s saw a number of additional competencies ceded to South Tyrol using the bilateral procedures of the Joint Commissions (e.g., state roads and teachers).8 This period is therefore known as the period of ‘dynamic autonomy’. 5. From 1999, the ‘package’ of three constitutional reforms,9 aimed at the transformation of Italy into a federal state, determined a new equilibrium in the relations between the state and the regions. Due to the political confrontation between centre-left and centre-right parties, the implementation of this reform is far from complete. Especially during the ﬁve years of Berlusconi’s government (2001–2006), there was not much interest in progress with the implementation of the reform, as the centre-right majority very soon prepared and adopted a ‘counter-reform’, which, however, did not pass a referendum in June 2006.10

6 The Northern League (Lega Nord ) is a federation of regional parties in the North of Italy; its charismatic leader, Umberto Bossi, introduced federalism and the federalization of Italy as a political demand of the ‘rich’ North of Italy. During the 1990s, the positions of the Northern League changed and culminated in the demands of establishing three republics followed by calls for secession. Being part of the centre-right coalition supporting Silvio Berlusconi’s government (2001–2005), the Northern League slightly softened its most radical tones. The issue of federalism was taken over by most of the Italian parties in the late 1990s. 7 On the (ambiguous) eﬀects of EC/EU Law on the autonomy system, see the chapter by Gabriel Toggenburg in this volume. 8 It is important that this transferral was deﬁnitive and not covered by corresponding ﬁnancial arrangements; due to its wealth, the province could aﬀord the exercise of these additional powers without further ﬁnancial resources. 9 Constitutional Law 1/1999 regarding the ‘ordinary’ regions introduced a new form of government (directly elected presidents), as well as a new procedure and a more protected legal status for the regional statute (which becomes a self-determined regional ‘basic law’). See Constitutional Law 2/2001 regarding some adaptations for the special regions; Constitutional Law 3/2001 regarding the amendment of the Vth title of the second part of the Italian Constitution regulating the relations between the state and the regions (Art. 114 ﬀ.). 10 For further information regarding the reform and the state of its implementation, see the annual country reports by Francesco Palermo and Jens Woelk, in European Center for Research on Federalism (ed.), Jahrbuch des Föderalismus (Nomos, Baden-Baden, 2004, 2005 and 2006).

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Jens Woelk II. Italy’s Cooperative Regionalism: Procedures and Institutions A. Procedures for Coordination and Cooperation

Due to the theoretical conception of strictly separated areas of activity and powers, Italian regionalism was (and still is) characterized by a lack of eﬃcient institutional links between the centre and the regional periphery. This problem was not recognizable immediately because of the diﬀerentiation among the autonomous regions and their special bilateral relationship with the state. However, it came clearly to the fore when, in the 1970s, the regions with ordinary statutes entered the stage: after the transfer of competences, the representation of their interests at the central level became a pressing and unresolved issue. As a consequence of the lack of institutional links, such as a second chamber of parliament for the representation of territorial interests,11 cooperation and coordination procedures were formalized and rationalized. However, these were often unilaterally determined and managed by the central government. Until 2001, the regions were vested with far-reaching administrative autonomy in all areas of their legislative competence (Art. 118 Constitution). However, the Constitution also recognized state powers of intervention for the guarantee of the unity of the state in terms of peace, law and decision making; these are based on the limits of regional legislation as contained in Articles 117 and 127 of the Constitution (prior to 2001). The application of these limits on legislation in the (corresponding) administrative sphere opened space for a state presence and interference in the area of regional powers.12 In concrete terms, the so-called “Function of Direction and Coordination” of the state ( funzione di indirizzo e coordinamento) was the main instrument of control on the part of the central government:13 the delimitation between direction (setting guidelines with room for discretion in implementation) and order was often blurred. During its evolution, the function of direction and coordination was transformed from a political instrument into a legal limit to be controlled by the Constitutional Court, in the same way as the ‘national interest’ (which had originally been a political criterion to be monitored by parliament, Art. 127 paras. 4–5 Constitution). This transformation contrasted with the original intent 11 See the recent and comprehensive work by Ilenia Ruggiu, Contro la camera delle Regioni. Istituzioni e prassi della rappresentanza territoriale ( Jovene Editore, Napoli, 2006). 12 This has been much criticized, especially with regard to South Tyrol. See, for example, Karl Zeller, Die Eingriﬀsmöglichkeiten der römischen Zentralregierung, PhD thesis on ﬁle at the University of Innsbruck (1989). 13 See, among others, Paolo Caretti, “Indirizzo e coordinamento e potere sostitutivo nella più recente giurisprudenza della Corte Costituzionale”, Le Regioni (1992) No. 2, 338–347; Paola Santinello, “Nota alla sentenza 381/1996”, Le Regioni (1997) Nos. 2–3, 434–439; Girolamo Sciullo, “Indirizzo e coordinamento”, 7 Digesto delle Discipline Pubblicistiche (1993), 228–243; and Roberto Bin, “I nodi irrisolti”, in Sergio Bartole, Roberto Bin, Giandomenico Falcon and Rosanna Tosi, Diritto regionale. Dopo le riforme (Il Mulino, Bologna, 2003), 191–241, at 197.

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of the Constitution but was regularly conﬁrmed as legitimate by the Constitutional Court.14 The state “Function of Direction and Coordination” had been developed at the time of the transfer of state powers to the newly established regions with ordinary statute in order to preserve at least some inﬂuence on the part of the state. This has been interpreted as a ‘soft alternative’ to painful cuts into the regional powers:15 the state did not retain operative powers but a mere function of establishing guidelines or directives. Thus, the regions remained owners of their (new) powers but had to accept—for the safeguard of Italy’s ‘national interests’—a state function justiﬁed by the ‘requirements of unity’, which allowed the state to inﬂuence and condition the exercise of the regional powers.16 Although the state “Function of Direction and Coordination” should function as a link between the legal systems of the state and of the regions, it soon became an instrument of central control and inﬂuence, limiting the new regional competences considerably. However, after some time, the function was also applied with regard to the special autonomies; this equal treatment with the ordinary regions was a clear limitation of their autonomy.17 The Constitutional Court conﬁrmed this extension, due to the parallelism with the limits of regional legislation followed by the legislator (Art. 2 para. 3 lit. d Law No. 400/1988), which also operated vis-à-vis both types of regions in the same way,18 despite the fact that exceptions should have been made at least for the exclusive competences of the autonomous regions. Without questioning the general applicability of the ‘function’ also with regard to the special autonomies, in later judgments the Constitutional Court prudently asked for a clear predominance of constitutional interests, which can only be protected by a provision at the central level, otherwise the competences of the autonomous entity would have to be safeguarded.19 This diﬀerentiation has to explicitly consider also the constitutional principle of minority protection.20 The increasing emancipation of the regions and their numerous appeals to the Constitutional Court against state interferences in their sphere of powers led to a subsequent limitation of these unilateral mechanisms and their correction by the

14 Antonio Barbera, Regioni e interesse nazionale (Giuﬀré, Milano, 1973), 183. Thus, the Court established its own competence in these cases. For the case law, see Sciullo, op. cit. note 13; and Gustavo Zagrebelsky, Manuale di diritto costituzionale, Vol. I (UTET, Torino, 1991), 236. 15 Ibid., 236, which comments on Judgment 37/1966 of the Constitutional Court. 16 The Constitutional Court underlined the parallelism of the guarantee of these “requirements of unity” in the administrative sphere and the state legislation on principles the regional legislation has to respect. See Judgments 138/1972, 140/1972 and 181/1976. 17 Francesco Delzio, “Indirizzo e coordinamento ed autonomie speciali”, Giurisprudenza Costituzionale (1997), no. 6, 4119, calls this “Un processo di sostanziale omologazione (“verso il basso”) delle autonomie speciali a quelle ordinarie” [A process by which special autonomies are substantially homologated (at lower levels) with the ordinary regions]. 18 Constitution Court Judgments 31/1983, 340/1983, 177 and 185/185, 107 and 304/1987, 60, 177, 417, 418 and 554/1988, 242/1989 and 121/1997. 19 Judgments 340/1983, 229 and 230/1989 (regarding Trentino-South Tyrol). 20 Judgments 242/1989 and 37/1991. For the special procedure with regard to South Tyrol, see D.Lgs. 266/1992.

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jurisprudence of the Constitutional Court: the development of the principle of “loyal cooperation” ( principio di leale collaborazione) served as a ﬂexible instrument of coordination between the legal systems of the state and those of the regions. The main argument of the Constitutional Court in these cases was that the underlying tension between the levels of government, as expressed by Article 5 of the Italian Constitution—the unity of the republic and the promotion of autonomy—cannot be resolved other than by cooperation and mutual respect. The principle of “loyal cooperation” assumes the role of a ﬂexible ‘link’ between the spheres and legal systems of the state and the regions, conditioning the exercise of the state “Function of Direction and Coordination” and aiming at a restoration of the balances expressed in Article 5 of the Constitution: while the state function originates from the unity of the legal system, the autonomy requires cooperative procedures, which include regional participation in the exercise of the state function. The central instruments in this regard are consultation, opinion and agreement (intesa). B. The Standing Conference of the State and Regions The principle of loyal cooperation prepared the way for the institutionalization of a regional representation and involvement at the central level: the Standing Conference of the State and Regions, established in 1988, became the main interface in the relations between the state and the regions, as well as the formal institution for procedures of consultation and cooperation between the two levels of government.21 The Standing Conference, composed by the presidents of all ordinary and special regions (including the presidents of the Autonomous Provinces of Trento and Bolzano/Bozen), is chaired by the President of the Council of Ministers or by the Minister for Regional Aﬀairs. It is therefore neither a joint institution nor an organ of exclusive regional representation; it is rather an institution operating in the ‘state community’, as an instrument of cooperation between the state and the regions.22 Among its tasks are information, consultation and delivering opinions in all political issues of regional interest, with the exception of foreign and defence policy and judicial aﬀairs.23 The Standing Conference has been strengthened in organizational terms by the establishment of a permanent secretariat under the oﬃce of the president.24 21 See, for the establishment, composition and evolution of the Standing Conference, Francesco Pizzetti, “Il sistema delle conferenze e la forma di governo italiana”, Le Regioni (2000) Nos. 3–4, 473–494, at 480. 22 Constitutional Court, Judgment 116/1994. 23 Art. 12 L. 400/1988 (Organization of the Presidency of the Council of Ministers). 24 D.P.C.M. No. 366 of 4 June 1992, as amended by D.P.C.M. No. 589 of 26 October 1995. The secretariat has around 60 permanent staﬀ members, 20 of which are detached civil servants from the regions. See Maria Giuseppina La Falce, “La Conferenza Stato-Regioni: organizzazione e funzionamento”, Le Istituzioni del federalismo (1998), 27–42, at 30; and the Standing Conference’s website, at .

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Regional participation in the exercise of the state “Function of Direction and Coordination” in the administrative sphere had been welcomed by the Constitutional Court early on but became the rule only with the so-called ‘Bassanini reforms’ (1997): the transfer of administrative competences to the regions was to be accompanied by their involvement in fundamental decisions regarding the implementation of these competences. The involvement of the Standing Conference is now mandatory “in all decision-making processes of regional, interregional and supraregional interest”.25 The evolution towards a general function of liaison and consultation on the part of the Standing Conference can be considered to be the basis of an increasingly important intergovernmental decision-making system.26 The Standing Conference is often consulted regarding speciﬁc issues and delegations, by single ministries and before the adoption of governmental regulations; in a number of cases, consultation even takes the form of an ‘agreement’ (accordo) between the central and ‘local’ governments, with a legal nature compared to mere political or gentleman’s agreements.27 The pivotal role of the Standing Conference remains unchanged even after the Constitutional Reform of 2001, which did not create a chamber of regional representation in the Italian parliament.28

III. South Tyrol’s Special Position in Italy’s Regional System The special position of South Tyrol within Italy’s regional system can be demonstrated best by illustrating the adaptation of institutions and procedures in the relationship with the state and/or the central government. In a number of important 25 Art. 9 para. 1 lit. a) L. 59/1997 and (identically) Art. 2 para. 1 D.Lgs. 281/1997. Art. 8 para. 1 L. 59/1997 provides for an agreement between the state and the regions through the Standing Conference or, alternatively, an agreement with the respective region if a single region is concerned. The Standing Conference is to be consulted regarding all legislative proposals aﬀecting the regional sphere of competences as well as regarding decisions on measures in the exercise of the state “Function of Direction and Coordination”. 26 For questions aﬀecting municipalities a second conference of state, cities and local bodies has been created; for issues of common interest, a “Uniﬁed Conference” is formed by both the regional and the municipal ones. See Francesco Pizzetti, “Il sistema delle Conferenze e la forma di governo italiana”, Le Regioni (2000) Nos. 3–4, 473–494, at 488; and Paolo Caretti, “Il sistema delle Conferenze e i suoi riﬂessi sulla forma di governo nazionale e regionale”, Le Regioni (2000) Nos. 3–4, 547–554, at 549. See also Ilenia Ruggiu, “Conferenza Stato-Regioni: un istituto del federalismo ‘sommerso’ ”, Le Regioni (2000) Nos. 3–4, 853–902. 27 Politically, the Standing Conference has been considerably strengthened after the direct elections of the presidents of the regions. 28 Art. 11 Constitutional Law 3/2001, which envisaged, as a transitional solution, the participation of representatives of regional and local bodies in the respective parliamentary commissions on regional aﬀairs; however, the necessary parliamentary regulations have not yet been adopted. See Raﬀaele Bifulco, “In attesa della seconda camera federale”, in Tania Groppi and Marco Olivetti (eds.), La Repubblica delle autonomie (Giapichelli, Torino, 2nd ed. 2003), 211–218; and Roberto Bin, “I nodi irrisolti”, in Bartole, Bin, Falcon and Tosi, op. cit. note 13, 191–241, at 211.

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cases, these diﬀer very much from the general picture of relations between the state and the regions, particularly those regions with only ordinary statute. The considerable diﬀerentiation of institutions and procedures is mostly required by the adaptation to the speciﬁc tripolar institutional setting of the autonomous region and the two autonomous provinces.29 After a discussion of two important state institutions (the government’s Commissioner and the Regional Administrative Court), which highlight the adaptations required in the speciﬁc South Tyrolean context, an important example of a special procedure as a safeguard of regional/provincial legislation against state unilateralism will be analysed. A. The Government’s Commissioner Prior to the Constitutional Reform of 2001, the government’s Commissioner was the institutional interface between the central government and each region, used to monitor and control the activities of the peripheral and decentralized state administration (Art. 124 Constitution).30 Compared with other regions, in the Autonomous Province of Bolzano/Bozen this institution had some peculiar features: instead of one Commissioner operating for the whole region, there are two Commissioners, one for each autonomous province, thus reﬂecting the particular tripolar structure and the de facto regional status and powers of the autonomous provinces. According to Article 87 ASt, the Commissioner combines two typical functions of a government representative: those of a Commissioner (representation of the central government in the periphery) and those of a prefect (coordination in the ﬁeld of public order and security). In addition, on behalf of diﬀerent ministries, the Commissioner is responsible for the direction and control of the staﬀ belonging to the state authorities operating in the autonomous province. In sum, the Autonomy Statute concentrates the most relevant functions of representation of the central government in one single institution.31

29 The inherent logic of the implementation of the ‘Second’ Autonomy Statute (1972), consisting of a shift of all substantial powers from the regional level to the two (autonomous) Provinces of Bolzano and Trento, is already recognized by the name of the “Standing Conference of the State, the Regions and the autonomous Provinces of Bolzano and Trento” (emphasis added), elevating the autonomous provinces to (de facto) regions. 30 Art. 124 Constitution has been cancelled by the Reform of 2001 (Art. 9 para. 2 Constitutional Law No. 3 of 18 October 2001). 31 By contrast with the institution of the prefect, which is a decentralized organ of the Italian Ministry of Interior in the Provinces. See, for details, Antonio Lampis, “Il Commissario del Governo delle regioni a Statuto ordinario a confronto con la particolare disciplina relativa al Commissario del Governo per la Provincia di Bolzano”, Funzione Amministrativa (1990) Nos. 6 and 7/8, 387–428 and 491–541. See also Marco Iacometti, “I poteri di impulso del Commissario del governo per la Provincia di Bolzano, nota alla sentenza n. 218 della Corte costituzionale del 23.04.–05.05.1993”, Le Regioni (1994) No. 2, 408–429; Antonio Lampis, “Uﬃci dello Stato in Provincia di Bolzano: decentramento della gestione, bilinguismo e proporzionale linguistica”, Funzione Pubblica, Presidenza del Consiglio dei Ministri (1997) No. 2, 169–172; and Barbara Marchetti, “Commissariato del governo per la provincia di Bolzano”, in Autonomous Region of TrentinoSouth Tyrol and the University of Trento (eds.), Commento alla normativa di attuazione dello Statuto del Trentino Alto Adige (Regione Trentino-Alto Adige, Trento, 1994), 131–136.

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Prior to 2001, an important function exercised by the Commissioner used to be the role of an interface in the preventive control of regional (and, in Trentino and South Tyrol, provincial) legislation. According to Article 55 para. 1 ASt (the equivalent to Art. 124 of the Constitution of 1948), all bills that had been approved by the Regional or Provincial Assembly had to be notiﬁed by the government’s Commissioner within 30 days after communication, unless the central government rejected them because of conﬂict with the ‘national interest’32 or because of an excess of competences and resent the bill to the respective legislative assembly, thus temporarily preventing the law from entering into force. With a deliberation of the absolute majority of its members, the Regional (or Provincial) Council could insist, however, and save the bill in these cases: thus, the law would enter into force. The only means for the central government to avoid this was to ﬁle an appeal to the Constitutional Court within ﬁfteen days. It is quite obvious that the activities of the government’s Commissioner as the ‘forward observer’ on the spot were not limited to receiving and transmitting the bills. After the Constitutional Reform of 2001, with the cancellation of Article 124 of the Constitution, the abolition of preventive control and the new provision regarding the appeal against regional laws (Art. 127 Constitution), the important functions of the Commissioner in the control procedure of regional and provincial legislation ceased to exist.33 The new situation is characterized by the equal standing of state and regional legislation; also, the central government can challenge regional laws in front of the Constitutional Court only after their entry into force34 (this was the situation before with regard to regional appeals against state legislation). The equal standing of the state and the regions regarding the abolition of preventive control and equal conditions and terms for the appeal to the Constitutional Court was extended also to the autonomous regions and provinces via the “most favourable” clause (Art. 10 Constitutional Law No. 3/2001), which leads to the non-application of Article 55 paras. 1 and 2 ASt.35 This led to the loss of the Commissioner’s powers of control; consequently, the function

32 For the limits of regional and provincial legislation, see Art. 4 ASt; however, as a safeguard against its unilateral interpretation to the detriment of the autonomy, the same provision provides an express reminder of the inclusion and consideration of minority protection as part of the national interest. 33 For critical observations in this regard, see Eduardo Gianfrancesco, “L’abolizione dei controlli sugli atti amministrativi e la scomparsa della ﬁgura del commissario del governo”, in Groppi and Olivetti, op. cit. note 28, 177–181. 34 For the new procedure see Eduardo Gianfrancesco, “Il controllo sulle leggi regionali nel nuovo art. 127”, in ibid., 127–131. 35 According to Art. 10, the new and amended constitutional provisions, which are directly applicable only to the regions with ordinary statute, also apply to the special regions and autonomous provinces (‘protected’ by their statutes of constitutional rank), at least in so far as they introduce a “more favourable treatment” (i.e., add autonomy). The introduction of new procedures for the determination of the form of government, the electoral system and instruments of direct democracy in Art. 47 ASt (as amended by Art. 4 of Constitutional Law 2/2001) is a speciﬁc case to which preventive control does not apply; against new bills in these ﬁelds, only an appeal to the Constitutional Court is possible, within 30 days.

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exercised for the central government was transformed into a merely consultative and monitoring position. Thus, despite the abolition of the institution in general, the government’s Commissioner continues to exist and to exercise these and other tasks in the Provinces of Trento and Bolzano.36 According to Article 87 ASt (and in conformity with Art. 124 Constitution) the government’s Commissioner supervises the state authorities and administrative structures in the periphery, as well as delegated functions. The concept of ‘supervision’ is not be interpreted in the narrow sense of a legal control but also includes expediency control (including instructions), as the general aim of this supervisory function is to guarantee an eﬃcient operation of the administration.37 However, in contrast to Article 124 of the Constitution, the special character of the autonomy is reﬂected by some adaptations (Art. 87 para. 1 ASt): those authorities that are by Constitutional or ordinary law invested with a particular degree of autonomy, such as judiciary, defence and railroad, are not subject to the Commissioner’s supervision; regarding all delegated functions, the Commissioner has to address the president of the province for complaints and can thus not act directly. According to Article 88 ASt, the Commissioner is also responsible for public order and security in the province,38 a function usually exercised by a prefect in other provinces. Of great practical importance are the direction and the supervision of personnel in the state authorities of diﬀerent ministries operating in the province, as well as the representation of the government in the application of the proportional quota system and bilingualism.39 The enactment decree implementing Article 89 ASt (D.P.R. No. 752 of 26 July 1976) contains staﬀ lists for state authorities in the province (distinct from the general, Italian-wide staﬀ lists), as well as detailed tables listing the earmarked posts for the three language groups in all state authorities and structures. The government’s Commissioner has to supervise the application and the respect of these rules and might even ﬁle a protest against their potential violation to the Presidency of the Council of Ministers. The Commissioner’s Oﬃce is thus responsible for hiring, all issues related to career advancement, pensions, etc., and the supervision of state personnel (with

36 See, for the attempt to reanimate the institution, Art. 10 para. 11 Law No. 131/2003 (La Loggia); and Eugenio De Marco, “Le vicende del regionalismo italiano nel ricorrente divario tra Costituzione e realtà”, at . 37 After the formal abolition of Art. 124 of the Constitution (Constitutional Law 3/2001), this supervisory function is now attributed to the prefect at the government’s Commissioner’s oﬃce (D.Lgs. No. 300 from 31 July 1999). 38 These competences range from a direct responsibility vís-à-vís the Minister for Home Aﬀairs, which includes the power to issue orders to the State Police in the province, to the nomination of a Commissioner in the exercise of substitution powers with regard to the municipalities (Art. 54 para. 5 ASt). 39 See the chapter by Emma Lantschner and Giovanni Poggeschi in this volume. Regarding bilingualism, this includes the representation of state authorities concerning the organization of the mandatory bilingualism exam for all candidates applying for jobs in the public administration. This additional role in the autonomous province prevented the abolition of the institution and the exercise of its functions by a prefect of the Ministry of Home Aﬀairs, as occurred in other provinces.

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the exception of the judiciary and the Court of Audit).40 It is obvious that these activities, as well as the implementation of bilingualism as regulated in Articles 99 and 100 ASt, are particularly sensitive and under continuous observation by the political representatives of the German language group. Last but not least, the Commissioner’s oﬃce also acts as a secretariat for the joint commissions.41 B. The Regional Administrative Court When Italy ﬁnally decided to create an administrative judiciary in 1971, the institution of a Regional Administrative Court in Trento was to be followed by the establishment of a separate ‘external section’ in Bolzano.42 Very soon, the new provisions were in contrast with the reform of the Autonomy Statute,43 which established an ‘autonomous section’ (in Bolzano) of the Regional Administrative Court and provided speciﬁc features regarding its composition: the two “strongest linguistic groups” were to be equally represented among the judges, half of which should be nominated by the South Tyrolean Provincial Assembly; the unusual equal number required the rule of prevalence of the president’s vote.44 Therefore, the Provincial Assembly decides on the nomination of the two Italian and two German-speaking judges following the proposal of the respective linguistic groups in the Assembly,45 while the Ladins remain excluded from this distribution.46 The ‘new’ Autonomy Statute also introduced a new form of legal protection granted to members of the Regional or Provincial Assembly: they can appeal to the Administrative Court against any administrative provision adopted by an authority operating in the province in case of an alleged violation of the equality of citizens based on their aﬃliation with a language group.47 Further speciﬁc forms of legal protection include admission to schools (i.e., parents’ right to appeal against rejection of a child due to insuﬃcient language knowledge, Art. 19

40 See, for the speciﬁc legal bases, the special procedures and limitations, Heinrich Zanon, “Die Besetzung der Richteramtsstellen bei den ordentlichen Gerichten in der Provinz Bozen: Verfahren und Einschränkungen”, in Joseph Marko et al. (eds.), Die Südtiroler Verfassung. Die Sonderrechtsordnung der Autonomen Provinz Bozen-Südtirol (Nomos, Baden-Baden, 2005), 374–379. 41 See the chapter by Francesco Palermo on the implementation and amendment of the Autonomy Statute in this volume. 42 Law No. 1034 of 06 December 1971. The following section on the Regional Administrative Court is based on Guido Denicolò, Das Verwaltungsgericht Bozen, in Marko et al., op. cit. note 40, 380–385. 43 Articles 90, 91, 92 and 93 ASt (consolidated version, D.P.R. 670/1972). 44 The oﬃce of the president is exercised in rotation by both groups. 45 Art. 4 D.P.R. 426/1988. De facto, the proposals made by the groups are respected; due to the absolute majority of the SVP, the deliberation of the Assembly is a mere formality that opens the selection of the candidates to the inﬂuence of the political parties within the respective groups. 46 This has been conﬁrmed by the Council of State, only two years after the eﬀective establishment of the autonomous section ( Judgment No. 1097/1991). 47 In case of provisions issued by the local authorities, this appeal is open also to members of the Municipal Assembly. As a precondition for the appeal, the alleged violation has to be recognized as such by the majority of the language group as represented in the relevant assembly.

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para. 3 ASt), the approval of the provincial budget (in the case of disputes over single chapters), as well as the right of citizens to use their language in relations with the public administration.48 Against the decisions of the Administrative Court, as the ﬁrst instance, an appeal is possible to the Council of State in Rome; in these cases, a member of the German language group also has to sit on the bench of judges deciding the appeal.49 The Administrative Court, an important institution of control over public power in the province, began its work with considerable delay only in 1989.50 Some elements that might aﬀect the independence of this institution, due to the particular composition of the autonomous section, could be viewed critically. The Enactment Decree of 1984 goes indeed much beyond the wording in the Autonomy Statute, providing for the nomination of half of the section, i.e., four judges, by the Provincial Assembly. The Decree prescribes a ‘political’ nomination also for the second half of the judges, instead of their selection via the ordinary procedure and from the lists of administrative judges.51 The second half is nominated by the central government after prior consultation with the Council of the Presidency of the Administrative Judiciary. Through a distinct and special staﬀ list created within the general administrative judiciary, however, by their legal status all judges—despite their ‘political’ nomination—have become professional judges.52 It should be noted that the system cannot be explained by the logic of parity between the judges nominated by the Provincial Assembly and those nominated by the central government, as also the latter candidates belonging to the German language group are to be approved by the Provincial Assembly before their nomination by the central government. Thus, the Provincial Assembly does not only determine its share of half of the judges but, in addition, also half of those to be nominated by the state, i.e., a total of six out of eight judges of the autonomous section.53 At ﬁrst glance, this weighting towards ‘politically’

48 In case of violation of the regulations on the use of language, an appeal is possible against the authorities; in case of a negative decision, the citizen can ﬁle an appeal to the Administrative Court; Art. 8 D.P.R. No. 574 of 15 July 1988; see also the chapter by Cristina Fraenkel Haeberle in this volume. 49 Currently, two German speakers serve as judges at Italy’s highest Administrative Court in Rome. 50 Due to delays in the adoption of its legal base, Enactment Decree 426/1984, ten years after the establishment of Regional Administrative Courts in the other regions, and further delay in its implementation (the decree had envisaged this taking six months after its entry into force but the court in Trento only started working in 1986 and the “autonomous section” in Bolzano only ﬁve years after the entry into force of the enactment decree). This might be due to fears on the part of the local political establishment regarding the institution of a “judge controlling power”. See Denicolò, op. cit. note 42, 382. 51 By contrast with Art. 91 ASt, which requires the president to be “one of the professional judges”, indicating a clear legislative distinction between the ‘political’ and the ‘technical’ component, which was later given up. 52 Of course, all candidates have to fulﬁll the professional requirements for oﬃce, according to Art. 2 of the Enactment Decree. 53 See, for details, Denicolò, op. cit. note 42, 384. There are no speciﬁc majority requirements for these deliberations of the Provincial Assembly.

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nominated judges might be in line with the safeguard of territorial self-government and minority protection. As it regards the institution that exercises a legal control over the public authorities operating in the province and as the province is very small, there might be, however, also some risks for the independence of the Administrative Court, albeit not in a formal sense.54 C. Other State Institutions Among the other state institutions operating in the province, the Court of Audit (Corte dei Conti) and the State Legal Service (Avvocatura di Stato) have been adapted considerably to the special situation in the autonomous province,55 in particular with the institution of two separate Courts of Audits for the two provinces, the creation of distinct staﬀ lists and the application of the proportional quota system and bilingualism for the Province of Bolzano-South Tyrol. Distinct staﬀ lists, the proportional quota system and bilingualism also apply to the judiciary and its administration in the province.56 Besides the ordinary courts of ﬁrst instance, a separate section of the Court of Appeals in Trento has been established in Bolzano in order to guarantee bilingualism of services also in the second instance.57 D. Special Procedures as Safeguards against State Unilateralism In addition to the special procedures for the implementation of the Autonomy Statute,58 speciﬁc forms of coordination between state and regional legislation have also been established. Based upon the predominantly bilateral character of relations between the state and the special autonomy, these stress the ‘cooperative’ dimension of the state “Function of Direction and Coordination”, at least vis-àvis the autonomous provinces: Legislative Decree D.Lgs. 266/1992 plays a central role by introducing a special consultation procedure to safeguard the special character of the autonomy and its distinct legal system. Adopted shortly before the formal declaration of conﬂict settlement with Austria (11 June 1992), this is one of the last decrees adopted for the implementation of the ‘Package’. The 54 These risks would indeed increase if proposals to establish a special section of Italy’s highest administrative court, the Council of State, in the province were to be realized, as this would mean that there would be no external control and possible remedy any more. 55 By means of enactment decrees; see the respective sections on these two institutions in Jens Woelk, “Südtirol im kooperativen Regionalismus Italiens”, in Marko et al., op. cit. note 40, 254– 266. 56 Judges on these local staﬀ lists cannot be obliged to serve outside the province; on their own initiative, they can apply for other functions outside the province not before ten years have passed after taking oﬃce on a reserved post in a local list in South Tyrol. See Art. 38 D.P.R. 752/1976; and the chapter by Emma Lantschner and Giovanni Poggeschi on the quota system in this volume. 57 State Law No. 335 of 17 October 1991. 58 See the chapter by Francesco Palermo on implementation and amendment of the Autonomy Statute in this volume.

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special procedure introduced can be seen as a reaction to fears that the Italian state might circumvent numerous autonomy provisions after the formal settlement. The main contents of the special coordination procedure in D.Lgs. 266/1992 regard legislation (Art. 2) as well as the exercise of the state “Function of Direction and Coordination” as falling within the administrative sphere (Art. 3). The provincial legislation was protected by an eﬃcient ‘shield’ against (sudden) changes in state legislation on the principles of legislative comeptence, which usually exerted considerable adaptation pressure on the autonomous legislation. By contrast with other regions, in South Tyrol provincial and regional laws remained in force after these changes; within six months, the autonomous provisions had to be adapted to the modiﬁed state principles. Only if this did not happen could the central government challenge the regional or provincial provisions in front of the Constitutional Court (Art. 2). This special procedure for South Tyrol used to be an important exception from the principle of preventive state control of all regional legislation; it anticipated the reforms of the late 1990s, which abolished all controls and put state and regional legislation on an equal footing, at least with regard to impugnment in front of the Constitutional Court. In addition, Article 3 of D.Lgs. 266/1992 limited the exercise of the state “Function of Direction and Coordination”, which is to be applied in a subsidiary manner only. Other special cooperation procedures prevail, with the consequence that all regional or provincial laws remained in force. Before the adoption of a measure in the exercise of the state “Function of Direction and Coordination”, its content was to be “negotiated” with the concerned territorial authority. Paragraphs 4–6 even prescribe a temporary suspension of such measures during the period for appeal to the Constitutional Court.59 Serving the purpose of protecting the special autonomy against unilateral state interference, this unique procedure was seen as a challenge to the superiority of the state vis-à-vis the regions, expressed by the state “Function of Direction and Coordination”.60 The procedure described above, which guarantees a smooth self-adaptation by the autonomous authorities, diﬀers in various respects from the common procedures for adaptation of the regional legislation to (changes in) state legislation on principles, applied with regard to other regions. The procedure diﬀers because it has: − a diﬀerent legal source, i.e., an enactment decree (with consultation of the autonomous province/region) instead of ordinary laws; − a diﬀerent character, due to the bilateral relationship with the state;

59 In a particular case, however, the president of the Council of Ministers can ask the Constitutional Court for a decision on the interruption of the suspension (para. 5). 60 “The temporary suspension of legal provisions which have been adopted against the opinion of the Province is another proof for the special character (specialità) of these enities”. Sergio Bartole, “Postilla ad un commento sulla ‘chiusura della questione altoatesina’ ”, Le Regioni (1993) No. 2, 411–416, at 414.

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− a diﬀerent subject, i.e., the conformity of state normative acts with other provisions of the Autonomy Statute; − diﬀerent legal eﬀects, i.e., a binding eﬀect or the temporary suspension of the ‘individual opinion’ foreseen in the enactment decree.61 According to the Constitutional Court, the distinct procedure of consultation originates from the special regulations in the Autonomy Statute and in the speciﬁc requirements for their protection. An ‘individual’ opinion by the autonomous province (or region) can therefore not be ‘substituted’ by a ‘collective’ opinion, as expressed by the Standing Conference of the State and Regions. In more general terms, the special procedure of D.Lgs. 266/1992 conﬁrms the jurisprudence of the Constitutional Court, which has always stressed that the state “Function of Direction and Coordination” is not to be understood as an instrument of coercion by the state but rather as an instrument for balancing and compensating diﬀerent interests. It also demonstrates, however, the priority of safeguarding the autonomy with respect to the “requirements of [state] unity”: the cooperative nature clearly prevails over a use of the function for the preservation of state predominance. Article 4 of the ASt acts as a reminder of the ambiguity of the ‘national interest’ with regard to the South Tyrolean autonomy: of course, it serves for the implementation of state principles valid for the whole republic in the interests of the “requirements of unity” but this has to be balanced with a second constitutional principle, the protection of linguistic minorities (Art. 6 Constitution) comprising the special provisions of the South Tyrolean autonomy. Accordingly, Article 1 D.Lgs. 266/1992 calls all public powers to the protection and safeguard of the autonomy, referring expressly to the international legal basis of the South Tyrolean autonomy.62 The Constitutional Court itself stressed the exemplary character of this special cooperation procedure for the whole Italian legal system.63 Its essence, the equal standing of state and regional legislation regarding their impugnment and constitutional control, was extended to all regions with the Constitutional Reform of 2001.

61 Italian Constitutional Court, Judgment 121/1997; see the comment by Delzio, op. cit. note 17, 4124. 62 The Constitutional Reform of 2001 (Art. 3 Constitutional Law 3/2001) has cancelled the phrase the “national interest” from the text of the Constitution (former Art. 117 para. 1); however, as the Autonomy Statute has not been amended, the formulation in Art. 4 is still to be found in it. See Antonio Barbera, “Scompare l’interesse nazionale?”, Forum di Quaderni Costituzionali (2001), at . 63 Italian Constitutional Court, Judgment 18/1997.

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The basic idea of two distinct and separated spheres of competences between the state and the regions also dominated the issue of regional involvement in EU/EC aﬀairs. The competence for foreign aﬀairs is clearly vested with the central state and it is the central government that acts in the Council of Ministers at the European level. As the EU/EC does not distinguish between member states’ internal structures—unitary, regional, federal—the question of which competencies are concerned depends on the domestic distribution of powers. Thus, an increasing number of regional competencies are also relevant to and aﬀected by EC/EU law, creating a growing necessity to deﬁne the respective spheres of action between the state and the regions. This led to the fundamental distinction between external representation by the state and domestic enactment or application of EC/EU law by the state, the regions or the municipalities. For a long time, attention was focused nearly exclusively on the latter, due primarily to Italy’s obligation as a member state to comply with EC/EU law but also due to a lack of eﬀective domestic participation on the part of the regions in the decision-making process and a general sceptical attitude regarding regional administrative capacities. Thus, state control and intervention powers dominated practice and academic debate.64 The fundamental problem was to involve the regions—because otherwise their sphere of competences would have been considerably limited by EC/EU law as well as by the respective state powers for its enactment—and, at the same time, to guarantee the eﬀective and uniform application of EC/EU law due to the state liability vis-à-vis the EC/EU. The only way out of this dilemma was to balance the interests, involving the regions without losing state control. A particular problem in this regard was the exclusive legislative competence vested in the special regions, which could not be directly conditioned by the state legislation on principles.65 A. The Regions and the Enactment of EC/EU Law The process of regional emancipation in the enactment of EC/EU law followed the general pattern of evolution in the relations between state and regions: 1. In the ﬁrst phase, until the mid-1970s, any (legislative) regional power in European aﬀairs was neglected, due to the central state’s monopoly in international aﬀairs and foreign powers.

64 See, in particular, Luisa Antoniolli Deﬂorian, “Italy and the European Union”, in Jeﬀrey S. Lena and Ugo Mattei (eds.), Introduction to Italian Law (Kluwer Law International, Den Haag, 2002), 63–98; Marta Cartabia, “Parte seconda: Lo scenario italiano”, in Marta Cartabia and Joseph H.H. Weiler, L’Italia in Europa, Proﬁli istituzionali e costituzionali (Il Mulino, Bologna, 2000), 129–213. 65 The state legislation on principles is one of the limits to be respected by regional (secondary) legislation.

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Of course, the regions (as well as the municipalities) had to apply directly applicable EC normative acts (such as regulations) but this activity, as well as the enactment of EC directives, was directed by the state,66 in particular by means of the state “Function of Direction and Coordination”. Based on “requirements of unity”, its use could always be justiﬁed by the necessity of uniform application of EC law. However, the state was limited to setting principles and had to leave enough room for regional discretion.67 Later, regions were allowed to legislate in their own sphere of powers but the state would ﬁrst legislate on principles and adopt transitional provisions.68 Although state legislation in European aﬀairs often came late, the regions had to wait in order to respect the principles with their legislation. Also, for this reason, regional implementation often did not respect the deadlines set by the EC, leading to procedures against Italy. In order to avoid this consequence, in the domestic sphere, the state can react to regional inactivity by the use of its coercive power of substitution with regard to the concerned region and after a consultation procedure.69 An improvement in Italy’s record in enacting EC law came with the introduction of an annual “Community Law” (known as Legge La Pergola),70 which coordinates and rationalizes the enactment eﬀorts. A diﬀerent treatment was applied with regard to the special regions in respect of their exclusive competencies: in this sphere, direct regional legislation for the enactment of EC law was possible from the beginning.71 2. Until the late 1990s, the regions progressively achieved the power to autonomously and immediately enact and apply European law. From the mid-1990s, the regions were able to act independently from the state and with wider margins of discretion: within their concurrent legislative powers, the previous adoption of a state law (on principles) was no longer necessary. It is suﬃcient that the government is informed about regional legislation enacting EC directives, which has to indicate title and number of the respective directive.72 The state might anyway indicate principles that cannot be derogated and that subsequent regional legislation has to respect; for regional legislation already in force, regarding the concurrent powers, the subsequent state law on principles prevails over contrasting regional provisions, while for the special regions in the matters of exclusive powers, the obligation continues to adapt this legislation.

66 See, for example, D.P.R. 4/1972 and Constitutional Court Judgments 49/1963 and 142/1972. 67 Of course, this interpretation in the single case led to numerous controversies in front of the Constitutional Court. 68 D.P.R. 616/1977, which meant the end of total domination by the state. 69 The regional power is unquestioned; the state can act on behalf of the region as long as the region itself does not become active; Constitutional Court Judgments 126/1996 and 398/1998. See Cartabia and Weiler, op. cit. note 64. 70 L. 86/1989, in particular Art. 9. 71 Conﬁrmed by Art. 13 L. 183/1987. 72 Italian “Community Law” 1995–97, L. 128/1998 of 24 April 1998.

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The so-called Bassanini Reforms in the late 1990s, with their objective of realizing an ‘administrative federalism’, have strengthened the regional position by devolving a number of administrative competencies. The state is principally vested with supervisory and substitutive powers,73 which are to be exercised according to the principle of loyal cooperation:74 even in the exercise of the state “Function of Direction and Coordination”, the state can only act on the basis of an agreement with the regions, which express their opinion through the Standing Conference of the State and Regions; if only a single region is concerned, the state has to respect its individual opinion. 3. With the Constitutional Reforms of 2001, regional participation in EU aﬀairs, as well as the direct regional enactment and application of EC/EU law have been recognized in the text of the Constitution (Arts. 117 and 120).75 According to Article 117 paragraph 5 of the Constitution, after the reform, all regions are vested with a general power of direct enactment and application of EC/EU normative acts as well as international treaties, independent from the nature of the competence concerned (exclusive, concurrent or residual). The evolution towards greater regional autonomy regarding the enactment of EC/EU law has thus been recognized and conﬁrmed.76 However, the state still determines the fundamental principles regarding the exercise of the concurrent legislative powers (Art. 117 para. 3 Constitution) and continues to vest the power of substitution in case of regional inertia (Art. 120 para. 2 Constitution). Two state laws of 2003 and 2005 for the enactment of the constitutional reforms contain detailed provisions on the exercise of the general regional power to implement EC/EU law autonomously,77 as well as on the procedures for exercising the state power of substitution.78 B. Regional Participation in EU Aﬀairs Corresponding with the regional emancipation and their involvement in the enactment of EC/EU law, the regions became increasingly interested and active in participating in the decision-making process, both at the European and the domestic levels. 73 74

D.P.R. 112/1998, in particular Arts. 4 and 5. Art. 8 L. 59/1997 (Bassanini I), thus prescribes the “cooperative” element of the state func-

tion. 75 Art. 117 para. 1 of the Constitution adds Community obligations to the limits set to regional and state legislation, thus recognizing the supremacy of EC/EU law and completing the constitutional basis for Italy’s membership (the generally framed Art. 11). 76 Bartole, Bin, Falcon and Tosi, op. cit. note 13, 224. 77 Legge No. 11 of 4 February 2005 (“Buttiglione”), in part. Art. 16. 78 Legge No. 131 of 5 June 2003 (“La Loggia”), in part. Art. 8 (“potere sostitutivo”, implementing Art. 120 Constitution). Direct enactment by state authorities in matters of regional competence is possible only after the region has not provided the necessary measures within a certain period and upon decision of the Council of Ministers; the government can then adopt the necessary normative acts or appoint a Commissioner. These powers refer only to the respective region and the Standing Conference of the State and Regions has to be consulted.

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While, at the beginning, all contacts with European institutions were ‘ﬁltered’ through the Ministry of Foreign Aﬀairs, a ﬁrst change occurred with the annual adoption of the “Community Law” (1989), which contained the obligation to discuss European aﬀairs in the Standing Conference at least every six months. The role of the Standing Conference was strengthened by Community Law 1995–97 (1998), which extended the possibility of calling for such a discussion also to the regions, allowed for regional proposals to the Community Law and introduced the necessity of an opinion to be expressed by the Standing Conference regarding the annual Community Law (Art. 10). In addition, the government’s obligations to provide parliament as well as the regions with comprehensive information on proposals for EU normative acts were also extended. A ‘regional member’ could be attached to the Italian permanent representation in Brussels. Since 1996, Italian regions are formally allowed to maintain liaison oﬃces in Brussels;79 most of them do. Among Italy’s 24 representatives in the Committee of Regions, 14 are nominated by the regions.80 The amendment of the Italian Constitution in 2001 expressly conﬁrmed the regional position: Article 117 paragraph 5 of the Constitution refers to direct contacts and regional participation in the decision-making process. The enactment laws extend the obligations of the government regarding comprehensive information and provide for the participation of one regional representative in the government’s delegations in Brussels,81 for the (limited) possibility of a regional representative acting for Italy in the Council of Ministers (according to Art. 203 ECT),82 as well as for the possibility for the regions to ask the Italian government to ﬁle appeals on their behalf to the European Court of Justice.83 They also conﬁrm the central role of the Standing Conference.84 Together with the informal Conference of the Presidents of the Regions, the Standing Conference has become the institution formulating and expressing the regions’ opinions on EU proposals regarding their powers or interests. Although it has been

79 L. 52/1996 (Art. 58 para. 4) and L. 128/1998 (Art. 13 para. 11); see the chapter by Alice Engl and Carolin Zwilling for the legal controversy regarding the Joint Oﬃce of (Austrian) Tyrol, South Tyrol and Trentino in 1997/8. The Judgment of the Constitutional Court (428/1997) was handed after the law had entered into force; it conﬁrmed the right of the regions to maintain direct contacts but underlined their obligation to inform the central government. 80 Plus eight substitute members. All are nominated by the Standing Conference. Currently, the Italian members include Luis Durnwalder, president of the Autonomous Province of Bolzano/ Bozen. 81 Art. 5 Legge No. 131 of 5 June 2003 (“La Loggia”); and Art. 5 para. 2 Legge No. 11 of 4 February 2005 (“Buttiglione”). 82 Insofar as regional exclusive powers are concerned, see Art. 117 para. 4 Constitution; Tania Groppi, “The Involvement of Italian and Spanish Regions in the EU Decision-making Process”, in Roberto Toniatti, Marco Dani and Francesco Palermo (eds.), An Ever More Complex Union. The Regional Variable as the Missing Link in the EU Constitution? (Nomos, Baden-Baden, 2004), 143–157. This has never happened so far. 83 Art. 5 para. 2 Law 11/2005. This is important due to the fact that the regions do not possess a privileged access of their own. The government is obliged to ﬁle an appeal to the ECJ, if this is the position of the majority of all regions, as expressed by the Standing Conference. 84 Art. 5 para. 2 and Art. 17 Law 11/2005.

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critically observed that the executive authorities continue to dominate all domestic consultation and coordination procedures, there does not seem to exist any eﬃcient alternative. C. EU Aﬀairs: Regional Gains and Special Challenges The evolution of regional participation in EU aﬀairs and regional implementation of EU law underline and conﬁrm the mutual inﬂuence and complementary character of the two developments that have shaped and transformed Italy’s regional system, i.e., coordination in cooperative terms. Regional participation in the domestic procedures inﬂuencing the EU decision-making process is a huge progress in the evolution of Italian regionalism and a precondition for further federalization. However, any participation cannot be a substitute for the exercise of one’s own powers. Nor does it provide adequate instruments for those cases in which the speciﬁc interests of single regions have to be represented, as it is always necessary to ﬁnd allies for a majority to support a common opinion. Consequently, there remains a need for more direct channels of communication and representation in order to defend and lobby for speciﬁc interests. This is particularly true for the special autonomies. Those direct channels could be special procedures, speciﬁc institutions or both.85 The vigorous activities of the Italian regions in Brussels are proof of this need. In this context, South Tyrol’s cross-border activities and its direct engagement in the joint Brussels representation,86 together with neighbouring Trentino and the Austrian Land of Tyrol, demonstrate the consciousness of the new and special challenge that a small and special entity will never be able to meet by exclusively relying on domestic mechanisms and the solidarity of other regions. Special character requires diﬀerentiated approaches, instruments and solutions.

V. Perspectives: After the Constitutional Reform of  The illustration of the relations between the Italian state and the South Tyrolean autonomy is characterized by their dynamics and changes. Continuous adaptation is the challenge for the integration of the autonomous entity into the wider frame of the state system—integration without risking the loss of (essential elements of ) the special nature. Besides the important milestones (the ‘Package’, the ‘New Autonomy Statute’, the formal conﬂict settlement, etc.), the instruments and

85 An important example is again the Joint Commission formally consulting on (and de facto elaborating) the Enactment Decrees for the implementation of the Autonomy Statutes. 86 See the chapter by Alice Engl and Carolin Zwilling in this volume.

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procedures for continuous adaptation are thus of equal importance for making the autonomy work in the wider context while preserving its special features. The Autonomous Province of Bolzano/Bozen-South Tyrol played only a marginal role in the general evolution of the Italian regional system. However, the basic decision of Italy in favour of an asymmetric design of its regional system certainly facilitated tailor-made solutions (as can be seen with the establishment of the autonomous provinces and the institutional adaptations of the relevant state authorities). No matter how positive recent developments have been, it must not be overlooked that the federalization of Italy might also bring some risk for the special autonomies, as the trend towards increasing homogeneity and uniformity among the regions might endanger their special, asymmetrical position in the constitutional system. There is clearly a lack of coordination in the new order of distribution of legislative powers: the new list in Article 117 of the Constitution was written with an exclusive view to the ordinary regions, in order to increase their competencies substantially; however, the reform hardly considers the distinct competencies of the special regions; the meagre ‘salvation clause’, which declares the new list of Article 117 to be applicable also to the autonomous regions (if this adds to “more extensive autonomy”),87 does not come close to solving all of the uncertainties arising from the coexistence of diﬀerent competence-catalogues but rather creates new ones. Over the past ﬁfty years, Italy’s asymmetrical regionalism has been a strength and, at the same time, also a weakness. On one hand, it made diﬀerentiation possible (and thus acceptance by the population) as well as gradual development and emancipation of the regional level. The latter development was largely sustained and brought forward by the impatient advances of the further developed, better equipped and more active autonomous regions. After the complete unfolding of Italy’s regional system, protection against unilateral state intervention became more and more important for the special regions in general and for the South Tyrolean autonomy in particular. In 1992, one of the last enactment decrees introduced a procedure that underlined the special character of the autonomous entity, substantially putting it on equal footing with the state and thus protecting the autonomous legislation.88 This procedure became a model for subsequent general reforms. The regional role in the implementation of EC/EU law and the participation in EU aﬀairs conﬁrmed the general ﬁndings. The greatest weakness of Italy’s regionalism has remained the insuﬃcient development of a true political dimension at the regional level,89 also vis-à-vis the 87

Art. 10 Constitutional Law 3/2001. D.Lgs. 286/1992. 89 Roberto Bin, “La speciale autonomia del Trentino e dell’Alto Adige/Südtirol tra statuto, norme di attuazione e riforma costituzionale”, in Giandomenico Falcon (ed.), Sviluppo e mutamento della Costituzione. Il regionalismo italiano e la speciale autonomia del Trentino e dell’Alto Adige/Südtirol (Cedam, Padova, 2003), 131–151, at 133. 88

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citizen. However, this general judgment does not apply to Trentino-South Tyrol, which makes a good argument—besides its small size and the good governance of its competences—for preserving a ‘diﬀerentiated’ character in a future federal system in Italy.90 The continuity of the asymmetrical character in Italy’s territorial government as well as the special position of South Tyrol will thus inevitably continue to require legal diﬀerentiation in terms of adaptation of institutions and speciﬁc procedures for consultation and cooperation.

90 See, for the concept of a “diﬀerentiated” federal state, Peter Pernthaler, Der diﬀerenzierte Bundesstaat. Theoretische Grundlagen, praktische Konsequenzen und Anwendungsbereiche in der Reform des österreichischen Bundesstaates (Braumüller, Wien, 1992).

CHAPTER EIGHT

IMPLEMENTATION AND AMENDMENT OF THE AUTONOMY STATUTE Francesco Palermo

I. Introduction Like every constitution, the Autonomy Statute for (Trentino and) South Tyrol needs to be implemented and, where appropriate, formally amended. The design of the process of implementation can be considered to be the legal masterpiece of the Autonomy Statute (ASt): by means of a complex mix of procedural rules and substantial guarantees, the principle of special treatment for South Tyrol comes here most visibly to the fore. The institutional and the procedural framework for the implementation of the Autonomy Statute most deﬁnitely represents one of the possible ‘tools for export’ of the South Tyrolean autonomy and can be regarded as one of the most relevant legal factors for its success, even though some technical aspects seem to require further amelioration in order to better balance between diﬀerent and sometimes contrasting constitutional principles. The procedure to amend the Autonomy Statute—as is common for all constitutions—tends to reﬂect the interests of the drafters: in the case of South Tyrol, the amendment procedure clearly makes formal amendments dependent on the concurring will of the provincial and national parliaments. As a matter of fact, however, the Autonomy Statute, after having been practically rewritten in 1972 (the so-called ‘Second Autonomy Statute’) was not amended until 2001, when the sole substantial change that was introduced concerned the amendment procedure itself. In this chapter, both the implementation (Section II) and the amendment procedures (Section III) will be described in detail, paying particular attention to the constitutional adjudication in this regard. Finally, some consideration will be given to the core of the autonomy as it emerges from the procedures on implementation and amendment of the Statute (Section IV). This will show the complexity of the autonomy arrangement, on the one hand, and the real dimension of its guarantees, on the other.

II. Implementation of the Autonomy Statute According to Article 107 of the Autonomy Statute (ASt), “the executive measures implementing the [. . .] statute shall be issued by legislative decree, following

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consultation of a joint commission of twelve members, of which six shall represent the State, two the regional parliament, two the provincial parliament of Trento and two that of Bolzano/Bozen. Three of its members must belong to the German linguistic group.” Paragraph 2 of the same Article 107 provides that “within the commission referred to in the previous paragraph, a special commission for the executive measures relating to the matters assigned to the competence of the Province of Bolzano/Bozen shall be appointed, made up of six members, of whom three shall represent the State and three the Province. One of the representatives of the State must belong to the German-speaking group; one of the representatives of the Province must belong to the Italian-speaking group.” A. The Joint Commission(s) Such an apparently simple and clear provision is, in fact, extremely complex in practical terms and can be properly understood only having in mind the general framework of the special autonomy for (Trentino and) South Tyrol, as well as the developments and interpretations that have occurred in the process of implementation. Following the general scheme of the Autonomy Statute, the regional dimension comes ﬁrst and the provincial dimension only comes after, being derived from it, at least in systematic terms. After the changes of 1972 and the subsequent transfer of powers, however, the reality has become exactly the opposite.1 It is not surprising, therefore, that the Commission addressed in paragraph 1 (the so-called ‘Commission of Twelve’) has in fact a very limited role and political power, due to the fact that it is in charge of enactment measures concerning the region.2 The really relevant body is thus the Commission of Six—formally part

1 This was due to the diﬃcult compromise reached during the elaboration of the so called ‘second’ Autonomy Statute, which was formally just a substantial amendment of the ﬁrst Statute of 1948. So, following the form, the region was designed as the main reference institution, from which the two provinces are ‘derived’. Beyond this formal approach—which was imposed by the Italian government in order to formally stick with its presumption that the obligations arising from the Paris Agreement of 1946 were already fulﬁlled with the ﬁrst (and formally still the only) Autonomy Statute of 1948—the substance is the opposite: all the substantial powers that the region enjoyed under the ‘ﬁrst’ ASt were transferred to the provinces. It is fair to say that the compromise of the Second Autonomy Statute was possible also because of this balance between form and substance. The Italian state saved the form and the German-speaking group in South Tyrol substantially got what it stood for: a provincial and no longer a regional autonomy. 2 As to the implementation process, there is thus a big legal asymmetry between the provinces of Trento and Bolzano/Bozen: whereas the latter has ‘its own’ Joint Commission for implementation, the former has not, since the ‘Commission of Twelve’ deals with regional issues only. In practical terms, however, given the irrelevance of the region, which, to date, practically has no more legislative and administrative powers, the Commission of Twelve is slowly evolving into a body dealing with issues concerning the province of Trento. This, on the one hand, shows the attitude of the time when the second ASt was elaborated, when the region was—by some right—considered a ‘Trentinian’ institution; on the other hand, it faces procedural problems, since the enactment decrees elaborated by this commission can formally be addressed only to the region.

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of the Commission of Twelve—dealing with the implementation of the ASt for South Tyrol only.3 Both commissions reﬂect the principle of parity that is the very essence of the special autonomy. However, whereas in the Commission of Twelve the state and the region have equal footing (six members each),4 the Commission of Six is marked by a ‘double parity’: parity between territories (the state and South Tyrol) and parity between the two main linguistic groups (three Italian-speaking members and three German-speaking members). This is one of the keys to its success: the even number of representatives makes it impossible to reach an agreement within the Commission when there is disagreement between territories and/or between linguistic groups.5 The Commission of Six is therefore the body where the two main groups are forced to cooperate, in the common interests of both, to reach a compromise. The equal representation of territories and groups, regardless of size and majority–minority positions, is the decisive element in understanding the role of the Commission as a successful conﬁdence-building instrument.6 Such a role justiﬁes, as will be explained in the following pages, both the exclusion of the representatives of the Ladin community from the Commission and the fact that the decisions of the Commission prevail even over the laws democratically adopted by the Italian parliament. The (legal and political) special status of South Tyrol within the Italian constitutional system is clearly mirrored in the role of the Joint Commissions for the implementation of the ASt. Such commissions, indeed, are a typical element of the special autonomy: they exist in all special regions and only in the special regions.7 However, whereas in the other special regions they merely play an accidental role (in quantitative and qualitative terms),8 in South Tyrol the Commission of Six is the forum where the most relevant legal measures concerning the

3 The composition of the Commission of Six follows the same rationale: since the Autonomous Province of Bolzano/Bozen is part of the region, it is natural that the three ‘local’ members represent the province (2) and the region (1). As a matter of political reality, however, all the German-speaking representatives normally belong to the South Tyrolean Peoples’ Party (SVP). 4 Within the regional representation, the two provinces appoint the same number of members: three each. 5 Also important is the fact that one of the state representatives must belong to the Germanspeaking group and one of the representatives of South Tyrol must belong to the Italian group. This testiﬁes that—at least in the view of the ASt—both the state and the autonomous province have to be considered multiethnic communities: the state does also represent its minority and the province does not only stand for the German-speaking group. 6 It is not by chance that such a mechanism is developing also in other contexts. For example, the Law on the Protection of the Slovene Minority in Italy (No. 38/2001) provides for the establishment of a “Joint Committee for the problems of the Slovene minority”, composed by the same number of Slovene and Italian representatives. 7 See Art. 43 ASt for Sicily, Art. 56 ASt for Sardinia, Art. 65 ASt for Friuli-Venezia Giulia, Art. 48 ASt for the Aosta Valley. 8 For this deﬁnition, see Giuseppe La Barbera, Diritto pubblico regionale, Vol. I (Giuﬀré, Milano, 1973), 231.

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autonomy regime are adopted.9 This is also the reason why, following the same rationale, many other joint commissions between the state and the province have been established for a number of minor issues.10 The disjuncture between the text of the Autonomy Statute and its reality is visible not only in the diﬀerent importance of the two commissions but also in other elements. Firstly, the ASt provided that all enactment decrees had to be adopted within two years of the entry into force of the Statute; however, in practice it took ten times longer (twenty years, 1972–1992) and the process is still going on even beyond the enactment of the ‘core’ provisions of the ASt.11 Secondly, according to the abovementioned Article 107 ASt, the Commission(s) formally play a merely consultative role, their decisions requiring adoption by the national government in the form of enactment decrees. In practice, however, as will be described further below, the Joint Commission(s) are much more than a merely consultative body, being in fact the real forum for decision-making.12 Finally, not only are the Commission(s) still in force even after the formal completion of the implementation process of the Autonomy Statute but they remain the blueprint for cooperation between state and autonomous province: even when provisions are adopted by diﬀerent means, the principle of parity embedded in their very nature is reﬂected.13 In other words, it is fair to say that the Joint Commissions are the core institutions of the whole autonomy machinery for South Tyrol. They reﬂect the fundamental principle upon which all relations with the state are grounded: parity and equal representation.

9 Between 1996 and 2001, for instance, 27 enactment decrees were adopted for [Trentino-] South Tyrol, 9 for Friuli-Venezia Giulia, 8 for the Aosta Valley, 6 for Sardinia and only 4 for Sicily. The ﬁgures are similar also in more recent years: between 2001 and 2005, 21 enactment decrees were adopted for [Trentino-] South Tyrol. Moreover, the enactment decrees for South Tyrol mostly deal with crucial issues, typically with the transfer of new powers to the Autonomous Province (in recent years, for example, in regard to transportation, musical education, energy, administrative justice, school management and teachers, etc.), whereas in other regions they are often limited to very technical matters. 10 To date many other joint commissions exist in South Tyrol, pooling representatives of the state and of the province in order to deal with speciﬁc issues, such as, for example, the management of personnel, urban planning, legal terminology, etc. It is worth noting that the appointment of the members does not follow the same pluralistic model laid down in the ASt for the Commission of Six. In these cases, in fact, all Italian-speaking representatives are typically appointed by the state and all German-speaking members by the provincial administration. 11 This unrealistic timeframe is provided in Art. 108 ASt. Accordingly, all enactment decrees to the ASt should have been adopted before 20 January 1974 (the ASt entered into force on 20 January 1972). In 1985, the Constitutional Court declared that the time frame of Art. 108 was merely indicative and not legally binding because no sanction is established if the time limit is not respected. See the commentary on Judgment No. 160/1985 by Sergio Bartole, “Le norme di attuazione degli statuti speciali come fonte permanente”, Le Regioni No. 6 (1985), 1140–1155. The full implementation of the core of the ASt was acknowledged by Austria in 1992. 12 Ibid., 1152. 13 Such as, for example, in the case of the laws on ﬁnance for South Tyrol, which are adopted by the national parliament in accordance with the provincial authorities.

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B. The Enactment Decrees The relations between the state and the special regions are not based on hierarchy but, in principle, on parity. This principle inspires both the role and the composition of the Joint Commission(s) for the implementation of the Autonomy Statute and the peculiar position of the enactment decrees within the Italian system of law. The Joint Commission(s) prepare the texts of the enactment decrees. Once adopted by the Commission(s), the decrees are adopted by the government and can thus enter into force. The enactment decrees are relevant for three main reasons: ﬁrstly, because of their peculiar rank as sources of law; secondly, because of the importance of the topics they regulate; and, thirdly, because they were maintained as a privileged instrument for the implementation of the ASt even after the process of enactment of its core was successfully completed in 1992. 1. The Special Rank in the System of Law As to the position of the enactment decrees within the sources of law of the Italian Constitution, it must be outlined that their binding force is superior to that of all other governmental decrees. According to the Constitution, governmental decrees have the same force as the laws of parliament (Art. 77 Italian Constitution). This means that a subsequent law of parliament can abolish or amend a governmental decree. However, where the enactment decrees for the implementation of the Autonomy Statutes (not only for South Tyrol but also for all the other special regions) are concerned, they cannot be amended by a subsequent law of parliament. This means, in simple words, that they enjoy a higher position than the ordinary laws of parliament and are subordinated only to the constitution. The enactment decrees thus hold a status that is in between an ordinary law and a constitutional law.14 The rationale of this special ranking lays in the necessity to overcome the majority–minority positions: the Italian parliament is composed of almost 1000 members, of which only 7–8 represent South Tyrol. If a law of parliament could trump a piece of legislation negotiated on an equal basis by the same number of representatives of the state and of the autonomous province such as the enactment decrees drafted by the Joint Commission(s), the whole system would be impaired and, in sum, senseless. This is why, from the very beginning, the Constitutional Court established that the enactment decrees to the Autonomy Statute are superior to the laws of parliament, even though they are adopted by means of

14 These peculiar types of provisions are normally referred to as ‘atypical’ or ‘super-primary’ legislation. The same principle goes for the laws adopting the directives of the European Community and for the laws adopting the agreements between the state and the religious communities. See Vezio Crisafulli, Lezioni di diritto costituzionale, Vol. II (Cedam, Padova, 1976), 85; and Aldo Maria Sandulli, Manuale di diritto amministrativo ( Jovene, Napoli, 1984), 35. For further details, see Francesco Gabriele, “Decreti legislativi di attuazione degli statuti speciali”, in Enciclopedia Giuridica, Vol. X (Treccani, Roma, 1988), 11–15.

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a measure that normally has the same rank.15 In other words, when it comes to the relations between the state and the special autonomies (as well as to the protection of minority groups by means of special territorial autonomy), the principle of democratic legitimacy is limited by the principle of parity. 2. The Subjects Regulated by the Enactment Decrees As stated above, almost all the relevant contents of the Autonomy Statute are regulated by enactment decrees.16 For example, practical rules on issues like the ethnic quota system, the use of language, the school system, the census of language groups, etc., are to be found in enactment decrees.17 However, given the privileged position of this kind of provision, they have been used probably even beyond the primary objective of the full implementation of the Autonomy Statute. Of course, it is impossible to determine in abstract terms where implementation ends and legislation beyond the Autonomy Statute begins. On the other hand, it is self-evident that not every piece of legislation can be subsumed under the general umbrella of implementation.18 In practice, enactment decrees have been adopted on a number of issues that are not immediately connected with the implementation of the Autonomy Statute, such as, in particular, the transfer of new competences to the autonomous province beyond the division of legislative and administrative powers laid down in the Autonomy Statute. This is the case, for instance, of newly acquired powers after the formal conﬂict settlement in 1992, such as energy, transportation, teaching staﬀ in the public schools, musical education, etc. Such a development could not be imagined by the drafters of the ASt but is nonetheless rather understandable given the enormous success of the negotiated legislation by means of enactment decrees. It is thus normal that the political process makes broad use of an instrument that has proven to be extremely eﬃcient and convenient for both parts. Much more critical is the tendency to use the enactment decrees in order to substantially change the provisions of the ASt or to overrule judicial rulings: This was the case, for example, of the enactment decree on the administrative court

15 See Constitutional Court, Judgments No. 20/1956, 22/1961, 151/1972, 180/1980, 237/1983, 212/1984 and 160/1985. For a comment, see Umberto Allegretti, “La Corte ribadisce l’estraneità del Parlamento all’attuazione degli statuti speciali”, Le Regioni No. 6 (1984), 1310–1321. 16 The sole exception is the ﬁnancial relations between the state and the autonomous province. These are, however, regulated by a special law of the parliament, which requires the consent of both the state and the autonomous province. Also in this law, thus, the principle of parity clearly comes to the fore. 17 For a complete list of the enactment decrees adopted since 1948, see . 18 For a stricter interpretation of the concept of ‘implementation’ see Enzo Reggio d’Aci, La Regione Trentino-Alto Adige (Milano, 1994), 24. A broader—but still limited—concept is adopted by Gabriele, op. cit. note 14, 3. The Constitutional Court has adopted a rather generous interpretation of what can fall under the scope of the implementation, even though enactment decrees cannot intervene in issues that hardly have to do with the provisions of the ASt. See Constitutional Court, Judgment No. 34/1974, and the commentary by Antonio D’Atena, “Revisione dello statuto tridentino ed impugnativa delle vecchie norme di attuazione”, Giuisprudenza costituzionale (1974), 559–565. See also Constitutional Court, Judgments No. 136/1969 and No. 108/1971.

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for South Tyrol,19 of the decree establishing that the ethnic quota system should be applied in former public and then privatized bodies,20 of the provisions on the declaration of belonging to a linguistic group21 or on the use of language.22 In sum, the expansive potential of the decrees implementing the ASt has been used to the fullest extent in the political process. Although in some areas the enactment decrees were probably abused, this instrument has proven to be the key to the establishment of a sound and legally guaranteed system of rules on delicate aspects of the autonomy regime. 3. The Enactment Decrees after the Full Implementation of the Autonomy Statute Finally, the ever expanding role of the negotiated enactment decrees is demonstrated by the fact that they substantially evolved from an instrument for the implementation of the ASt into an ordinary instrument of government. The Agreement on the conﬂict settlement between the Italian state and South Tyrol of 1969 (the ‘Package’, which later became the political basis for the second Autonomy Statute of 1972) provided that, after the full implementation of the ASt, the Joint Commission(s) and the enactment decrees thereby drafted shall cease to exist. Instead, a new commission should be established, charged with the monitoring of the correct development of the autonomy regime and vested with an advisory role for all problems related to South Tyrol (the so-called ‘Commission 137’).23 Such a commission was established in 1992, when the process of implementation of the international obligations came to an end.24 Since then, however, it has only met twice, for merely formal purposes. Instead, the Joint Commissions were not abolished. On the contrary, they became the forums for the further development of the autonomy even after 1992. The reasons why this occurred are manifold. First, the Joint Commissions have proven to be an extremely powerful cooperative instrument and it was politically convenient to keep them instead of substituting them with a much less inﬂuential body. The Joint Commission(s) were and are legislative organs, whereas the so called ‘Commission 137’ was a merely advisory body.

19 Presidential Decree (D.P.R.) No. 426/1984. Whereas the ASt provides that half of the members of the administrative court shall be appointed by the provincial parliament (Art. 91 para. 2 ASt), the enactment decree provides that the whole panel is politically appointed. 20 Governmental Decree (D.Lgs.) No. 354/1997. This provision was adopted subsequent to a ruling of the Constitutional Court, which established that, in principle, the quota system was not to be applied to all privatized companies. See Judgment No. 260/1993. 21 Governmental Decree No. 99/2005 was adopted in order to prevent an infringement procedure by the European Commission. 22 See Decrees No. 283/2001 and No. 124/2005, adopted after the broad interpretation given to the language rules by the European Court of Justice in the cases Bickel/Franz ( Judgment of 24 November 1998, Case C-274/96, ECR 1998, I-7637) and Angonese ( Judgment of 6 June 2000, Case C-281/98). 23 This commission is normally known as the ‘Commission 137’, being established by the last measure of the ‘Package’ (Measure No. 137). 24 Decree of the President of the Council of Ministers (DPCM) of 29 January 1992.

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Second, the new Commission not only had much fewer powers but it was not based on the fundamental principle of parity between the territories and the linguistic groups, which is the foundational principle of the whole autonomy regime in its relation with the state.25 Therefore, the ‘Commission 137’ lacks the basic legitimacy underpinned by the principle of special treatment and can be therefore considered a sort of a genetic mistake from the very beginning. Its obsolescence is thus the consequence of such a dramatic mistake and is legally necessary. Third, a technical reason played a role. As stated above, the enactment decrees have a privileged status as an entrenched source of law due to the negotiated procedure for their approval and for this reason a law of parliament cannot amend a governmental decree implementing the autonomy statue. The abolishment of the Joint Commission(s) would have ‘frozen’ the enactment decrees, since they can be amended only by the same source of law.26 In practice, the special nature of the enactment decrees made it necessary to prolong the implementation machinery far beyond the original intent of the drafters of the Autonomy Statute, even though the permanent exclusion of the parliament from the fundamental decision-making in issues regarding the South Tyrolean autonomy has raised some critical remarks in the legal literature.27 C. The Legal Nature of the Joint Commissions and Enactment Decrees According to the Constitutional Court: The Principle of Procedural Supremacy As previously stated, the fundamental nature of the Joint Commission(s) and the entrenched role of the enactment decrees were not explicitly provided for by the Autonomy Statute. They rather developed over time, proving to be the most fundamental institutional instrument for the spectacular development of the autonomy due to their intimate cooperative and parity-based nature. Such a development was driven by the Constitutional Court, which proved to be the ‘best ally’ of the special autonomy where the role of the Joint Commission(s) and of the enactment decrees was concerned. All major steps in the development of such a role were marked by constitutional adjudication. Very often, the Court

25

The so-called ‘Commission 137’ has four German-speaking members, two Italians and one Ladin. 26 This rationale has been put forward by the highest administrative tribunal, the Council of State, First Chamber, in its Opinion No. 3302/1995 and by the Constitutional Court in Judgments No. 160/1985 and No. 37/1989. In the legal literature, see Alessandro Pizzorusso, “Delle fonti del diritto. Arts. 1–9 disposizioni sulla legge in generale”, in Antonio Scialoja and Giuseppe Branca (eds.), Commentario al codice civile (Zanichelli, Bologna-Roma, 1977), 114–178; and Antonio Lampis, Autonomia e convivenza (European Academy, Bolzano/Bozen, 2000), 31. 27 In particular, by Costantino Mortati, “Legislazione regionale esclusiva ed interesse nazionale”, Giurisprudenza costituzionale (1956), 1001–1006, at 1003; Gianfranco Mor, “Considerazioni sulle norme di attuazione degli statuti delle regioni ad autonomia diﬀerenziata”, Le Regioni No. 3 (1981), 431–445; and Giuseppe Guarino, “Stato e Regioni nella giurisprudenza della Corte costituzionale”, in Ettore Rotelli (ed.), Dal regionalismo alla Regione (Il Mulino, Bologna, 1973), 151–183, at 158.

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was asked to adjudicate on the role as well as on the legal rank of the enactment decrees, whereas the case law on the Joint Commission(s) is quantitatively less developed. 1. The Procedural Supremacy of the Enactment Decrees As to the enactment decrees, the Court basically established two principles. First, as already mentioned, the Court aﬃrmed that the enactment decrees must be considered to be entrenched sources of law, thus preventing the parliament from amending or abolishing them.28 The second principle logically follows from the ﬁrst and further implements it. It can be called the ‘principle of procedural supremacy’ of the enactment decrees and of the Joint Commission(s) as the forums for their elaboration. Procedural superiority means that the very procedure of cooperation on an equal footing upon which the Joint Commission(s) and the enactment decrees are grounded confers to the enactment provisions a sort of ‘presumption of constitutionality’. As a matter of fact, the Constitutional Court has never found an enactment decree or its parts to be in violation of the Constitution. Moreover, the Court has stated that enactment decrees approved according to the peculiar procedure within the Joint Commission(s) are “the best possible realization of the special autonomy”, since they incorporate the principle of negotiation, which is, for the Court, the intimate raison d’étre of special autonomy.29 For the Court, the procedure for the elaboration of the enactment decrees guarantees that these provisions realize the best possible autonomy conﬁguration in a given historical phase. Therefore, they must be seen as a boundary for and in the autonomy. “Trespassing this boundary would have unpredictable consequences as far as the balance in the autonomy regime is concerned; the enactment decrees stand for the guarantee of the preservation of such balance”.30 Such an interpretation practically (although not formally legally) prevents judicial review of the enactment decrees because of the procedural guarantee of cooperation they represent. Such an approach, on the one hand, testiﬁes how rooted the principle of special treatment for South Tyrol is in the Italian constitutional system and how important the principle of cooperation is. On the other hand, however, it bears the risk that the enactment decrees become a sort of a grey zone in terms of judicial scrutiny and ultimately in the very guarantee of the principle of the rule of law.

28

See note 15. This is the expression used by the Court in Judgment No. 213/1998. For an in-depth analysis, see Francesco Palermo, “Non expedit della Corte al controllo di costituzionalità delle norme di attuazione degli statuti speciali. Ancora sul diritto all’uso della lingua minoritaria nel processo”, 3 Giurisprudenza costituzionale (1998), 1681–1691. 30 Constitutional Court, Judgment No. 213/1988. 29

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2. The Legislative Role of the Joint Commission(s) Where the role and the real status of the Joint Commission(s) are concerned, the Constitutional Court established some fundamental principles, although in a more indirect way. The essence of the Court’s doctrine, however, is rather clear, substantially transforming the Joint Commission(s) from a consultative body into a legislative organ. Again, the constitutional rationale for this development is to be found in the overarching principle of special treatment for the special regions and, more precisely, in the principle of parity in the relations between the special regions (and South Tyrol in particular) and the Italian state. As mentioned above, Article 107 ASt stipulates that the enactment decrees are adopted by the government after consulting the Joint Commission(s). The Joint Commission(s) thus have to be consulted but their decision is not formally binding. In the spirit of the Autonomy Statute, however, as well as in the interpretative line consistently followed by the Constitutional Court, the sole reason why the enactment decrees are a privileged, entrenched source of law is because they are elaborated by the Joint Commission(s), implementing constitutional principles. Otherwise, the governmental power to pass legislation superior to parliamentary legislation completely bypassing the parliament would be a self-evident violation of the division of powers and of the rule of law. Following this rationale, the Court ﬁrst established that the government does not have the power to amend a draft elaborated by the Joint Commission(s).31 This acknowledgement represents the ﬁrst step towards the recognition of a substantial legislative power for the Joint Commission(s). For the Court, however, the government can propose amendments to the text drafted by the Joint Commission(s) but these cannot be adopted by unilateral decision of the government: They should be sent back to the Commission(s) and be approved by them. In a subsequent decision, the Constitutional Court went even further. The issue at stake regarded the power to appoint the chairman of the Joint Commission(s). The government maintained that, being that the Commission(s) are merely consultative bodies of the government, the latter should have the power to unilaterally appoint the chairman in the case that no agreement is reached within the Commission(s).32 Developing its established case law, the Court aﬃrmed that the government cannot unilaterally appoint the chairman, because the very essence of the Commission(s) lies in the principle of cooperation.33 The court thus emancipated the Joint Commission(s), recognizing that they can only formally be considered auxiliary bodies of the government. In practice, however, the Commission(s)

31 Constitutional Court, Judgment No. 37/1989. See the comment by Roberto Barbagallo, “Ruolo delle commissioni paritetiche e poteri del governo nella deﬁnizione delle norme di attuazione degli statuti speciali”, Le Regioni No. 3 (1990), 897–906. 32 As previously outlined, both the Commission of Twelve and the Commission of Six are composed—as the names suggest—by an even number of members. Therefore, if no political agreement can be reached within the commission(s), it might be very diﬃcult to appoint the chairman. 33 Constitutional Court, Judgment No. 109/1995, with commentary by Sergio Bartole, “La presidenza della Commissione paritetica”, Le Regioni No. 6 (1995), 1162–1163.

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are the real decision-making bodies and the role of the government is merely that of formalizing the cooperative decisions made within the Commission(s).

III. The Amendment Process of the Autonomy Statute The amendment process is the other side of the coin of the implementation of the Autonomy Statute. Here, however, the principle of parity only indirectly comes to the fore and is somehow more diﬃcult to identify because the Autonomy Statute is formally a constitutional law adopted by the parliament. As the constitution is the highest and supreme source of law, there can be no formal analogy between the amendment procedure and the enactment decrees: while the latter are entrenched sources of law and thus superior to the laws of parliament (but of course subordinated to the constitution), constitutional laws already are at the top of the hierarchy of sources of law. Therefore, they cannot be further entrenched. This means, in practice, that the guarantee against unilateral changes to the Autonomy Statute itself cannot be found in domestic legal sources but rather in the international anchorage of the ASt on the one hand (Austria can bring the issue to the International Court of Justice if Italy commits severe violations of the core provisions of the Gruber-Degasperi Agreement) and in additional procedural entrenchments prior to the formal approval of the amendment on the other. This is precisely what happened to the amendment procedure of the ASt, which was changed in 2001 in order to provide some additional procedural guarantees to the amendment process to be applied before the formal deliberation of the parliament, which is still subject to the normal procedure for adopting constitutional laws laid down in Article 138 of the Constitution.34 The overarching goal was thus to formalize—as far as possible—the principle of parity between the state and the autonomous province in the process for amendment of the Autonomy Statute. This premise helps explain the present provision on amendments laid down in Article 103 ASt and, at the same time, it provides the background for an understanding of why the ASt, after its (re-)adoption in 1972, was never changed until 2001 and why the most relevant change then adopted regarded the amendment procedure, i.e., a procedure that has never been used thus far.

34 According to Art. 138 of the Italian constitution: “laws amending the constitution and other constitutional laws shall be adopted by each Chamber after two successive debates at intervals of not less than three months, and shall be approved by an absolute majority of the members of each Chamber in the second voting. These laws are submitted to a popular referendum when, within three months of their publication, such request is made by one-ﬁfth of the members of a Chamber or ﬁve hundred thousand voters or ﬁve regional parliaments. The law submitted to referendum shall not be promulgated if not approved by a majority of valid votes. A referendum shall not be held if the law has been approved in the second voting by each of the Chambers by a majority of two-thirds of the members”.

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According to the present wording of Article 103 ASt, for amendments to the Autonomy Statute “the procedure laid down by the constitution in relation to constitutional laws shall apply”.35 This provision stipulates that the right to initiative for constitutional laws (and therefore also for amendments to the Autonomy Statutes) belongs to the government and to each individual member of the parliament. No mention is made of the initiative by the regional or provincial bodies.36 In order to overcome this major formal hurdle, Article 103 ASt was amended in 2001, adding the following provisions: “[t]he regional Parliament shall also have the right to initiate amendments to this Statute, according to the proposals of the Parliaments of the Autonomous Provinces of Trento and Bolzano/Bozen and subsequent conformable resolution of the regional Parliament”. “Projects for amendments to the present statute initiated by the Government or Parliament shall be communicated by the Government to the regional Parliament and provincial Parliaments, who shall express their opinion within two months”. “Approved amendments to the autonomy statute shall not in any event be subject to a national referendum”.37 In the light of the aforementioned regarding the parity principle, the meaning of the new provisions should be easy to understand: despite the fact that parliamentary sovereignty as to the adoption of constitutional laws cannot be limited, the new provisions establish that not only the national government or parliament have the right to initiate the amendment process but also the local parliaments (the provincial parliaments and the regional one as resulting from the sum of the two, according to Article 25 ASt). If the initiative comes from Rome, the local parliaments will be asked for an opinion, which is not legally binding but is, of course, of major political importance. In any case, unlike other constitutional laws adopted by absolute but not qualiﬁed majority in the parliament, no national referendum can be held on the amendments of the ASt. This provision is necessary in order to bypass a possible obstacle that could impair the whole machinery of the special autonomy for South Tyrol: if an amendment—as should normally be the case—is negotiated between the provinces and the state, the fact that the whole national population could be asked in a referendum would jeopardize the very rationale of an institutional structure designed to protect minorities.38

35

Art. 138 Italian Constitution. The old version of Art. 103 Ast provided that the regional parliament had the right to initiate a procedure for amendment of the Autonomy Statute. This was the sole diﬀerence between the procedure to amend the ASt and the procedure to adopt any other constitutional law according to Art. 138 of the Constitution. 37 Constitutional Law No. 2/2001. 38 With the same goal in mind, the comprehensive constitutional reform adopted by the parliament in 2006 but rejected by the voters in a referendum in June 2006 provided an additional guarantee as to the procedure to amend the autonomy statutes, stipulating that amendments proposed 36

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Unlike Article 103 ASt, the second provision of the ASt dealing with the amendment procedure—Article 104—was not substantially changed because this provision already provides for the guarantee of the principle of parity. Article 104 ASt stipulates that some parts of the Autonomy Statute (notably the part on the ﬁnancial relations between the state, the region and the provinces and other minor parts)39 “may be amended by ordinary State law at the joint request of the Government and, as regards their respective competence, the Region or the two Provinces”. The rationale is quite simple: while the principle of parity is fully guaranteed, as far as the ﬁnancial provisions are concerned, they will have to be adopted by the parliament in order to guarantee its full sovereignty in budgetary issues and to extend its democratic control.40 By no means, however, can the parliament unilaterally decide on ﬁnancial issues regarding the special autonomy; also, the ﬁnancial relationship between the state and the special autonomies (with South Tyrol in particular) can only be regulated on the basis of parity and cooperation. B. The Practice and its Legal Signiﬁcance Following its adoption in 1972, the Second Autonomy Statute was not changed until 2001. In 2001, the reform, beside some other minor provisions,41 substantially changed only the procedure for amendment of the Statute. Since 2001, no other amendment to the ASt has been adopted.42 Why amend a procedure that was never used before and why adopt a new procedure that has not been used so far? The explanation must be found in the historical evolution of the autonomy process. The Autonomy Statute of 1972 was elaborated as the Magna Carta of the special autonomy and it designed a fairly complex system of territorial autonomy and power-sharing. Moreover, the Autonomy Statute was the result of an elite-driven process, aimed at imposing tolerance by law. The Autonomy Statute by the government or by the parliament could be vetoed by the regional or provincial parliament with a 3/5 majority. It is likely that such a provision will be soon adopted by the Parliament, as it has been proposed again by South Tyrolean MEPs in 2007. 39 Such as the regulation of the big hydro-electric infrastructures (Art. 13 ASt) and the articles dealing with the appointment of the speakers of the regional and of the provincial parliaments (Arts. 30 and 49 ASt). 40 However, the parliament adopted such a law only in one case (Law No. 386/1989). In practice, very often also the ﬁnancial arrangements were adopted by means of enactment decrees (see in particular Decrees No. 268/1992 and No. 432/1996). This once more conﬁrms the expansionist trend of the enactment decrees, even beyond the very text of the ASt. 41 The impact on South Tyrol of the 2001 amendment to the ASt was very limited. For the Autonomous Province of Trento, instead, the changes were quite relevant, in particular as to the political representation of the Ladin minority in Trentino and as to the direct election of the President of the Autonomous Province. 42 The Constitutional Reform adopted in 2001, however, foresees the requirement for all regions to adopt new autonomy statutes. This implies that, sooner or later, the ASt for Trentino-South Tyrol will also have to be changed.

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needed to work and to be managed by elites forced to a permanent compromise in order to slowly penetrate the societal body. This is the reason why amendment was (and still is) considered very dangerous for the sake of preserving the complex machinery for the cohabitation of the linguistic groups. Instead of adopting formal amendments, enactment decrees were adopted, sometimes even introducing substantial amendments to the Statute, as shown above. The new procedure laid down in Article 103 ASt should pave the way to a normalization of the most delicate reform: the amendment of the Autonomy Statute itself. The fact that in the six years subsequent to the reform of Article 103 ASt the new provision has not been used shows that, in the eyes of the political elites, the guarantees for the principle of parity are perceived as still insuﬃcient to safeguard the special autonomy against unilateral interventions by the state. In constitutional terms, however, three elements must be outlined: ﬁrst, the principle of parity, although not completely formalized in the procedure for the amendment of the Autonomy Statute, has been substantially enshrined; second, the new procedure involves the provincial parliaments and thus opens up a more democratic process for future amendments of the ASt; ﬁnally—and more importantly—the new procedure signals a slow but constant normalization also where the most delicate norm (the ASt) is concerned. The Statute has slowly evolved from a technical instrument for the protection of the German and Ladin minorities into a more ambitious constitutional charter for the whole population living in South Tyrol.

IV. Looking for the Core of the South Tyrolean Autonomy The provisions on enactment and on the amendment procedure of the Autonomy Statute, as well as their developments in political practice and constitutional adjudication, are, indeed, the most delicate and telling provisions from a legal and political perspective. They can be considered the norms on the norms. For this reason, they represent a litmus test for determining the core of the South Tyrolean autonomy. A. Parity and Negotiation: the Procedural Equality From the aforesaid, it seems that the whole system of relations between South Tyrol and the Italian state can be summarized in two concepts: parity and negotiation. The essence of the principle of special treatment, as underpinned by the international obligation undertaken with the international agreement of 1946, is, in fact, the joint management of the essential norms between the state and the autonomous province, both enjoying the very same status in the negotiations, just like in international relations. On the other hand, the internal dimension of the South Tyrolean autonomy, i.e., where the adoption of ‘normal’, everyday

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decisions is concerned, is based on the majority principle, with some special guarantees in terms of political representation of the linguistic groups. In other words, when it comes to fundamental decisions linked to the Autonomy Statute, their implementation and their amendment, the fundamental principle is negotiation between South Tyrol and the Italian state on an equal footing, with Austria exercising an external monitoring role in order to guarantee that core minority rights are protected. On the other hand, where the management of ordinary policies is concerned, decisions are made, in principle, according to majority rule, with some fundamental guarantees for the linguistic groups to always have a voice43 and to sometimes enjoy a veto right.44 The intimate signiﬁcance of the complex system of legal sources emerging from the ‘norms on the norms’ (enactment and amendments to the ASt) is indeed the parity principle as to the ‘external’ relations with the state. The procedural machinery, as speciﬁed by the constitutional adjudication, makes sure that no level of government (state or autonomous province) and no linguistic group can prevail on the other when it comes to these fundamental decisions. Given the existential nature of this principle, its abolishment would be unconstitutional. This means that also in the future, when fundamental decisions related to the Autonomy Statute are at stake, negotiation based on parity will even prevail over ordinary decision-making procedures based on the democratic principle.45 This is demonstrated, for example, by the fact that the Joint Commission(s) for the implementation of the ASt could not be abolished even after the implementation was completed. Special procedures are intimately linked to special autonomy.46 In any case, a perfect and stable balance between the democratic legitimacy of fundamental norms and the parity principle based on the territorial and minority self-government is never reached. The principle of special autonomy—especially if internationally guaranteed, such as in the case of South Tyrol—requires special procedures to be realized and the Joint Commission(s) as well as the enactment decrees are quintessential to the procedural equality that is underpinned by that principle. Therefore, their being a derogation from the principle of democratic legitimacy is certainly justiﬁed. However, the balance between fundamental principles is not established when the negotiated legislation is abused or exceeds its scope. Perhaps some procedural corrections to the work of these bodies, such as

43 This is the rationale for all the provisions in the ASt dealing with the representation of the linguistic groups in the political bodies (assemblies and governments), such as, for example, Arts. 36, 48 para. 2, 49, 61 and 62 ASt. 44 This is expressed, for example, in the provisions on the legislative process, when the linguistic groups as such can impugn a bill to the Constitutional Court claiming that it is prejudicial to the equality of rights between citizens of diﬀerent linguistic groups (Art. 56 ASt; see also Art. 92 ASt for administrative acts). 45 See further Sergio Bartole, “Articolo 116”, in Giuseppe Branca (ed.), Commentario alla costituzione (Zanichelli, Bologna-Roma, 1985), Arts. 114–120, 55–101, at 85; and Giuseppe Pitruzzella, “Modiﬁche delle norme di attuazione dello statuto siciliano: verso un ‘principio contrattualista’ nei rapporti tra Stato e Regioni speciali?”, Le Regioni No. 6 (1988), 1608–1616. 46 See on this also Gianfranco Mor, op. cit. note 27, 435.

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the establishment of transparency in their work and a more democratic process of selection of members, could help establish a more balanced ratio between sometimes conﬂicting principles such as diversity protection (of territories and minorities) and democratic accountability of decisions. B. A New Social Compact? The new procedure for amendment of the ASt adopted in 2001 guarantees a much stronger participation of local authorities and of the population in the elaboration of the basic rules on the autonomy system. This statutory change symbolizes the beginning of a new era. During the implementation of the ‘Package’ and of the Autonomy Statute over the 1970s, 1980s and part of the 1990s, the overarching goal to be achieved was the fulﬁlment of international and internal obligations. Therefore, the Autonomy Statute needed to be given time to be fully implemented by means of a ‘diplomatic’, bilateral procedure, also in order to ensure the social penetration of its basic principles. In other words, the Autonomy Statute, elaborated as an elitedriven process but initially not shared by the population, needed to be metabolized by the people after having been accepted by the elites. The success of the institutional machinery of the Autonomy Statute as a conﬁdence-building measure was enormous. After achieving the diﬃcult objective of gaining acceptance by the majority of the population, the Autonomy Statute is slowly entering a phase of gradual normalization. The amendment of 2001 marks the divide between these two phases. Having achieved a substantial mutual trust between the groups and having been accepted as a workable solution for accommodating majority and minority aspirations, the role of the Autonomy Statute is being transformed from a mechanism for the imposition of peaceful co-existence by law into (also) a governmental instrument. The focus is increasingly on the so-called ‘dynamic autonomy’, i.e., on enlarging the scope of self-government and less on the measures for group protection, although both elements will always be the two pillars upon which the whole autonomy is grounded. The statutory amendment of 2001 means that, in such a new era, changes and ameliorations to the Autonomy Statute are no longer a taboo but are a possible way to improve its eﬃciency as an instrument of (self-) government. Moreover, the reform also shows a preference for a more participatory and democratically legitimized process of elaboration of the fundamental rules, as demonstrated by the substantial enlargement of the powers of the parliaments in the amendment process. The new procedure represents, in institutional terms, the full success of the Autonomy Statute. From then on a new phase has begun, which will have to lead the autonomy regime from a merely defensive to a more inclusive role: the more secure the linguistic groups and the self-government, the less important are procedures based on institutionalized suspicion; the more conﬁdence between the groups, the more democratic cooperation gradually substitutes diplomatic

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elite-driven decision-making; the less tense the relationship between the groups, the more the focus can shift from pure minority protection to the complex management of territorial self-government. Like all processes taking place in divided areas that have experienced severe conﬂicts in the past, the transformation of the institutional meaning of the Autonomy Statute will be prudent and slow and will necessarily face some setbacks. The trend, however, seems clearly to be leading to a new but not less challenging phase.

CHAPTER NINE

CROSSBORDER COOPERATION BETWEEN HISTORICAL LEGACIES AND NEW HORIZONS Alice Engl and Carolin Zwilling*

I. Introduction Cross-border cooperation activities oﬀer opportunities for new, horizontal links between territories instead of forming a threat to state sovereignty and represent a beneﬁt to areas that were considered to be at the extreme periphery of their respective countries. The well known eﬀects of regional cross-border cooperation (CBC) are closer integration and the transformation of the periphery into a contact area of reciprocal enrichment. The level and the form of CBC are inﬂuenced by internal and external factors. Internal factors include, for example, historical aspects, geographical and demographic dimensions, as well as the relationship with the central state. External factors pertain to the social and economic situation of the respective regions, namely whether they are similar or complementary in regard to their economy and their social conditions. It can be stated that both factors inﬂuenced the way that CBC between Tyrol, South Tyrol and Trentino developed. In particular, historical aspects and ‘old’ resentments prevented the establishment of an institutionalized form of CBC and thus led to the policy of establishing concrete initiatives and projects rather than creating a public law entity. This guiding line promises to be fruitful due to its ﬂexibility and its pragmatic character, which allows the regional entities, Tyrol, South Tyrol and Trentino, which are similar and thus competitive in various economic ﬁelds,1 to select the various areas where a common project or a joint initiative should be elaborated. Practical experiences show that competitive attitudes due to a high degree of similarity can be an obstacle to CBC.2 Thus, this ﬂexible

* In the course of the common elaboration of the present article, Section II was written by Alice Engl, Section III by Carolin Zwilling and Sections I and IV by both. 1 Areas such as tourism or agriculture indeed oﬀer incentives for cooperation in order to exploit capabilities but, at the same time, the elaboration of common initiatives can turn out to be diﬃcult because the various entities may perform as competitors due to their similarities. See, for example, Paolo Pasi, “La Cooperazione Transfrontaliera nell’Area Trentino-Tirolese e le Prospettive per una Euroregione”, in Walter Ferrara and Paolo Pasi (eds.), Come funzionano le Euroregioni. Esplorazione in sette Casi (Istituto di Sociologia Internazionale di Gorizia, Gorizia, 2000), 109–121, at 109–110. 2 At one point, the idea of developing a common marketing of milk was launched; however, this initiative failed in the end because of the competitive perception of interests and concepts.

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approach gives them the possibility to launch cross-border activities in those areas where positive results and added value can be achieved and to avoid those sectors where competitive interests could impede common projects. The present article aims to provide an outline of the historical legacies and new horizons in regard to cross-border activities in the region by, ﬁrstly, providing a general overview of the most important socio-political developments and, secondly, further analyzing these developments from a legal point of view.

II. A Look Back on the Development of Cross-border Cooperation between Tyrol, South Tyrol and Trentino Cross-border cooperation between Tyrol, South Tyrol and Trentino dates back to the end of World War II and can be subdivided into preparatory steps and three main phases. After the international anchoring of CBC as a preparatory measure, the ﬁrst phase was characterized by ‘soft’ cooperation in the frame of two working communities including several alpine regions. The initiatives in the frame of the second phase then concentrated on the three entities of Tyrol, South Tyrol and Trentino and aimed at institutionalizing a ‘Euroregion Tyrol’. The controversial nature of this approach and the negative attitude of national and regional representatives towards institutionalization impeded its full implementation, which led to the third phase, where concrete and functional cooperation in certain areas replaced institutionalization as the guiding line. The overall process was strongly inﬂuenced by external factors, where further integration within Europe, both in regard to the European Union and the Council of Europe, played and still plays a signiﬁcant role. The diﬀerent phases and approaches, which will be outlined in the following sections, show how controversial CBC is generally perceived to be in a situation characterized by an ‘old’ conﬂict like in South Tyrol, where, on the one side of the border, a national minority is living and, on the other side of the border, the respective population represents the majority population of a state.3 In such a case, CBC can be seen, on the one hand, to be a concrete instrument to overcome the conﬂict but, on the other hand, also as a dangerous eﬀort to establish an ethnically homogenous region or a kind of ‘mini-state’, where the national minority is gaining ‘too much’ independence. In particular, the fear of creating an institutionalized entity established by Tyrol, South Tyrol and Italy, where the German-speaking population would represent the majority and which could be seen as the re-establishment of the old

3 Francesco Palermo and Jens Woelk, “Die grenzüberschreitende Zusammenarbeit der italienischen Regionen. Das Beispiel Euregio Trentino-Südtirol-Tirol”, in Bernhard Eccher et al. (eds.), Jahrbuch für italienisches Recht (C.F. Müller, Heidelberg, 2003), 333–362, at 337; Framework Convention for the Protection of National Minorities (FCNM), Art. 17.

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(until 1918 existing) Austrian Land of Tyrol,4 led to the failure to institutionalize the Euroregion. A better understanding of this controversial process can be provided by analyzing the individual phases outlined above. A. From Post-war Agreements to Alpine Working Communities During the preparatory steps, the international Paris Peace Treaty of 1946,5 concluded between Italy and the Western Allies after World War II, and its fourth annex, called the ‘Gruber-Degasperi Agreement’, paved the way for an intensiﬁed cooperation across the border by facilitating frontier traﬃc and commerce. The Gruber-Degasperi Agreement is a bilateral agreement between Austria and Italy regulating the details regarding the special status of the Autonomous Region of Trentino-South Tyrol, which guarantees the protection of the German-speaking population and which provides in its Article 3 “special arrangements aimed at facilitating enlarged frontier traﬃc and local exchanges of certain quantities of characteristic products and goods between Austria and Italy”.6 In 1949, Italy and Austria signed a speciﬁc bilateral agreement for implementation, the so called Accordino (which literally means the ‘little agreement’), which contains additional provisions regarding the facilitation of cross-border trade and commerce between North and South Tyrol. These multilateral and bilateral agreements concluded between the national states and not the respective regions certainly paved the way to transfrontier regional initiatives by enhancing the spirit of cooperation. Such transfrontier initiatives were ﬁrstly launched in the 1970s with the creation of the two working communities ARGE ALP and ALPE ADRIA,7 which marks the ﬁrst of the abovementioned three phases. Although embedded in a wider geographical context, as the two working communities include various alpine regions,8 these two projects constitute the ﬁrst form of soft cooperation between Tyrol, South Tyrol and Trentino. Both working communities are characterized by their ‘soft’ forms of cooperation, serving mainly as fora for establishing contacts, conducting discussions and exchanging information and experiences in areas of common interest, such as, for 4

Bruno Luverà, Oltre il Conﬁne (Il Mulino, Bologna, 1996). Signed in Paris by the Western Allies and Italy on 5 September 1946. See the chapter by Emma Lantschner in this volume. 6 The full text of the Gruber-Degasperi Agreement can be found in the Appendix of this volume. 7 The Working Community ARGE ALP was founded on 12 October 1972 in Mösern in Tyrol and comprises the Länder, Provinces, Regions and Kantons of Austria (Vorarlberg, Tirol, Salzburg), Germany (Bayern), Italy (Lombardia, Trentino Alto Adige/Südtirol) and Switzerland (St. Gallen, Ticino, Graubünden). The Working Community ALPE ADRIA was founded through the Joint Declaration of Venice on 20 November 1978. Its members are Burgenland, Kärnten, Steiermark and Oberösterreich (Austria), Friuli-Venezia Giulia, Lombardia and Veneto (Italy), Baranya and Hrvatska (Croatia), Györ-Moson-Sopron, Somogy, Vas and Zala (Hungary) and Slovenija. 8 South Tyrol and Trento belong to both working communities, whereas Tyrol is only a member of ARGE ALP. 5

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example, traﬃc, agriculture, tourism, environmental protection, nature conservation and landscape care.9 The most important political bodies in the frame of ARGE ALP are the steering committee, composed of the current, the previous and the succeeding president,10 and the annually convened conference of the heads of government. Administrative work like organizing and coordinating the working community is carried out by a ‘management committee’ (Leitungsausschuss).11 Also, the working community ALPE ADRIA includes an annual plenary assembly of the heads of government supported by a commission of executive oﬃcers and by ﬁve standing special commissions who are in charge of the substantial work.12 However, both communities were ‘soft’ (i.e., voluntary) forms of cooperation and did not have a legal personality. This lack in regard to the legal framework and, moreover, the diversity of the members and their interests—stemming from their diﬀerence in regard to size, economic power and political and judicial conditions—impeded the development of a closer integration among the participating entities. Nevertheless, both contributed to the further enhancement of the spirit of cooperation among the participating regions by establishing personal contacts, creating networks, exchanging information and by highlighting positive aspects of cross-border cooperation; thus, they constitute an important basis for the following activities in this ﬁeld. B. From ‘Soft’ Cooperation in a Wide Geographical Context to the Idea of an Institutionalized CBC between Tyrol, South Tyrol and Trentino During the 1980s and especially in the ﬁrst half of the 1990s, the discussions and the eﬀorts to further promote cross-border activities intensiﬁed noticeably. This process has to be seen in a wider legal and political context, backed by various international, national and regional events that contributed to the increase of discussions. Firstly, the Council of Europe’s Outline Convention on Crossborder Cooperation between Territorial Communities or Authorities of 1980, further illustrated

9

Further information in regard to both working communities is available on their respective homepages, at ; and . 10 The presidency rotates every year according to the alphabetical order of the member entities and is conducted by the respective head of government. 11 All these provisions are anchored in the statute of ARGE ALP, available at . 12 The ﬁve standing special commissions are: regional development and environmental protection; economic aﬀairs, traﬃc and tourism; culture and society; health and social aﬀairs; agriculture and forestry. See Francesco Palermo and Jens Woelk, “Autonomy: The Problem of Irredentism and Cross-Border Cooperation. Cross-Border Cooperation as an Indicator for Institutional Evolution of Autonomy: The Case of Trentino-South Tyrol”, in Zelim Alan Skurbaty (ed.), Beyond a One-dimensional State—an Emerging Right to Autonomy? (Nijhoﬀ, Leiden, 2005), 277–304, at 291–292. The statute of ALPE ADRIA is available at .

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under Section III Part A of this analysis, promoted the launching of cross-border activities by establishing its ﬁrst international legal base. Secondly, the process of European integration and the gradual development of the multilevel governance concept, grading regions up as third players on the political scheme, also posed incentives for them to further enhance their capacities and visibility by creating transfrontier regional networks and initiatives. Already in the course of the 1980s, when the national representatives took the ﬁrst steps to develop a common European regional policy13 and, especially, during the 1990s, when the Committee of the Regions was established with the Treaty of Maastricht in 1992,14 the regions in Europe were step by step becoming recognized as independent actors within the European Union and its legal framework.15 Local and regional entities became important actors regarding the implementation of EU law.16 Due to these developments, a new reference point beyond the nation-state emerged, which widened the regions’ room for manoeuvre and fostered their self-reliance. In this context, Austria’s accession to the EU in 1995, after a process which had been in motion since 1989 when Austria applied for membership, would further empower cross-border cooperation processes in the region.17 The perspective of Austria becoming a member state of the European Union and thus opening the possibilities for Tyrol, South Tyrol and Trentino to cooperate and exploit the funds and supportive means provided by the European Union, certainly enhanced the will among the three entities to intensify their cooperation. The sources of capital provided by the EU in the frame of its regional policy and the various structural funds and INTERREG programmes represented (and still do represent) a signiﬁcant incentive to start cross-border activities and helped to convince critics of the positive eﬀects of transfrontier initiatives.18 Thirdly, the ﬁnal settlement of the conﬂict in South Tyrol in 1992, recognizing formally that the enactment measures had been fully implemented, opened the way for new perspectives and projects and, furthermore, in January 1993, Austria and Italy concluded a bilateral treaty implementing the Madrid Outline Convention and establishing a framework for CBC activities.

13 This happened in the frame of the Single European Act, which was signed in February 1986 and entered into force in July 1987. See, in particular, Title V, “Economic and Social Cohesion”. 14 The Treaty of Maastricht was signed in February 1992 and entered into force in November 1993. 15 Francesco Palermo and Jens Woelk, “Grenzüberschreitender Regionalismus als Konﬂiktlösungsinstrument? Die Entwicklung der Brennerkooperation”, in Europäisches Zentrum für Föderalismus-Forschung (ed.), Jahrbuch des Föderalismus 2003 (Nomos, Baden-Baden, 2003), 381–393, at 385. 16 Gabriel Toggenburg, „Die regionale Dimension des EU-Verfassungsvertrages: Betrachtungen im Dreieck zwischen Mitbestimmung, Identität und Subsidiarität“, in Simon Laimer (ed.), Euregio-Quo vadis? (Neuer Wissenschaftlicher Verlag, Graz/Bozen/Bolzano/Wien, 2006), 27–47. 17 See Franz Knipping, Rom, 25. März 1957. Die Einigung Europas (Deutscher Taschenbuch Verlag, München, 2004), 269. 18 For further details in regard to the ﬁnancial support stemming from the EU, see the table on European Funds Invested in South Tyrol in the Appendix of this volume.

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While all these developments favoured the position of regions in general and in particular also those of Tyrol, South Tyrol and Trentino, CBC became a controversial topic on the political agenda. In 1985, the Europa-Union-Tirol, a local association supporting the concept of ethnofederalism, introduced for the ﬁrst time the term ‘European Region Tyrol’ (Europa-Region-Tirol ) into the political debate.19 They argued that the keystones of their vision—self-determination for South Tyrol and the reuniﬁcation of Tyrol—should be reached by establishing an ethnically homogenous European region, which, in their opinion, would represent the only way and possibility to avoid future conﬂicts.20 These ‘ethnofederal’ proposals caused severe tensions, which worsened the political climate in South Tyrol. At the same time, the province was convulsed by a series of bomb attacks, which generally impeded political negotiations. The concept developed by the Europa-Union-Tirol was highly characterized by its ethnic dimension. The approach that gradually developed afterwards, which I indicate in this article as the second phase, aimed to distance itself from this ethnic element. Nevertheless, it was often overhauled by ‘ethnic’ resentments derived from the fears that still stem from the former conﬂict in this region.21 The starting point of this second phase of the cooperation across the Brenner border, inﬂuenced by the various developments presented above, was in 1993, when the four assemblies of Vorarlberg, Tyrol, South Tyrol and Trentino also decided to promote cross-border activities by political initiatives. This meeting resulted in an investigation into the creation of a ‘Euroregion Tyrol’, including the mandate to elaborate a potential statute for such a Euroregion. As a next step, a roundtable of experts was convoked in 1995 by the governments of the three entities, with the task of investigating how institutionalized cross-border cooperation between the three entities could be established. In 1996, the group of experts presented a Draft Statute for the ‘Euroregion Tyrol’, which they had worked out during the intermediary year. The proposed statute, which would have provided the legal basis for a highly institutionalized form of CBC between the three entities,22 was heavily criticized by both the Italian and the Austrian government, by the Italian political parties

19 Günther Pallaver, “Europaregion Tirol-Südtirol-Trentino”, in Joseph Marko et al. (eds.), Die Verfassung der Südtiroler Autonomie. Die Sonderrechtsordnung der Autonomen Provinz Bozen/Südtirol (Nomos, Baden-Baden, 2005), 493–510, at 497–498. 20 In order to guarantee ethnic homogeneity, the authors even proposed to establish a sort of territorial enclave for the Italian-speaking population in South Tyrol, See ibid. 21 Siegfried Baur, Irma von Guggenberg and Dietmar Larcher, Zwischen Herkunft und Zukunft. Südtirol im Spannungsfeld zwischen ethnischer und postnationaler Gesellschaftsstruktur (Alpha & Beta, Meran, 1998). 22 The new ‘Euroregion’ should have been a common, permanent organization in the legal form of a public law entity (Art. 1). Thus, its structure was quite similar to that of an international governmental organization. The established legal system, especially mechanisms, procedures and legal acts, did not ﬁt into the Austrian or the Italian legal system, however.

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and also among members of the South Tyrolean population, mainly because of the perceived fear that it aimed at a ‘soft’ reuniﬁcation of Tyrol. In particular, the two governments of Italy and Austria observed the project with distrust. When former Italian President Scalfaro visited Trento in 1995, he emphasized that it was too early to create inter-state regions and he warned of the idea of a ‘Grand Tyrol’.23 Furthermore, in the same year, the Italian Ministry of the Interior classiﬁed in its annual report on security the project as provocative and subversive.24 The Federal Government of Austria also criticized the project because of some unclear issues and unfulﬁlled requirements. Firstly, it was pointed out that the matters that should be dealt with in the frame of this Euroregion exceeded the powers of the Austrian Land of Tyrol. Secondly, the government found fault that the requirement of being informed when negotiations start, as is anchored in Article 16 of the Austrian Constitution, was not fulﬁlled and, thirdly, the means and procedures of judicial control were perceived negatively, too.25 Generally, from a political point of view, it seems that it was still too early for such an initiative, bearing in mind that the ﬁnal conﬂict settlement had only occurred a few years earlier in 1992 and that the proposals of the Europa-UnionTirol had caused political tensions only scantily ten years before. Although the Province of Trento represented an equal partner during the elaboration of the project, with the consequence that the Euroregion would have included a higher amount of Italian-speaking persons than if only South Tyrol and Tyrol had constituted the Euroregion, this ethnic dimension and the fear that a kind of Tyrolean ‘mini-state’ would emerge in the borders of the historical Tyrol, with the German-speaking population in a dominant position, was still perceived as a threat, since the concrete advantages of institutionalization were not clearly visible to many. The term ‘Euroregion Tyrol’ still represented an ideological construct, where the ethnic cleavage was too dominant. This stems from the fact that the territory has been, since its annexation in 1919, characterized by ethnolinguistic problems and by a border not accepted by all the inhabitants. Therefore, ethnolinguistic aspects are often interrelated to political aspects.26 In the end, after a long, intensive and controversial public debate, the draft statute was rejected and, as a consequence, the Euroregion was not established as the public law entity that was planned; other ways and means to foster interconnection and cooperation had to be found.

23

Palermo and Woelk, op. cit. note 12, 296; Pasi, op. cit. note 1, 114. Palermo and Woelk, op. cit. note 15, 387; Pasi, op. cit. note 1, 114. 25 Palermo and Woelk, op. cit. note 12, 296. 26 Pasi, op. cit. note 1, 117; Melissa Magliana, The Autonomous Province of South Tyrol. A Model of Self Government? (European Academy Bozen/Bolzano, Bozen/Bolzano, 2000), 120–121. 24

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Due to the previously outlined political resistance and legal obstacles, the remaining option for launching cross-border activities was to plan concrete initiatives in certain areas of common interest. A parallel step taken on the way to promote CBC among the respective regions was again stimulated by European integration and the ever-growing wish and need amongst the sub-national entities of the various member states to promote and represent their interests directly in Brussels and to establish direct contact with the various EU institutions. In 1995, the representatives of Tyrol, South Tyrol and Trentino decided to create a joint bureau in Brussels, which was also heavily criticized and contested by the Italian government. The government even refused to send any state representatives to the inauguration ceremony of the bureau. Although both Italian autonomous provinces did not participate directly, as the Austrian Land of Tyrol did, but were represented by their respective Chambers of Commerce, the Italian government perceived this initiative as an act of regional foreign policy, which violated the Italian Constitution27 and thus initiated a claim before the Italian Constitutional Court.28 The Court stated that, on the one hand, the provinces had failed to meet the requirement of previously informing the central government about this initiative, which means that they did not fulﬁll the obligation of cooperating with the central government.29 On the other hand, the court emphasized that the state, in principle, could not pose any obstacle to such an initiative. This favourable judgment and an ordinary law30 adopted in the meantime by the Italian parliament, which allowed all regions to establish such oﬃces in Brussels, guaranteed the maintenance of the oﬃce of Tyrol, South Tyrol and Trentino in Brussels and, furthermore, allowed the provinces to participate directly instead of being represented by their Chambers of Commerce. This initiative can be seen to be the ﬁrst act in the frame of the new guiding line that had manifested itself in the launch of concrete cross-border projects and the establishment of concrete administrative and political cooperation instead of institutionalizing CBC. In order to maintain what had been achieved thus far and in order to pursue the aim of further enhancing CBC between the three entities by following a new path, the representatives of Tyrol, South Tyrol and

27 Although regions have been able to engage in cross-border activities since 2001, the government, according to Arts. 80 and 87 of the Italian Constitution, retains the power of external aﬀairs and representation as powers of the central state. For more details, see Section III Part B of this chapter. Prior to 2001, the Constitution did not foresee any explicit provision regarding the regions’ powers of transborder cooperation. 28 Palermo and Woelk, op. cit. note 12, 287. 29 Judgment No. 428 of 23 December 1997 (1998). The obligation of cooperating with the central government was stressed as the basis for all cross-border activities by the Italian government in the Decree of 31 March 1994. 30 Law No. 52 of 6 February 1996 (legge comunitaria 1996).

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Trentino agreed in 1998 to adopt a Convention on Cross-border Cooperation in the Framework of a Euroregion. In the same year, namely in April 1998, the Schengen Agreement between Italy and Austria entered into force, transforming the political Brenner border overnight into merely an administrative one. In May 1998, the provincial governments formally announced a new ‘soft’ Euroregion, characterized by its pragmatic approach of functional and concrete cooperation between the three entities in various areas.

III. The Legal Bases for Cross-border Cooperation between Tyrol, South Tyrol and Trentino Due to European integration, economic and political progress could be reached in this border region, which for decades had been a symbol of separation and a battle-line in both world wars. By also taking sub-national entities into account and thus promoting a third level in a multilevel system of governance, the process of European integration accelerated the development of CBC in South Tyrol much more than international law instruments. By focusing more on the common advantages of CBC projects—especially in economic terms—instead of only underlining the risk of ethnically motivated activities, big steps forward became possible even in the legislative process. Looking at CBC from a legal point of view, especially from a constitutional lawyer’s perspective, one notices immediately deep changes in recent years that have aﬀected the role of states. The question of state sovereignty and the function of state borders as barriers between diﬀerent nation-states—both aspects being intrinsically tied to CBC—have lost their signiﬁcance due to recent processes towards regionalization and multilevel governance. Accelerated by the process of globalization, international borders change from a nation-state’s symbol of guaranteed stability into border areas characterized by similar socio-economic subsystems and border economies that have become transformed into cross-border economies by means of cooperation.31 Within the general trend towards decentralization and devolution of powers, political and economic responsibilities are usually transferred to sub-state entities.32 Contemporaneously with these internal decentralization processes, CBC activities constitute an important ﬂexible horizontal link between regions that are not necessarily neighbouring but are politically and socio-economically similar to each other.

31

For the concept of a ‘Boundaryless Europe’, see Remigio Ratti, “Spatial and Economic Eﬀects of Frontiers: Overview of Traditional and New Approaches and Theories of Border Area Development”, in Remigio Ratti and Shalom Reichman (eds.), Theory and Practice of Transborder Cooperation (Helbing & Lichtenhahn, Basel and Frankfurt, 1993), 23–53. 32 See Sergio Ortino, The Nomos of the Earth (Nomos, Baden-Baden, 2003).

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The various legal models that aim to realize CBC diﬀer profoundly from region to region: from very informal and loose cooperation in certain topics of common interest at one extreme to a highly institutionalized model with joint bodies to encourage the intercommunal relationship33 at the opposite extreme. The South Tyrolean experience of CBC is characterized by a combination of mere territorial management of shared problems with the management of ethnic diversity. This leads to diﬀerent problems than in other (less sensitive) regions with a homogeneous ethnic and linguistic population. The joint management of practical aspects between neighbouring regions of diﬀerent states, such as commerce, trade, tourism, transport, etc., became widely accepted as the best solution shortly after World War II. However, in border areas with the presence of the same ethnic group on both sides but with that ethnic group being a minority only on one side of the border, legally anchored CBC activities started only some decades later. In fact, in South Tyrol it is noticeable that, during the abovementioned preparatory phase, CBC activities were quite rare. An analysis of the legal bases of CBC in the South Tyrolean context has to comprise legal measures oﬀered by international and European law, the limits set out by Italian constitutional law and (what were, in the end, the only eﬀective solution) bilateral agreements. A. Legal Instruments of International and European Law Although Article 3 paragraph d of the Gruber-Degasperi Agreement provided for “special agreements aimed at facilitating enlarged frontier traﬃc” to promote the economically poor border area, real transfrontier activities were impossible to establish. Only the following bilateral treaty of 1949, the so-called Accordino, permitted a minimum of pragmatic solutions for transborder trade and commerce. Transborder activities between sub-national territorial entities have increased enormously since 1980 under the legal and political umbrella of the Council of Europe.34 The Outline Convention on Crossborder Cooperation between Territorial Communities or Authorities, signed in Madrid on 21 May 1980,35 aims “to facilitate and foster cross-border cooperation between territorial communities or authorities [. . .] and promote the conclusion of any agreements and arrangements that may prove necessary for this purpose with due regard to the diﬀerent constitutional provisions of each Party” (Art. 1).36 Establishing an international

33 Such as, for example, the case of Northern Ireland after the Good Friday Agreement of 1998. 34 See Council of Europe, Documents and Agreements concerning Transfrontier-Cooperation in Europe (Council of Europe, Strasbourg, 1997); and Charles Ricp, Handbook on Transfrontier Cooperation of Local and Regional Authorities in Europe (Council of Europe, Strasbourg, 1996). 35 Entered into force on 22 December 1981, see . 36 See the documents in Peter Pernthaler and Sergio Ortino (eds.), Europaregion Tirol/Euregio

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legal base for existing activities and further developments, the Outline Convention sets out only a programmatic context and a minimum common standard. Therefore, as its most relevant consequence, the Convention brought CBC into the domestic legal system, thereby explicitly describing it as a legal activity that the contracting states have agreed to promote. However, as a precondition for the enactment of the Outline Convention, Article 3 paragraph 2 provides for bilateral treaties. Italy and Austria have stipulated this bilateral treaty only in 1993,37 thus enacting the Convention and specifying matters and general procedures as a framework for concrete measures to be taken then by the respective entities.38 The second additional protocol39 to the Outline Convention of 1995 strengthens the Outline Convention by clarifying the legal nature of cooperation agreements40 and Euroregions.41 Since Italy has only signed but not yet ratiﬁed the Protocol, its importance for South Tyrol should not be overestimated. However, none of these international law foundations for CBC are suﬃcient for the South Tyrolean context. Neither of the abovementioned sources of European law oﬀers concrete (hard law) provisions for transborder activities. Member states have exclusive competence in regard to the internal organization and distribution of powers between the various levels of governance. Nevertheless, the European integration process and, especially, the regional policy of the EC play a crucial role in oﬀering generous ﬁnancial support for and the promotion of CBC activities.42 In this way, European law could inﬂuence—indirectly—the member states towards improving the competences of their regions for collaboration with neighbouring regions even more than the Council of Europe’s Outline Convention. The regional variable has increasingly gained in importance, as

Tirolo. Rechtliche Voraussetzungen und Schranken der Institutionalisierung/Le basi giuridiche ed i limiti della sua istituzionalizzazione (Autonome Region Trentino-Südtirol/Regione Autonoma TrentinoAlto Adige, Trento, 1997), 195. See also Nicolas Levrat, “L’émergence des instruments juridiques de la coopération transfrontalière au sein du Conseil de l’Europe”, in Yves Lejeune (ed.), Le Droit des Relations Transfrontalières entre Autorités Régionales ou Locales Relevant d’États Distincts (Bruylant, Bruxelles, 2005), 17–36. 37 Signed on 27 January 1993, it entered into force in Italy on 1 August 1995 by Law No. 76 of 8 March 1995. See Pernthaler and Ortino, op. cit. note 36, 215. 38 For more details, see below in Section III Part D. 39 Opened for signature on 20 October 1995 and entered into force on 1 December 1998. See Pernthaler and Ortino, op. cit. note 36, 269. Italy signed the Protocol on 5 December 2000 but has not ratiﬁed it yet. 40 The Protocol recognizes the right of territorial entities to conclude CBC agreements under certain conditions, the validity in domestic law of the acts and decisions made in the framework of CBC agreements and also the legal corporate capacity (‘legal personality’) of any cooperation body established under such an agreement (Art. 5). 41 The so-called Euroregions constitute the highest level of CBC evolution and can be deﬁned as “a formal structure established by municipalities or regions for the purpose of cross-border cooperation with the participation of economic and social partners”. Jens Gabbe, European Models of InterRegional and Cross-Border Cooperation in the European Union (LACE, Gronau, 1995), 3. 42 European Commission, A Practical Guide to Cross-Border Cooperation (European Commission, Luxembourg, 1992); European Parliament, Cross-Border and Interregional Cooperation in the European Union (European Parliament Regional Policy Series, Luxembourg, 1996).

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regions are considered to be important players in the European multilevel government system.43 In 2004, the European Commission adopted a proposal of ﬁve new regulations for the use of structural funds.44 One regulation speciﬁcally aimed at establishing a new legal instrument under EC law for strengthening CBC: a so-called ‘European Grouping for Territorial Cooperation’, vested with legal personality for the implementation of cooperation programmes should be regulated in an optional convention of its members. This legal entity should act exclusively according to detailed, previously ﬁxed delegated powers. Therefore, it serves only as an instrument for the enactment of decisions taken by its members, i.e., authorities at the national, regional or local levels, or other local public bodies, and not as an autonomous tool of own activities.45 Regulation No. 1082/2006 of the European Parliament and of the European Council was adopted on 5 July 2006, forming “a cooperation instrument at Community level for the creation of cooperative groupings in Community territory, invested with legal personality, called ‘European groupings of territorial cooperation’ (EGTC)”.46 Following the positive example of the Council of Europe’s Outline Convention, the EC has followed the same path, by establishing a general framework provision and then implementing details by bilateral agreements between the states involved or between regional authorities. Therefore, the EGTC could constitute a new legal entity for CBC activities only if Italy and Austria—or the respective competent territorial entities—adopt the framework provision and agree on concrete implementation through bilateral agreements. Although no European (hard law) provisions (still) constitute the legal base for CBC, a variety of instruments have been elaborated, directly or indirectly, that at least facilitate transborder activities. Nevertheless, the legal foundations of CBC rest with the domestic constitutional system of each state. However, doubtlessly, the instruments provided by international and supranational law have inﬂuenced the exercise of these instruments oﬀered by the domestic legal system.

43 Roberto Toniatti, Francesco Palermo and Marco Dani, An Ever More Complex Union—The Regional Variable as a Missing Link in the EU Constitution (Nomos, Baden-Baden, 2004). As the clearest signal of this increased importance, see the generous funds being allocated to regional initiatives. The most relevant instrument is the INTERREG initiative. The European Regional Development Fund was already providing ﬁnancial support for CBC in 1989. For more details, see the short overview provided in Ferrara and Pasi, op. cit. note 1, 7. 44 Proposal for a European Parliament and Council Regulation establishing a European Grouping of Cross-border Cooperation (EGCC), 14 July 2004, COM (2004) 496 ﬁnal, 2004/0168 (COD); see . 45 For more details, see Sergio Bartole, “Ipotesi di Euroregione: soluzioni istituzionali alternative e diﬀerenti quadri di riferimento”, Le Regioni (2005) No. 6, 1045–1054, at 1051. 46 Regulation (EC) No. 1082/2006 of the European Parliament and of the Council of 5 July 2006 on a European Grouping for Territorial Cooperation (EGTC). For details, see .

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B. Italian Constitutional Law and Regional External Activities According to the Italian Constitution, regions did not have the power to establish relations with foreign states or their regions.47 Only the central state was vested with the power to conduct external aﬀairs and make representation (Arts. 80 and 87 Constitution). Nevertheless, the process of European integration has inﬂuenced the internal evolution of Italian regionalism, allowing the regions to participate at the European and international level. In consequence, the Constitutional Reform of 200148 introduced the regions’ power of transborder cooperation (Art. 117 paras. 9 and 3 Constitution) and a recent ordinary law49 regulated even the participation of regions in the European law-making process. According to several judgements of the Constitutional Court, diﬀerent types of regional external activities had been allowed already before this reform, always limited by certain preconditions. The basic procedure still remains the same: the state has to be informed about all activities and can interdict them if they violate international liability or the consistency of the foreign policy guidelines of the state. As a consequence, the region has to cooperate ﬁrst of all with the state50 and only afterwards it can develop CBC with foreign regions. The more intensive the internal cooperation, the more eﬀective are CBC procedures.51 During the 1990s, the absence of constitutional provisions concerning the external powers of the regions became an advantage for South Tyrol in terms of the ﬂexible evolution of CBC activities. Having eﬃcient cooperation mechanisms due to the principle of negotiation,52 many CBC activities could be ‘tested’ and only afterwards could the state claim control through the Constitutional Court if the activity was constitutionally legitimate.53 In particular, ﬂexible and soft instruments are required where CBC activities meet with ethnically tense areas. Thus, international law instruments regulated by internal constitutional law limits are to be considered only as additional instruments.54 In most cases, CBC is enacted through diﬀerent mechanisms.

47 Francesco Palermo, Il potere estero delle regioni (Cedam, Padova, 1999); id., Die Außenbeziehungen der italienischen Regionen in rechtsvergleichender Sicht (Peter Lang, Frankfurt, 1999); and Lucio Pegoraro and Angelo Rinella, “Cooperazione transfrontaliera e potere estero: proﬁli comparatistici con particolare riferimento ad alcuni ordinamenti conﬁnanti con l’Italia”, in Tania Groppi (ed.), Principio di autonomia e forma dello Stato: La partecipazione delle collettività territoriali alle funzioni dello Stato centrale nella prospettiva comparata (Giappichelli, Torino, 1998), 179–218. 48 Constitutional Law No. 3 of 18 October 2001. 49 The so-called ‘Legge Buttiglione’, Law No. 11 of 4 February 2005. 50 The Italian government declared in its Decree of 31 March 1994 that cooperation between the central government and the regional authorities constitutes the basis for all types of regional external activities. 51 Palermo and Woelk, op. cit. note 12, 289. 52 For details, see the chapter in this volume by Jens Woelk on the institutions and procedures in the regions’ relations with the central government. 53 For example, the abovementioned oﬃce in Brussels. See Section II Part C. 54 In this respect, Art. 17 of the Framework Convention for the Protection of National Minorities has to be stressed: as an international instrument for the protection of minorities it provides

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The evolution of CBC in South Tyrol demonstrates the existing legal diﬃculties combining the overall tendency to search for more eﬃciency through result-oriented transfrontier cooperation with the territorial management of an ethnically tense border area. To overcome the general perception of CBC as a tool to create a homogenous region of one linguistic and ethnic population, the symbolic potential of CBC has to be reduced by the use of functional tools only.55 Instruments provided by public law promote CBC activities up to a certain point but then the symbolic meaning hinders an eﬀective and function-oriented cooperation. In the South Tyrolean context, bilateral agreements could start to de-ideologize CBC. Furthermore, private law instruments oﬀer a solid legal base for common projects and a large ﬂexibility that allows for adaptation to the respective needs of each activity. This might be due to the nature of cooperation, which can be performed better by less institutionalized means. Public law instruments normally cause more visibility and aﬀect the sensitivity of the communities involved. Furthermore, even for Tyrol, as an Austrian Bundesland, which has had treatymaking power since 1988, the conclusion of an international treaty is extremely diﬃcult due to the complicated mechanisms of previous political control by the Austrian Federation.56 However, according to Article 17 of the Austrian Constitution, Bundesländer can act with foreign states or regions even in matters that do not fall within their competences by resorting to acts of private law. Therefore, for South Tyrol and Tyrol, cooperation across the Brenner border by means of private law is certainly less problematic, avoiding the sensitive ﬁeld of public competences as well as the delicate issues of sovereignty and aspects of a symbolic meaning. This is also true considering that a comparison of their respective competence catalogues shows that Tyrol and South Tyrol have diﬀerent exclusive powers. Many issues that are important for CBC, such as traﬃc, commerce, fairs and exhibitions, are the exclusive competence of the Austrian Federation, whereas they belong to the autonomous powers of the Italian provinces of South Tyrol and Trentino.

expressly for the use of CBC activities for promoting contact between minorities and the kinstate. For a recent overview, see Hellenic Foundation for European and Foreign Policy, “Regions, Minorities and European Policies. An Overview of the State of the Art in Western, Central Eastern and Southeast Europe”, available at . 55 Francesco Palermo, “Transborder Cooperation and Ethnic Diversity”, in Jørgen Kühl and Marc Weller (eds.), Minority Policy in Action: The Bonn-Copenhagen Declaration in a European Context 1955–2005 (European Centre For Minority Issues and Institut For Graenseregionsforskning Sydansk Universitet, Aabenraa, 2005), 161–185, at 162. 56 Art. 16 of the Austrian Constitution. In fact, no international treaty has been concluded by any Bundesland so far. See Wolfgang Burtscher, “Die Betätigung der Länder im Bereich des Auswärtigen und ihre Beteiligung an internationalen Abkommen”, in Manuel Pérez González (ed.), La acción exterior y comunitaria de los Länder, Regiones, Cantones y Comunidades Autónomas (IVAP, Oñati, 1995), 409–429.

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IV. Soft-Law Cooperation as Best Functioning Solution The abovementioned bilateral treaty between Italy and Austria of 1993 enacting the Madrid Outline Convention57 oﬀered several possibilities for the concretization of the framework treaty to the respective entities. However, as a precondition of any CBC activity, the territorial entities had to inform the central state about the negotiations and could act only in terms of the powers conferred to them by their respective domestic constitutional law (Arts. 2 and 3). The international liability of the states, as well as any ﬁnancial responsibility, were excluded (Art. 5). Although Article 4 speciﬁed all matters that could be subject to CBC agreements,58 examining their powers under the domestic constitutions, there are only a few parallel competences of Tyrol, South Tyrol and Trentino, such as the protection of the environment, sports or culture. After the failure of the highly institutionalized ‘Euregio Tyrol’ Draft Statute, which was rejected by the governments of Austria and Italy in 1995, concrete administrative and political cooperation on several matters seemed to oﬀer a better way to overcome the persistent fear of ethnically motivated actions. Thus, the Euroregion was not realized, at least not as a public law entity, and CBC activities gained a more pragmatic character. This was also due to the fact that the institutional way was perceived as a new reversal of ethnic balances and thus considered to raise the potential for a renewed ethnic conﬂict.59 After the abovementioned implementation of the bilateral Framework Treaty of 1993 in 1998, in July 1998 the governments of the three entities inaugurated the new ‘soft-Euroregion’ and declared their will to cooperate on political and functional grounds instead of an institutionalized base. This new approach clearly aims to distance itself from ideological connotations and led to the realization of some common projects in certain areas. Among these initiatives are, for example: common participation at the Hannover World Exposition in 2000, when the three entities presented themselves as a Euroregion with a separate pavilion; a contemporaneously organized exhibition about the common history of the regions of Tyrol, South Tyrol and Trentino in 2000; or the ‘Declaration of the Alps’ adopted on 26 January 2001.60 Looking at the terminology, the intention to de-ideologize CBC activities becomes visible: the new form of cooperation is called “cooperation in the framework of a Euroregion” and thus avoids any hint of the historic and symbolic Tyrol. Article 1 makes only a general reference to legal and operative forms of organization, just to guarantee the cooperation projects in a binding way. In 57 Signed on 27 January 1993, it entered into force in Italy on 1 August 1995 by Law No. 76 of 8 March 1995. See Pernthaler and Ortino, op. cit. note 36, 215. 58 Such as, for example, traﬃc, energy, nature and the protection of the environment, tourism and the promotion of trade, fairs and markets. 59 Francesco Palermo, op. cit. note 55, 171. 60 The German text of this declaration is available at .

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consequence, the activities, such as common INTERREG projects or the abovementioned representation as a Euroregion at the Hannover World Exposition in 2000, are carried out by diﬀerent legal means, depending on the speciﬁcities and needs of each single project. In order to further promote the ‘de-ideologization’ private law instruments are also used, for example. In the end, many legal problems continue to exist, caused by the diﬀerent domestic legal systems. Many acts and measures adopted within CBC projects remain without any legal force and are of mere political value. However, the eﬀects of CBC, especially a closer integration and the transformation of a former border region into a contact area, have been successfully reached. CBC was and is to be understood as a mere instrument that may provide a legal procedure for the more eﬀective solution of diﬀerent problems, reached by concrete policies and cooperation programmes. CBC can only help overcome a lack of coordination caused by national borders. The experience of South Tyrol clearly demonstrates the importance of functional rather than ideological approaches to CBC, which are less intrusive in regard to the sensitivities of the ethnic and linguistic groups. Nevertheless, this ‘à la carte’ CBC, which has been applied in areas where common initiatives are opportune, needs to be further exploited in order to make use of all the possibilities of cooperation it oﬀers. Another important challenge is to gain the support of the population. Due to the lack of common institutions and legal personality, the overall project is very much dependent on its output legitimacy and the (concrete) beneﬁts for the citizens, meaning that positive outputs stimulate support among the population and therefore guarantee the functional ‘legitimacy’ of the project.

CHAPTER TEN

REGIONAL AUTONOMIES PROVIDING MINORITY RIGHTS AND THE LAW OF EUROPEAN INTEGRATION: EXPERIENCES FROM SOUTH TYROL Gabriel N. Toggenburg

I. Introduction: Regional Autonomies and Minority Groups as Shadows Within the EU System A. EU Member States as the Exclusive Masters of the European Treaties According to the Treaty establishing the European Union, the EU is “founded on the European Communities”.1 The latter are established as a Community amongst the “high contracting Parties” of the EC Treaty, namely its member states.2 The “ownership” of the EU structure, including the EC, is thus concentrated in their hands. Admittedly, beginning in the 1960s, the European Court of Justice took the view that the EC Treaty is “more than an agreement [. . .] between the contracting states”. Rather, so the Court continues, the Community constitutes “a new legal order [. . .] the subjects of which comprise not only member states but also their nationals [. . .] [who] are called upon to cooperate in the functioning of this Community through the intermediary of the European Parliament and the Economic and Social Committee”.3 With the Treaty of Maastricht, these two institutions have been complemented by the Committee of the Regions. Since then, representatives of regional and local bodies have been involved in the production of legal and political decisions at EU level.4 However, what remains is that, for the rest, the EU conforms to the normality of international organizations, namely the fact that neither the citizens, nor certain groups of citizens, nor regions play any signiﬁcant and direct role in its decision-making process. The representatives in the Committee of the Regions can only in certain cases express their views and can in no case exert any sort of veto power in the framework of the legislative process. Another aspect of sub-national reality is even less present

1

Art. 1 para. 3 EU. Art. 1 EC. 3 ECJ, Case C-26/62, Van Gend & Loos, Judgment of 5 February 1963, [1963] ECR 1. 4 Compare Art. 263 EC. For an assessment of the role of the Committee of the Regions, see Giuseppe Avolio and Alessandro Santini, “The Committee of the Regions in the EU Policymaking Process: Actor or Spectator?”, in Roberto Toniatti et al. (eds.), An Ever More Complex Union. The Regional Variable as a Missing Link in the EU Constitution? (Nomos, Baden-Baden, 2004), 85–115. 2

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at the EU level: minority groups are not even mentioned in the treaties and the proposal to establish a Committee of National and Ethnic Minorities at EU level was outright dismissed.5 The majority interests of the citizenry also are mediated through the parties in the parliament and NGOs are not assured any institutional niche in the constitutional assets of the Union. The current treaties do not recognize any sort of “principle of participatory democracy”.6 In this sense, the European Union is dominated by its member states and does not reﬂect in its structure and procedures the sub-national entities or groups forming these states. This assessment gets even more evident if one looks at the constitutional development of the Union. The procedure for the amendment of the current treaties is entirely reserved to the states themselves. The European Parliament (and, if appropriate, the Commission) is only consulted. Realities below the federal level, such as regions, minority groups, citizens or NGOs, are not mentioned at all.7 B. The European Union and Regional Autonomies: ‘Positive’ Blindness According to the so-called principle of ‘enumerated powers’, the EU can only act in those concrete areas where the member states have transferred the legal power to do so.8 Thus, for instance, the EU can neither rule on the status and powers of the regions within the constitutional setting of the states nor can it grant special minority rights such as the right to be represented in regional or national parliaments. Consequently, in the area of positive integration (that is, the production of European legislation), the Union has to remain silent on topics such as special minority rights and the establishment of regional autonomies. Whether or not member states grant regional autonomies is a matter left to national law. To borrow the words of the Court: each member state remains “free to delegate powers to its domestic authorities as it considers ﬁt”.9 This does not do away with the fact that regions became more and more involved in implementing new EU politics ranging from agriculture and structural funding to environmental standards.10 Moreover EU norms apply directly also at the regional and local level (direct

5

This proposal has been submitted in the Convention drafting the Constitution for Europe. See the Convention Document CONV 580/03, CONTRIB 258. 6 Note that the Constitutional Treaty introduces in its Art. I-57 the “principle of participatory democracy” and establishes an instrument of direct democracy that would allow “not less than one million citizens who are nationals of a signiﬁcant number of Member States” to invite the Commission to submit a legislative proposal. Such an instrument could be of relevance not only for transnational Euroregions but also for dispersed minorities such as the Roma. See the Treaty establishing a Constitution for Europe, in OJ C 310 of 16 December 2004. 7 See Art. 49 EU. Compare in this context also the Constitutional Treaty (Art. IV-443–447 CE) which does not change this picture. 8 See Art. 5 EU and Art. 7 EC. 9 ECJ, Case C-227/85, Commission of the European Communities v Kingdom of Belgium, Judgment of 14 January 1988, para. 9, [1998] ECR 1. 10 Compare in this context the contributions of Marco Brunazzo, Orsolya Farkas, Marco Giorello, Andrea Carta, Luisa Corazza and Stijn Smismans in Roberto Toniatti et al., op. cit. note 4.

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eﬀect of EC law) and supersede all contrasting legal measures produced at the regional or local level (supremacy of EC law).11 In this sense, the regions within the EU have become servants of two masters: the Union and their states alike. It has even been noted that the EU policies, especially its regional policy, de facto contributes to a process of regionalization at national level.12 Nevertheless, there is no place for the Union to directly interfere with the internal distribution of powers within its member states. Likewise, the Union cannot delegate powers and tasks to bodies or authorities at the regional or local level in the member states “as this would undermine the basic structure of the Union and be in breach of the principles of subsidiarity and proportionality which leaves it up to Members States to decide how to organise themselves internally”.13 This was, for a long time, held true also for the case of special minority rights. Regularly, the European Commission pointed out that “the rights of minorities remain within the powers of the Member States”.14 Recently, however, the Commission became interested also in the legal situation of minorities living within its member states. Thus, for instance, the Commission has argued in the context of Sorbian-speaking schools in Germany that “the rights of minorities are part of the principles common to the Member States listed in the ﬁrst paragraph of Article 6” of the EU Treaty.15 This makes of the value of minority protection a value the European Union itself is “founded on”, a reading that is conﬁrmed in the Constitutional Treaty.16 There are, however, two clariﬁcations to be made in this context. Firstly, the concrete content and reach of this new EU value of minority rights is not at all clear and, in any case, it does not include a right to regional self-government.17 Secondly, the fact that minority protection is on the way to becoming a constitutional value of the Union does not mean that the Union would gain any sort of legislative

11 See for detail on the principles of direct eﬀect and supremacy, Bruno de Witte, “Direct Eﬀect, Supremacy and the Nature of the Legal Order”, in Paul Craig and Grainne de Búrca (eds.), The Evolution of EU Law (Oxford University Press, Oxford, 1999), 177–213. 12 See, for example, Francesco Palermo and Alessandro Santini, “From NUTS to Constitutional Regions: Addressing EU Regions in the EU Framework”, in Roberto Toniatti et al., op. cit. note 4, 3–26. 13 Report of the European Parliament on the Commission White Paper on “European Governance”, A5–0399/2001, adopted on 29 November 2001 (OJ C 153E, 27 June 2002, 314–322), para. 26. 14 See answer to the Written Question No. 2132/92 in OJ C 47 of 18 February 1993, 20. 15 See the Commission’s reply to Written Question E-2538/01 in OJ C 147 E, 20 June 2002, 27 and 28. 16 See on this development in more detail, Gabriel N. Toggenburg, “A Remaining Share or a New Part? The Union’s Role vis-à-vis Minorities after the Enlargement Decade”, European University Institute, Working Paper 15, (2006). 17 The Commission refers in the context of minority rights “above all” to the Framework Convention for the Protection of National Minorities drawn up in the framework of the Council of Europe in 1994. The rights referred to by the Commission mainly relate to the preservation of ethnic and cultural identity but even include more concrete elements such as the right, under certain conditions, to use the minority language in contacts with oﬃcialdom and in the courts. See, for example, the Commission’s reply to Written Question E-1927/99 in OJ C 225 E, 8 August 2000, 32 and 33.

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competence allowing for the supranational prescription of what the legal position of sub-national entities should look like and what special minority rights have to be granted. In this sense, the Union remains minority-blind and region-blind. C. The European Union and Regional Autonomies: ‘Negative’ Blindness This structural blindness in the area of positive integration can also contribute to a selective perception in the area of negative integration (that is, in the context of prohibitive norms in the treaties). If the EU comes across a strong regional autonomy that provides for special rights and imposes correspondingly respective duties, EC law will raise certain questions linked to the principle of non-discrimination. Can EU citizens be excluded from special rights under the argument that they are not residents of the region at stake or under the argument that they are not members of the respective minority group? Can certain duties linked to a special regional regime be imposed also on other EU citizens without infringing EC law? Such questions gain a certain degree of neuralgic relevance where regional systems would lose their raison d’etre when the beneﬁts at stake are extended to EU citizens. This is the case for quantity-sensible rules such as the distribution of rare goods like social housing, public funds, working places, etc. The open nature of these questions is linked to the fact that the Community disposes over no concrete “standard for minority rights in Community policy”, has no “Community understanding of who can be considered a member of a minority” and no legislation in the ﬁeld of special minority rights.18 Most importantly the EU applies a rather formal view on the principle of equality and disposes over no commonly agreed deﬁnition of what positive measures, aﬃrmative action or positive discrimination might mean.19 The Union looks at regional autonomies and special minority regimes through lenses that belong predominantly to the area of economic law. This might be problematic, since the establishment and the preservation of the common market, on the one hand, and special minority rights, on the other serve potentially conﬂicting aims. Whereas the common market aims at the free circulation of the four economic factors (workers, services, establishment and capital), systems of special minority rights tend to withdraw certain areas from the free market by distributing rare goods (the abovementioned economic factors included) to certain privileged groups.

18 See the European Parliament Resolution on the Protection of Minorities and Anti-discrimination Policies in an Enlarged Europe in OJ C 124 E of 25 May 2006, 405–415, point 7 (the Moraess Resolution). 19 Compare in this context the European Parliament Resolution on Non-discrimination and Equal Opportunities for All—a Framework Strategy, adopted on 14 June 2006 (the Zdanoka Resolution).

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II. Concrete Experiences of the South Tyrolean Autonomy A. The Case of Language Rights In the following, I consider ﬁrstly a case that had no connection to South Tyrol (but which is relevant for the development of the later case law) and which was decided prior to the Treaty of Maastricht, followed by a second case which does have a South Tyrolean background and which was decided after the Treaty of Maastricht. Already, back in 1985, the Court of Justice was confronted with a national system granting in certain territories language privileges to certain people.20 In the Mutsch case, the Court dealt with a Belgian law that provided for the use of the German language before Belgian Courts when the accused person of Belgian nationality resides in a German-speaking municipality. Robert Heinrich Maria Mutsch is a citizen of Luxembourg, who worked in Belgium as a roofer in his father’s ﬁrm, came into conﬂict with Belgian criminal law in the course of a latenight dispute with members of the Belgian police force and insisted in the frame of the resulting criminal proceedings to have the latter conducted in German. The Court upheld Mr. Mutsch’s request but the ministère public appealed against it on the ground that the accused was not of Belgian nationality and could not therefore claim the beneﬁt of linguistic diversity in the Belgian court system. The Cour d’appel de Liège referred the case to the European Court of Justice in Luxembourg (ECJ), which had to decide whether, according to the principles of Community law, the beneﬁt of a piece of legislation in a member state that intends to promote the use of the language of a group of nationals of that state must be extended, without discrimination based on nationality, to nationals of other member states who fulﬁl all the conditions laid down for the use of a particular language by the members of the population group concerned. Advocate General Lenz, taking up the stance of the Commission, stated that language rights can be construed as constituting a “social advantage” in the sense envisaged in Article 7 paragraph 2 of Regulation 1612/68. However, the government of the Italian Republic intervened in this case and argued, inter alia, that national provisions adopted for the beneﬁt of an oﬃcially recognized minority can only concern persons who are members of that minority and reside in the area where that minority is established. This strategy aimed to absolve the regional legal authority in question from the supervisory jurisdiction of the ECJ by invoking minority protection as the aim and personal autonomy as the method. General Advocate Lenz, however, provided a clear reply in saying that “it cannot be assumed that advantages [. . .] are inapplicable [to EU citizens] merely because they are granted in order to protect minority rights [. . .] The requirement of equal treatment [. . .] applies [also] in areas which are not primarily governed by

20

ECJ, Case C-137/84, Mutsch, Judgment of 11 July 1985, [1985] ECR 2681.

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Community law.”21 By contrast, the Court omitted to address the issue of minority protection and focused instead on the importance of language rights for the mobility of workers in general. It stressed, inter alia, that the right to use one’s own language in proceedings before the courts of the member state of residence “plays an important role in the integration of a migrant worker and his family into the host country, and thus in achieving the objective of free movement for workers”.22 Hence, the Court came to the conclusion that the principle of free movement for workers, as established in Article 39 (then 48) of the EC Treaty and, in particular, in Regulation 1612/68 of the Council, requires that a worker who is a national of one member state and habitually resides in another member state must “be entitled to require that criminal proceedings against him take place in a language other than the language normally used in proceedings before the court which tries him if workers who are nationals of the host member state have that right in the same circumstances”.23 Against this background, the Court delivered thirteen years later a similar judgment in a case taking place in South Tyrol, which became well known as the ‘Bickel/Franz’ case.24 Mr. Bickel, an Austrian citizen, is a lorry driver resident in Austria. He was driving his lorry at Castelbello/Kastelbell in the Italian region Trentino-South Tyrol when he was stopped by a carabinieri patrol and charged with driving while under the inﬂuence of alcohol. Mr. Franz, a German national resident in Germany, visited Trentino-South Tyrol as a tourist. In the course of a customs inspection, he was found to be in possession of a prohibited type of knife. In each case, the accused made a declaration in the presence of the District Magistrate of Bolzano/Bozen that they had no knowledge of Italian and, relying on rules for the protection of the German-speaking community of the Province of Bolzano/Bozen, requested that the proceedings be conducted in German. The Pretura Circondariale, Sezione Distaccata di Silandro (District Magistrates’ Court, Silandro Division), referred a question to the Court on the interpretation of Articles 12, 18 and 49 EC (then 6, 8a and 59 EC). Here, as was already the case in Mutsch, the referring court wondered whether, because of the inﬂuence of Community law, the rules of procedure applicable to the citizens of the Province of Bolzano/Bozen must be extended to nationals of other member states visiting the province.25 The complex language system in South Tyrol provides, inter alia, that

21 Opinion of the Advocate General as of 11 July 1985, in ECR [1985] 2681, at 2685 and 2686. This laid the basis for the ECJ jurisdiction in future related cases. However, it is submitted that this stance corresponds to the ECJ’s general habit of looking more closely at the eﬀects and less at the aims of national provisions. It is therefore interesting that even the later case Groener was considered as a surprise (also) in this respect. 22 Mutsch, para. 16. 23 Mutsch, para. 18. 24 ECJ, Case C-274/96, Bickel and Franz, Judgment of 24 November 1998 [1998] ECR. 25 Art. 99 of Presidential Decree No. 670 of 30 August 1972 concerning the special arrangements for the Trentino-South Tyrol region (Gazzetta Uﬃciale della Repubblica Italiana, No. 301 of 20 November 1972) provides that the German language is to have the same status there as Italian. Under Art. 100 of that decree, the German-speaking citizens of the Province of Bozen/Bolzano

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the administrative and judicial authorities must, in their dealings with citizens of the Province of Bolzano/Bozen and in documents concerning them, use the language of the person concerned, i.e., Italian or German (or Ladin).26 Similarly to the decision in Mutsch, the Court declared that: [T]he exercise of the right to move and reside freely in another Member State is enhanced if the citizens of the Union are able to use a given language to communicate with the administrative and judicial authorities of a State on the same footing as its nationals. Consequently, persons such as Mr. Bickel and Mr. Franz, in exercising that right in another Member State, are in principle entitled, pursuant to Article 6 of the Treaty, to treatment no less favourable than that accorded to nationals of the host State so far as concerns the use of languages which are spoken there.27

In Bickel/Franz, the Court’s analysis went into more detail regarding the implications of EC law, in terms of both the existence of discrimination and possible justiﬁcations of the national legislation at hand, than in its judgement in Mutsch. However, it seems inappropriate to interpret this as a growing sensibility of the European Court of Justice towards linguistic policies of member states or as a result of the changes in primary law that have in the meantime been introduced (interestingly, the Court did not refer at all to the notion of diversity or the concept of national identity as introduced in the Maastricht Treaty). One should, rather, take into account the diﬀerent legal backgrounds of the respective cases. In Mutsch, an applicable norm of secondary law (Regulation 1612/68) was clearly available. The situation in Bickel/Franz was more delicate in this respect.28 The Court even had to consider whether to base the application of Community law on the right of “[e]very citizen of the Union [. . .] to move and reside freely within the territory of the Member States”. Because this would have amounted to acknowledgement of the direct applicability of this provision and its detachment from any economic dimension, the Court in the end relied on the freedom to provide services. Since the Court’s judgement in the Cowan29 case, it is clear that the latter grants protection even to those persons who “visit another Member State where they intend or are likely to receive services”, such as tourists.30 Checking

(around 70% of the local population) are entitled to use their own language in relations with the judicial and administrative authorities based in that province or entrusted with responsibility at regional level. 26 Art. 13 of Presidential Decree No. 574 of 15 July 1988 on the implementation of the special arrangements for the Trentino- South Tyrol with regard to the use of German or Ladin in relations between citizens and the public administration and in judicial proceedings (Gazzetta Uﬃciale della Repubblica Italiana, No. 105 of 8 May 1989). 27 Bickel and Franz, para. 16. 28 Mr. Bickel could be qualiﬁed as somebody providing a service in the sense of Art. 49 EC (then Art. 59 TEC) though he was at that time not yet an EU citizen (Austria was not yet a member of the EU in February 1994) and Mr. Franz, though being citizen of a member state, went to South Tyrol for mere pleasure and stayed there without any economic motivation. 29 Compare ECJ, Case C-186/87, Ian William Cowan v Trésor public, Judgment of 2 February 1989, [1989] ECR 195, esp. para. 10. 30 Bickel and Franz, para. 15.

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the rules at stake directly against a fundamental freedom, the Court had to examine the discriminatory character of the linguistic legislation in detail.31 The protective character of the norms establishing the linguistic regime in South Tyrol implies that they restrict the right to have proceedings conducted in German to citizens of the Province of Bozen/Bolzano and disadvantage therefore (also) the vast majority of Italian citizens.32 This point was advanced by the Italian government to hide the discriminatory character (vis à vis EU citizens) of the rules in question. However, the Court—as one would have expected—perceived the relevant norm to be a form of indirect discrimination. Italian nationals are at an advantage by comparison with nationals of other member states because the majority of German-speaking Italian nationals are in a position to demand that German be used throughout proceedings in the Province of Bolzano/Bozen since they meet the residence requirement laid down by the rules at issue; the majority of German-speaking nationals of other member states, on the other hand, cannot avail themselves of that right because they will, in general, not satisfy that requirement. The linguistic rules in question therefore infringe the principle of non-discrimination laid down in Article 12 EC (then Art. 6 EC). Moreover—in contrast to Mutsch—the Court in Bickel/Franz contemplated whether and which arguments would allow for the exclusion of EU citizens from a regional linguistic regime. This was necessary because it could not rely on a legally pre-described and politically accepted balance between two public interests (i.e., mobility and diversity) outlined in a secondary act, as was the case in Mutsch. In accordance with existing case-law, the Court held that a residence requirement can be justiﬁed only if it is based on objective considerations independent of the nationality of the persons concerned and is proportionate to the legitimate aim of the national provisions.33 The Italian government’s contention that the aim of those rules was to protect the ethnocultural minority residing in the province in question did not, in the eyes of the Court, constitute a valid justiﬁcation in this context. Nevertheless the Court went so far as to admit that “of course, the protection of such a minority may constitute a legitimate aim”. However, the Court continued, “it does not appear [. . .] that that aim would be undermined if the rules in issue were extended to cover German-speaking nationals of other Member States exercising their right to freedom of movement”.34

31 It is interesting that the Commission seemed to have had doubts about the discriminatory nature of the norms at stake in Bickel/Franz. However, it proposed to leave this (essential) question (of interpretation of EC law) to the national court. 32 For the details of the language regime in South Tyrol, see the contribution by Christina Fraenkel in this volume. 33 See, for example, Case C-152/73, Giovanni Maria Sotgiu v Deutsche Bundespost, Judgment of 12 February 1974, [1974] ECR I-153. 34 The Court added here that Italy did not contradict the point that the courts concerned are in a position to conduct proceedings in German without additional complications or costs. This argument was used already by the Advocate General who, furthermore, saw in the provision of bilingual proceedings in South Tyrol for all German speaking EU citizens a strengthening rather than a weakening element for the German minority.

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The implications of Bickel/Franz—what one could label as the ‘Bickel/Franz’ eﬀect—are as follows: national norms providing residents of certain regions with special language rights have to be extended to all EU citizens who ﬁnd themselves “in the same circumstances”,35 i.e., whose “language is the same”.36 What remains is eventually the question of when two individuals do have the same language. In any event, the attempt in the literature and in political discourse to reduce the obligatory expansion of language privileges only to those EU citizens who speak the additional language as a mother tongue has to be rejected.37 If national rules diﬀerentiated between EU citizens who speak the language in question as their mother tongue and those who speak it ‘only’ as a second language, they would again risk indirect discrimination on the basis of nationality.38 Nevertheless, in principle, EC law leaves national and sub-national systems of linguistic rights untouched: member states are neither obliged to provide for the use of other, additional languages nor to expand existing rules to additional regions. EC law does not impinge on the material or territorial scope of the special national linguistic regime—neither in expanding nor in reducing it. The fundamental freedoms such as the free movement of workers only oblige the member states to widen the personal scope of the provisions at stake. This eﬀect of EC law is not likely to change the linguistic regimes at national level as the (de facto modest) widening of the group of addressees does not increase the ﬁnancial (and political) costs member states incur in order to uphold the language regimes at stake. However, it remains to be seen how the Court would react if such an expansion of the scope of addressees would indeed entail considerable additional costs for the member state in question.39 This would arguably only become relevant for ‘small’ local bilingual regimes when faced with the pressure of new transnational migration following eastern enlargement.40 Furthermore, one could speculate on 35

Mutsch, para. 18. Bickel and Franz, para. 31. 37 See Gabriel N. Toggenburg, “Der EuGH und der Minderheitenschutz”, 1 European Law Reporter (1999), 11–15, at 14, a view which was conﬁrmed by, for example, Francesco Palermo, “Autonomia e tutela minoritaria al vaglio della giurisprudenza costituzionale ed europea”, Informator (1999), 116–142, at 132. See, however, contra, Andrea Gattini, “La non discriminazione di cittadini comunitari nell”uso della lingua nel processo penale: Il caso Nickel”, Rivista di Diritto Internazionale (1999), 106 or, also contra, Elisabetta Palici di Suni Prat, “L’uso della lingua materna tra tutela delle minoranze e parità di trattamento nel diritto comunitario”, Diritto pubblico comparato ed europeo (1999), 171. 38 It is obvious that the overwhelming majority of people speaking German as a mother tongue holds either German or Austrian citizenship, whereas citizens of other member states will normally, if at all, speak German as a second language. 39 This would deﬁnitively be the case if the number of EU citizens invoking EC law were higher than the number of the local minority for which the bilingual regime has been installed. This is a scenario which—at times before the perspective of eastern enlargement—was considered as being a situation which “non si veriﬁca in nessun luogo della Communità”. See Bruno de Witte, “Il caso Mutsch: libera circolazione dei lavoratori e uso delle lingue”, 4 Foro italiano (1987), 8–13, at 12. 40 Austria might serve an example in this respect. It borders new member states such as Slovenia and Hungary and holds bilingual regimes in the Länder Kärnten, Steiermark and Burgenland oﬀering the possibility to the Slovenian and Hungarian minorities resident in Austria to use their languages before courts of certain municipalities. See Peter Hilpold, “Unionsbürgerschaft und Sprachenrechte 36

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whether the duty to expand linguistic rights to EU citizens might in future limit the likelihood of politicians introducing new systems of this kind.41 It is, however, important to stress that the language provisions in Mutsch and Bickel/Franz discriminated against EU citizens only in the access to an additional form of communication before and with the judicial authorities of the respective member states. Communication with and before judicial authorities is not a rare good; it is not consumable in nature. The situation might be more problematic when language requirements regulate the access to resources such as housing, ﬁnancial aid, working places, social assistance, education, etc. In such cases, linguistic regimes build sensitive sluices to access rare goods and can therefore be labelled as ‘quantity sensible’. Changing the personal scope of such rules means, ﬁrst, that the ﬁnancial cost for the public authorities involved rises signiﬁcantly (e.g., more persons being entitled to education means more costs for the respective authority); secondly, that political costs might be involved (e.g., opening the labour market to new groups of persons can alter the social structure of a region); and, thirdly, that the rule at stake might sooner or later, through an expansion of its personal scope, be led ad absurdum and lose its raison d’etre (e.g., the reservation of quotas in the public administration for a certain linguistic minority group resident in a speciﬁc region might lose its meaning if these quotas were opened up to all EU citizens). Compared to such circumstances, the ‘non-quantity sensible’ issues in the cases Mutsch and Bickel/Franz were ‘easy cases’ in terms of ﬁnding a balance between national and European interests. A second set of cases that are about ‘quantity sensible’ mechanisms are more delicate in this respect and will be examined in the following section. B. The Case of Language Duties Just as above, I will in the following consider ﬁrstly a case that had no connection to South Tyrol and which was decided prior to the Treaty of Maastricht, followed by a second case which does have a South Tyrolean background and which was decided after the Treaty of Maasstricht. The ﬁrst case dealing with language duties was the Groener case. Anita Groener is a Dutch national who was refused appointment to a permanent full-time post as an art teacher by the Irish Minister for Education after she had failed a test intended to assess her knowledge of the Irish language. According to memoranda of the minister,42 the competent committee may not appoint a person to a permanent full-time post in certain areas of teaching, including art in particular,

in der EU”, Juristische Blätter (2000), 100. For the Austrian situation in general see, for example, Günther Rautz, Die Sprachenrechte der Minderheiten (Nomos, Baden-Baden, 1999). 41 See Hilpold, op. cit. note 40, 100. 42 According to Section 23 paras. 1 and 2 of the Vocational Education Act 1930, the minister’s approval is required concerning the numbers, qualiﬁcations, remuneration and appointment of all employees of each vocational education committee.

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unless that person holds the Ceard-Teastas Gaeilge, a certiﬁcate of proﬁciency in the Irish language, or has an equivalent qualiﬁcation recognized by the minister.43 Appointees who do not hold that certiﬁcate may be required to undergo a special examination in Irish consisting of an oral test.44 Mrs. Groener was engaged on a temporary basis as a part-time art teacher in the College of Marketing and Design in Dublin. When she applied for a permanent full-time post as a lecturer in art at that college she was refused as she did not have the Ceard-Teastas Gaeilge. Mrs. Groener followed a four-week beginners’ course, took the examination and failed. She then instituted proceedings for judicial review against the minister and the Education Committee before the High Court, Dublin, maintaining that the conditions mentioned45 were contrary to Article 39 EC (then Art. 48 EC) and Regulation 1612/68. The High Court forwarded to the ECJ the question of whether it is compatible with EC law that employment in a particular post in a member state is made conditional upon “the applicant having a competent knowledge of one of the two oﬃcial languages of that Member State, being a language which nationals of other Member States would not normally know but would have to learn for the sole purpose of complying with the condition”. It was therefore crucial to interpret Article 3 of Regulation 1612/68, which explicitly allows language requirements “relating to linguistic knowledge required by reason of the nature of the post to be ﬁlled”.46 Hence, the second question of the Court became central, in which it inquired whether in considering the meaning of the phrase “the nature of the post to be ﬁlled” in Article 3 of Regulation 1612/68, there is any “regard to be had to a policy of the Irish State that persons holding the post should have a competent knowledge of the Irish language, where such knowledge is not required to discharge the duties attached to the post”.47 The ECJ acknowledged that the “knowledge of the Irish language is not required for the performance of the duties which teaching of the kind at issue speciﬁcally entails”48 but conceded that this ﬁnding is “not in itself suﬃcient to enable the national court to decide whether the linguistic requirement in question is justiﬁed ‘by reason of the nature of the post to be ﬁlled’ ”, within the meaning of the last subparagraph of Article 3 paragraph 1 of Regulation 1612/68.49 The Court stressed that “regard must be had to the special linguistic situation in 43 However, in that memorandum, the minister reserved the right to exempt candidates from countries other than Ireland from the obligation to know Irish, provided that there were no other fully qualiﬁed candidates for the post (Memorandum V7, which entered into force on 1 September 1974). 44 Paras. 2 and 3, Circular Letter 28/79, issued 26 June 1979. 45 Laid down by Memorandum V7 and Circular Letter 28/79. 46 Moreover, the referring Court wondered whether the term “public policy” in the exception clause of Article 48(3) of the EEC Treaty also covered the “policy of the Irish State to support and foster the position of the Irish language as the ﬁrst oﬃcial language”, a question which the Court thought “unnecessary to give an answer to”, as its reply to the second question was in the aﬃrmative (see Groener, ﬁnal para.) 47 Groener, para. 10. 48 Groener, para. 15. 49 Groener, para. 16.

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Ireland”. It pointed out the special position of the Irish language50 and described the language policy of Ireland as one that is “designed not only to maintain but also to promote the use of Irish”51 and establishes the general rule that: [t]he EEC Treaty does not prohibit the adoption of a policy for the protection and promotion of a language of a Member State which is both the national language and the ﬁrst oﬃcial language. However, the implementation of such a policy must not encroach upon a fundamental freedom such as that of the free movement of workers. Therefore, the requirements deriving from measures intended to implement such a policy must not in any circumstances be disproportionate in relation to the aim pursued and the manner in which they are applied must not bring about discrimination against nationals of other Member States.52

The Court ﬁnally qualiﬁed the Irish language requirement for teachers as being justiﬁed by “reason of the nature of the post”, by referring to the “essential role” that teachers play in the framework of a national language policy. Teachers play an essential role not only through the teaching (which, in the case at hand, took place in English only), but “by their participation in the daily life of the school and the privileged relationship which they have with their pupils”. Therefore, the Court found it “not unreasonable” that Ireland asks them to have an “adequate knowledge” of Irish and recognizes this duty as being required by reason of the nature of the post to be ﬁlled within the meaning of the last subparagraph of Article 3 paragraph 1 of Regulation 1612/68, provided that “the level of knowledge required is not disproportionate in relation to the objective pursued”.53 However, one has to note that the Court’s indulgent assessment referred exclusively to systems where “the linguistic requirement in question is imposed as part of a policy for the promotion of the national language which is, at the same time, the ﬁrst oﬃcial language”. This raised doubts as to whether the Court’s willingness to interpret Regulation 1612/68 in this extensive manner might be limited to measures of a certain type of linguistic policy only and exclude, for example, policies fostering non-national minority languages.54 This leads us to the second case, Angonese, which was decided 11 years after the judgment in Groener. The main diﬀerence between the Groener scenario and Angonese is that the latter case

50 Article 8 of the “Bunreacht na hEireann” (Irish Constitution) reads as follows: “(1) The Irish language as the national language is the ﬁrst oﬃcial language. (2) The English language is recognized as a second oﬃcial language. (3) Provision may, however, be made by law for the exclusive use of either of the said languages for any one or more oﬃcial purposes, either throughout the State or in any part thereof.” 51 Groener, para. 18. 52 Groener, para. 19. 53 Groener, para. 20. Further clear conditions set out by the Court are that the principle of nondiscrimination precludes the imposition of any requirement that the linguistic knowledge in question must have been acquired within the national territory and that exceptions to such language requirements as the one at stake have to apply in a non discriminatory way to both nationals and EU citizens. See Groener, paras. 23 and 22. This fact surfaced again in Angonese. 54 See Bruno de Witte, “The Impact of European Community Rules on Linguistic Policies of the Member States”, in Florian Coulmas (ed.), A Language Policy for the European Community (Mouton de Gruyter, Berlin, New York, 1991), 163–177, at 170.

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does not deal with a language policy promoting a “national language which is, at the same time, the ﬁrst oﬃcial language” of a member state but “merely” with a minority language, which, in a certain region of a member state, has equal currency with the oﬃcial language of that state. Mr. Roman Angonese is an Italian national whose mother tongue is German and who is resident in the province of Bozen/Bolzano. He studied languages (English, Slovene and Polish) in Austria between 1993 and 1997. In 1997, he applied to take part in a competition for a post with a private banking undertaking in Bozen/Bolzano, the Cassa di Risparmio. One of the conditions for entry to the competition was the possession of a certiﬁcate of bilingualism (in Italian and German). This so called patentino or Zweisprachigkeitsnachweis is issued exclusively by the public authorities of the Province of Bozen/Bolzano after an examination, which is held only in that province. It is customary for the residents to obtain this certiﬁcate, as it is required in the Province of Bozen/Bolzano for access to public services. Mr. Angonese, though being perfectly bilingual, was not in possession of this certiﬁcate. This was the reason why the Cassa de Risparmio did not admit Mr. Angonese to the competition. The duty to be bilingual when working in the public sector is a general principle of the South Tyrolean autonomous system. Bilingualism as a condition for access to employment has, in addition, become a frequent feature in the private sector as well. However, Mr. Angonese did not contest the Cassa di Risparmio’s right to select its staﬀ from persons who are perfectly bilingual. He merely complained that the requirement to have and produce that speciﬁc local certiﬁcate penalizes workers who have studied abroad and is therefore contrary to the principle of freedom of movement for workers laid down in Article 39 EC (then Art. 48 EC). The Pretore di Bolzano decided to stay proceedings and to refer the case to the ECJ by asking whether it infringes Article 39 EC and Articles 3 paragraph 1 and Article 7 paragraphs 1 and 4 of Regulation 1612/68 if the admission of candidates to a competition organized to ﬁll posts in a company governed by private law is conditional on possession of an oﬃcial certiﬁcate attesting to knowledge of local languages issued exclusively by a public authority of a member state at a single examination centre (namely, Bozen/Bolzano), on completion of a procedure of considerable duration (to be precise, of not less than 30 days, on account of the minimum period of time between the written test and the oral test). The Court concluded that this had to be checked exclusively against Article 39 EC; Regulation 1612/68 was, for formal reasons, not applicable.55 The Court had, ﬁrst, to decide under which speciﬁc circumstances discrimination against 55 Art. 3 para. 1 of the Regulation concerns only provisions laid down by the laws, regulations or administrative action or administrative practices. Art. 7 of the Regulation would have been contrary to a Collective Agreement that authorizes the institutions concerned to adopt discriminatory criteria in relation to workers who are nationals of other member states. This was not the case. The duty to hold the certiﬁcate as imposed by the Cassa de Risparmio was not founded on Article 19 of the National Collective Agreement for Savings Banks of 19 December 1994. That provision only refers to “selection criteria speciﬁed by the institution”. See Art. 19 of the Collective Agreement at stake.

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‘own nationals’ (Roman Angonese being an Italian citizen applying for a job in Italy in an Italian ﬁrm) may fall within the scope of EC law (a task which the Court fulﬁlled only en passant)56 and, secondly, whether the prohibition of discrimination in the framework of the freedom of workers also applies to private entities (such as the Cassa di Risparmio). For our purposes, it seems enough in this respect to note that, in future, “language policies” exerted by private enterprises also have to be checked against Article 39 EC, even in cases where such a policy does not regulate language use in a “collective manner”.57 After having conﬁrmed the applicability of EC law, the Court concluded that the “patentino-system” favours persons resident in the province of Bozen/Bolzano. It thereby constitutes a form of indirect discrimination and is contrary to Article 39 EC. Such a discriminatory measure could be justiﬁed only if it were based on objective factors. Regarding this point, the Court referred to the judgment in Groener where it had already made clear that the principle of non-discrimination “precludes any requirement that the linguistic knowledge in question must have been acquired within the national territory”. Therefore, the Court, after recognizing that “requiring an applicant for a post to have a certain level of linguistic knowledge may be legitimate and possession of a diploma such as the Certiﬁcate may constitute a criterion for assessing that knowledge”, concluded that “the fact that it is impossible to submit proof of the required linguistic knowledge by any other means, in particular by equivalent qualiﬁcations obtained in other Member States, must be considered disproportionate in relation to the aim in view” and hence infringes Article 39 EC.58 The implications of Groener and Angonese are as follows: EC law does not a priori exclude member states’ policies for the promotion of linguistic diversity at the national or regional level that limit access to the labour market through the application of linguistic requirements. The case of Angonese seems to show that, in this respect, there is no diﬀerence between a language policy that refers to a language used at the national level and that is recognized as a national language and a language used only in a speciﬁc region and considered equal to a national language merely within this small territory. At the same time, both cases made very clear that such language policy of member states falls within the scope of EC law and that the application of certain discriminatory or restrictive measures may

56 The results of this search for a “Community element” have been criticized as “uncomfortably vague and incomplete” (see Robert Lane and Niamh Nic Shuibhne, “Case C-281/98, Roman Angonese v. Cassa di Risparmio di Bolzano SpA, Judgment of 6 June 2000”, 37(5) Common Market Law Review (2000), 1237–1247, at 1243) or even as the expression of a “delirium di omnipotenza” (Francesco Palermo, “Diritto comunitario e tutela delle minoranze: alla ricerca di un punto di equilibrio, 3 Diritto Pubblico Comparato ed Europeo (2000), 969–974, at 971). 57 See paras. 30–36. Compare ECJ, Case 36/74, Walrave v Union Cycliste Internationale, Judgment of 12 December 1974, [1974] ECR 1405, para. 17. What makes Angonese a major ‘leading case’ lies indeed in the fact that the Court overcomes this “collective manner” requirement for the recognition of horizontal eﬀect between individuals in the framework of Art. 39 EC. 58 Angonese, para. 43.

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have to be limited to the citizens of the respective states if the measures do not satisfy the proportionality test. However, member states retain considerable discretion. In Groener, the Court did not engage in a balancing act between two public interests (diversity and respect for national identity, on the one hand, and free movement, on the other), as it could rely on the interpretation of a norm of secondary law, which seemingly has already ﬁxed the balance in this conﬂict: Article 3 of Regulation 1968 determines the scope of an exception to the general principle of non-discrimination in Community law. However, the Court exposed the notion of the individual “nature of the post” to deliberations of a general nature underlying, for example, a public language policy. This astonishingly wide interpretation of the quite clearcut wording of the regulation seems to have been imposed by the political importance of the question at stake. Indeed it was one—as Advocate General Darmon has put it—“of drawing a line between the powers of the Community and those of the Member States and of considering whether or not a policy of preserving and fostering a language may be pursued” and of asking whether it is “for the Community to decide whether or not a particular language should survive? Is the Community to set Europe’s linguistic heritage in its present state for all time?”59 The Advocate General obviously wanted to reserve as much space as possible for language policies of the member states when he says that “[i]t seems to me that every State has the right to try to ensure the diversity of its cultural heritage and, consequently, to establish the means to carry out such a policy”60 and that to “limit the requirement of a knowledge of Irish to posts involving the actual teaching of Irish would be to treat it as a dead language like ancient Greek or Latin, and as a language incapable of further development, or, at least, as a conﬁdential language whose use is restricted to a small circle of initiates.”61 It is submitted here that these arguments are an expression of a desire to limit the eﬀects of negative integration and to preserve the member states’ discretion in a highly sensitive ﬁeld in terms of sovereignty, such as language policy, but that the Court did not ﬁnd a way of basing its extensive interpretation of Regulation 1612/68 on a convincing general principle. It is furthermore submitted that the Court would probably have had recourse to ‘post-Maastricht’ concepts such as “respect for national identity” and “cultural diversity” if they had been available at that time.62 In Angonese, it was held that Regulation 1612/68 was not applicable and the linguistic policy at stake had to be evaluated in the context of Article 39 EC. However, the Court limited itself to the question that had been referred to it

59

Opinion delivered on 16 May 1989, ECR 1989, 3967, paras. 16 and 19. Ibid., para. 20. 61 Ibid., para. 22. 62 The potential role of such “saving clauses” gets more evident when the situation in the European Community is compared with the situation in the EFTA system, where such clauses are missing. See Gabriel N. Toggenburg, “Sprache versus Markt: ist die EFTA vielfalts- oder einfallslos?”, 6 European Law Reporter (2002), 217–223. 60

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(i.e., the mere modus of how linguistic knowledge has to be assessed) and did not engage further in the linguistic requirement per se. Therefore, there was no need to invoke concepts such as cultural diversity or national identity in order to underline that such a language duty could also be applied to EU citizens. Of course, there are also other non-cultural arguments that suggest that language requirements have to be applied to EU citizens. For instance, the Court had to check in 2000 whether member states are free to make the appointment of a national of another member state as a social security scheme dental practitioner conditional upon the person’s linguistic knowledge needed for the exercise of his professional activity in the host state.63 The Court came to the conclusion that in fact “dialogue with patients, compliance with rules of professional conduct and law speciﬁc to dentistry in the Member State of establishment and performance of administrative tasks require an appropriate knowledge of the language of that State.”64 However, the Court emphasized that such language requirements may not go beyond what is necessary to attain that objective. In a more recent judgment of September 2006, the Court stressed that the EC directive facilitating the practice of the profession of lawyers on a permanent basis in member states other than that in which they obtained their qualiﬁcation does not allow host states to make the registration of such a ‘European’ lawyer conditional on language proﬁciency. Arguments similar to the one used in the Haim case were not accepted, since these lawyers have to practice under their home-country professional title so that clients are anyway aware that the lawyer at stake might not be able to communicate in the German, French or Luxembourg languages (the case took place in the Grand Duchy).65 So, in the end, it becomes obvious that the relationship between linguistic diversity (expressed by the freedom of national language policies of member states) and economic unity (expressed by the fundamental economic freedoms of the European Common Market) is to be decided on a case to case basis and in the framework of a check against the principle of proportionality.66

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ECJ, Case C-424/97, Salomone Haim v Kassenzahnärztliche Vereinigung Nordrhein, Judgment of 4 July 2000, [2000] ECR 5123. 64 Haim II, para. 59. 65 ECJ, Case C-193/05, Commission v Grand Duchy of Luxembourg, Judgment of 19 September 2006 [2006] ECR. 66 See, in more detail, Gabriel N. Toggenburg, “The EU’s ‘Linguistic Diversity’: Fuel or Brake to the Mobility of Workers”, in Andrew P. Morriss and Samuel Estreicher (eds.), Cross-Border Human Ressources, Labor and Employment Issues: Proceedings of the New York University 54th Annual Conference on Labor (Kluwer International, New York, 2004), 675–721. See also Gabriel N. Toggenburg, “Die Sprache und der Binnenmarkt im Europa der EU: eine kleine Beziehungsaufstellung in 10 Punkten”, in Gerte Reichelt (ed.), Sprache und Recht unter besonderer Berücksichtigung des Europäischen Gemeinschaftsrechts (Manz, Wien, 2006), 43–69, available online at .

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C. Open Issues: the Case of Positive Discrimination Above, we have concentrated on the two cases Bickel/Franz and Angonese, since these are so far the only two concrete experiences giving an indication of how regional systems of minority protection and the European Common market system interact. However, in the discussion on the impact of the principles of EC law in the local legal reality it was not South Tyrol’s linguistic regime that formed the core interest of lawyers but rather various mechanisms, which, in the end, boil down to quota systems and which therefore were perceived as possibly violating EC law. In fact in the 1980s, when the European Common Market drew closer to the ﬁnal enactment of all 279 legislative measures prescribed by the White Paper on the completion of the Common Market by the end of 199267 and when, on the other hand, the South Tyrolean autonomy drew closer to the ﬁnal enactment of all the 137 enactment measures foreseen by the so called ‘Package’, which resulted (also in 1992) in the oﬃcial closure of the conﬂict between Austria and Italy,68 certain doubts in regard to the compatibility between the two systems began to be articulated in the literature as well as political discourse.69 The South Tyrolese increasingly perceived the process of European integration with an obvious sense of dismay, as national norms could be challenged in the future “not by the aggressive nationalism of the past, but by that very European internationalism” that has been “for so long and so unswervingly supported”.70 This problematique was noted as even more pressing since other regional realities could point to a speciﬁc exemption clause in the primary law of the European Union: when Finland, Norway and Sweden decided to accede to the Union they called for an explicit recognition of their special duties vis-à-vis persons belonging to the Saami population.71 The accession of Finland oﬀers an example of how a system of territorial autonomy—namely the regime of the Aaland Islands— was granted EU constitutional ranking and therefore shielded from the unwanted eﬀects of the Common Market.72 South Tyrol—a territory located in an

67 Communication of the Commission as of 14 June 1985, “Completing the Internal Market”, COM (85)310. 68 See, for the historical development of the litigation, the contribution of Emma Lantschner in this volume. 69 It is not the place here to give an extensive discussion of the technical questions involved. For details and an extensive list of additional references, see Gabriel N. Toggenburg, “Europas Integration und Südtirols Autonomie: Konfrontation—Kohabitation—Kooperation?”, in Joseph Marko et al. (eds.), Die Verfassung der Südtiroler Autonomie (Nomos, Baden-Baden, 2005), 451–494. 70 Anthony Alcock, “The Protection of Regional Cultural Minorities and the Process of European Integration: The Example of South Tyrol”, 11(1) International Relations (1992), 17–36, at 29. 71 The Saami protocol has been annexed to the accession treaty and forms, therefore, part of primary law. It says that “notwithstanding the provisions of the EC Treaty, exclusive rights to reindeer husbandry within traditional Saami areas may be granted to the Saami people” (Art. 1). Art. 2 says, moreover, that the protocol “may be extended to take account of any further development of exclusive Saami rights linked to their traditional means of livelihood.” Such an amendment to the protocol has to be unanimously approved by the Council. See OJ 1994 C 241. 72 Article 1 of the ‘Aaland protocol’ reads as follows: “The provisions of the EC Treaty shall not

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EC-founding state—never had the opportunity of being granted such a sort of ‘European special statute’.73 The abovementioned uncomfortable perception in South Tyrol was enhanced by the speciﬁc view the Court took on the principle of equality in the context of gender quotas.74 With regard to Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women, the Court drew a rather narrow picture when it came to the leeway of member states in introducing or maintaining measures giving precedence to women over men.75 Article 2 paragraph 4 of the Directive authorizes national measures that, although discriminatory in appearance, are in fact intended to eliminate or reduce actual instances of inequality that may exist in the reality of social life. However, since that Article constitutes a derogation from an individual right laid down by the Directive, such a national measure speciﬁcally favouring female candidates cannot guarantee “absolute and unconditional priority” for women in the event of a promotion without going beyond the limits of the exception laid down in that provision, so the Court found.76 Measures containing a so-called ‘saving clause’ have, however, been found not to go beyond what is allowed under the exception in the abovementioned Article 2 paragraph 4 of the Directive. Saving clauses prevent the respective national mechanism to provide an automatic precedence of members of a speciﬁc group (here: women) over non-members of that group. In concretu, this means that national rules giving priority to females in promotions are compatible with EC law if reasons speciﬁc to an individual male candidate can shift the balance in his favour. Hence, saving clauses have to provide, in each individual case, a guarantee that those male candidates who are equally as qualiﬁed as the female candidates “will be the subject of an objective assessment which will take account of all criteria speciﬁc to the individual candidates” and

preclude the application of the existing provisions in force on January 1, 1994 on the Aaland islands on: restrictions, on a non-discriminatory basis, on the right of natural persons who do not enjoy hembygdsraett/kotiseutuoikeus (regional citizenship) in Aaland, and for legal persons, to acquire and hold real property on the Aaland islands without permission by the competent authorities of the Aaland islands; restrictions, on a non-discriminatory basis, on the right of establishment and the right to provide services by natural persons who do not enjoy hembygdsraett/kotiseutuoikeus (regional citizenship) in Aaland, or by legal persons without permission by the competent authorities of the Aaland islands.” See OJ 1994 C 241. 73 In 1995, when the ‘Schutzmacht’ of the South Tyroleans acceded to the Union, it was diﬃcult for Austria to argue that a ‘South Tyrol clause’ could be seen as an “adjustment to the Treaties” (in the sense of Art. 49 EU) entailed by the admission of Austria to the Union. 74 See, for example, Anne Peters, Women, Quotas and Constitutions (Kluwer Law International, Den Haag, London, Boston, 1999), at 231–257; or Louis Charpentier, “The European Court of Justice and the Rhetoric of Aﬃrmative Action”, Robert Schumann Centre Working Paper 1998/30, Firenze 1998. 75 Council Directive 76/207/EEC of 9 February 1976 on the Implementation of the Principle of Equal Treatment for Men and Women as regards Access to Employment, Vocational Training and Promotion, and Working Conditions, OJ 1976 L 39, 40. 76 ECJ, Case C-450/93, Kalanke, Judgment of 17 October 1995, [1995] ECR 3051, para. 22.

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can potentially override the priority accorded to female candidates.77 All this boils down to the fact that the Court did accept group-based positive instruments only if they aim at guaranteeing equality of opportunity and not equality of results. This again indicates that the membership of a group (here: sex) can be taken into account but that this may not lead to a situation where individuals are automatically ruled out on the basis of their sole membership of a speciﬁc group. This, however, is exactly what happens in a strict quota system. In the negotiations leading to the Treaty of Amsterdam, the master of treaties agreed to insert a clause in the Treaty (Art. 141 para. 4 EC) that underlines that member states may uphold or introduce “speciﬁc advantages” that ensure “full equality in practice” between men and women.78 In fact, the Court accepted that there might be certain national systems of aﬃrmative actions that are not allowed under Article 2 paragraph 4 of Directive 76/207/EEC (which, in the end, is just a piece of secondary law) but which can nevertheless be allowed under this new provision of primary law. However, so the Court continued, the latter provision cannot permit member states to adopt conditions for obtaining access to public sector employment if these prove “to be disproportionate to the aim pursued”.79 Hence, it seems that positive discrimination at the national level remains confronted with rather narrow limits imposed by EC law. At least this is clear for the area of gender politics. So far, there is no convincing argument that would point to a diverging conclusion for the area of ethnic or linguistic groups. It is, of course, true that Article 5 of the Race Directive does allow member states to maintain or adopt “speciﬁc measures” in order to ensure “full equality in practice” and in order to “prevent or compensate for disadvantages linked to racial or ethnic origin”.80 It remains, however, doubtful that the introduction of this provision was meant to refer to positive discrimination in sensu srictu.81 In fact, the 77 ECJ, Case C-409/95, Marschall v Land Nordrhein-Westfalen, Judgment of 11 November 1997, [1997] ECR 6363, para. 33. 78 See Art. 141 para. 4 EC. In the Bolzano declaration on the protection of minorities in the enlarged European Union (online at ) it was proposed that this clause should be—beyond gender—extended to all the criteria on the basis of which discrimination is possible and which the Union is ﬁghting against (see current Art. 13 EC and compare Art. III-124, Art. III-118 and Art. II-81 CE). 79 ECJ, Case C-319/03, Serge Briheche v Ministre de l’Intérieur, Judgment of 29 September 2004, para. 31. 80 See Council Directive 2000/43/EC of June 29, 2000 Implementing the Principle of Equal Treatment between Persons Irrespective of Racial or Ethnic Origin, in OJ 2000 L 180, 22–26. For a description, see Gabriel N. Toggenburg, “The Race Directive: a New Dimension in the Fight against Ethnic Discrimination in Europe”, 1 European Yearbook of Minority Issues (2001/2), 231–244. 81 Note, in this context, that also Directive 2000/78 of 27 November 2000 Establishing a General Framework for Equal Treatment in Employment and Occupation (OJ No L 303, 16) contains in its Art. 7 a comparable clause on “positive action”. Despite the presence of this clause, the legislator found it necessary to introduce a speciﬁc article that exclusively deals with certain special measures in Northern Ireland. That provision underlines that diﬀerences in treatment regarding recruitment into the police service of Northern Ireland are meant to “tackle the under-representation of one of the major religious communities” and shall therefore “not constitute discrimination”. Moreover, it is said that the provisions on religion or belief in this Directive shall not apply to the

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Commission took in its recent report on this Directive the position that only “positive action measures” are allowed under the Race Directive, whereas measures of “positive discrimination” are not compatible with the Directive. Hereby, the Commission deﬁnes positive discrimination as a measure giving “an automatic and absolute preference (for example in access to employment) to members of a particular group over others for no other reason than belonging to that group”.82 The European Parliament seems to show more sympathy for quotas but underlines that their establishment “must be regarded as an extreme measure which may be applied only in accordance with the case-law established by the European Court of Justice and with due regard to the proportionality criterion”.83 In fact, it remains up to the Court to provide for clariﬁcations in this still rather open ﬁeld. With respect to South Tyrol, the open questions are circulating around the notion of the so called Proporzionale/Proporz (the ethnic quota system)84 and its conformity with EU law. The Autonomy Statute reserves posts in the public administration for citizens belonging to each of the three linguistic groups in proportion to the numerical strength of those groups.85 Whereas it is obvious that an absolute exclusion of non-Italian citizens from the public service is not compatible with EU law, it remains a point under discussion, whether it is compatible with the free movement of workers (Art. 49 EC) to apply these “proportions” also to EU citizens. It is important to stress in this context that the Court has increasingly read the fundamental freedoms of the Common Market as not only prohibiting direct and indirect discrimination against EU citizens but also as prohibiting other measures that might place Community citizens at any sort of disadvantage when they wish to pursue an economic activity in the territory of another member state.86 With this move, the Court has pretty much opened up the net with which it can ﬁsh out national measures limiting in one way or the other—even if not on a discriminatory basis—transnational economic exchange. The ‘counterlimits’ to these limits are still quite open to discussion. The Court recently made clear that the protection of human rights—which includes in the eyes of the Commission also minority rights—is a legitimate interest which, “in

“recruitment of teachers in schools in Northern Ireland”, which aims at maintaining “a balance of opportunity in employment for teachers in Northern Ireland while furthering the reconciliation of historical divisions between the major religious communities there”. See Art. 15 of Directive 2000/78. 82 See Communication from the Commission, COM(2006) 643 ﬁnal as of 30 October 2006 on the application of Directive 2000/43/EC, 7 and 8. 83 Zdanoka Resolution, Consideration J. 84 See for more detail the contribution of Giovanni Poggeschi and Emma Lantschner in this volume. 85 Compare, for example, Art. 89 of the Autonomy Statute (initially this referred to the state administration only; later, it was extended to the complete provincial administration). See on this the contribution of Giovanni Poggeschi and Emma Lantschner in this volume. 86 For the free movement of workers, see, for example, ECJ, Case C-415/93, Bosman, Judgment of 15 December 1995, [1995] ECR 4921, para. 94.

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principle, justiﬁes a restriction of the obligations imposed by Community law, even under a fundamental freedom guaranteed by the Treaty” such as, for example, the freedom to provide services.87 Of course—according to the well established principle of proportionality in EC law—national measures that restrict the Common Market may be justiﬁed on public policy grounds only if they are necessary for the protection of the interests that they are intended to guarantee and only insofar as those objectives cannot be attained by less restrictive measures. In this context, it is interesting to note that the Court held in a subsequent case that it is not indispensable in that respect for the restrictive measure issued by the authorities of a member state “to correspond to a conception shared by all Member States as regards the precise way in which the fundamental right or legitimate interest in question is to be protected”.88 This aﬃrmation seems especially important for the protection of minorities, which is an area where there is—at best—a superﬁcial consensus that minorities should be protected but where there is no overall consensus between the member states as regards “the precise way” in which this protection should be established and guaranteed.

III. Conclusion: Regional Autonomies and Minority Groups as Increasingly Important Entities within the EU System There is vast evidence that—on a political level—the European Union can contribute to the ﬂowering of regions and minorities within the member states.89 Moreover, it has been stressed that the process of European integration raises the preparedness of member states to decentralize their powers. Moreover—of course—it is obvious that transnational regions and transnational minorities can immensely gain from the fact that the European project is reducing the signiﬁcance of borders. This is especially true for the case of South Tyrol, since the South Tyrolean autonomy was, from its inception, seen as an “experiment in the devaluation of frontiers”.90 New channels of networking and of transregional and transnational cooperation are not only relevant to regions and to regional minorities but also to minority nations. For them, these new forms of interdependence

87

ECJ, Case C-112/00, Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich, Judgment of 12 June 2003, [2003] ECR 5659, para. 74. 88 ECJ, Case C-36/02, Omega Spielhallen- und Automatenaufstellungs-GmbH v Oberbürgermeisterin der Bundesstadt Bonn, Judgment of 14 October 2004, [2004] ECR 0, para. 37. 89 There exists considerable literature in political science on this matter. See most prominently John McGary and Michael Keating (eds.), European Integration and the Nationalities Question (Routledge, New York, 2006); and Peter Lynch, Minority Nationalism and European Integration (University of Wales Press, Cardiﬀ, 1996). 90 Count Carandini shows that already in 1946 the British politician Bevin looked at the South Tyrol problem as an issue that could be resolved by the deconstruction of borders through the means of economic international integration. See Nicolo Carandini, The Alto Adige: an Experiment in the Devaluation of Frontiers (Il Mondo, Roma, 1958).

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might even provide an alternative to independence.91 Of course, all these positive sides of European integration could not be addressed in this chapter. At the core of this contribution stood rather the legal interaction between norms of a regional system providing minority rights and the law of the European Union. This interaction is characterized by what one could call the Bickel/Franzeﬀect. The latter extends privileges reserved to minorities to all other EU citizens if the latter are in a comparable situation. There are, however, good arguments for excluding such an extension in cases where, ﬁrstly, the national rules at stake are to be considered proportional and if, secondly, such an extension of addressees would disrupt the respective mechanism of protection. This, again, will depend on the fact of whether the national (or regional or local) measure at stake is to be considered a quantity-sensitive or a non-quantity-sensitive rule. What is, in any event, important is the fact that EC law just aﬀects the personal scope of such protective systems but has no impact on the question of which minority areas are protected under a national regime (territorial scope). Neither does EC law impact on the question of what sort of special rights should be granted to certain minorities (material scope). Last but not least, it is crucial to underline that EC law so far does not forbid discriminations between the citizens of one and the same member state. Therefore, the protective potential of regional systems visà-vis persons living in other regions of the respective member state is not per se undermined by EC law. The experiences of South Tyrol do not advocate that the Common Market, on the one hand, and regional systems of minority protection, on the other, are two distinct systems heading for a ﬁnal showdown. Quite to the contrary, any regional system within the Union forms an integral part of the Union system and has to take EC law into account. The Union, for its part, also has to integrate national impulses and has to respect national identities.92 Arguably, the protection of minorities—which is for example prominently laid out in the beginning of the Italian Constitution—can form part of that speciﬁc constitutional identity.93 In this sense, the linguistic and cultural diversity within states is protected by the notion of diversity under EU law.

91

An exciting development oﬀers in this respect regulation (EC) as of 5 July 2006 on a European grouping of territorial cooperation (EGTC), in OJ L 210, 19, which seems to open a new chapter, namely, the creation of transregional supranational law. Compare, in this context, before the contribution on cross-border cooperation by Alice Engl and Carolin Zwilling in this volume. 92 See, for example, Art. 6 EU. Art. 151 para. 1 EC refers also to the regional dimension of diversity. The Constitutional Treaty provides in its Art. I-5 para. 1 a protective anchor, which explicitly mentions “regional and local self-government” as an expression of member states’ identities. For an analysis of the regional dimension of the Constitutional Treaty, see Gabriel N. Toggenburg, “Die regionale Dimension des EU-Verfassungsvertrages: Betrachtungen im Dreieck zwischen Mitbestimmung, Identität und Subsidiarität”, in Simon Laimer (ed.), Euregio-Quo vadis? (Neuer Wissenschaftlicher Verlag, Graz, Bozen/Bolzano, Wien, 2006), 27–47. 93 Art. 6 of the Italian Constitution provides for the protection of linguistic minorities by special laws of the republic.

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Of course, the diverging attitudes between member states towards regional autonomies and the issue of minority protection are in themselves an expression of the diversity that the European Union has to respect. Therefore, the very notion of diversity and the future EU motto of “united in diversity”94 is a selfrestrictive value, since it has to take both readings of the Janus-headed notion of diversity into account: the diversity within states and the diversity between states.95 The Union has—despite the fact that it does not have a full-ﬂedged legislative competence in this area—a set of means at its disposal to rule in favour of regional autonomies and in favour of ethnic and linguistic minorities. In this sense, positive integration can very well work for the beneﬁt of regional autonomies and minorities.96 Turning back to the area of negative integration, one can argue that even the latter can work for the beneﬁt of a regional system protecting minorities. The ‘beneﬁt’ can be seen in the fact that EC law might represent a legal inﬂuence that, ﬁrstly, extends certain beneﬁts to EU citizens and, secondly, avoids the application of unnecessary duties (upon citizens and EU-foreigners alike). Concrete examples of the ﬁrst scenario are the extension of the right to use German before South Tyrolean courts to tourists (Bickel/Franz) and the reform of the patentinosystem. Both EC law-induced changes contributed to render the South Tyrolean legal system more ﬂexible, more accessible and therefore more attractive without putting its minority protection at risk. A concrete example of the second scenario is the reform of the census and the declaration of linguistic aﬃliation.97 After the European Commission had expressed in 2005 clear concerns about the compatibility of the respective norms with the directive on data protection, Rome and Bolzano/Bozen revised the system on a consensual basis.98 The revised legal mechanisms—which were hammered out against the background of a threatening view to a possible infringement procedure before the European Court of Justice—guarantees a higher degree of individual rights protection than the previous legal status oﬀered, without putting the group rights aspects at risk.

94 The constitutional motto—one of the ﬁve constitutional symbols—is to be found in Art. I-8 of the Constitutional Treaty. Compare, in this context, Gabriel N. Toggenburg, “Uniﬁcation via Diversiﬁcation—What Does it Mean to be ‘United in Diversity’?”, in EUMAP feature “Enlargement Day”, 1 May 2004, at . 95 See, for more detail on the European value of diversity, Gabriel N. Toggenburg, “The Debate on European Values and the Case of Cultural Diversity”, European Diversity and Autonomy Papers (2004) No. 1, at . 96 See, for deeper insights on this point, Bruno de Witte, “The Constitutional Resources for an EU Minority Protection Policy”, in Gabriel N. Toggenburg (ed.), Minority Protection and the Enlarged European Union: the Way Forward (LGI, Budapest, 2004), 107–125; Olivier De Schutter, “The Framework Convention on the Protection of National Minorities and the Law of the European Union”, 1 CRIDHO Working Paper (2006); Andrea Scrimali, “Il Parlamento europea e la promozione delle autonomie locali negli stati membri dell’unione europea”, in Rivista Italiana di Diritto Pubblico Communitario (2005), 899–932. 97 See for detail the contribution of Giovanni Poggeschi and Emma Lantschner in this volume. 98 Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, in OJ No. L 281, 31.

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Summarizing the experiences so far, one can conclude that the legal eﬀects of the process of European integration on the South Tyrolean autonomy are more positive than their reputation. Moreover, the European Union increasingly oﬀers new channels in order to call for a soft European “framework policy standard” for the eﬀective participation of minorities in decision-making processes and for their protection “by various forms of self-government or autonomy”.99 Therefore, this contribution has to end in tones that belong much more to a symbiotic world of mutual fertilization than to an aggressive world of conﬂicting interests.

99

See Point 25 of the Zdanoka Resolution.

PART THREE

MINORITY RIGHTS

CHAPTER ELEVEN

INDIVIDUAL AND GROUP RIGHTS IN SOUTH TYROL: ARTICLE 2 AS GRUNDNORM OF THE AUTONOMY STATUTE Jens Woelk

I. Introduction “Autonomy is most often only reluctantly granted, and usually ungratefully received.”1 This famous formulation eﬃciently underlines the very nature of all autonomy arrangements, which is compromise. Usually, both parties of an autonomy agreement have to renounce their extreme objectives, which had led to dispute or conﬂict and are thus incompatible with a solution acceptable to both. In the case of South Tyrol, it had soon become clear that, after the end of World War II, there would be no change of the Brenner border, despite the claims of the local German-speaking population and their support by Austria. Thus, a solution within the Italian Republic had to be found that also accommodated the speciﬁc needs of a population linguistically and culturally diﬀerent from the majority of the national population. Due to the general political and geostrategic situation in post-war Europe at that time,2 the German speakers in South Tyrol had to renounce on their maximum demand of ‘external self-determination’, i.e., reunion with Austria.3 However, the Italian side could also no longer expect to assimilate the Germanspeaking elements as it had actively tried to do under fascism (but substantially failed). This situation opened the way to a compromise, which was ﬁrst formulated in the Gruber-Degasperi Agreement of 1946 on a bilateral basis between Austria and Italy; some months later, in 1947, it was included as an appendix in Italy’s Peace Treaty. Thus, the Gruber-Degasperi Agreement is considered to be the international ‘anchoring’ of the South Tyrolean autonomy. Afterwards, the

1 Yoram Dinstein, “Autonomy”, in Yoram Dinstein (ed.), Models of Autonomy (Tel Aviv University Press, Tel Aviv, 1981), 291–303, at 302. 2 At the beginning of the Cold War, there was no readiness on the part of the Western Allies to weaken Italy in favour of an already weak Austria, partly under Soviet control, see the chapter by Emma Lantschner in this volume. 3 With the realization of autonomy arrangements in an increasing number of cases, the distinction between ‘external’ and ‘internal’ self-determination has been established in the literature. Whereas the former is the foundation of a new state or the aggregation to a diﬀerent one, the latter refers to solutions that recognize a certain degree of (legislative and) administrative autonomy within a state without raising the border issue. See, for a brief discussion of the right to self-determination, Benjamin Neuberger, “National Self-Determination: a Theoretical Discussion”, 29(3) Nationalities Papers (2001), 391–418.

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compromise was translated into domestic law; as Article 2 of the Autonomy Statute (ASt), the autonomy’s ‘Basic Law’, it received a prominent position.4 In this chapter, the diﬀerent and evolving interpretation of the basic compromise leading to the autonomy arrangement and its (ﬁnally) successful implementation is illustrated. After a brief view on the premises, in particular on the Gruber-Degasperi Agreement (Section II), Article 2 of the ASt will be analysed in detail (Section III), illustrating how the initial compromise was transformed from the ‘ﬁrst’ into the ‘second’ autonomy while distinguishing the diﬀerent levels of the regulations following from it. Of particular importance for the cohabitation of the diﬀerent language groups is the South Tyrolean system of ‘consociational democracy’ or ‘power sharing’,5 based on a speciﬁc equilibrium between individual and collective rights. In the end, some consideration will be made as to the essential core of the autonomy in terms of substance (Section IV). This will show the complexity and dynamics of the autonomy arrangement, on the one hand, and the real dimension of its guarantees on the other.

II. The Basic Compromise: the Gruber-Degasperi Agreement At the time it was concluded, the Gruber-Degasperi Agreement was seen as a total delusion by many, especially by the Austrians and South Tyrolese who had, until that very day, nurtured hopes of South Tyrol’s return to Austria. Even though it was judged as an advantageous agreement for the Italians because the borders had been conﬁrmed and the annexation of 1919 not been reversed, it was not particularly welcome even in Italy, as it contained a strong legal safeguard regarding the treatment of the local German-speaking population. These diﬀerent views are a clear expression of its nature as a compromise requiring both sides to make unwelcome concessions. Today, however, the agreement is mostly considered as the ‘Magna Carta’ of South Tyrolean autonomy, enshrining the essential core of its fundamental principles. As a framework agreement it is, above all, a very short text: only two pages and a mere 313 words. However, the principles laid down in September 1946, which had to be ﬁlled with detailed substance for implementation, were not only the starting point for the process leading to today’s autonomy but also an important point of reference against which to maintain course during a (long) process. It is therefore necessary to distinguish between the document and its principles and

4

It is, in fact, the provision with which the Autonomy Statute opens, as there is no preamble and Art. 1 simply states that an Autonomous Region Trentino-South Tyrol is established. 5 See for ‘power-sharing’ and the political system established in South Tyrol, the chapter by Günther Pallaver in this volume.

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the (various) phases of its (domestic) implementation.6 From today’s perspective, after decades of controversial implementation have come to a successful end, it has to be stressed that the agreement constituted an innovative response to a conﬂict for two reasons: ﬁrstly, because instead of assimilation or expulsion of a national minority in order to create a homogenous population, the protection and autonomy of the minority-group were agreed upon;7 and, secondly, because of the modern method of addressing the controversy between host-state and kinstate bilaterally, giving the kin-state a (positive) role in the process, thus creating conﬁdence and trust. Looking at the agreement from a comparative perspective, this approach represents a huge progression. On one hand, compared to the often unsatisfying attempts of resolving minority issues unilaterally in the domestic sphere and as a merely internal matter8 and, on the other, even with regard to the (few) examples of bilateral solutions. At the time of the agreement, only the Åland Islands could provide some inspiration for a bilateral solution.9 However, these are isolated islands with a small and relatively homogenous population; they are not situated in the heart of Europe, aﬀected by the beginning Cold War and with three different linguistic groups residing on the same territory. After the agreement, only two other cases of bilateral management of a conﬂict can be found in Europe: the Danish-German Bonn-Copenhagen Declarations of 195510 and the Good Friday Agreement for Northern Ireland of 1998. Whereas the former was a ‘quiet success’, partly due to the reciprocity of the situation, which facilitated and motivated cooperation (which anyway remained at a rather informal ‘working level’, based on governmental declarations and thus below the formal threshold of an international treaty and its ratiﬁcation), the latter process, which had begun in

6 This is particularly evident when looking at the so-called ‘ﬁrst’ autonomy of 1948: the implementation within a ‘region’ in which German speakers were again a minority was criticized as ‘ﬂawed’ and against the spirit of compromise and good will. 7 It has to be stressed that, after World War II, approximately 1/3 of the population consisted of Italian speakers, who had mostly come to the province for jobs in the public administration, the public sector and some new industries. The promotion of this immigration, initiated by the Fascists in the 1930s, was not immediately stopped by the democratic Italian governments and was one of the major concerns of the German speakers and caused unrest in the 1950s. 8 As the powers involved are so unequally distributed between governments representing the majority population (even if by democratic mandate) and the minority groups, it is usually diﬃcult to start a constructive dialogue, due to a lack of trust. 9 Already in 1921, a bilateral agreement between Sweden and Finland had been concluded regarding a special autonomous status of these islands close to the Finnish coast. See Kristian Myntti, “National Minorities and Minority Legislation in Finland”, in John Packer and Kristian Myntti (eds.), The Protection of Ethnic and Linguistic Minorities in Europe (Åbo Akademi Institute of Human Rights, Åbo/Turku, 1993), 79–104. 10 Jørgen Kühl and Marc Weller (eds.), Minority Policy in Action: The Bonn-Copenhagen Declarations in a European Context 1955–2005 (European Centre for Minority Issues and Institut for Graenseregionsforkning og forfatterne, Flensburg and Aabenraa, 2005). See, in particular, chapters 1–3, 31–158.

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the 1970s and reached a breakthrough with the 1998 agreement, is still characterized by major diﬃculties regarding its implementation.11 The bilateral approach to minority issues was reanimated when, in the 1990s, these issues came to the fore again as security concerns. In the aftermath of the wars and violence in the former Yugoslavia and in the context of EU accession, numerous bilateral treaties have been concluded in Central and Southeastern Europe, some of them focusing on minority issues, others addressing this topic, among others, in the framework of good neighbourly relations.12 Despite frequent reciprocity in minority settlement and the pressure exerted by the EU (conditionality), the implementation of these bilateral treaties is unsatisfying in a number of cases. By contrast with the situation in 1946, however, today a multilateral international framework with regard to minority protection exists,13 serving as a reference as well as a guarantee that minority issues are no longer a merely internal aﬀair to be treated arbitrarily in the domestic sphere.

III. The GRUNDNORM: Establishing Balances The concept of Grundnorm goes back to Hans Kelsen and legal positivism: in his attempts to avoid any reference to natural law or hidden ideologies on which the legal system is based, Kelsen considered the legal system to be the unity of all legal provisions (norms).14 Being all normative acts derived from a single and central fundamental norm, they could not contradict each other; thus coherence and unity in the legal system was guaranteed. For the purpose of this analysis, the Grundnorm of the agreement is the provision based upon which the concrete form of the autonomy system and its implementation are developed, in line with the original intentions of the drafters but open for further evolution in the spirit of the principles—which need further implementation to become applicable—in order to avoid contradictions and to respect the unity of the system.

11

Including the suspension of devolved government for Northern Ireland. Arie Bloed and Pete van Dijk (eds.), Protection of Minority Rights through Bilateral Treaties: The Case of Central and Eastern Europe (Kluwer Law International, The Hague, 1999); Emma Lantschner and Roberta Medda-Windischer, “Protection of National Minorities through Bilateral Agreements in South Eastern Europe”, 1 European Yearbook of Minority Issues (2001/02), 535–561; and Emma Lantschner, “Protection of National Minorities through Bilateral Agreements”, 2 European Yearbook of Minority Issues (2002/03), 579–604. 13 This framework is composed of diﬀerent organizations with complementary objectives and diﬀerent degrees of binding instruments: from the OSCE with means of a more political nature, to the Council of Europe with binding international instruments, such as the ECHR, the FCNM and the European Charter on Regional and Minority Languages. In addition to domestic implementation of the obligations taken, monitoring and reporting mechanisms, committees of independent experts and the OSCE High Commissioner on National Minorities create an international forum guaranteeing transparency and publicity of minority issues, as well as persuasion by the exchange of experience and best practice. 14 Hans Kelsen, Reine Rechtslehre (Franz Deuticke, Wien, 2nd ed. 1960). 12

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Strongly linked to this is the idea of the existence of an essential core to the South Tyrolean autonomy, which is protected in a special manner. In comparative constitutional law, such an essential core of particularly protected principles is well known. Often the essential core of fundamental rights but not the rights themselves is declared intangible.15 Similarly, some particular elements, values and principles of the constitution might be considered so fundamental and important that their change would aﬀect the very nature and speciﬁc identity of the constitutional system itself. This ‘constitutional core’ is often protected against amendments—expressly in speciﬁc provisions or according to judgments of the constitutional or supreme courts.16 The ratio of such (de facto) higher ranking principles within the constitution is the preservation of a ‘historical’ compromise that has made the constitution possible. These principles are the Grundnorms from which everything else is derived (without contradictions)17 and which guarantee future development on the basis of clear guidelines: stability through continuity, without always having to renegotiate the basis of the (social) contract. If the involvement of Austria (at the beginning only reluctantly accepted by Italy) and of the local population can be regarded as one of the factors leading to the successful implementation, it is the signiﬁcance and acceptance of the principles laid down in the agreement of 1946 that makes it possible to identify them as the essential substance of the autonomy system. Based on the (implicit) precondition that there would not be any change of borders, the main elements of the agreement’s contents are equality and special rights in favour of the region’s German-speaking population, as well as legislative and administrative territorial autonomy. In particular, the beginning of the agreement’s ﬁrst article can be seen as the very essence or Grundnorm expressing the compromise: [The] German speaking inhabitants of the Bolzano Province and of the neighbouring bilingual townships of the Trento Province will be assured a complete equality of rights with the Italian speaking inhabitants, within the framework of special provisions to safeguard the ethnical character and the cultural and economic development of the German-speaking element.18

Thus, the fundament upon which the autonomy rests is reciprocal recognition and compromise. German speakers remain Italian citizens but are recognized as diﬀerent and therefore also to be treated diﬀerently in order to guarantee the

15 For instance in Art. 19 para. 3 of the German Basic Law and in Art. 36 para. 4 of the Swiss Federal Constitution (1999). 16 Examples are the clauses regarding the Republican Form of Government in the US (Art. IV sec. 4) and in Italy (Art. 139 Constitution), the ‘eternity clause’ (Art. 79 para. 3) of the German Basic Law, the ‘construction principles’ in the Austrian Federal Constitution and the dogmatic concept of the ‘Form of the State’ developed by the Italian legal doctrine. For more, see Francesco Palermo (ed.), La manutenzione costituzionale (Cedam, Padova, 2007). 17 Due to their higher ranking position as constitutional provisions and to the supremacy of the constitution. 18 Art. 1, Gruber-Degasperi Agreement (emphasis added).

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very existence of the group. As a precondition, both sides had to renounce their incompatible objectives: the German speakers have to accept autonomy for their traditional area of settlement in Italy instead of a return to Austria and Italy has to renounce any attempt to assimilate this culturally and linguistically diﬀerent group, as had been the policy under fascism. The right to be diﬀerent is recognized and has to be respected. As a reaction to the past, equality and non-discrimination are thus guaranteed but, at the same time and with a view towards the future, so are diversity and special measures in favour of the diﬀerent group.19 The problem with such a formulation is, of course, that two at least partly contrasting principles are recognized, thus making a balance between both necessary in order to reach an equilibrium. However, this is a quite frequent phenomenon in constitutional law, where contradictory fundamental rights have to be balanced, as do contrasting principles such as “unity of the State” and “promotion of autonomy” in Article 5 of the Italian Constitution. The solution does not lie in the preference of only one side but in a careful operation of mutual balance and compensation (Ausgleich): both rights (or principles) shall be realized as much as possible without nullifying the contrasting one. In German constitutional doctrine, this technique is known as “practical concordance”,20 a concept stressing that the equilibrium has to be found in an operation of balancing the two contrasting principles considering the speciﬁc situation of the concrete case.

IV. From the Agreement to the Autonomy Statute: Dual Nature and Gaps Where can the essential core or the ‘construction principles’ of the autonomy system be found today? The two fundamental principles of the agreement—minority protection and territorial autonomy—have been recognized by Italy’s Constitutional Assembly, which translated them into Article 5 (unity and autonomy), Article 6 (special measures in favour of linguistic minorities) and Article 116 of the Italian Constitution (establishment of ﬁve autonomous regions). With regard to the translation of Article 1 of the Gruber-Degasperi Agreement into the domestic legal system, continuity has to be stressed, as it became—with only slight changes in the wording—Article 2 of the Autonomy Statute of 1948:

19 A similar formulation can be found in the Preamble of the Hungarian-Slovenian Bilateral Treaty on Minorities (6 November 1992): “being convinced that the real equality of the Hungarian and Slovenian national minorities, and the preservation of their national identities could be achieved through ensuring special individual and common rights for them” (emphasis added). 20 The term goes back to Konrad Hesse, Grundzüge des Verfassungsrechts der Bundesrepublik Deutschland (C.F. Müller, Heidelberg, 20th ed. 1995), marginal number 72.

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In the Region equality of rights for all citizens is recognised, regardless of the linguistic group to which they belong, and respective ethnic and cultural characteristics shall be safeguarded.21

Instead of addressing German-speaking inhabitants (only), reference to all citizens is made in the ASt, thus recognizing the existence of diﬀerent linguistic groups, their equality and right to be diﬀerent. It is important to notice that this change of perspective is a consequence of the double nature of the ASt: the territorial character of the autonomy, which has been established as the “Autonomous Region Trentino-South Tyrol” by Article 1 ASt,22 adds to the minority rights of the German speakers and requires speciﬁc regulations for the whole population. Therefore, in addition to the agreement, Ladin and Italian speakers are also recognized and vested with special rights, giving each individual citizen equal status before the law and each group the right to exist and to be diﬀerent. This slight but important change in wording and in perspective is due to the constitutional nature of the legal source (in contrast with the bilateral, international character of the Gruber-Degasperi Agreement, which focused on the improvement of the situation of the German speakers): as a second aim, to be reconciled with the international obligation to protect the German speakers, the special status of the territory shall guarantee the peaceful coexistence of the different linguistic groups residing in South Tyrol.23 In order to characterize the main focus and intentions of conﬂict settlement in South Tyrol, at least four diﬀerent levels of regulation can be distinguished: 1. 2. 3. 4.

Minority rights and relations between the diﬀerent groups; Territorial autonomy and the scope of autonomous powers; Integration of the autonomy system into the state; and External relations, especially between the minority and the kin-state.

These will be brieﬂy characterized, starting with the provisions of the agreement and showing, as an overview, their subsequent translation in and evolution under the ASt. In the Gruber-Degasperi Agreement, the ﬁrst two levels (minority protection and territorial autonomy) are of central importance, constituting the ‘double nature’ of the system (expressed, as shown above, in Arts. 1 and 2 ASt).

21

Art. 2 ASt (emphasis added). In its formulation, Art. 1 ASt is very similar to Art. 5 of the Italian Constitution: “TrentinoAlto Adige/Südtirol, comprising the territory of the Provinces of Trento and Bolzano/Bozen, constitutes an autonomous Region, with legal status, within the political structure of the Italian Republic, one and indivisible, on the basis of the principles of the Constitution and according to the present Statute” (emphasis added). 23 After World War II, roughly a third of the population was actually Italian (a result of the immigration policies and incentives by the Fascist regime); as Italian immigration did not stop after 1945, it remained a major cause of concern for South Tyrolean German speakers in the 1950s, giving rise to mass protests. 22

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1. The Provisions of the Gruber-Degasperi Agreement It was clearly Austria’s main interest to reach a satisfying level of protection for the German speakers in South Tyrol. Consequently, Article 1 of the Gruber-Degasperi Agreement expresses this need for special protection, addressing a number of areas that had been traumatic in the experience of assimilation-policies: (a) teaching in the mother tongue; (b) the equal standing of both languages in public use; (c) the right to re-establish German family names after their forced Italianization; and (d) equality in access to public oﬃces and an “appropriate proportion of employment between the two ethnical groups”. Today, these fundamental concerns are addressed as rights in binding multilateral treaties on minority protection—for example, in the Council of Europe’s Framework Convention on the Protection of National Minorities (FCNM).24 Although binding, the FCNM needs transformation and concrete implementation into domestic law and is not directly applicable. Even though formulated as individual rights in Article 1 (“the said German speaking citizens will be granted in particular [. . .]”), all of these rights have a strong collective dimension. Teaching in the mother tongue will work well only if the group is involved in the organization of the school (system); the use of the German language is to be protected in the public sphere, especially regarding the authorities; and a kind of preferential or quota system will have to be established to guarantee an “appropriate proportion of employment between the two ethnical groups”. In addition, in order to realize these and other rights, ﬁnancial resources are necessary, raising the question of who should control their distribution. 2. The Complex and Sophisticated “Mixture” in the Autonomy Statute Thus, in implementing these principles, a complex and highly diﬀerentiated legal system has been created, which calls for a mix of rotation, parity and proportional representation and which might be characterized as “tolerance established by law”.25 As a result of this system, the conﬂict was, to a certain extent, civilized and institutionalized, and transformed into one between politicians over the interpretation of the ASt.26 The main ingredient of the system is powersharing or ‘consociationalism’, which includes the diﬀusion of power from the centre to the periphery and comprises four main elements, all of which are present in South Tyrol:27

24 Adopted 10 November 1994, open for signature since 1 February 1995 and in force since 1 August 1998, European Treaty Series, ETS No. 157. 25 Antonio Lampis, “Autonomia e convivenza. Tutela delle minoranze e regole della convivenza nell’ordinamento giuridico dell’Alto Adige”, Quaderni dell’Accademia Europea No. 17, Bolzano/ Bozen, 1999. 26 Thomas Kager, “South Tyrol: Mitigated but not Resolved”, 1(3) Online Journal of Peace and Conﬂict Resolution (1998), 8. 27 See, for a profound analysis of South Tyrol’s system of power-sharing, Roberto Toniatti, “Die

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1. Participation of the representatives of all signiﬁcant groups in the government, through the joint exercise of governmental (and particularly executive) power, (e.g., in a grand coalition cabinet). According to the power-sharing model, the composition of the South Tyrolean government must be proportional to the ethnic groups as these are represented in the Provincial Council, independently from the political aﬃliation of the elected councillors; the presidency of the Council rotates between members of the diﬀerent groups (Art. 49 ASt). 2. A high degree of autonomy for the groups (especially in regard to issues that are not of common concern). The principle of cultural autonomy is already established by Article 2 ASt, which recognizes the diﬀerences between the group and cultures and considers this diversity a “value”. The autonomy of the groups regarding all culturerelated issues and the provisions for the protection and promotion of their cultural characteristics are typical expressions of group protection. Instruction in South Tyrol is given in separate German and Italian schools (Art. 19 ASt) and language instruction in the second language of the province is mandatory. All teachers must be native speakers of the language they teach. However, these group rights are balanced by the individual right of parents to choose the school system that they would like their children to attend.28 3. Proportionality is the basic standard of political representation, public service, appointments and allocation of public funds. The ASt provides for a system of proportional representation of the language groups for public employment and for the allocation of funds for cultural activities of the groups, as well as for social welfare and services (i.e., housing).29 The principle of ethnic proportions, which has to be applied to all state and semi-state bodies operating in the province (Art. 89 ASt), as well as to the provincial and local administration,30 was introduced to gradually revert the Italian dominance in the public service. The representation of language groups in their respective proportions in all these areas must be achieved within 30 years of the implementation of the second autonomy statute. Evolution der Südtiroler Sonderautonomie von konkordanzdemokratischen Garantien zur territorialen “Selbstbestimmung”, in Joseph Marko et al. (eds.), Die Verfassung der Südtiroler Autonomie. Die Sonderrechtsordnung der Autonomen Provinz Bozen/Südtirol (Nomos, Baden-Baden, 2005), 69–96. 28 A child can be refused attendance only on the grounds of insuﬃcient knowledge of the language of instruction, in order to guarantee the character of the school and the eﬃciency of the lessons (Art. 19 ASt). See the chapter in this volume on cultural autonomy and the school system by Siegfried Baur and Roberta Medda-Windischer. 29 At the time of the census, every resident must make a formal declaration as to his or her language group, which is the basis for the right to stand for public oﬃce, to be employed in the public administration or as a teacher, and to be given social housing. See the chapter in this volume on the census, declaration of aﬃliation and the quota system by Emma Lantschner and Giovanni Poggeschi. 30 Through an extension by provincial law. See the chapter in this volume by Emma Lantschner and Giovanni Poggeschi.

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4. Minority veto is the ultimate weapon for the protection of vital interests; however, this is limited to issues of fundamental importance. The principles of equality of all residents, regardless of their group aﬃliation (Art. 2 ASt), and the quasi group personality, as well as equality of the language-groups, counterbalance the provisions on proportional representation.31 This is particularly true for the right to request separate voting by the language groups in the Regional or Provincial Council, whenever a draft law is judged to be in violation of the parity of rights or the cultural characteristics of one group (Art. 56 ASt). The ultimate means available to the language groups is an action before the Constitutional Court, founded on the same motivation, in case a vote by language groups is overruled (Art. 98 ASt).32 These are emergency mechanisms in case the normal means of consultation in the organs should not work.33 In sum, the initial emphasis on minority protection for just the German speakers has been transformed, in particular according to the ‘Package’ compromise in 1969, into a system of complex rules governing the cohabitation of the three linguistic groups. Power-sharing and sophisticated balances between contrasting principles are the main ingredients: for example, parity or equality (of the groups and also of individuals) is balanced by proportionality (representation according to numbers in population); and the personal principle (protection as group members) is balanced by the territorial principle (the special status of the region and province). The main objective of these balances is to realize as much autonomy as possible for the single groups and their members within the autonomous entity (i.e., providing safeguards and protection)34 while at the same time guaranteeing the functioning of a common public sphere and the exercise of the autonomous powers of the territorial entity (i.e., the functional dimension). The dual nature of the statute framework is best illustrated by the example of the provisions on the use of language. These are certainly framed as individual rights, formally reserved to the members of the minority group, as, for instance, in Article 100 ASt: “German-speaking residents of the Province [. . .] are entitled to use their language [. . .]”. The territorial dimension, on the other hand, is expressed in Article 99 ASt, prescribing the equal standing of both languages in the province. Consequently, the enactment decree on the use of language (D.P.R. 31 Antonio Lampis, “Autonomia e Convivenza”, European Academy Bolzano/Bozen Working Paper (1999). 32 See Eleonora Maines, “Die Quasi-Rechtspersönlichkeit der Sprachgruppen”, in Marko et al., op. cit. note 27, 296–305; and Roberto Toniatti, “Die Evolution der Südtiroler Sonderautonomie von konkordanzdemokratischen Garantien zur territorialen ‘Selbstbestimmung’ ”, in Marko, op. cit. note 27, 69–96, at 82. 33 In practice, this mechanism has been used only two times, by the only councillor of a Ladin political party claiming a violation of the right to (ethnic or linguistic) representation due to higher electoral thresholds, which were foreseen in a reform of the electoral system at the provincial level. See the chapter by Günther Rautz in this volume. 34 Including the Ladins who are not mentioned in the agreement of 1946.

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574/1988) does not distinguish between members of the minority and other residents, so that everyone has the choice between German and Italian.35 It is important to note, however, that from the perspective of the statute, the territorial dimension (i.e., the special bilingual character of the area) comes ﬁrst (Art. 99 ASt) and the individual use of rights (Art. 100 ASt) is only a consequence that permits parity of the groups in the use of language. Regarding the public administration, the combination of both principles is visible even in the system of proportional representation, which was adopted as a repair mechanism, correcting historical inequalities and disadvantages in order to reach a higher representation of Germans and Ladins in the public adminstration. However, a higher proportion of German speakers did, of course, also contribute to the objective of a bilingual administration serving all residents on the territory. Serving this purpose, the mandatory language test for all applicants to the public service (‘patentino’) is again a clear expression of the functional dimension. Through this balanced combination of individual and group rights, of institutional separation (cultural autonomy and schools) and integration (common political sphere for governing and administering the territorial entity), security as the necessary basis for making the autonomy function should be achieved. B. The Principle of Territoriality: the Scope and Powers of Territorial Autonomy The desire to conduct one’s own aﬀairs on the basis of independent responsibilities and through independent representatives can generally be regarded as a basic goal of minorities. Territorial autonomy, in particular, may permit a national minority to become a majority at the local level. Today, South Tyrol’s autonomy satisﬁes these aims through its far-reaching autonomy of legislation and administration; certainly fundamental is the generous ﬁnancial basis provided for the exercise of these powers.36 By contrast, in its generic reference to “autonomous legislative and executive regional [sic] powers”, Article 2 of the Gruber-Degasperi Agreement remained very vague in its formulation, creating a serious problem concerning the scope of application. This decisive point was deliberately left open: “The frame within which the said provision of autonomy will apply, will be drafted in consultation also with local representative German-speaking elements”. Of course, at the time the agreement was concluded, it was impossible to indicate or elaborate the details of how to integrate the territorial autonomy into the Italian Republic and how to organize the institutions and procedures of coopera-

35

See the chapter in this volume on linguistic rights by Cristina Fraenkel Haeberle. South Tyrol’s autonomous powers are quite outstanding, not only when compared to other minority situations but even with regard to its northern neighbour North Tyrol, a member state of federal Austria. See the chapter in this volume on legislative and administrative powers by Sara Parolari and Leonhard Voltmer. For an overview on the ﬁnancial resources, see the chapter in this volume by Thomas Benedikter. 36

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tion and coordination, due to the mere fact that Italy, at that time, did not yet have a constitution. However, the fact that the exact determination of the territorial scope of application remained unclear gave rise to serious diﬀerences in interpretation regarding the implementation of the agreement: many Austrians and South Tyrolese were of the opinion that Article 1 had to be the reference and that the “regional” autonomous powers had to be granted to the areas with a German-speaking minority only. On the contrary, many Italians, including Prime Minister Degasperi, decided to extend the scope of application by including the Province of Trento when establishing the Autonomous Region of Trentino-South Tyrol, thus giving rise to controversy and conﬂict for the following two decades. Interestingly, in the wording of the agreement, the subjects referred to in the formulation of its Articles 1 and 2 are not the same: whereas Article 1, in the logic of a provision guaranteeing minority protection, speaks of the “German speaking inhabitants” or “citizens” of certain areas, Article 2, granting territorial autonomy, makes reference to “the populations of the above mentioned zones”: this certainly includes the German speakers (which accordingly shall be consulted on the determination of the “frame”) but is not limited to the German speakers, due to the territorial nature of the special status to be established, which concerns the whole population.37 However, the territorial character of autonomy had to be balanced and harmonized with the rights guaranteed by Article 1, otherwise a contradiction would have made the fundamental compromise enshrined in the same agreement void.38 This is exactly what happened in the ﬁrst 20 years after the agreement, during the so-called ‘ﬁrst autonomy’: Italy insisted on the fulﬁlment of its obligations by having established the autonomy on a regional basis, while the Austrians and South Tyrolese protested being the latter outnumbered in the wider, “regional” framework. The ‘original sin’ was the unilateral decision on this important issue, as the German speakers had not been consulted satisfactorily/suﬃciently, although this had been expressly requested in Article 2. Only when consultations were started again39 and kin-state Austria was included in a triangle of communication could a constructive process leading to the ‘second autonomy’ be established, thus conﬁrming the intuition of Gruber and Degasperi that consultation, i.e., the search for consensual solutions, was the only way to settle these controversial issues satisfactorily.

37 The use of the plural form (‘populations’) indicates that Italian speakers (one third of the population in the Province of Bolzano after World War II) and Ladins were also included. 38 A similar circular reference, underlining the need for consideration of and respect for delicate balances can be found in the formulation of the limits set to regional and provincial legislation, which contain amongst others the “national interest” (Art. 4 ASt); however, the same article clearly states that minority protection is (also) to be read into this concept, thus limiting the supremacy of national (i.e., majority) interests over regional or provincial (i.e., minority) interests by the necessity of establishing balances considering both interests. 39 With the “Commission of Nineteen”. See the chapter in this volume by Emma Lantschner on the history of the South Tyrolean conﬂict.

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Only through the successful use of ‘triangular’ consultations between Italy’s central government, Austria and the South Tyrolese could the criticized “regional” autonomy be transformed into a “provincial” one, which satisﬁed the spirit of the agreement as well as the German speakers and Austria. Institutionally and by means of a transfer of nearly all competencies from the region to the provinces, the latter were eﬀectively elevated to the status of ‘autonomous provinces’ and ‘de facto regions’, unique in the Italian system. The (formal) continuity under the roof of the region, which has not been abolished, allowed for a solution without major reforms at the national level and thus facilitated the operation politically40 by stating that these were only adjustments of a design successfully implemented already two decades earlier. It is also important that one of the great shortcomings of the agreement, the non-inclusion of the Ladin population, could be overcome in its implementation. Again, this is primarily due to the territorial character of the autonomy established. Thus, the Autonomy Statute of 1948 had already contained some provisions in favour of the Ladins.41 Not being ‘covered’ by the Gruber-Degasperi Agreement, the same spirit and dual nature of its principles could nonetheless be simply applied to the Ladins: a combination of the personal and the territorial principle conferred a special status to the two Ladin valleys in South Tyrol (and, much later, some special rights to the Ladins and smaller German-speaking groups also in Trentino).42 C. Integration into the State The agreement does not contain any provisions regarding the integration of the autonomy into the larger context of the Italian Republic. On the one hand, this was hardly possible before Italy’s Constitutional Assembly had elaborated a constitution. On the other, it was also an inherent consequence of Italy’s position that the implementation of the agreement was a merely internal matter. It took two decades to eﬀectively start a bilateral process, externally supported by Austria, which could guarantee the necessary consensual environment for the implementation. Due to its relatively small size in both territory and population, there are only a few provisions in the ASt that deal with the representation and participation of South Tyrol at the central level, in particular that South Tyrol is represented by

40 Politically, the symmetry with the autonomous Province of Trento was certainly helpful, too; it guaranteed the support of this province. In the past, the Trentino was seen as an ‘Italian’ counterweight vís-à-vís the German majority in South Tyrol and thus as a guarantee against secessionist movements. However, besides historical reasons as an autonomous area for centuries, the extension of special rights to Ladins and German speakers in this province, together with an eﬃcient use of the generous resources, might justify the special autonomy even today. 41 Notably Art. 15 para. 2, guaranteeing the use of Ladin in the schools situated in the Ladin valleys, and Art. 87, regarding Ladin cultural activities, press, local traditions and place names. 42 See the chapter by Günther Rautz in this volume.

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the province’s president in meetings of the Italian cabinet, whenever questions of the province’s interest are discussed (Art. 52 ASt). However, because of the political instability that has characterized Italy over the past decades (there have been more than 50 Italian governments since the end of World War II), the members of parliament elected in South Tyrol often had considerable political inﬂuence, their support being potentially decisive for the survival of the Italian government. In addition, South Tyrol is one of the most active entities in defending its rights against the state before the Italian Constitutional Court and has thus contributed signiﬁcantly to the evolution of Italian regionalism as a whole.43 D. “External” Relations In 1946, cross-border relations were certainly not much developed anywhere. It is therefore interesting that Article 3 of the Gruber-Degasperi Agreement already contained some elements that relate to this issue. Besides the regulation of urgent questions caused by the previous regimes, in particular the revision of the ‘option’ for citizenship, a number of policies were drawn up in order to make the lives of South Tyrol’s German-speaking population easier: (a) by facilitating contacts across the Italian and Austrian border; (b) through the mutual recognition of diplomas; (c) free passenger and good transit; and (d) via special agreements on frontier traﬃc and goods-exchange.44 All these measures should be adopted “in consultation with the Austrian Government”, which was an additional basis for Austria’s continued insistence upon having a say in all matters regarding the development of the autonomy system. Although the Autonomy Statute itself does not contain any provisions regarding contacts between the German-speaking group and its kin-state, Austria, crossborder contacts developed: economic and cultural cross-border activities with the Austrian Land of North Tyrol were possible and undertaken even prior to Austrian EU membership.45 Much later, after the ﬁnal settlement of the conﬂict in 1992, these activities have intensiﬁed within the framework of a ‘Euroregion’,46 which includes the Trentino. They can be seen as an ‘external projection’ of the autonomous powers, after the end of the inwards-focused period of implementation. Particularly prominent is the joint representation of Tyrol, South Tyrol and Trentino in Brussels, as direct relations with the EU institutions are increasingly important for information and lobbying. 43

See the chapter in this volume by Jens Woelk on the relations with the central state. Based on this provision, in 1948 the so-called ‘Accordino’ was adopted between Italy and Austria, regulating cross-frontier relations and exchange; further bilateral treaties promoting economic relations and recognizing educational and vocational diplomas followed. See F. Palermo and J. Woelk, “Cross-border Cooperation as Indicator for Institutional Evolution of Autonomy. The Case of Trentino-South Tyrol”, in Zelim A. Skurbaty (ed.), Beyond a One-Dimensional State: An Emerging Right to Autonomy? (Martinus Nijhoﬀ Publishers, The Hague, 2005), 277–304. 45 Christof Zeyer, Der völkerrechtliche und europarechtliche Status von Südtirol (Lang, Frankfurt, 1993). 46 See the chapter by Alice Engl and Carolin Zwilling in this volume. 44

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V. Balances as Essential Core and Substance The agreement of 1946, providing the fundamental principles for the establishment and development of the autonomy system, certainly has its shortcomings. These are, in particular, some contradictions caused by the combination of principles and their dual nature: protection of persons and establishment of territorial autonomy. In addition, some issues were deliberately left open (the scope of territorial application; integration in the state structures) or not addressed at all (Ladins). However, the innovative method of bilateral conﬂict settlement plus consultation of the group concerned and the fundamental balances established were the guidelines for the following corrections and improvements, which, in the end, led to the successful implementation of the ‘Package’ and the ‘Second’ Autonomy Statute. The essential core of today’s autonomy system is therefore already recognizable in the Gruber-Degasperi Agreement of 1946: in terms of substance, it is the speciﬁc balance between individual and group-related rules of minority protection and territorial autonomy; the dual nature of rules for the protection of some and the cohabitation of all. However, as its transformation into concrete regulations was necessary to make the autonomy work, this initial compromise was and is sustainable only in its honest implementation and constructive interpretation. As long as there was a monopoly in interpretation and implementation by one side, no virtuous process of conﬁdence building could be started. The cooperation of all sides concerned was needed but the respective procedures for negotiation and creating consensus were missing and therefore had to be developed in practice.47 The lesson to be learned is the importance of compromise, as only shared principles can provide the fundament for future development and adaptation. Equally important for the realization of compromise are institutionalised channels for dialogue on this basis. In the case of South Tyrol, these were only developed later. However, the fundamental balance between equality and diversity, as established in Article 1 of the Gruber-Degasperi Agreement and—as its domestic translation—Article 2 of the Autonomy Statute, was the important reference containing the main principles in a nutshell: a system of balances instead of domination and, “in the spirit of equity and broad-mindedness”,48 tolerance established by law.

47 A number of bilateral agreements on the protection of minorities today include joint commissions for consultation and mediation in controversies. 48 Art. 3 para. 1 of the Gruber-Degasperi Agreement.

CHAPTER TWELVE

QUOTA SYSTEM, CENSUS AND DECLARATION OF AFFILIATION TO A LINGUISTIC GROUP Emma Lantschner and Giovanni Poggeschi*

I. Introduction “In those days a decree went out from Caesar Augustus that all the world should be enrolled.”1 From those words of the Gospel of Luke, we see that the most important event of the Christian history, the birth of Jesus Christ, happened during the days of a census. The baby was born in Bethlehem because Mary and Joseph moved from their residence, Nazareth, to the village where the latter was originally from, in order to be registered in the census ordered by the Roman Emperor. This historical event shows us that the practice of counting the people inside a determined area dates back to ancient times. However, whereas the census of Augustus was rather conceived as a statistical instrument, which was also useful to show the world how powerful the Roman Empire was at that time, in South Tyrol the census and the declaration of aﬃliation with a linguistic group are instruments for the implementation of the quota system, which ultimately is a positive measure of minority protection.2 The quota system, which has become one of the most peculiar features of the South Tyrolean autonomy, foresees that German, Italian and Ladin speakers shall be considered in certain ﬁelds according to their numerical strength inside the population. The reason for the introduction of this system goes back to the fascist period, where German and Ladin speakers were practically excluded from certain positions and resources. As one of the results of this policy, the public administration of the post-war period was, to a large extent, ﬁlled by Italian speakers. In 1972, when the Second Autonomy Statute came into eﬀect, less than 10% of civil servants in the state administration came from within the group of German and Ladin speakers (662 out of 7,131).3 The proportional quota system was

* This article was discussed and written jointly, with Emma Lantschner mainly responsible for Section II and Giovanni Poggeschi for Section III. 1 Gospel of Luke, 2:1. 2 For a study on the declaration of aﬃliation with a linguistic group and the quota system and their compatibility with EU law, see Stephan Grigolli, Sprachliche Minderheiten in Italien, insbesondere Südtirol, und in Europa (Peter Lang, Frankfurt am Main, 1997), 254–332. 3 See Francesco Palermo, “Un système de ‘proportionnelle ethnique’: le secteur public du TrentinHaut Adige”, Revue française d’administration publique (Special Issue: Fonction publique: ressembler à la population?) (2006) No. 118, 321–333, at 325.

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introduced as a means to redress such disproportional distribution among Italian, German and Ladin speakers. The quota system and its application in diﬀerent ﬁelds will be examined in part II of this contribution. In order to determine the numerical strength of each linguistic group, a mechanism was conceived: the declaration of aﬃliation with a linguistic group. This mechanism has undergone various changes in the course of recent years. Part III of this chapter is dedicated to the evolution of this instrument and its current application. The analysis starts from a normative background, trying to focus on the very nature of the techniques and to understand them, together with the quota system, as decisive and dynamic features of the South Tyrolean autonomy.

II. The Quota System While the application of the quota system in the public administration is the most widely known ﬁeld of application and is seen as the quota system strictu sensu (discussed below under Part A), the same system applies also to the allocation of ﬁnancial resources (e.g., in the ﬁelds of culture and housing), as well as to the composition of certain political organs. These latter ﬁelds of application will be discussed below under Part B. A. The Quota System in the Public Administration The quota system is based on the Gruber-Degasperi Agreement, which provided for “equality of rights as regards the entering upon public oﬃces with a view to reaching a more appropriate proportion of employment between the two ethnical groups”.4 This quite vaguely formulated demand has been translated into Article 89 ASt, which states in para. 3 that “[t]he posts [in state oﬃces in the Province of Bolzano] shall be reserved for citizens belonging to each of the three linguistic groups in proportion to the numerical strength of those groups”.5 The purpose was to create and maintain an ethno-linguistic pluralism inside the South Tyrolean administration. In the foreground stands not so much the interest of the single individual but the interest of each of the groups in controlling a proportionate amount of public oﬃces and resources.6 This positive

4 Emphasis added. The German and Italian translations of the English original have caused diﬀerences in interpretation as regards the concrete content and obligation arising from it. It can, nevertheless, be considered to be the provision that allowed for the introduction of the quota system in the South Tyrolean autonomy. See, in that sense, Lukas Bonell and Ivo Winkler, Südtirols Autonomie (Autonome Provinz Bozen/Bolzano, 8th ed. 2005), 98. 5 Emphasis added. The Gruber-Degasperi Agreement only talked about the German and Italian speakers, not about the Ladins, who were included then in Art. 89 ASt. 6 See Giovanni Poggeschi, “Der ethnische Proporz”, in Joseph Marko et al. (eds.), Die Verfassung der Südtiroler Autonomie (Nomos, Baden-Baden, 2005), 322–331, at 325; Alessandro Pizzorusso, Il pluralismo tra Stati nazionali e autonomie regionali (Pacini, Pisa, 1975), 206.

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action in favour of a certain minority group (known in the US as ‘compensatory justice’)7 can be considered to be an implementation of Articles 6 (which provides for the protection of linguistic minorities) and 3 of the Italian Constitution (which provides for substantive equality). In 2005, about 20% of all employed persons in South Tyrol were working in the public administration.8 Out of these, only around 17% were working for the state oﬃces in the province, whereas the remaining 83% were employed by the local administration. As the above quoted Article 89 ASt refers only to civil servants employed in state oﬃces, the initial enactment decree (hereinafter the “Quota Decree”) was drafted only with respect to these oﬃces.9 A later provincial law10 extended this norm also to provincial oﬃces, conﬁrming thereby an already established practice.11 As stated above, a condition for accession to a post in the public administration is not only to pass the selection process but also to belong to the linguistic group for which a certain post is earmarked.12 This means that candidates compete for the posts reserved for their respective group only and not for the overall number of open positions. In order to ‘prove’ one’s aﬃliation/aggregation to one of the three groups, every candidate has to deposit in an envelope his/her declaration of aﬃliation/aggregation to a certain group. Since a reform in 2005, only the envelopes of the successful candidates are opened, whereas the others are destroyed. The ASt and the Quota Decree foresaw a system of gradual implementation. Thereby, only those posts that became vacant after the entry into force of the Quota Decree were ﬁlled up with German or Ladin speakers, in order to reach, over the years, a proportional representation of the diﬀerent linguistic groups according to their strength in the population.13 Now, after 30 years of

7 Michel Rosenfeld, Aﬃrmative Action and Justice. A Philosophical and Constitutional Inquiry (Yale University Press, London, New Haven, 1991); Michele Ainis, “Cinque regole per le azioni positive”, Quaderni costituzionali (1999) No. 2, 359–372. Ainis identiﬁes ﬁve rules for positive action, namely: a) no retroactivity; b) a justiﬁcation; c) of limited duration; d) gradual implementation; and e) the measure must be reasonable. 8 According to statistical data from 2005, of the 215,110 people in employment in South Tyrol, 44,568 worked in the public administration. See Provincial Institute for Statistics, “Statistical Yearbook 2006, Chapter Employment”, at (in German). 9 Presidential Decree D.P.R. 752/1976, entered into force on 30 November 1976. 10 Provincial Law No. 40/1988. 11 Palermo, op. cit. note 3, 325. 12 Art. 89 para. 1 ASt foresees that “[f ]or the Province of Bolzano/Bozen there shall be established lists of civil service personnel, with separate career structures for employees of administrative departments of the State having oﬃces in the Province”. Those lists are very detailed and foresee diﬀerent career levels (so-called ‘functional levels’), depending on the qualiﬁcation required from a candidate for such a post. For each of these levels the quota has to be fulﬁlled. 13 There was, however, one category of civil servants whose posts were considered vacant after the entry into force of the enactment decree concerning the quota and ﬁlled according to the new modalities. This was the case for those persons who were employed after the entry into force of the ASt in 1972 but before the entry into force of the enactment decree and not resident in the province before 1972. Most of these people, however, regained their positions. See Palermo, op. cit. note 3, 326.

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implementation of the Quota Decree, the goal for the provincial administration has been reached.14 German speakers, who represent 69.15% of the overall population, hold 69.20% of posts in the civil service. Italian speakers, holding 27.3% of posts, are slightly above their 26.47% in the population, whereas Ladins (4.38% of the population) still lag a bit behind, ﬁlling only 3.5% of public posts. These data refer to the civil servants in state and provincial oﬃces, while it is clear that the proportions of the language groups are diﬀerent at the municipal level and therefore also the quota of each group inside the oﬃces competent for the respective territory: in Bolzano, for example, the share of Italian speakers is as high as 73%. Consequently, 73% of posts in the municipal administration are reserved for Italian speakers. In recent years, the application of the quota system, in particular in the public health services and court administration,15 has become more ﬂexible. In cases where it was not possible to ﬁnd a qualiﬁed candidate belonging to the group for which the post was reserved, the post was given to the most qualiﬁed candidate of one of the other two linguistic groups. This latter group, however, has to return such ‘oﬀ-quota’ granted jobs during one of the subsequent selection procedures.16 The quota does not, in principle, apply to private bodies. However, when, in the course of the 1980s, many state bodies—most importantly the railways and the postal service—were privatized, the question arose as to whether the ethnic quota should continue to be applied. The Constitutional Court, which was invoked to decide on the matter, ﬁrst conﬁrmed the legitimacy of the quota for partially privatized administrations17 but, later, when communication services were privatized, held that fully privatized administrations were not subject to the quota.18 After several years of negotiation, an amendment to the enactment decree of 1976 was adopted in 1997.19 This amendment foresaw the application of the quota for privatized enterprises. However, to recently established private enterprises with public shares that carry out activities previously under provincial control, the quota does not apply.

14

For the posts in the state administration, the quota has not yet been reached. The Quota Decree regulates also the proportional distribution of jobs in the judiciary. Judges and prosecutors who want to be admitted to a court in the Province of Bolzano have to participate in a selection process that is separate from the national one. See also the contribution on relations with the central state by Jens Woelk in the present volume. 16 Palermo, op. cit. note 3, 327. The department for labour of the provincial administration is responsible for the monitoring of the provisions concerning the quota and decides also in the case of such an ‘oﬀ-quota’ assignment. 17 Constitutional Court Decisions No. 289/1987 and No. 768/1988. For a detailed discussion on these decisions, see Giovanni Poggeschi, op. cit. note 6, 326–328; and Stephan Grigolli, op. cit. note 2, 260–264. In these judgments, the Constitutional Court regards the quota system as an expression of the constitutional principle of the protection of linguistic minorities. A recent decision of the Council of State (No. 2242/2006), about the quota system in the police underlined that any derogation from the quota principle has to be interpreted restrictively. 18 Constitutional Court Decision No. 260/1993. See Bonell and Winkler, op. cit. note 4, 118–123. 19 Legislative Decree D.Lgs. 354/1997. 15

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It seems that the reason behind this diﬀerence is a political one: for previously state-owned companies, where the German speakers used to be in a minority position, the quota was maintained, whereas for provincial bodies, where the Italian speakers were in the minority, the quota was circumvented through private enterprises in order to reserve more posts for German speakers.20 It seems, therefore, that the quota has become a protective measure rather for the Italian speakers and not any longer for the German and Ladin speakers for whom it was initially conceived. Interestingly, this is nowadays also the position of the Italian nationalist party Alleanza nazionale, which has opposed the proportional quota principle since its inception.21 However, there might be reason for certain unease among Italian speakers with regard to the implementation of the quota: the quota principle is applied ‘horizontally’, meaning that it is applied to each level of qualiﬁcation. However, there are no rules concerning the ‘vertical’ application of the quota. This means that, even if there is a ﬁxed quota for Italian speakers at the highest administrative level, they can be allocated to strategically more or less important sections of the administration. The main criticism, therefore, is that this distribution is highly political and Italian speakers might feel disadvantaged with regard to their allocation to the most important positions in the administration.22 This reality, together with the non-application of the quota to the new enterprises with provincial participation, shows that there is a large margin of appreciation in the application of the quota system.23 Another issue widely discussed is whether or not the quota system is a temporary measure in order to redress the disproportionate representation of language groups and whether or not it should come to an end once proportionate representation has been reached. As the quota system is a positive action, it has to be subject to the general rules that apply to such actions, among which is the temporary character of such measures.24 According to the Quota Decree, the quota has to be fulﬁlled within 30 years from the entry into force of the Autonomy Statute, meaning 30 January 2002.25 As already mentioned, proportionate representation

20

Palermo, op. cit. note 3, 328, where he also quotes an article of the South Tyrolean daily newspaper Alto Adige in which this practice has been discussed. According to that article, in such enterprises the share of Italian speakers (although it is not possible to demonstrate it, these companies not being subject to the proportionality principle) is very low. See Paolo Cagnan, “Spa provinciali fuori calcolo”, Alto Adige, 4 March 2006, 15. 21 The reason behind this ‘change of mind’ is that, by claiming that the Italian-speaking population is the ‘real’ minority (within South Tyrolean society) and needs to be protected, Alleanza nazionale (quite successfully) has tried to attract the majority of votes within the Italian-speaking population. 22 Palermo, op. cit. note 3, 328. 23 Ibid., 329. 24 See supra note 7. 25 Art. 46 para. 1 of the Quota Decree, which states: “The proportions mentioned in Article 89 para. 3 of the Statute have to be fulﬁlled within 30 years from the entry into force of the Statute” (translation by the author). It might be argued that, since the respective enactment decree was issued only in 1976, this time frame has to be calculated from then. In any event, the prescribed

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has been achieved with regard to the provincial administration, for which the question raised might be relevant. In the state administration, however, the quota has not yet been completely reached, therefore the continuation of the system is legitimate. However—and this goes also for the provincial level—one could claim that the measure has changed its function. As a matter of fact, in political practice, the prevailing interpretation is to view the quota system—after having reached its original intent as a positive discrimination measure for the minority groups—as a system of power-sharing between the groups, aimed at enhancing their peaceful coexistence.26 Others view the quota system’s continued application at the local level as being justiﬁed by the fact that the basis of the provision is an international agreement, the Gruber-Degasperi Agreement, which provides for an appropriate proportion of employment between the two ethnic groups. Any curtailing of a provision of that agreement against the will of the Germanspeaking minority could, in theory, provoke an intervention by Austria.27 However, the principle contained in that agreement can be obtained also by means other than a strict application of the quota,28 which, instead of creating cohesion among the groups, rather contributes to an institutionalized separation of the linguistic groups and considerably encroaches upon individual rights.29 As has been seen, a certain ﬂexibility within certain limits is already exercised. Some academics foresee for the (far) future—even if the example used regards the schooling system—that some of the strict norms of the statute could be attenuated.30 To completely abolish the quota is clearly not an option for the political elite and the quota will, presumably, remain a pillar of the South Tyrolean system.31 B. The Quota System in Other Fields Apart from the distribution of public posts, the quota system applies also to the allocation of ﬁnancial resources, as well as to the composition of certain political organs. Article 15 paragraph 2 of the ASt provides that the “Province of Bolzano/Bozen shall use its own funding allocated for welfare, social and cultural purposes in direct

30 years are over. From the legal point of view, however, it must be pointed out that the enactment decree only provides that the proportion has to be fulﬁlled within 30 years but it by no means prescribes what should come next. 26 However, as Poggeschi has underlined, the experience of other countries where the socioeconomic situation is less advantageous than in South Tyrol has shown that compensatory measures—such as a quota system—are less successful. See Poggeschi, op. cit. note 6, 330. 27 Palermo, op. cit. note 3, 329–330. 28 It is important to mention in this context another prerequisite necessary for entry into the public administration: the certiﬁcate of bilingualism. For more details on this subject see the contribution by Cristina Fraenkel in the present volume. 29 On the problem that the quota system might raise under EU law, see the contribution by Gabriel N. Toggenburg in the present volume. 30 See, for example, Alessandro Pizzorusso, “Minoranze linguistiche”, Annuario delle autonomie locali (1980), 348. 31 Palermo, op. cit. note 3, 330; and Poggeschi, op. cit. note 6, 323 and 331.

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proportion to the extent of each linguistic group”. In this regard, social housing is among the most important ﬁelds. Historically, housing policy was used by the fascists to Italianize the province. In 1957, for example, a housing programme sought to establish 5,000 new apartments in the province for Italian families, causing an uproar within South Tyrolese society. With the Second Autonomy Statute of 1972, the province gained legislative competence in the ﬁeld of social housing and could thereby reorganize the ﬁeld. Article 15 paragraph 2 provided for a combined quota: resources are allocated in direct proportion to the extent of each linguistic group and with reference to the needs of this group. This need is established according to the amount of requests presented with the prospect of being accepted.32 Initially—just like the quota in the public administration—the instrument was thought to be for the protection of the German and Ladin-speaking minorities but has turned out to favour the Italian group, as they mainly live in the bigger towns and congested areas.33 In 2002, the institute of social housing has paid out EUR 277 million and administers around 11,000 apartments.34 Also, in the cultural ﬁeld, resources are distributed according to the quota. The overall cultural budget of 2004 was EUR 72.8 million.35 The respective share is administered separately by oﬃces for the German, Ladin and Italian cultures. Whereas, in the past, the oﬃces concentrated on the promotion of cultural activities and events for their respective ethnic group, today there is a tendency towards interaction between the diﬀerent cultures and cultural oﬃces. However, practice shows that there is still a way to go. A very important ﬁeld of application of the quota is the proportional representation of the various groups in diﬀerent political bodies.36 The aim is to prevent a ‘dictatorship of the majority’.37 An example of the application of the quota in political bodies is the provincial government, the composition of which (in terms of language groups) has to reﬂect the numerical strength of the linguistic groups as represented in the provincial assembly.38 Thus, the parameter in this case is not the strength in the population but in the elected body. In line with the idea of power-sharing—which is a basic principle of the entire autonomous system—this mechanism should guarantee the participation of the underrepresented linguistic group also in the executive.

32

One can see in this measure a mixture of compensatory (in the beginning) and distributive justice (later on). See Rosenfeld, op. cit. note 7. 33 Adolf Spitaler, “Edilizia agevolata”, in Joseph Marko, Sergio Ortino and Francesco Palermo (eds.), L’ordinamento speciale della Provincia Autonoma di Bolzano (Cedam, Padova, 2001), 279– 285, at 283–284. 34 Giuseppe Avolio and Leonhard Voltmer, “Übersicht über die autonome Gesetzgebung”, in Marko, op. cit. note 6, 135–179, at 147. 35 Ibid., 142. 36 For a comparative analysis in this ﬁeld, see Carlo Casonato, La tutela delle minoranze etnicolinguistiche in relazione alla rappresentantza politica: un’analisi comparata (Università degli Studi di Trento, Trento, 1998). 37 Poggeschi, op. cit. note 6, 325. 38 Art. 50 para. 2 ASt.

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As a matter of fact, the South Tyrolean People’s Party (Südtiroler Volkspartei, SVP), which, according to its statute, is a party representing the German and Ladin speakers, has an absolute majority in the provincial assembly (21 out of 35 seats) and would not need to enter any coalition to form the government. However, the system obliges the SVP to include two Italian speakers in the elevenmember government. As for the Ladin speakers, the Autonomy Statute did not foresee, until the most recent reform, a guaranteed representation in the provincial government. After the reform,39 “[t]he Ladin linguistic group may be given representation in the Provincial Government [. . .] even derogating from proportional representation”.40 Similarly, the “regulations for local public bodies shall contain provisions to ensure the proportional representation of linguistic groups in the composition of the organs of those bodies”.41 The method by which it is established how many persons within, for example, the provincial assembly, belong to which linguistic group is, again, the declaration of aﬃliation/aggregation to one of the three linguistic groups. For the purpose of the proportionate representation in the government, it would be enough if only the elected members of the assembly submitted their declarations. However, the law on elections foresees that every person who wants to run for election has to submit a declaration already when accepting the candidature.42

III. The Normative Background to the Census and the Declaration of Linguistic Affiliation A. The Norms and Judgments that have shaped the Census and the Declaration of Linguistic Aﬃliation To distribute resources and working places according to the numerical strength of the diﬀerent linguistic groups living in South Tyrol, it is necessary to know exactly how many persons each group consists of. For that purpose, the South Tyrolean system uses a special legal tool, which is the declaration of linguistic aﬃliation or aggregation. It is important to underline that such a practice, as conceived in South Tyrol, is merely instrumental to the application of the quota system. The declaration of linguistic aﬃliation or aggregation used to be linked to the general census of the population, which in Italy takes place every ten years but, as we are going to see, with the latest normative developments, it is beginning to take on a life on its own.

39

Constitutional Law No. 2 of 31 January 2001. Art. 50 para. 3 ASt. 41 Art. 61 ASt. 42 The question of whether this amounts to an undue restriction of the passive voting right will be discussed below, under Section III Part B. 40

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The legal basis for the declaration of linguistic aﬃliation is the Autonomy Statute of 1972.43 The speciﬁc norm that dictates the regulation concerning the declaration of linguistic aﬃliation is Decree No. 752 of 26 July 1976, integrated and modiﬁed by several norms from 1981 to 1991, some of them due to some important judgments of the Italian Council of State. The deﬁnitive regulation (for the time being) of the practical aspects of the collection and retention of data on the declarations is found in Decree No. 42 of 20 February 2002 and Decree No. 99 of 23 May 2005. The ‘key’ article of the decree regulating the declaration of linguistic aﬃliation or aggregation is Article 18. The new norms assure more than the former the secrecy of the declaration, in order to respect the fundamental right to privacy in regard to such a sensitive issue and is meant to better respect the principle of proportionality. Until the reform of 2005, the forms on which the declarations were written consisted of three copies: the ﬁrst was for the personal declaration. The Court of Bolzano/Bozen and its detached oﬃces kept and continue to keep all nominal declarations in sealed envelopes. Only when the person, normally in the occasion of a public competition, needs the declaration does he/she make a request to the Court to receive an oﬃcial copy. It is forbidden to require the submission of the declaration for aims not foreseen by the law (Art. 18 para. 3). The second copy, according to the regulation in force until 2005, was anonymous and was collected by the secretariat of the municipality and then transmitted to the provincial oﬃce of census for the calculation of the statistical strength of each linguistic group. Detailed provisions aim to maintain the anonymity of the declaring person and of the choice of the linguistic group he/she has made. The third copy remained with the person who had provided the declaration. The reform of 2005 disconnected the anonymous declaration from the personal one. Whereas the former continues to be compulsory during the census every ten years with the aim to establish the statistical strength of the language groups, the latter will no longer be an obligation. In principle, the personal declarations made during the last census of 2001 will keep their eﬀect until the person wants to change or retract it. At the earliest ﬁve years after years after the delivery, the declaration can be modiﬁed by the declaring person. The modiﬁed declaration takes eﬀect two years after the new delivery. Retraction of the declaration is also possible at any time that the declaring person so decides. In this case, the Court gives back the envelope with the form and just takes note of the date of the restitution. A new

43 Although the term “ethnic” is quite often used, the legally correct denomination is “linguistic”, according to Italian constitutional law, where minorities are deﬁned and recognized as linguistic minorities and, according to Law No. 482/1999 (which does not concern the German and Ladin minority of South Tyrol but the less protected linguistic minorities of Italy), “historical minorities”. The only occasion in which the term “ethnic” is used is Art. 2 ASt, which refers to the “ethnic and cultural characteristics to be safeguarded”.

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declaration is possible after three years, taking eﬀect two years later. The delayed eﬀect should minimize as much as possible ‘opportunistic’ declarations.44 Article 18 paragraph 5 regulates the cases of those citizens who have reached the age of 18 or have moved to the Province of Bolzano.45 The municipality must inform those citizens about the right to declare themselves within one year, in which case the declaration takes immediate eﬀect. Those who do not believe that they belong to any of the three linguistic groups may declare so by crossing the option “other” but they must then nevertheless choose to be ‘aggregated’ to one of the three linguistic groups in order to be allowed to take advantage of certain rights that are granted to the three linguistic groups. The peculiar possibility of declaring “other” as one’s linguistic aﬃliation but with the need to indicate the aggregation to one of the three recognized linguistic groups was added by the legislator after the Council of State dictated a judgment46 in which it stated that somebody who is not a member of the German, Italian or Ladin groups cannot declare so falsely. The Council of State wonders, in its reasoning, whether the declaration is an option or whether it has to correspond to the truth. The second hypothesis was chosen but, in reality, the ﬁrst is also accepted, because sanctions are not foreseen in the case of ‘false’ declaration. The judgment was mainly conceived to allow the “others” to declare their linguistic status, not to assure the real nature of the declarations and the concrete proportions between the diﬀerent linguistic groups, even if the judgment states that “the overall system looks made on the assumption that the declarations correspond to the real truth”.47 However, it still seems more correct to conclude that the principle upon which the declaration is founded is freedom of choice because, on the contrary, there would be a breach of the right to freely express one’s opinions, which is a prerequisite to the possibility of freely joining the linguistic minorities, which are a social group protected by Articles 2, 3, 6 and 21 of the Italian Constitution.48 With the possibility to declare one’s linguistic group to be “other” but with the duty to indicate a group to aggregate to, the freedom of choice of the citizen is saved and, at the same time, the quota system, which is

44

Article 3 of the same decree, about “Transitional Provisions”, regulates other details, such as the possibility to modify the declaration made in the census of 2001 within three months of the entry into force of the decree. In this case the modiﬁed declaration took immediate eﬀect. Only a few persons took advantage of this possibility.” 45 Details regarding those “temporarily intermediate declarations” in the previous discipline (before 2005) can be found in Emanuele Rossi, “La dichiarazione di appartenenza ai gruppi linguistici in Provincia di Bolzano”, in Commentario alle norme di attuazione (Regione Trentino AltoAdige/Südtirol, Trento, 1995), 177–178. 46 Council of State, Judgment No. 439 of 7 June 1984. 47 Ibid. 48 Paolo Carrozza, “Il Consiglio di Stato ‘corregge’ la normativa sui censimenti linguistici in Sudtirolo”, Il Foro Italiano (1988) No. 3, 76.

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“the most visible and more immediate consequence of the institutionalized separation between the German, Italian and Ladin linguistic groups”,49 is saved, as is explicitly stated by the Council of State in its Judgment of June 1984. The overall discipline of the declaration of linguistic aﬃliation or aggregation conﬁrms that the declaration is not always a ‘true’ statement. So it is possible that the same person could make four diﬀerent declarations, choosing “other”, then German, then Italian and then Ladin. To avoid those ‘opportunistic declarations’ (in the sense that somebody would be tempted to choose the group that is, at a certain point in time, beneﬁting more from public competitions and job opportunities), it is not possible to dictate clear prohibitions but it would be rather convenient to use “indirect means which discourage those false declarations”.50 One of those means could be having the duty to perform the competition in the same language as the chosen group (thus, you could not declare yourself to be German and perform the competition in Italian and vice versa). This solution, however, may not be that satisfactory because it may lead to a lack of freedom of choice that is hard to justify: one may feel free to belong to one linguistic group even if he/she knows another language better. A very delicate issue concerns the declarations of those citizens who have not yet reached the age of majority. Decree No. 253 of 1991, following the suggestion of the Judgment of the Council of State of June 1984, states that at the age of 14 it is already possible to make a declaration of linguistic aﬃliation. Minors of this age are “declared” by their parents; however, it was not made clear what should happen in the case of disagreement among the parents of diﬀerent linguistic groups or in case the parents are divorced or separated and disagree on the declaration. The doctrine considered the possibility given by Article 18-bis of the Decree of July 1976, which, as has already been discussed, provides for the possibility to declare oneself as an “other”, to apply also in those disputed cases of minors.51 The Decree of 2005, in Article 18 paragraph 5, clariﬁes the issue, stating that, in case of disagreement, parents who belong to diﬀerent linguistic groups (or, better, who disagree on the declaration of the minor) do not have a duty to provide the declaration. B. The Declaration of Linguistic Aﬃliation and the Electoral Law. The Critical Suggestions of the ACFC and of the Authority for Data Protection The system of the declaration of linguistic aﬃliation has proven to be very severe in the case of the electoral law. The functioning of the local assemblies (region, province and municipalities) is closely linked to the possibility of identifying the

49 50 51

Palermo, op. cit. note 3, 325. Alessandro Pizzorusso, Minoranze e maggioranze (Einaudi, Torino, 1993), 136. Rossi, op. cit. note 3, 175.

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linguistic aﬃliation of elected persons; thus, the duty to disclose one’s aﬃliation before the elections is a duty for every candidate. The contradictions and the rigidities of the system, particularly regarding the mentioned duty for the candidates, were underlined by Alexander Langer, a prominent politician aﬃliated to the Green Party, in three decades of peaceful ﬁghts, until his death in 1995.52 The Court of Trento rejected the application of Alexander Langer, who wanted to run in the election for the mayor of Bolzano in 1995 but was not allowed to register because he had refused to give his language declaration during the census in 1991. However, four years later, the Italian Supreme Court (Corte di Cassazione) accepted an ad hoc statement in a very similar case.53 The Court stated that the right to be elected prevails on other constitutionally-protected principles, the protection of minorities included. A reform of the election law before the local elections in 2005 allowed for ad hoc declarations at the moment of accepting the candidature. As has been seen in the above discussion, to know about the linguistic aﬃliation/aggregation is necessary because the quota system is also applied in the local executive bodies. The question is, however, when one has to disclose the linguistic aﬃliation, before or after the elections? Does the requirement of submitting the language declaration at the point of accepting the candidature represent a measure that restricts the passive voting right in a way that is not proportionate to the aim? The Code of Good Practice in Electoral Matters, elaborated by the Venice Commission, foresees that neither candidates nor electors must be required to indicate their aﬃliation with any national minority.54 The aim of a measure that requires candidates to disclose their ethnic aﬃliation is to facilitate the representation of the diﬀerent linguistic groups in political bodies and can therefore be considered as legitimate in a constitutional system such as the Italian one. However, the way in which such a measure is implemented is required to interfere in the least possible way into: a) the privacy of a person; and b) the right to stand for elections. The Advisory Committee to the Framework Convention for the Protection of National Minorities (ACFC) expressed its concern about the declaration’s compatibility with Article 3 of the Framework Convention, considering that “[f ]ailure to declare one’s linguistic aﬃliation has clear disadvantages” since it means that the person concerned is unable to exercise the right to run for elections.55 It recommended reviewing “this matter to identify methods fully keeping with the right

52 Langer was not against the census system in itself. On the contrary, he thought that it was very useful to know periodically how many people speak one language. What he fought was the “link of the statistic operation to a personal and nominative choice of a status, a kind of reservation for jobs or houses for ‘Germans’ or ‘Italians’”. Alexander Langer, “Ancora un censimento”, in Siegfried Baur and Riccardo Dello Sbarba (eds.) Aufsätze zu Südtirol. Scritti sul Sudtirolo, 1978–1995 (Alpha & Beta, Meran/Merano, 1996), 224–226. 53 Judgment No. 11048 of 24 February 1999 (Ivan Beltramba). 54 Venice Commission, Code of Good Practice in Electoral Matters, CDL-EL(2002)005. 55 Advisory Committee Opinion on Italy, ACFC/INF/OP/I/(2002)007, adopted on 14 September 2001, made public on 3 July 2002, paras. 18–20.

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of every person to choose to be treated or not to be treated as someone belonging to a minority”.56 Although the ACFC did not advocate for the disclosure of ethnic aﬃliation after instead of before the elections, it is clear that the Committee is very sensitive towards any kind of restriction of the passive voting right.57 The opinions of the ACFC could be classiﬁed as ‘soft jurisprudence’ and do not directly compel the Italian and South Tyrolean authorities to change their practices. However, the concern must be taken seriously because this body is the guardian of the most important European instrument for the protection of minorities,58 which has been taken also by the European Commission as a parameter for the compliance of the EU candidate states with minority protection (and still it is taken in the case of the present candidates). A domestic source of criticism is found in the independent body that assures privacy rights (Garante per la protezione dei dati personali),59 which does not condemn the technique of the census and the declaration of linguistic aﬃliation in itself but only some details regarding the possibility that the data that is private, according to Article 22 of Act No. 675 of 31 December 1996 (the so called “Act on Privacy”), might not be duly ﬁled in order to be really kept secret.60 To meet the criteria suggested by the ACFC and by the Garante, the ‘Commission of Six’61 proposed the above described regulation for the procedure of declaring linguistic aﬃliation that separates the statistical collection of the data from the personal declaration that has to be submitted in cases like a public competition.62 The reform of 2005 tends to save the real aim of the system of declaration of linguistic aﬃliation and the census, which is the operation of the quota system, assuring at the same time in a more satisfactory way the right to privacy of the citizens who make the declaration. According to the results of the census of 2001, there are 69.15% German speakers, 26.47% Italian speakers and 4.38% of Ladins in South Tyrol.63

56 Ibid. See, in particular, the section entitled “Proposals for Conclusions and Recommendations by the Committee of Ministers”, in respect of Article 3. 57 The underlying reason for the rule on disclosure of linguistic aﬃliation prior to elections is, however, to give the voter the ability to know to which linguistic group a candidate has declared his/her belonging, as this might inﬂuence his/her decision. It will therefore depend upon the political climate whether a postponement of the timing of disclosure is conceivable in the future. 58 Monitoring through the ACFC could become a permanent control on the minority policy of the EU member states: a deep analysis on the subject is found in Bruno De Witte, “The Constitutional Resources for an EU Minority Protection Policy”, in Gabriel Toggenburg (ed.), Minority Protection and the Enlarged European Union: The Way Forward (Open Society Institute, Budapest, 2004), 129–144. 59 Information about this independent government agency can be found at . 60 A deeper analysis is, in Italian, in Giovanni Poggeschi, “Il censimento e la dichiarazione di appartenenza linguistica”, in Marko, Ortino and Palermo, op. cit. note 33, 653–685, at 678–680. 61 For an analysis of this body of cooperation between the state and the Province of Bolzano, see the contribution by Francesco Palermo in the present volume. 62 See Poggeschi, “Volkszählung und Sprachgruppenzugehörigkeitserklärung”, in Marko, op. cit. note 6, 306–321, at 319–320. 63 Data are available at .

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In the town of Bolzano/Bozen the percentage is practically the opposite, with 73.00% Italian speakers, 26.29% German speakers and 0.71% Ladins. The town where the balance between Italian and German speakers is closest is Merano/Meran, with 51.50% German speakers, 48.01% Italian speakers and 0.49% Ladins. German speakers are a majority in almost all the municipalities, Italian speakers are the majority in ﬁve municipalities and Ladins in seven municipalities of Gröden (Gherdeina in Ladin) Valley and Badia Valley, with high percentages from 82% to 97%. In this contribution we underline the ‘uniqueness’ of the South Tyrolean system of census, taken together with the declaration of linguistic aﬃliation: it is a mere instrument in order to apply the quota system with trustworthy data. However, as is evident from more recent developments and proposals for the revision of the quota system in South Tyrol, the census is also a very useful instrument in complex democracies, for statistical reasons and in order to allow the public authorities to calibrate diﬀerent policies suggested by the data collected. The census can inform linguistic and ethnic features but also social and economic issues; this can be particularly useful in monitoring the social inclusion of unprivileged groups. Of course, the linguistic censuses are also useful to organize language policies and, in some cases, to foster the use of oﬃcial languages. The abovementioned features may also be relevant for South Tyrol but the reality shows us that in the Province of Bolzano the census has been connected with the declaration of linguistic aﬃliation or aggregation, which is the precondition for the quota system, which is still considered, in probable underestimation of other possible ‘faces’ of autonomy, to be one of its pillars.64

IV. Concluding Remarks It is evident that the quota system in South Tyrol was originally conceived as a kind of aﬃrmative action,65 a redistributive means to redress the existing disparities within the public administration between Italian-speaking citizens and German and Ladin-speaking ones.66 Now that the proportion between the linguistic groups has been successfully balanced, it would follow that there is no such need for the quota system in South Tyrol. The quota system may, however, remain a 64

For an analysis on some experiences of censuses in the world, see Poggeschi, op. cit. note 60. The bibliography on aﬃrmative action is huge: a detailed list is available at . For a deep juridical analysis, see Rosenfeld, op. cit. note 7. More recently, Elisabeth Anderson, “Integration, Aﬃrmative Action, and Strict Scrutiny”, NYU Law Review (2002) No. 77, 1195–1271, claims that racial integration is still a central goal of racebased aﬃrmative action. 66 An Italian author also underlines the “peculiar meaning (of the declaration of linguistic aﬃliation) also for the qualiﬁcation of the minority as a social group”. Rossi, op. cit. note 45, 169. In the case of South Tyrol, the concerned social groups are not unbalanced from an economic point of view but, in other cases, belonging to a minority means being disadvantaged: the case of China is very evident in this regard. 65

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useful way to preserve the peaceful coexistence of the diﬀerent linguistic groups in the Province of Bolzano, taking for granted that it will become more ﬂexible and oriented to the well being of the diﬀerent individuals living in the territory regardless of their linguistic aﬃliation. This trend towards ﬂexibility is more and more visible in the autonomy policy in South Tyrol and could be the best way to preserve a system that, applied in a more rigid way, could probably not survive the changes in today’s society.67 With those minor changes, the census, the declaration of linguistic aﬃliation and the quota system will, very likely, remain pillars of the South Tyrolean system. Some of the proposals of changes needed to meet the criteria set by some important juridical institutions (the “Garante” in Italy and the ACFC in Europe) have, after all, been accepted in the Decree of 2005. This shows the will of the politicians to preserve the main features of the system.

67

For instance, the inclusion of foreigners who are legally resident in South Tyrol is an issue that has to be taken into consideration in the near future. It is interesting to note that, in August 2006, it was decided that the foreign citizens of the European Union living in South Tyrol can make the linguistic declaration, probably in order to avoid a controversy regarding conformity of the system with EU law.

CHAPTER THIRTEEN

THE EDUCATIONAL SYSTEM IN SOUTH TYROL1 Siegfried Baur and Roberta Medda-Windischer

I. Introduction This chapter outlines the manner in which schools and languages have played a central role in South Tyrol’s development and aﬀected every aspect of social and private life in the last 85 years, since its annexation by the Kingdom of Italy. A. Legal Foundations On 1 October 1923, the fascist government promulgated a regulation forbidding German-language instruction in all of the region’s ﬁrst-year elementary school classes. This was a prelude to the gradual but determined dismantling of all schools conducting lessons in German in South Tyrol. Shortly after 8 September 1943, following the invasion of Italy by German troops, instruction in German was reinstituted under District Head Hofer. In the Paris Agreement between the Austrian and Italian governments2 of 5 September 1946, native-language elementary and secondary-school instruction, as well as the right to use either German or Italian in public oﬃces and in oﬃcial documents and place names, is speciﬁcally delineated. Article 19 of the Second Autonomy Statute (ASt)3 is primarily concerned with the regulation of mother tongue instruction at the nursery, elementary and secondary school levels. It establishes two separate and parallel school systems, with preschool, primary and secondary pupils taught in their mother tongue (be it Italian or German) by teachers of the same language (Art. 19 para. 1 ASt). Solely in the case of Ladin-language schools, it provides for instruction on equal terms in the German and Italian languages alongside the use of Ladin as a language of instruction:

1 The ﬁrst part of the chapter was written by Siegfried Baur (Sections I, II and III) and the second part by Roberta Medda-Windischer (Section IV). 2 The agreement between Italy and the Allied and Associated Powers was signed in Paris on 10 February 1947, attached as Appendix IV. The peace treaty was sanctioned by the provisional head of state under Decree No. 1430 of 28 November 1947 (submitted in the orderly supplement to Decree No. 295 of 24 December 1947). 3 D.P.R. No. 670 of 31 August 1972.

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Siegfried Baur and Roberta Medda-Windischer The Ladin language is used in nursery schools and it is taught in primary schools in Ladin districts. This language is also used as a teaching instrument in every kind of school in the same districts. In such schools the teaching is given on equal basis of timetable and ﬁnal result, in Italian and in German.4

The supervision of the eﬀective operation of the local educational system is guaranteed by an administration referable to the provincial institutional system, with a duplication of the competent authorities—one for the German-language schools and one for the Italian language schools (plus another for the Ladinlanguage schools): “for the administration of the Italian-speaking school, for the supervision of the German-speaking school and of the Ladin districts [. . .] the Department for Education, given the opinion by the Provincial Council of Bolzano, appoints a school supervisor”.5 Likewise, “for the administration of German-speaking nursery, primary and secondary schools, the provincial Council of Bolzano, given the opinion of the Department of Education, appoints a school supervisor, choosing from a shortlist of three representatives of the German group in the provincial school council”.6 Each of these administrative bodies, divided in this way, is responsible for the administration of the corresponding type of school, the eﬀective management of the school programme and the legal treatment and salary of teachers; the latter have to be strictly selected on the basis of their respective linguistic skills. Article 19 ASt also provides for a complex and comprehensive control mechanism where the linguistic skills of the pupils are concerned. Accordingly, the principle of the free choice of school applies as a general rule, i.e., each pupil may enrol in a German-speaking, Italian-speaking or Ladin school regardless of his/her mother tongue. However, each school authority has the right to refuse enrolment if the pupil’s linguistic ability is considered to be insuﬃcient to attend classes in the language of the school. The pupil’s parents can challenge the school’s decision in front of the Administrative Court. As a matter of fact—and in line with the overall evolution of educational policy in South Tyrol, as the following pages will show—during the ﬁrst years after the enactment of the ASt, in the early 1970s, there were several cases in which pupils were denied enrolment (especially in the German-speaking schools), whereas in more recent times this safeguard provision has been handled in a much more open and ﬂexible way by the school authorities. B. Education Policy is Language Policy Since the re-establishment of German-language instruction in 1943, the German school has been the core of language policy in South Tyrol: an eﬀort to preserve

4

Art. 19 para. 2 ASt. Art. 19 para. 4 ASt. 6 Art. 19 para. 5 ASt. There is also a similar disposition for the Ladin-speaking school, for which “the Department of Education, appoints a school supervisor choosing from a short list of three representatives of the Ladin group in the provincial school council” (Art. 19 para. 6). 5

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the German mother tongue against ‘foreign’ inﬂuences and ‘mixture’ with other languages. This attitude (which is understandable for historical reasons, even if it was long opposed to the ﬁndings of research in language acquisition) still exists to some extent but has changed somewhat over the years; today, the German language group values bi- and multilingualism to a greater extent, while the Italian school has allowed more space from the perspective of language policy and didactics. However, reservations against bilingual or plurilingual instruction, against immersion instruction and against the co-presence of teachers of German and Italian mother tongues will continue to be upheld, as second-language education is not of central interest to the German language group’s political representatives in their linguistic and school-oriented eﬀorts.7 In the Italian language group, initiatives promoting second-language education in schools have risen signiﬁcantly over the last 15 years. It is too early to say whether this will contribute noticeably to the acquisition of the language of their neighbours, to which the majority of the German and Italian language groups remain ambivalent at best.8 Statistically speaking, it seems that, in principle, German-speaking parents show greater interest in promoting the second language than the political representation of their majority party reﬂects, while Italian-speaking political representatives are more interested in promoting the second language than the parents they represent. One thing that politicians and parents share in common across the board is a signiﬁcant interest in promoting the English language. School and language policy in South Tyrol are today—and have always been— closely interwoven. This article is an attempt to illuminate the historical genesis of the problem with the respective second languages, the question of the connection between language and identity, to raise doubt as to whether a bi- or multilingual society is at all desired but also to identify possible ways toward multilingualism. To this end, special emphasis is placed not on providing a complete presentation of the legal measures but rather on discussing the trends that, even with reservations, are converging in regard to European language policy.9

7 Not to be belied by the recent case of bilingually-instructed Italian in the ﬁrst year of elementary school at obligatory supplementary lessons ordered by the school board. 8 The Ladin language group does not have such problems. The schools in South Tyrol’s Ladin districts are the only ones that are intentionally oriented towards multilingualism. 9 For an account of the history of schools in South Tyrol up to the enactment of the 1975 Autonomy Statute, see Rainer Seeberich, Südtiroler Schulgeschichte. Muttersprachlicher Unterricht unter fremdem Gesetz (Pädagogisches Institut, Edition Raetia, Bozen/Bolzano, 2000), a standard text on the subject. The present account and analysis begins with this period, when Art. 19 ASt, the core of its educational and language policy, was enacted with D.P.R. No. 116 of 1973.

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II. Historic and Socio-linguistic Conditions of School Policy in South Tyrol A. Historic Sources of Education Policy In order to understand the genesis of the education policy of South Tyrol’s language groups, the particular relationship between the fascist Italian government and the German-speaking minority following the region’s annexation after World War I must be deﬁned. From 1923 on, this relationship with the ruling authority bore distinctly imperialistic and colonialist traits, clearly meeting the terms of a dominant ‘centre’ and dependent ‘periphery’. Until September 1943—and, to some extent, into the 1960s—South Tyrol could justiﬁably be described as an ‘inner’ colony of Italy (and not merely in a metaphorical sense). In the brief interval between 1923 and 1926, the fascist regime enacted the following measures in South Tyrol: prohibition of the name ‘South Tyrol’, dismissal of all German-speaking mayors, prohibition of all political parties and labour unions, expropriation and military conﬁscation of all the German-Austrian Alpine Association’s goods and facilities, prohibition of all local sport associations, prohibition of the use of the German language in oﬃcial public dealings and on all public inscriptions (gravestones included), prohibition of German-language publications, dissolution of all German-language schools, abolishment of all German-language place names and Italianization of many surnames. Further measures were taken, including the erection of large industrial zones in Bolzano/Bozen and Meran, which primarily served the programme of implanting Italian-speaking labourers from other regions of the country: They certainly could have found workers here, but they weren’t wanted. The condition for establishing the new industrial operations with the necessary infrastructures and new housing developments for the newly imported labour force from the old provinces was the liquidation of the agricultural outskirts of Bozen and Gries.11

The exploitation of hydraulic energy through the construction of large power plants and transformer stations would supply these operations with electricity. The proﬁts of all new enterprises—including the power stations—left the country, in the sense that they were generated and removed to Italy in a typically colonialist fashion. Another step in colonialism was made possible when the Italian fascists shook hands with the Nazi regime and concluded the infamous ‘Option Accord’.12

Many of the measures taken by fascism in South Tyrol are among the classic instruments of colonialism: ignoring the local culture, introduction of the colo-

10

For more, see Siegrfried Baur, Die Tücken der Nähe. Kommunikation und Kooperation in Mehrheits-/Minderheitssituationen (Alpha & Beta, Meran, 2000). 11 Claus Gatterer, “Über die Schwierigkeit, heute Südtiroler zu sein”, Rede anläßlich der Verleihung des Südtiroler Pressepreises. Kontaktkommitee für’s andere Tirol, Innsbruck (1981), 22. 12 Ibid., 22.

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nial language as an oﬃcial language, the attempt to fragment and destroy local environments, ethnic division of populated urban areas, near-complete or a high degree of usurpation of public administration, intensiﬁed presence of the state as well as control and monitoring through bureaucratic intervention, which—in conformity with private business interests—is aimed at building an infrastructure, exploitation of local resources, outside investment and a lack of capital accumulation in the region. France forbade the use of Arabic in Algeria just as Italy did with the German language in South Tyrol. As Sartre commented: It would still have been of concern, if we had merely forbid them from using our language. But it is integral to the colonial system that the colonised are denied access to history; as claims of nationality in Europe have always relied on the unity of the language, the Muslim were denied the use of their language.13

The same applies to Italian fascism in South Tyrol. Through the prohibition of instruction in the German language, as well as radically changing the curricula (especially in history) and forbidding public use of the German tongue, Germanspeaking South Tyrolese were denied access to their own history and language. This prohibition is, as Derrida stressed in his example of colonized Algeria, both unusual and essential: “One forbids access to a language and not a thing, a gesture, an action. One forbids access to speech, to a particular saying. This is, however, the essential forbidding, the absolute prohibition, the prohibition of speech and of saying”.14 In small, secret ‘catacomb schools’ that were set up in various hidden locations (not without risk of punishment for violating the ‘prohibition of speech’), the younger generation was ensured at least partial access to the high language (German). The structural measures taken by Italian fascism in South Tyrol not only aﬀected the region’s German- and Ladin- speaking populations with its institutional threat of force; the dominant language group, too, reacted socially, culturally and politically, as individuals and entire social classes identiﬁed with their colonialist government’s guidelines to the extent that they came to passively accept aﬃliation with the dominant group through social and political consensus mechanisms.15 The basic forms of colonialist thinking are deeply rooted in the Italian language’s collective memory. The residue of this axiom of ethnic diﬀerence (superiority of the ‘own’ and inferiority of the ‘foreign’) evokes postcolonial resentment (most clearly in right-wing political parties), limits the mourning process, promotes conﬂict between the language groups and blocks language learning and contact with the others’ cultures, which are probably still considered less than equal in the

13

Jean-Paul Sartre, Wir sind alle Mörder (Rowohlt, Reinbeck bei Hamburg, 1988), 25. Jacques Derrida, “Die Einsprachigkeit des Anderen”, in Anselm Haverkamp (ed.), Die Sprache der Anderen (Fischer, Frankfurt, 1997), 15–41, at 25. 15 This general statement must be made more precise, as large portions of the Italian-speaking group in South Tyrol were in no way aﬃliated with the fascist sense of purpose; indeed, the fascist party had great diﬃculty gaining a foothold with the workers and the few Italian farmers. 14

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social (un)consciousness. The formerly colonized, too, are aﬀected by collective memory. “The colonised are haunted, constantly dreaming of becoming the colonisers”.16 In South Tyrol, the language groups’ diﬃculties in living together are also related to these after-eﬀects. This is most evident in the issue of place names: “In order to correct the historical injustice, the German place names should be reintroduced and the Italian names abolished. The underlying intention (whether conscious or unconscious) is to symbolically repossess the territory”.17 B. Linguistic Spaces: More Monolingual than Multilingual The Italian and German language groups are diﬀerently distributed through the region. German speakers are present everywhere. Rural settlements are still found in remote mountain areas. This distribution is the result of centuries of settlement in the region. The distribution of the Italian language group, however, is the result of the fascist policy of ‘Italianization’. The Italian-speaking population is concentrated almost exclusively in the province’s cities and larger towns. The opportunities and need for contact with members of the other linguistic group are generally directed, for the Italian-speaking group, from the centre to the periphery and, for the German speakers, vice-versa. This means that the German-speaking community’s opportunities and need for communication with Italian speakers primarily take place in interactions in Bolzano/Bozen and Meran. According to the 2001 census, South Tyrol’s population includes 296,000 oﬃcial members of the German-language group (69.15%), 114,000 mother tongue Italian speakers (26.47%) and 19,000 people of the Ladin language group (4.37%). This indicates, when compared to the 1991 ﬁgures, an increase of 1.2% in the Italian-speaking population and a corresponding drop of 1.2% in the German-speaking group. In addition to the Italian language group, a distinct migration tendency from the periphery to the centres is evident. The reasons are various, largely related to the changed employment structure in the Italian community (a decrease in positions attained through the ethnic proportional system in public oﬃces, decrease in military operations, ﬁnancial controls based upon the Schengen Accord, etc.). A clear indicator of this trend is the decrease in the Italian school population in the Vinschgau/Val Venosta.18 In 103 of 116 municipalities, the German-speaking group is the majority, with more than 90% of the population in 80 of them and an 80% majority in the

16

Frantz Fanon, Die Verdammten dieser Erde (Suhrkamp, Frankfurt, 1981), 44. Siegfried Baur, Irmi von Guggenberg and Dieter Larcher (eds.), Zwischen Herkunft und Zukunft. Südtirol im Spannungsfeld zwischen ethnischer und postnationaler Gesellschaftsstruktur (Alpha & Beta, Meran, 1998), 274. 18 Thus, the Italian elementary school district in Schlanders, which is responsible for the entire Vinschgau area, operated 14 schools with 128 pupils altogether in the 1969–1970 school year, in 1989–1990 just ﬁve schools with 35 pupils and, in 1994–1995, only one school with 14 pupils. 17

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remaining 23, excepting Meran (50.46%), Auer (70%), Brixen (72%) and Sterzing (75%). In eight municipalities (those in the Ladin valleys), the Ladin language group holds the majority, while only ﬁve have an Italian-speaking majority: Bolzano/ Bozen (72.59%), Leifers (69.34%), Salurn (61.31%), Branzoll (59.96%) and Pfatten (57.87%). 89,300 mother tongue Italian speakers live in these ﬁve municipalities, while 22,800 more live in the cities of Meran, Sterzing, Brixen and Bruneck. The remaining portion of the Italian-speaking population (13,814 people) is distributed throughout the larger towns, particularly Franzensfeste and Schlanders, as well as the Unterland area. Because of this geographic distribution, three linguistic areas (or ‘socio-linguistic zones’) can be identiﬁed, where it is possible, in various ways, to hear and speak a second language in a social context: the cities, the large valleys and the actual mountain areas. In the ﬁrst linguistic area, pupils of the German mother tongue ﬁnd motivation to learn the Italian language. This linguistic area corresponds to the settlement area in which the Italian-speaking group is represented by a proportion of 40% to 70%. In the second linguistic area, where the Italian-speaking group makes up between 10% and 40% of the population, there is moderate to marginal motivation for German-language pupils to practice Italian outside of school. Finally, in the third linguistic area, which includes mountain areas and their communities, less than 10% (and usually a negligible portion) of the population is of Italian mother tongue, so there is practically no motivation for German-speaking pupils to use Italian in a social context. In summary, because of the population distribution, about 60% of school pupils from the German-language group have little motivation to hear and speak Italian, and their study of this second language is in reality equivalent to foreign language study (and one that is loaded with historical, sociological and psychological preconceptions). The same situation faces a similar percentage of Italianspeaking pupils, as they are similarly trapped in their communities and thus have hardly any contact with the German language in their everyday lives.

III. Important Aspects of Education Policy since  A. Dominance Relationships between the German and Italian Languages Since 1972, the language situation in South Tyrol has changed slowly but fundamentally. Even if the enactment decrees on the almost complete equalization of the Italian and German languages (with the exception of the military administration, which still uses the Italian language exclusively) were only issued in July 1988 (under Presidential Decree No. 574), the relationship between the German and Italian languages has already changed in favour of the German language.19

19

The traditional dominance of the national language, Italian, in the Autonomous Province

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The German language is increasingly dominant and the problem of learning German as a second language on the part of the Italian population has become acute. Knowledge of the German language is now a determining factor in economic life, particularly in the private sector, and this is really a new factor in the changed language conﬂict. The Italian language no longer dominates by default; it is also no longer suﬃcient to ﬁnd desirable employment in the private sector. In the public sector, this situation had already been changed by Presidential Decree No. 752 of 1976, which established bilingualism as a prerequisite for employment in public service.20 This new situation has led to increasing protests in the Italian community against mandatory bilingualism, which has only slowly borne a stronger readiness for learning the others’ language. In the early 1990s, this readiness was not apparent to the provincial government, which forbade or strongly restricted school attempts to introduce new organizational models (such as partial immersion instruction) and limited rather than promoted partnerships between schools with diﬀerent languages of instruction. Since 1990, the provincial government has repeatedly taken the approach of introducing second-language German as a mandatory subject for the high school exit exam, which was, at least until 1995, perceived as an unjustiﬁed, coercive measure by most Italian-speaking high school pupils.21 In the intervening years, their attitude has changed slowly but fundamentally. With the reform of the national examination (National Law No. 425 of 10 December 1997), a completely new situation emerged: now every subject in the ﬁnal year of high school of Bolzano/Bozen, South Tyrol, in accordance with the Second Autonomy Statute (or ‘Package‘), should be balanced out though the equalization of German as an oﬃcial and public language (together with Ladin in the relevant valleys). As a vision, it was appropriate that the Second Autonomy Statute established the basis for everyone in the region to speak two (or, in the case of the Ladin valleys, three) languages. 20 While D.P.R. No. 752 of 1976 requires that knowledge of the two oﬃcial languages is the “requirement for ﬂawless execution of services”, it should be speciﬁed that the requirement of familiarity with both oﬃcial languages is evaluated with an examination consisting of two translations and an oral examination, after which an additional translation is often required. The fact that this contradicts the ﬁndings of linguistics and language didactics has been clear at least since the results of the international conference ‘Tradurre—teoria ed esperienze’, held in Bolzano between the 27 February and 1 March 1986. See Alberto Destro, Johann Drumbl and Marcello Soﬀritti (eds.), Tradurre—teoria ed esperienze (Amt für Zweisprachigkeit Bozen, Bozen/Bolzano, 1987). Translations are not suited to evaluate the knowledge of the two oﬃcial languages as the “requirement for ﬂawless execution of services”, at least not for most public employees. Only in January 1999—after lengthy technical and political discussions—was a reform project for the bilingualism exam initiated, de-emphasizing the translation and placing more value on communicative authority. 21 Until the 1997/1998 academic year, all high school pupils in the German-language schools were required to pass an examination in Italian as a second language as part of their exit exams, while pupils at Italian-language high schools did not. Italian-speaking pupils and politicians defended this diﬀerent treatment, stating that the graduating classes of German-language schools had to pass a national exam with validity throughout Italy, which pupils at Italian schools would pass by default. Behind this apparently captivating argument hides a recognizable remnant attitude of colonialism toward the German and Ladin language groups. The diﬀering requirements led to the devaluation of German-language instruction at secondary schools, at least in the ﬁnal year, and surely did not contribute to increased language competence.

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would be an exam subject, evaluated both orally and in writing. In the case of second languages, the provincial government did not intend to introduce a written examination of its own but, in keeping with the national situation (inclusion of a foreign language in the third written examination), an examination of both oral and written competence in the second language is anticipated.22 B. Not One, Not Two, but Three Courses of Education Policy Since the adoption of the Autonomy Statute, only in the beginning was there a common education policy in South Tyrol. This statement applies at least to the period from 1973 until the mid-1990s. The principle of largely separated education policy was fundamentally established in Article 19 of the Second Autonomy Statute but was only elaborated in the ﬁrst enactment decree, Presidential Decree No. 116 of 1973. With this ﬁrst enactment decree, the previous education oﬃce (Provveditorato agli Studi) was replaced by three functionally independent education oﬃces. The Italian education oﬃce received the title ‘main education oﬃce’ and had general supervision authority over the two other education oﬃces but had no authority over either instruction or cancellation.23 At the elementary school level, secondary language instruction in all German- and Italian-language primary and secondary schools became obligatory. Second-language teachers came under the administrative authority of the director of the respective education oﬃce rather than the director of the neighbouring Italian school district, as had previously been the case. In order to understand the two forms of education policy in South Tyrol since 1972, that of the German and that of the Italian schools, it is necessary to consider the Paris Accord of 5 September 1946. With the guarantee of German-language education, ‘mother tongue’ (understood as German as a standard language) instruction became the focus of all eﬀorts in education policy. This was not only because of the presence of the Italian language but also due to the endangerment of the distinctive dialects in South Tyrol’s valley areas. In the ﬁrst decades after World War II, because of the historical conditions described above, this was quite understandable, even if the signiﬁcance of the dialects, as grammatically structured

22

With Decision No. 6115 of 22 December 1998, the provincial government speciﬁed “competence in a second language is provided for in the context of the third written examination. This takes place on the basis of a written work that is based on a literary or technical text, the level of language competence being examined by setting various tasks [. . .] Part of the oral examination is also dedicated to the examination of second language competence.” 23 With a further enactment decree of the Second Autonomy Statute, D.P.R. No. 434 of 1996 granted the power to appoint the chief education oﬃce director and the education oﬃce director of the Ladin areas to South Tyrol’s provincial government. The former was realized in agreement with Italy’s National Board of Education, the latter after a hearing by the Ministry of Education. The power to appoint the director of the German-language education oﬃce was already granted to the South Tyrolean provincial government. With the same implementation instructions, the province also attained legislative power over advanced teacher training, curricula and examination regulations.

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language systems, was clearly underestimated. The force of the language policies under fascism, the prohibition of German-language schools and of the use of the German language and its dialects in public and semi-public situations is deeply embedded in the collective memory of the German-language group. From this memory stems a fear of assimilation and a feeling endangerment. It is thus understandable why, even today, the German language in South Tyrol is often regarded and described as threatened. This is reﬂected in the embracement of monolingualism and monoculturalism. The secondary language is coming to be seen as important for equal integration into social and professional life, as well as other areas, but probably less so than English, which is now mandatory from the second year of secondary school (and introduced in the ﬁrst year of secondary school in certain pilot programmes). Meanwhile, Italian is still all too often regarded as a foreign language and deﬁned as such. The feeling of endangerment is also evident in the fact that close linguistic contact is seen as negative or at least threatening; one often hears talk of the threat of language mixture. Even the necessity for the acquisition of intercultural authority in a multi-cultural and globalized world is regarded rather negatively and frequently as a threat to one’s culture, as a pathway to ‘mixed culture’ rather than an enrichment or deepening of one’s own culture.24 Are these scenarios endangerment fantasies or do they still have some relevance to reality? The best guarantee of a language community’s survival is strong political autonomy, as well as prosperous economic development. “Both these conditions are clearly existent in South Tyrol, so that from an historical perspective, this understandable fear of a creeping undermining of linguistic identity is no longer warranted.”25

24 As an exemplary model, see the guiding principle of the South Tyrolean provincial government, famously summarized by its culture minister in a statement from 1980, nearly 10 years after the enactment of the Second Autonomy Statute: “The more clearly we separate, the better we understand each other”. Anton Zelger, Ja zur Zweisprachigkeit—Nein zur Mischkultur in Südtirol (Südtiroler Volkspartei, Bozen/Bolzano, 1980), 14. This statement is based upon a conscious philosophy of separation, which we know makes it easier to maintain stereotypes and images of the ‘invisible’ enemy other, the further from oneself the representation of the other language group is. Furthermore, it is the core element of a political programme that uses the predominantly ethnic perception of ‘we’ in order to create a feeling of security against fears of danger and uncertainty resulting from an always more anonymous social process, by taking various measures to produce social distance while justifying these with the (frivolous) conscience of peacefulness. For this ethnocentric principle, against the fragmentation of South Tyrolean society into encapsulated communities, Alexander Langer substituted a future-oriented, intercultural model of rational, emotional signposts through political and social initiatives: “The more we have to do with each other, the better we understand ourselves”. Alexander Langer, “Zehn Punkte für das Zusammenleben”, in Siegfried Baur and Riccardo Dello Sbarba (eds.), Alexander Langer. Aufsätze zu Südtirol/Scritti sul Sudtirolo 1978–1995 (Alpha & Beta, Meran, 1996), 234–243. This model certainly reduces the conscious or unconscious readiness for discrimination and devaluation of the other and leads to a stronger assumption of personal responsibility. It cannot be carried out solely by calls, nor by intense short- or intermediate-term application. 25 Commentary by M. Haller, Professor of Sociology at the University of Graz, Die Presse (Wiener Tageszeitung), 26 February 2001.

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In addition, the policy of the Italian schools before the Second Autonomy Statute was distinguished by an overemphasis on the Italian language, an exclusive education policy orientation within the Italian area, an undervaluing of German as a second language and, ﬁnally, limited knowledge of the second language and strong monolingual and monocultural orientations among the teaching staﬀ. The Ladin-language schools take a completely diﬀerent position. “This school regulation calls itself ‘equal representation’, because the two ‘main languages’ are taught in equal parts.”26 The distinguishing characteristic of these schools is the fact that trilingualism and multilingualism were decided upon from the outset. The schools’ multilingualism requires multilingual teachers who speak, write and read Ladin, German and Italian. This necessity is feasible given the demand: there are actually trilingual teachers in the Ladin valleys. They may not always speak as formally proﬁciently as mother tongue German or Italian speakers but they have a good command of all three languages. This is ‘exemplary multilingualism’.27 In the schools of the villages in the Ladin valleys, the timetable in the primary, secondary and upper secondary schools shows an even distribution of German and Italian as languages of instruction. The Ladin language is also used as such, at least at the elementary level. Ladin instruction now takes place for two hours per week at both the primary and secondary levels. It is interesting that the school regulations in the Ladin valleys also require that pupils demonstrate similar success in both German and Italian. The attitude of the Ladin schools and their education policy cannot be compared to the education policy of the provincial government for the German and Italian schools. The school politics of South Tyrol’s provincial government have, in principle, not changed regarding the functional division into diﬀerent school systems up to the present day. The functional separation of the directing bodies of the three educational institutes (for the German, Italian and Ladin language groups)28 has been maintained. Likewise, three evaluation boards (for the German, Italian and Ladin schools) were established at the provincial level.29 These three bodies convene at least twice in the course of the school year “to coordinate the planned activities as well as to jointly deﬁne common objectives for the comprehensive evaluation of the Provincial education system”.30 The establishment of “a common evaluation institution [. . .] is, however, not the same as if there were only a single institution for evaluation at the provincial level, even if this body were to operate with a ‘diﬀerence-conscious inclusion’”,31 that is, with diﬀerentiation according to the three linguistic sub-groups.

26 Theodor Rifesser, Drei Sprachen unter einem Dach. Das Schulmodell an den Schulen der ladinischen Tälern in der Autonomen Provinz Bozen (Istitut Pedagogich Ladin, Bozen/Bolzano, 1994), 15. 27 Ibid. 28 D.Lgs. No. 13 of 30 June 1987. 29 Art. 17 Provincial Law No. 12 of 29 June 2000. 30 Art. 5 Enactment Decree No. 25 of 9 June 2004. 31 Jürgen Habermas, Die Einbeziehung des Anderen (Suhrkamp, Frankfurt, 1996), 174.

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In 1997, an important initiative was introduced to propose an education plan and a concept for the German-language school in South Tyrol. The results of this important analysis and research work were published by the German language group’s educational institute.32 It is a highly interesting research document, which was judged diﬀerently and discussed controversially by politicians and civil servants responsible for educational issues in the German-language group. The results of the study do not aim to advocate for the common development of the three school systems but they do maintain the assertion that the three language groups’ schools continue to place diﬀering and sometimes contrasting emphases in the discussion of objectives, the evaluation of working procedures and results. Mutual knowledge of these conditions is of great importance for further developments in the future. Critical, but open-minded and interpretive, diﬀerent aspects and work initiatives can be the stimuli for constructive discussion and an evaluation and advancement of present praxis. Comparisons are incentives, not obstacles; from them, one can learn and derive chances for one’s own development.33

On 28 July 2003, the provincial government adopted a package of measures for the promotion of language learning in German-language schools. The language concept, upon which the authorities of the German school based their work, has altered little in its basic principles. The matter in question is one point of a scientiﬁcally-based document for language learning. Point 4 of this package emphasized the importance of the relationship between the study of the ﬁrst language to that of the second language and additional languages, a signiﬁcant language and educational policy decision: “A concerted promotion of the ﬁrst language is the condition for learning the secondary language and further languages”.34 This statement is legitimate educational policy but it is scientiﬁcally and didactically unfounded. There is no doubt that the promotion of the ﬁrst language is of great importance to learning additional languages but it is by no means a prerequisite. Languages can be learned simultaneously during infancy, as demonstrated in the scientiﬁc literature and the language experiences of children who grow up in multilingual families.35 The abovementioned introduction of the secondary language in the ﬁrst classes of German-language schools is a reaction to the decreasing use of Italian as a secondary language in the region’s nearly monolingual areas. This decision, made by the provincial government despite protests and administrative diﬃculties did not, however, imply any change in policy for German schools.

32 Pädagogisches Institut Bozen (ed.), Orientierung suchen, Ziele setzen, Schule gestalten (Pädagogisches Institut Bozen, Bozen/Bolzano, 2000). 33 See the Executive Summary in ibid., 21. 34 Schulamt für die deutsche Schule und Pädagogisches Institut (ed.), Sprachenkonzept für die deutschen Kindergärten und Schulen in Südtirol (Deutsches Schulamt Bozen, Bozen/Bolzano, 2004), 16. 35 Kurt Egger, Zweisprachige Familien in Südtirol. Sprachgebrauch und Spracherziehung, Innsbrucker Beiträge zur Kulturwissenschaft, Germanistische Reihe (Insitut für Germanistik, Innsbruck, 1985).

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South Tyrol’s provincial government has, however, clearly changed its school policy vis-à-vis Italian schools, at least since 1997. The ﬁrst attempts to introduce immersion instruction in Italian-language schools as a means of improving pupils’ competence in German as a second language were rejected by the provincial government. These early attempts in elementary and secondary schools date back to 1992. However, they were so brief (usually just three hours per week) that external second-language instruction would have been necessary. Part or even individual aspects of certain subjects were thus taught in the second language. At some primary schools, too‚ ‘co-presence’ (or ‘team teaching’) involving one mother tongue speaker and a secondary language teacher was tried. After months of intense arguments in the press, this innovation was forbidden by the provincial government in February 1996. At the same time, the term ‘immersion’ became taboo and the possibility for second-language instruction of other subjects or the co-presence of both mother tongue Italian and German speakers was forbidden.36 On the Italian side, a complete reorganization of secondary language curricula at the obligatory and ﬁrst upper secondary school levels came about in the late 1980s and early 1990s in the form of ‘open curricula’, the supply of various forms of didactical assistance and the conscious renouncement of a curriculum understood as the memorization of material data and speciﬁed objectives.37 By recognizing the borders of purely didactic and technocratic measures, didactical workshops were organized, in which teaching personnel from the various districts and school levels worked together to collect and compile authentic materials, to make didactical material available, as well as to exchange their experiences and diﬃculties. On the basis of an opinion by the Supreme Administrative Court (Consiglio di Stato), a timetable was inserted into this Provincial Law (No. 2 of 1994), providing for six hours per week of second-language instruction in elementary and secondary schools, beginning with the ﬁrst year of instruction.38 An evaluation using class partnerships and pupil exchange between schools of diﬀerent languages was also conducted.39 Also, in October 1997, the provincial government decided that “guidelines for the instruction/acquisition of German as a second language at Italian-language elementary and secondary schools”40 could not be considered to be a preliminary stage to a paradigm shift. They did stress, however, that such guidelines do emphasize the centeredness of pupils and active learning, placing importance on interculturality, authentic communication contexts and after-school measures such as partnerships. While second-language special and technical instruction for performance levels and project instruction do indeed call for an increase in hours 36 For the Regional Administrative Court Autonomous Department of the Province of Bozen, this didactic measure was compatible with Art. 19 ASt. See Ruling No. 362 of 4 December 1998. 37 This teaching plan would be enacted by D.Lgs. No. 2 of 1994. 38 Protocol No. 1045 of 22 July 1992. 39 Provincial Government Resolution No. 2867 of 29 June 1998, which regulates educationrelated events. 40 South Tyrolean Provincial Government Resolution No. 5053 of 6 October 1997.

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of instruction as well as additional hours for teachers, the organizational structure of the schools remains the same. The attempts to introduce ‘integrated language didactics’ (in German and Italian), primarily in the German and Italian schools, have largely been tied up in coordination discussions and have not led to even periodic team teaching. In the context of the provincial government’s guidelines, a pilot project for playful contact with the second language of German was realized in the Italian kindergartens.41 At the moment, this project, which envisages the all-day presence of mother tongue German kindergarten pupils at ten Italian-speaking kindergartens, is in operation. At the other kindergartens, 5-year-old children receive 3–4 hours per week of German secondary language instruction by a private language agency free of charge, thanks to funding from the provincial government. These measures had no eﬀects on the German kindergartens, in which numerous Italian mother tongue pupils have been enrolled in recent years, especially in the larger municipalities. The provincial government has provided for an increase in kindergarten staﬀ in order to promote the sustained development of mother tongue competence in German. The adoption of Legislative Decree No. 12 of 2000, which assigned the schools’ didactic and ﬁnancial autonomy and legal character, made it possible (under Art. 22) to use additional resources for second-language instruction of German. Thus, in the 2003/2004 school year, several Italian elementary and secondary schools, as well as one high school, were provided with ‘trilingual sections’, in which a limited amount of special and technical instruction is conducted in both German and Italian. This initiative, called ‘Content Language Integrated Learning’ (CLIL), was expanded in the 2004/2005 school year. Finally, Legislative Decree No. 61 of 29 April 2003 also adopted “development guidelines for German as a second language at the Province of Bolzano/Bozen’s Italian-language high schools”, in order to establish a hermeneutic basis for second-language instruction at the high school level. The provincial government did not change the objective of its education policy but it did enable the Italian-language schools, either explicitly or implicitly, to undertake special initiatives addressing the special needs of (German-Italian) bilingualism in the Italian language group. Schools in Ladin areas have remained unaﬀected by all these measures; in these schools, in the context of their equal representation, proper bilingual instruction (German and Italian) was realized and furthered intensively by new didactical procedures such as integrated language didactics.

41

Provincial Government Resolution No. 5053 of 1997.

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C. Overview All of Europe’s education policies in the future must be aligned with the promotion and protection of cultural and linguistic variety. Education and training policy in South Tyrol must also face this challenge for all its language groups. Attempts to introduce the often controversial bilingual school model, following that of the Ladin areas’ schools mentioned above, has been limited to the shortand medium-term for the historical reasons discussed above, even if these stated sociolinguistic reasons present no real alternative. For the approximately 10% of pupils who come from multilingual families (German/Italian), there is no appropriate type of school. For these children, a bilingual, scientiﬁcally-based school model could be experimented with, in order to determine whether it can be meaningful, under precisely deﬁned conditions, to oﬀer such an instructional model at the obligatory school level. However, this primarily applies to a few urban areas. In the context of the existing educational system in South Tyrol, the possibility already exists to develop lessons from the experience of the individual schools that have already promoted multilingualism as a central goal. The centrality of multilingualism should be reﬂected in the curricula, in interdisciplinary planning, in instructional styles, in the school’s physical learning spaces and in the contacts that the school maintains. The languages should not, however, come together only in pupil’s heads but also in their interaction with other pupils. If this model is followed, the linguistic compentences expected of the pupils who live and study at a school where multilingualism is obligatory would be concretely deﬁned; what it means to attend school in several languages, to communicate with and to be taught in several languages would be clariﬁed; the mutual use of the languages could be organized without founding a completely diﬀerent school with German and Italian as languages of instruction; and, ﬁnally, a multilingual school curriculum could be created in which several languages can take on a transversal role. One idea would be to reserve a certain number of hours in which pupils work in several languages, in which the language teacher of an integrated class could completely and concretely realize language didactics, in which various projects could be realized in cooperation with Italian-language school classes. In addition, this would allow the school to enter into partnerships with school classes of another language of instruction either within the province, in other provinces of Italy or even in other countries, as well as, ﬁnally, to promote and facilitate exchange projects and foreign school stays. The realization of these suggestions and possibilities requires, however, that the teaching personnel possess suﬃcient competence in the secondary language of instruction, as well as the English language.42

42 Martin Dodman, “Crescere in più lingue, Ricerche sul pluralismo in ambito scolastico”, Quaderni di Documentazione dell´Istituto Pedagogico di Bolzano (2001) No. 10, 1–128, at 125.

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Posing such a challenge would mean making South Tyrol into a multilingual province whose inhabitants are capable of speaking languages with great familiarity, those languages being either the mother tongue or a well-known foreign language, but also recognize that there are other languages that are relevant to their daily lives, be they the secondary language or the ﬁrst and second foreign language, regarding which there is much to discover. The establishment of the Free University of Bolzano/Bozen in October 1997, which opened in the 1998/1999 academic year and took up the task of educational training, is a concrete chance in this direction. The fact that the Free University of Bolzano/Bozen decided in principle on trilingualism and multilingualism is a positive sign for a European language and education policy in the Autonomous Province of Bolzano/Bozen and could provide a model for many other European regions.

IV. Foreign Pupils and the Educational System in South Tyrol The last few decades in South Tyrol, along with the rest of Italy, have been dominated by a signiﬁcant increase of immigration from non-EU countries.43 This rapid demographic change is largely conﬁrmed by the data concerning the enrolment of foreign pupils44 in South Tyrolean schools (nursery, primary, secondary and upper secondary schools): as of 2005, around 1,700 non-EU pupils were enrolled in the Italian-speaking schools, representing 12% of the total student population of these schools, while the German-speaking schools counted around 1,300 non-EU pupils, representing approximately 2.5% of their total student population.45 The data conﬁrms that the number of foreign pupils in South Tyrolean schools is on the increase,46 particularly in the Italian-speaking schools.47 Most foreign students come from Albania (17.5%), Morocco (10%), Yugoslavia (9%) and Pakistan (7.6).48 However, foreign pupils in South Tyrol are mainly children born

43 In 1990, the number of non-EU citizens resident in South Tyrol was below 0.1%, while at the end of 2005, this percentage raises to 3.8% (18,717 non-EU citizens out of a total population of 485,042). ASTAT, “Gli stranieri in provincia di Bolzano 2005”, June 2006, No. 17. 44 Except when otherwise indicated, the term ‘foreign pupils’ is used to refer to non-EU pupils only. 45 Due to the modest number of foreign pupils enrolled in the Ladin-speaking schools (around 100 students, equivalent to 1.3% of the student population), oﬃcial statistics often include them in the data concerning German-speaking schools. See ASTAT, “Stranieri nelle scuole della provincia di Bolzano, 1995/1996–2004/2005”, No. 126. 46 In Italy, foreign pupils represent 4.2% of the total student population (Albanians 16.7%, Moroccans 14.4%, Romanians 11.5%, Chinese 5.2%). In other European countries, the percentages are as follows: Switzerland (23.6%), United Kingdom (15%), the Netherlands (13%), Germany (10%) and France (5%). See Caritas/Migrantes, “Immigrazione—Dossier Statistico 2005”, Report XV, 169. 47 ASTAT, op. cit. note 43. 48 The large presence of immigrants from Pakistan, adults and minors alike, is a particular fea-

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in South Tyrol (this is the case for many Pakistani, Senegalese, Moroccans and Tunisians) and children who joined one or both parents through reuniﬁcation procedures. There are also children who have been adopted through international procedures (especially from Romania, Russia and Peru, as well as India and Brazil), refugees and unaccompanied minors. According to a rough estimation, approximately 65 diﬀerent languages are spoken by these groups.49 The increasing presence of foreign pupils with diﬀerent cultures, languages and religions poses for the school system the task of developing new strategies and programmes to tackle the problems raised by this relatively new phenomenon. The most urgent and immediate problems are those connected with the language(s) of instruction (Italian and German), while other problems are connected with the more complex questions of accommodating diversity and guaranteeing an adequate standard of education for all students, natives and foreigners alike. For the German-speaking schools, awareness of these issues is rather recent, as the increase in the number of non-EU pupils has occurred in these schools only in the last few years.50 The provincial education authorities (Deutsches Schulamt) and teachers in the German-speaking schools have only recently realized that non-EU students are a stable and constant presence in their schools and that appropriate strategies and programmes should be adopted. The large percentage of foreign pupils in the Italian-speaking schools may be a source of concern for the German-speaking community, especially if one looks to the future: having attended an entire school cycle in Italian-speaking schools, if these pupils then acquire Italian citizenship51 they might be inclined, it is argued, to declare themselves to belong to the Italian-speaking group.52 This, in turn, might result in a modiﬁcation of the ethnic balance existing in the province, whose repercussions are rather diﬃcult to predict.53 The provincial education authorities (Istituto Pedagogico Italiano) and teachers of the Italian-speaking schools have garnered more experience in comparison to their colleagues from the German-speaking schools on policies aimed at the

ture of the immigrant population in the province. In the rest of Italy, the number of students from Pakistan represents only 1.5% of the total student population. Provincia Autonoma di Bolzano, Osservatorio Provinciale sulle Immigrazioni, Giovani immigrati in Alto Adige, Ricerca sull’integrazione dei giovani di nazionalitá straniera nati o cresciuti in provincia di Bolzano (Autonomous Province of Bolzano, Bolzano/Bozen, 2005). 49 Ibid. 50 Traditionally, in the German-speaking schools most foreign pupils were from Germany and Austria. ASTAT, op. cit. note 43. 51 According to Italian legislation (Citizenship Act No. 9 of 1992), children born in Italy of foreign parents acquire the citizenship of their parents. Italian citizenship can be acquired through naturalization after ten years of regular residence. A draft law of 4 August 2006 on amendments to the Citizenship Act that aims to reduce this waiting period to ﬁve years of residency is currently under discussion in the Italian parliament. 52 Norbert Dall’Ò, “Multikulti über Nacht”, ﬀ-Südtiroler Wochenmagazin, 26 January 2006, 15. See the chapter in this volume by Emma Lantschner and Giovanni Poggeschi on the census and declaration of linguistic aﬃliation. 53 Ibid.

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integration of foreign pupils due to the higher percentage of foreign pupils enrolled in their schools (see above). Moreover, Italian-speaking schools have a particular interest in foreign pupils because they guarantee, in many instances, the preservation of classes located in peripheral areas mostly inhabited by German-speaking communities that, without foreign pupils, might be closed for lack of a suﬃcient number of students.54 National legislation concerning school enrolment and integration of foreign children, which ﬁnd application also in the Province of Bolzano/Bozen, establishes that foreign minors present in Italy have the right to education irrespective of their particular immigration or residence status: even children of undocumented migrants have thus the right to be enrolled in schools.55 In this regard, a central question is how to establish what schooling a foreign child has already had and to what extent that is equivalent to the school system the child is about to enter. When a child enters a new school system, there is a need to assess what he/she already knows in the main curricular areas, as well to evaluate his/her existing level of ability in the language(s) of instruction. This has indeed a close bearing on the way in which the child is integrated into the school system. According to Italian legislation, pupils can be enrolled at any time during the school year and should be enrolled in classes corresponding to their age group.56 If the age of the child concerned is the primary criterion for enrolment in school, exceptions can be made by the teaching body of the school concerned by taking into consideration the level of competence, skill and preparation of the child, including his/her language knowledge, the studies completed by the child and any school certiﬁcates the child may have.57 In any case, however, the pupil should not be placed in a class more than two years below that of his/her age but in the one immediately above or immediately below his/her age group.58 However, cases have been reported, in both the German and Italian-speaking schools, in which foreign pupils have been allocated to classes two or even three years below that of their ages.59 Statistics reveal that foreign pupils face more diﬃculties at school than their native schoolmates: scholastic failure among foreign pupils has reached propor-

54

Marco Ferretti, “Scuola ed alunni stranieri: esperienze e progetti di integrazione”, Quaderni di Documentazione dell’Istituto Pedagogico di Bolzano (2002) No. 11, 9–21, at 14; “Die Schule allein schaﬀts nicht”, ﬀ-Südtiroler Wochenmagazin, 26 January 2006, 15 (interview with Peter Höllrigl, provincial director of education for the German-speaking schools). 55 Art. 38 D.Lgs. No. 286 of 25 July 1998; Art. 45 D.P.R. No. 394 of 1999; C.M. No. 24 of 1 March 2006. 56 D.P.R. No. 394 of 1999; C.M. No. 87 of 23 March 2000; C.M. No. 3 of 5 January 2001; C.M. No. 93 of 23 December 2005; C.M. No. 24 of 1 March 2006. 57 D.P.R. No. 394 of 1999; C.M. No. 24 of 1 March 2006. 58 C.M. No. 24 of 1 March 2006. 59 Valentina Bergonzi and Sigrid Hechensteiner, “Giro, giro tondo … giro attorno al mondo”, Academia, (2006) No. 2, 36 (interview with Marco Ferretti and Herta Goller, the oﬃcers responsible for the integration of foreign pupils in the Italian and German-speaking schools, respectively).

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tions that are clearly higher than average.60 As far as South Tyrol is concerned, scholastic failure among foreign pupils is approximately 6%, compared to 3% for native pupils.61 Oﬃcial data also reveal that the diﬀerence between foreign pupils and Italian students in terms of scholastic failure increases with corresponding increases in scholastic grade.62 According to a study conducted by the Italian ministry of education,63 among the main grounds for the higher percentage of scholastic failure among foreign pupils is, on the one hand, the lack of a previous education in Italy64 and, on the other hand, the high percentage of foreign pupils in individual classes. As regards the former problem, it is relevant to recall that Article 19 of the Autonomy Statute for Trentino-South Tyrol concerning the right of each pupil to receive education by teachers of their mother tongue and the obligation to learn the language of the other linguistic group, German or Italian, ﬁnd application also vis-à-vis foreign pupils attending schools in South Tyrol.65 Accordingly, foreign pupils can choose to attend either a German- or an Italian-speaking school but, as with other pupils, they are under an obligation to learn both languages, German and Italian, in addition to a third language, usually English.66 Besides, the knowledge of their mother tongue does not grant them any additional curricular advantage. From the foregoing, it is evident that in South Tyrol the use of the oﬃcial languages at school may represent for foreign pupils an enriching opportunity but also a serious obstacle to their capacity to attend more diﬃcult levels of schooling, as is evidenced by the data on their scholastic failure. As for the latter grounds of scholastic failure, studies conducted by the Italian ministry of education reveal that foreign pupils have more chances of succeeding at school if their numbers in each individual class are limited.67 Along these lines, the recent National Guidelines on the Integration of Foreign Students adopted

60 In Italy, the scholastic failure rate among foreign pupils is 14% compared to 6% among natives. MIUR, “Indagine sugli esiti degli alunni con cittadinanza non italiana. Anno scolastico 2003/2004”, Report of the Ministry of Education, University and Research (2005), 25–28, at . 61 ASTAT, “Insuccesso scolastico nelle scuole dell’Alto Adige. Anni scolastici 1994/1995– 2003/2004”, February 2005, No. 6. A rate of of scholastic failure of 10.6% among foreign pupils compared to 3.6% among natives has been registered in secondary schools, with the highest percentages occuring in areas predominately inhabited by German-speaking communities. ASTAT, op. cit. note 43. 62 The data is alarming, even considering that a certain scholastic delay among foreign pupils is often due not to scholastic failure but to enrolment in a class at a lower level than the one corresponding to the age of the child, a practice that, as seen earlier, is not uncommon also in the schools of the province and which is due in most of the cases to insuﬃcient command of the language(s) of instruction. 63 MIUR, op. cit. note 60. 64 As far as upper secondary schools are concerned, 65.1% of scholastic failures concern students without previous education in Italy. Caritas/Migrantes, op. cit. note 46, 172. 65 Art. 19 ASt. 66 Ibid. 67 MIUR, op. cit. note 60, 5–6.

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by the Italian Ministry of Education (hereinafter “the National Guidelines”) encourage education authorities to allocate students so as to avoid the formation of ‘homogenous’ classes in which foreigners from the same country of origin or the same religion predominate and, to this eﬀect, they call for the strengthening of school networks in cooperation with local authorities.68 With a view to fostering the integration of foreign pupils, education authorities and schools in South Tyrol have developed various initiatives and programmes, in particular, by making reference to the Provincial Law on ‘School Autonomy’.69 This law introduced autonomy in teaching and organization and paved the way for innovation in the ﬁeld of educational research and experimentation in individual schools.70 The school autonomy is to be put into practice in developing and implementing instruments and projects, including optional and facultative courses, which recognize and enhance diversities and promote the scholastic success of each pupil.71 In particular, programmes and methodologies implemented by schools in the province in meeting the challenge of the integration of foreign pupils have been motivated by the following goals:72 1) Inclusion of all students from the initial moment of their enrolment in school—this means clear procedures for allocating pupils in classes, recognition of their rights, mobilization of resources to communicate with the pupil and his/her family; 2) Teaching of the language(s) of instruction—German and Italian—to improve communication and students’ ability to study; and 3) Interculturalism, implying exchange between cultures, mutual respect and tolerance.73 To foster knowledge of the language(s) of instruction among foreign pupils and relieve teachers in mainstream classes from the ‘burden’ of having students who do not have a good command of the language of instruction, the provincial government is currently discussing the opportunity to set up language centres for foreign pupils outside school premises, where courses on the languages of instruction—Italian and German—will be provided.74 At the time of writing, the

68 The National Guidelines also admit that, for speciﬁc educational requirements, homogenous groups can be temporarily created. MIUR, “Linee guida per l’accoglienza e l’integrazione degli alunni stranieri”, C.M. No. 24 of 1 March 2006, para. 1, at 6. 69 Provincial Law on ‘School Autonomy’ No. 12 of 29 June 2000. 70 Ibid. 71 Ibid., Art. 6. 72 See Ferretti, op. cit. note 54. 73 Art. 36(3) Immigration Law No. 40 of 6 March 1998; Uniﬁed Immigration Act, D.L. No. 286 of 25 July 1998; Art. 6 Provincial Law on ‘School Autonomy’ No. 12 of 29 June 2000. 74 See Dall’Ò, op. cit. note 17, 13; Mirco Marchiodi, “Scuola speciale per i bambini stranieri”, Alto Adige, 13 June 2006.

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provincial government has not decided yet on a crucial point of this initiative: whether attendance at these courses will be obligatory before enrolment in mainstream classes or whether these courses can be attended during the school year.75 This proposal represents an exception to the model followed so far in South Tyrol and the rest of Italy to integrate foreign pupils in mainstream education, namely the so-called ‘integrated model’, in which foreign pupils are allocated to classes consisting of children of the same age (or, as seen earlier, younger depending on circumstances). Under this model, measures for linguistic support are implemented on an individual basis for each pupil during normal school hours or can be provided outside normal school hours but always on school premises. The said proposal assumes instead the form of a separate model whereby foreign pupils are grouped together separately from other pupils so that they can receive special attention geared to their needs. At this stage, however, it is still unclear whether pupils will be able to attend at least some lessons in the mainstream classes with other pupils.76 In this context, the National Guidelines appear to favour an integrated model whereby foreign pupils can attend mainstream classes with native pupils of the same age and can beneﬁt from ‘linguistic immersion’ in these classes.77 Yet, having stated that it is necessary for foreign pupils to spend school hours with the rest of the class, the National Guidelines aﬃrm that exceptions can be made for speciﬁc education projects, such as linguistic tuition in the language of instruction.78 Hence, a broad margin of appreciation is left to the local education authorities and schools on how speciﬁc linguistic support measures should be arranged. This is a consequence of the decentralized model adopted by the educational system in Italy, in which support measures depend largely on the resources at the disposal of local education authorities and schools. Besides introducing measures to help foreign pupils learn the language(s) of instruction, attempts have been made in South Tyrol to provide parallel support to teach their mother tongue and learn about the culture of their country of

75 Marchiodi, op. cit. note 74. Note that the president of the provincial government had already proposed to set up parallel schools for foreign students where instruction would have been provided equally in German and Italian. The provincial ministers on education, Luisa Gnecchi and Sabina Kasslatter-Mur, criticized this proposal as marginalizing and as potentially leading to radicalization. See Stephan Pfeifhofer, “Zweisprachige Schule für Klein Abdul”, Dolomiten, 12 February 2002. 76 This new linguistic support measure has been ﬁercely criticized by most local experts as being a duplication of linguistic laboratories existing in schools and as fostering alienation and separation instead of integration. “Kombi-Modell bevorzugt”, ﬀ-Südtiroler Wochenmagazin, 2006, 13; Bergonzi and Hechensteiner, op. cit. note 59, 37; Provincia Autonoma di Bolzano, op. cit. note 48, 80. 77 The National Guidelines state: “Linguistic tuition of [. . .] [the language(s) of instruction] should be part of the daily learning and school life of foreign pupils with the support of linguistic laboratories, instruments and programs aiming at the intensive teaching of [. . .] [the language of instruction]”. Moreover, they aﬃrm: “Immersion, in a context where the second language is spoken by adults and other pupils, facilitates the learning of the functional language”. MIUR, op. cit. note 68, para. 4, 12 and para. 2, 11 (author’s translation). 78 Ibid., para. 2, 11.

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origin.79 Some schools have organized, for instance, courses on the Arabic language, Arab traditions and culture for children coming from the Maghrebi area, while other schools have organized the reading of fairytales in the mother tongue as an attempt to maintain the language of origin of foreign schoolchildren.80 The National Guidelines aﬃrm that the conservation of the mother tongue facilitates communication within the family and produces cognitive and emotional skills, leading to the development of a multilingual identity, which is one of the bases of the process of integration.81 Yet, in order to avoid separatism and marginalization, projects aimed at the preservation of the mother tongue and culture of foreign pupils should be implemented under a perspective of broad integration and should be left to the individual choice of each pupil and his/her family.82 When discussing the integration of foreign pupils an important aspect is the religion of the child and of his/her family. In accordance with Italian legislation, non-Catholic pupils are entitled to decide when enrolling in school whether they wish to take classes in religious (Catholic) education or not.83 Those who opt not to take part in such classes may opt to take part in alternative educational activities or to study or conduct research individually with or without the help of teaching staﬀ.84 Besides, under the agreement between the Italian government and the Union of Italian Jewish Communities (Unione delle comunitá ebraiche), Jewish pupils may refrain from attending school on Saturdays.85 So far there are no oﬃcial agreements with other religions.86 According to a rough estimation, approximately 60% of foreign minors resident in South Tyrol belong to the Muslim religion.87 Due to the increasing presence of foreign pupils in the South Tyrolean schools, the number of pupils who opt not to attend religious education is on the increase: in recent years (2000– 2005), the number of children who have been exempted from religious classes has doubled.88

79

See EU Council Directive 77/486/CEE; Ibid., para. 4, 12. Mirca Passerella and Alessandra Zimbelli, “Percorsi didattici e attivitá di laboratorio”, Quaderni di Documentazione dell’Istituto Pedagogico di Bolzano (2002) No. 11, 57–131, at 61–62. 81 MIUR, op. cit. note 11, para. 4, 13. 82 Studies have evidenced that foreign children often dislike being perceived as diﬀerent from the rest of their schoolmates and tend thus to assimilate in the mainstream culture and refuse opportunities to foster knowledge of their mother tongue and culture of origin. See Paola Pinelli et al., Interculturalitá e integrazione nella scuola elementare. Il punto di vista del bambino straniero—Ricerca esplorativa (Vis, Roma, 2004); Passerella and Zimbelli, op. cit. note 80, 62. 83 Art. 9 (2) Law No. 121 of 25 March 1985. 84 Ibid. 85 Law No. 638 of 20 December 1996. 86 European Commission, “Integrating Immigrant Children into Schools in Europe”, Eurydice Report 2004, 54, at . For an overview, see the Osservatorio delle libertá ed istituzioni religiose website, at . 87 Provincia Autonoma di Bolzano, op. cit. note 48, 79. 88 In South Tyrol, the proportion of pupils who opted not to attend religious classes stood at approximately 3% (primary schools 2.7%, secondary schools 2.6%, upper secondary schools 4.1%). ASTAT, “Scuole elementari in Alto Adige, Anno scolastico 2005/2006”, 13 April 2006, 80

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Finally, with a view to enhancing the integration of foreign pupils and guaranteeing the right to education on an equal footing with native pupils, the school system of the province has introduced a new institution, the ‘cultural mediator’, charged with facilitating the communication and relations between foreign pupils, schools and families.89 The ﬁrst qualiﬁcation course for cultural mediators was organized by the province in 2001 to facilitate relations between the public administration and the foreigners and improve their access to public services.90 Since then, various local NGOs have been created in the province that provide mediation services, in particular in the education, social services and health sectors.91 The National Guidelines specify that among the tasks of the cultural mediator is to provide information about the schooling system of the country of origin and the student’s personal education background; to translate and explain administrative documents to the families and mediate between teachers and families in case problems arise; and to make proposals regarding speciﬁc projects aimed at promoting better understanding of the cultures and languages of the countries of origin of the pupils concerned.92 In conclusion, immigration has become a stable component of society in South Tyrol and the presence of foreign pupils with diﬀerent languages, cultures or religion is gradually becoming an ordinary and common situation in most of the schools of the province. An important factor for fostering the integration of foreign pupils will be to develop among students, foreigners and natives alike, a sense of common belonging and of sharing a common fate, a perception of trustworthiness, loyalty and commitment. However, an inclusive conception of membership and of a shared community is not suﬃcient per se to guarantee social cohesion, even though they are necessary conditions. As the riots in France’s suburbs in late 2005 have well illustrated, more credible and eﬀective actions in combating discrimination and fostering equal opportunity are also pivotal to developing a sense of inclusive citizenship and loyalty to an adopted community in order to avoid alienation and radicalization among foreign youth.93

No. 16; ASTAT, “Scuole medie in Alto Adige, Anno scolastico 2005/2006”, 4 April 2006, No. 12; ASTAT, “Scuole superiori in Alto Adige, Anno scolastico 2005/2006”, 14 June 2006, No. 24. 89 See Art. 42(1) Immigration Act. 90 See Provincia Autonoma di Bolzano, “Rapporto sulle attivitá dell’amministrazione provinciale—2001”, Ripartizione Formazione Professionale in Lingua Italiana, Provincia Autonoma di Bolzano (2001), 261. 91 Among others, Mosaik and Porte Aperte. 92 MIUR, op. cit. note 68, para. 6, 14. 93 See, in this regard, the activities of the Provincial Centre against Discrimination at the Provincial Observatory on Immigration established in the province in 2003. Matthias Oberbacher and Salvatore Saltarelli (eds.), Osservatorio provinciale sulle immigrazioni della provincia di Bolzano— Aspetti metodologici e strumenti di indagine (Praxis, Bolzano/Bozen, 2005).

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At the end of the present survey, it is possible to formulate some summary conclusions, in order to anticipate the future developments of the school system in the Province of Bolzano. That is, to propose some critical remarks about the institutional choices that the national legislator or the provincial legislator have followed until now. First of all, a rather interesting phenomenon is noticeable. The most recent progresses in educational activity have highlighted both the original system crisis and the operative diﬃculties of the provincial educational policy, which was traditionally oriented towards the static conservatism of ethnic diﬀerences. This is an example of the consequence of the necessity of recognizing opportunities to cultural minorities that do not correspond to deﬁnite territorially-based linguistic minorities. Moreover, in this context, the local assertion of the autonomy principle of the school institutions, which has by now become constitutionalized and has certainly helped to change the global horizon for every possible debate, has found its perfect expression. In fact, through the assertion of this autonomy, the necessity of technical transmission of learning and knowledge (not only in the linguistic ﬁeld) tends to become oriented towards the necessity of pursuing school ‘policies’ that are supervised by the territorial organs of government and subjected, as such, to the pressures that the application of organizing criteria in regard to the distribution of linguistic groups has created. In the end, the system of the Province of Bolzano remains in limbo between the transformation and the complex modernization of the rules that were originally ﬁxed in the Autonomy Statute of 1972 and the ‘relief ’ of the school subject from these socio-linguistic pressures, with a full acknowledgement of the relationship, as postulated also by the constitutional legislator, between the aﬃrmation of the technical autonomy of every school and the necessity that the scholastic preparation of every student be realized. This does not mean, obviously, that the autonomy of school institutions could hypothetically permit a complete sterilization of the linguistic debate (that is, a drastic and immediate overcoming of the cultural conﬂict between the educational model of the Italian language and the educational model of the German language). The recognition that the school autonomy system merits reﬂection constitutes an opportunity to focus the debate on the procedural and organizational instruments inside each individual school, which can compensate such pressures and translate them into a proposition for an advanced educational system. At one time, the school system in South Tyrol represented, in Italy, the ﬁrst case in which students were eﬀectively forced to confront themselves, although in a divergent way, with diﬀerent cultures and languages. To progress from this experience, one can only hope that the same background will also provide a solid enough mainstay to explore an autonomic and responsible educational model, as well as, above all, one that is open to global and multicultural challenges.

CHAPTER FOURTEEN

LINGUISTIC RIGHTS AND THE USE OF LANGUAGE Cristina Fraenkel-Haeberle

I. Origins of the Problem For anyone living outside South Tyrol, it might prove diﬃcult at times to understand the heated debate that sometimes reaches the ﬁrst pages of the local newspapers concerning linguistic rights and, more recently, the use of toponyms.1 It must sound ironic that, in a province where full employment and economic well-being reign, its citizens get hot under the collar when discussing the (single language, double language or triple language) name to be given to a mountain farmhouse or stream or Alpine meadow. Experience teaches us, however, that reactions that, considered out of context may seem absurd or exaggerated, can be correctly interpreted only when viewed within their proper context. Thus, in order to comprehend the origins of the problem and to understand why in South Tyrol it has become commonplace to say that everything is centred around the language issue, one must examine the historical evolution that generated the need to protect the use of language and to envisage laws that deﬁne the special linguistic rights in force in the Province of Bolzano/Bozen. The issue concerning the use of language came to the fore with South Tyrol’s annexation to Italy after World War I. Indeed, this annexation ruptured the linguistic unity that had been conﬁrmed and defended as a symbol of Italian national independence. Such unity had actually taken a long time to develop, considering that in uniﬁed Italy it was dialects that dominated the scene. The use of dialect in a double-language regime prevailed over the use of standard Italian, thus generating the need to reinforce the use of the latter. The denial of linguistic pluralism and the disregard of the presence of linguistic minorities on Italian territory therefore became almost imperative at the end of the nineteenth century, considering that the primary goal was to streamline communication within the uniﬁed state. Another objective was to strengthen the new national entity that had emerged from a fragmented and inhomogeneous reality. In this sense, language was to eﬀect an essential cohesive action.2

1

See Section V for a more extensive examination of this concept. See Alessandro Pizzorusso, “La politica linguistica in Italia, il caso della Provincia di Bolzano e la legge di attuazione generale dell’art. 6 della Costituzione”, in Joseph Marko, Sergio Ortino and Francesco Palermo (eds.), L’ordinamento speciale della Provincia Autonoma di Bolzano (Cedam, Padova, 2001), 101–138. 2

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A much more radical linguistic nationalism operated during the twenty years of fascism, however. According to the political ideology then in force, the population occupying the Italian territory was to be totally assimilated in terms of linguistic proﬁle, since language was considered to be the primary means of expressing and asserting ‘the Italian spirit’. The alternative to this linguistic assimilation and therefore to the obligation to use the Italian language exclusively—to the point of translating into Italian one’s ﬁrst and last names—was reunion with the German ‘nation’ and therefore assimilation with a German-speaking reality. This is the strict—and to our eyes perverse—logic that underlay the ‘Options’ Agreement of 23 June 1939 regarding expatriation to the German Reich (which, in the meantime, had annexed Austria) for the inhabitants of southern Tyrol who had ‘opted’ for German citizenship (the so-called “Heimkehrer”). The great majority of South Tyrol’s German-speaking inhabitants (86%)3 under fascist rule accepted this forced migration, the purpose of the manoeuvre being to eliminate the problem at its roots and to make the linguistic border coincide with the theoretically-deﬁned geographical one. All German-speaking South Tyrolese who decided to stay in South Tyrol (the so-called “Dableiber”), were forced to totally abdicate their linguistic identity. Under the fascist regime, German or Ladin toponyms were replaced with Italian ones. In actual fact, these translations were not a product of fascism, which only made oﬃcial the translations already made by irredentists (Ettore Tolomei above all),4 in order to legitimize the Italian claims on this border land. At that time, they had eﬀected a free translation of existing geographical names. During fascism, the use of the German names was forbidden.5 Following the hard times of laws and restrictions that enforced total intolerance, once the war was over a new era began in which legislation, in the shape of a constitutional law and reinforced by an international agreement, became the conduit for consolidating tolerance and linguistic pluralism. It is indeed from an international agreement (in simpliﬁed form) that one should begin, namely from the Paris Agreement6 of 5 September 1946, as this agreement holds in nuce the principles that would generate the subsequent reg-

3 See, for more, Andrea di Michele et al. (eds.), Pariser Vertrag Gruber-Degasperi (Provincia Autonoma di Bolzano, Bolzano/Bozen, 2006), published by the Province of Bolzano/Bozen on the occasion of the celebrations for the 60th anniversary on 5 September 2006, at . 4 Ettore Tolomei was born in Rovereto in 1865 to Italian emigrants. An inﬂamed nationalist, he disseminated the idea of the need to create a border at Brenner, contrary to that of most irredentists, who kept national revendication within the ethnic/linguistic borders (at the narrowing of the valley (Chiusa) at Salorno). In 1906, he began the drafting of the Prontuario dei nomi locali dell’Alto Adige [Table of Local Names of South Tyrol], later published by the Reale Società Geograﬁca Italiana in 1916. Contrary to what is often exploitingly stated, the Italian toponymy of South Tyrol is not of fascist origins, as it was prepared well before fascism rose to power. 5 See Peter Hilpold, “La regolamentazione della toponomastica in Trentino-Alto Adige”, in Marko, Ortino and Palermo, op. cit. note 2, 801–814, at 802. 6 Also known as the ‘Gruber-Degasperi Agreement’, named after the Foreign Ministers of Italy and of Austria who signed it.

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ulation of the use of language in South Tyrol. Indeed, in Article 1, the Paris Agreement starts by announcing that the “German-speaking inhabitants of the Province of Bolzano [. . .] will be assured a complete equality of rights with the Italian-speaking inhabitants within the framework of special provisions to safeguard the ethnical character and the cultural and economic development of the German-speaking element”. This enunciation is speciﬁed further on, providing for German-speaking citizens: elementary and secondary teaching in the mothertongue (lit. a); parity of the German and Italian languages in public oﬃces and oﬃcial documents, as well as in bilingual topographical naming (lit. b); the right to re-establish the German family names that were Italianized in recent years (lit. c); equality of rights as regards entry into public oﬃces, with a view to reaching a more appropriate proportion of employment between the two ethnic groups (lit. d).7 These were the premises for a discipline of linguistic rights that was to produce, as a reaction to the enforced linguistic assimilation operated by fascism, the assertion of a minority culture through the mostly separate use of the two languages. Separate schools were to be created for the two linguistic groups (these too are the subject of a speciﬁc chapter in this volume)8 and the mainly separate use of the one or the other language was promoted in citizens’ relations with the public administration and on the part of elective bodies. Furthermore, prevailingly monolingual proceedings were to arise, in addition to which the request was made to restore a large number of original (monolingual) toponyms in German.

II. Separation as the Instrument for Stabilization A. The Legal Basis This section focuses mainly on the analysis of the provisions of the Second Autonomy Statute (ASt),9 which, in its capacity as the “Constitution of South Tyrol”, ensures the eﬀective defence of the use of language in the Province of Bolzano/ Bozen. Such regulations are contained mainly in Part XI of the Statute, under the heading “Use of the German and Ladin Languages”. In this context, in this region, German is set on a par with Italian, which is the oﬃcial state language, and in the bilingual drafting of legislative texts (Art. 99). German-speaking citizens of the Province of Bolzano/Bozen are also granted the right to use their own language in their relations with judicial authorities and with other public administration bodies and oﬃces located in the province and with regional powers, as well as with the companies with concessions to provide public utility services in the same province (Art. 100). The regulations also envisage 7 As this last point will be analyzed in greater detail in a later chapter, it will not be analyzed here. See the chapter by Giovanni Poggeschi and Emma Lantschner in this volume. 8 See the chapter by Siegfried Baur and Roberta Medda-Windischer in this volume. 9 Issued by Presidential Decree No. 670 of 31 August 1972.

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the alternative use of the Italian and German languages in the meetings of the Councils of the Region, of the Province of Bolzano/Bozen and of the municipalities, and therefore the use of simultaneous interpretation at said meetings if requested. Articles 99 and 100 in turn are based on item b) of the Gruber-Degasperi Agreement. After a gestation period of sixteen years, the statutory principles were deﬁned by an enactment decree, D.P.R. No. 574 of 15 July 1988, subsequently amended and supplemented by Legislative Decree No. 283 of 29 May 2001 and by Legislative Decree No. 124 of 13 June 2005. A regulatory activity of the use of the language is also envisaged, namely through the institution of a Joint Commission, enacted via a decree of the Government Commissioner and consisting of six experts, three of which are Italian speaking and three German speaking. The aim of the Joint Commission is primarily to establish, update and ratify the juridical terminology to be used by public entities and oﬃces, as well as by concessionary agents of public utility services. Another objective is to oversee the drafting and updating of a dictionary of juridical terms in both languages (Art. 6, D.P.R. No. 574/1988).10

III. The Public Administration A. The Mainly Separate Use of Language in Relations with the Public Administration The Autonomy Statute indicates as a general rule for the public administration the separate use of one or the other oﬃcial language and therefore of documents in a single language, with the exception of statutorily bilingual deeds. Consequently, when the public administration answers the citizen in writing, it must use the language employed by the applicant. This is what is envisaged in Article 7 of D.P.R. No. 574/1988, which speciﬁes that, should a request be made orally and not put on record, “the language of the applicant must be speciﬁed”, unless the reply is given immediately. In the case of deeds or measures issued by the public administration authorities on their own initiative, “the assumed language of the recipient” must be used and said recipient is entitled subsequently to correct the matter. The bodies and oﬃces covered by the regulations concerning language use are expected to set up organizational structures in order to enable the use of one language or the other, as well as to post a notice indicating the citizen’s right “to use the language of his/her language group” in their oﬃces, indicating also the

10 The terminology prepared by the Terminology Commission is accessible on the Internet, at . See also, to this end, Francesco Palermo and Eva Pföstl, “Minderheitenschutz durch Sprachnormierung, Die Kommission für Rechtsterminologie in Südtirol”, 1–2 Europa Etnica (1997), 12–29.

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forms of protection and penalties in the case of unlawful refusal (Art. 3 D.P.R. No. 574/1988). In the case of violation of these provisions, the citizen involved may invoke nullity of the deeds and measures issued. This action is based on the citizen’s initiative, who is called to exercise the right within the irrevocable term of ten days from the date of notiﬁcation or of service of the deed, or from the date on which he/she gained knowledge of it (Art. 8 D.P.R. No. 574/1988).11 The plea of nullity suspends the eﬀectiveness of the measure. Within ten days of notiﬁcation of the plea, the public administration oﬃce to which it is addressed must pronounce its opinion on its legitimacy, otherwise the deed becomes deﬁnitively null. If the plea is deemed legitimate, the deed is reformulated in the language requested by the party concerned. Otherwise, the public administration oﬃce, once again within ten days, must notify its rejection of the plea, so that the deed can resume its proper eﬀects. The subject who makes the plea, however, must demonstrate his/her belonging to the linguistic group by showing a statement of language aﬃliation, or face the rejection of his/her plea of nullity. This highlights a discrepancy between the general principle envisaged by the Autonomy Statute regarding equalization of the two languages and the free choice of language, which sets aside the ‘mothertongue’ concept, and the equalization eﬀected in this speciﬁc case between the statement of language aﬃliation and the language in which the public administration body is expected to communicate with a citizen.12 Should the plea of nullity be rejected, the subject may appeal within ten days of notiﬁcation to the autonomous section of the Bolzano Regional Court of Administrative Justice, asking that the deed be declared void. Recourse is deemed inadmissible when the plea is not previously addressed within the abovementioned term of ten days to the public administration oﬃce that issued the measure. This means that only if the public administration oﬃce rejects the plea, making the measure once again eﬀective, does the citizen have the right to appeal to the administrative court. Otherwise, there would be a misrepresentation of the “object and scope of the safeguard, consisting in ensuring the citizen the drafting of the deed in his/her ‘mother-tongue’ in an eﬃcient and rapid manner”.13

11 The plea of nullity can be made orally too, in front of the oﬃcials of the public administration oﬃce that has issued the deed or measure or to the oﬃcial serving the notice. The plea can also be made to the mayor of the municipality of residence of the subject involved or to a proxy, if the public administration oﬃce issuing the measure has headquarters in another municipality. In this case, the statement of the subject involved is oﬃcially transmitted to the public administration oﬃce of competence. 12 See Francesco Palermo and Jens Woelk, “Il diritto all’uso della lingua nei confronti dell’amministrazione e nei procedimenti giudiziari”, in Marko, Ortino and Palermo, op. cit. note 2, 724; and Id. “Die Regelung des Sprachgebrauchs vor Gericht und Verwaltung”, in Joseph Marko et al. (eds.), Die Verfassung der Südtiroler Autonomie (Nomos, Baden-Baden, 2005), 332–350. 13 See TRGA Regional Court of Administrative Justice, Bolzano section, Judgement No. 306 of 17 July 2006.

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The appeal to the Administrative Court may also be done not by the subject directly involved but via regional, provincial or municipal councillors (Art. 10 D.P.R. No. 574/1988). This is an application of the mechanism of substitution of a party in a trial by political representatives, in case of violation of linguistic rights (Art. 92 ASt), which will be examined more in depth in Section V, which is dedicated to the instruments that safeguard collective linguistic rights. The principle of the separate use of language also concerns relations with legal oﬃces and police authorities (Item IV D.P.R. No. 574/1988). These bodies are expected, in their communication with the citizens of the Province of Bolzano/ Bozen, to use the language used by the applicant (Art. 13). In the case of arrest ﬂagrante delicto or of detention for questioning, before proceeding with the interrogation the judicial authorities or the police oﬃcials must ask the arrested or detained subject which is his/her mother-tongue. Deeds made in violation of these provisions are null. Unlike what happens with administrative deeds and measures, regarding which it is the subject involved who is expected to object, in this case, as it is a fundamental right such as personal freedom at stake, there is an increase in the strictness of the protection granted. The nullity sanction is absolute and leaves aside individual will.14 B. Exception to the Separate Use of Language on the Part of the Public Administration We have seen that, pursuant to Article 100, paragraph 4 of the Autonomy Statute, while the separate use of the two oﬃcial languages is the rule, their joint use requires instead a speciﬁc provision, or occurs in the three typical cases identiﬁed by the provision: deeds destined for the general public (e.g., town-planning projects, competition proceedings, announcement of public auctions), deeds addressed to a single individual but intended for public use (e.g., ID papers, publication of bans of marriage, etc.) and deeds addressed to several oﬃces.15 Another exception consists in legislative texts. In this regard, Article 57 of the Autonomy Statute rules that regional and provincial laws, as well as regional and provincial regulations, be published in the region’s Oﬃcial Journal both in Italian and in German. The Oﬃcial Journal of the Region also contains the German version of the laws and decrees aﬀecting the region (Art. 58 ASt). It is envisaged, 14 See Francesco Palermo and Jens Woelk, “Il diritto all’uso della lingua nei confronti dell’amministrazione e nei procedimenti giudiziari”, in Marko, Ortino and Palermo, op. cit. note 2, 725. 15 Bilingual drafting must not cause extra expenses for the private individual, however (Art. 4 para. 3 D.P.R. 574/1988). The Italian and German texts must be printed next to one another and have the same layout (Art. 4 para. 4). As regards deeds and provisions to be published by public administration oﬃces located outside the region but concerning the Province of Bolzano/Bozen, it is envisaged that notices be published in the Oﬃcial Journal of the Italian Republic where the Italian text of the deed is published. The integral publication in German is then provided in the Oﬃcial Journal of the Trentino-South Tyrol region (Art. 5). For further details, see Lukas Bonell and Ivo Winkler, L’Autonomia dell’Alto Adige (Provincia Autonoma di Bolzano, Bolzano/Bozen, 2006), 336.

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however, that the Italian language should prevail in legislative deeds and where bilingual drafting is enforced (Art. 99 ASt). The contemporarily “separate and joint” use of the language is foreseen by the provision that governs the drafting of the phone directory of the Province of Bolzano/Bozen (Art. 35 of D.P.R. No. 574/1988), to be prepared “separately in the Italian language and in the German language, and anyhow in a single volume”. The use of the Italian language alone is instead granted within the military sphere (Art. 100, para. 4 ASt). However, according to the provisions of the enactment decree (Art. 11 D.P.R. No. 574/1988), it is deemed possible that such an exception be limited to internal communications (i.e., to the “performance of respective functions and activities including training courses”). It should also be considered that the Carabinieri and Guardia di Finanza corps are military structures, while the Polizia di Stato was demilitarized in 1981.16 In order to boost compliance with the regulations concerning the guarding of language on the part of the police corps, during personnel recruitment a number of posts are reserved for candidates who have a suitable knowledge of both the Italian and the German languages.17 C. Application of the Regulations on the Use of Language and Violation Penalties The foregoing shows that the use of language in communicating with the public administration is the fruit of the citizen’s free choice, with rare exceptions in which it is necessary to submit a declaration of language aﬃliation, although the imprecision of the legislative texts may be misleading, since they refer without distinction to the “mother-tongue”, to the “language of aﬃliation”, to the “language used by the applicant” or to the “citizens of the Province”. Obviously, because of this imprecision, it is diﬃcult to think that sanctions could be applied to private citizens who, for example, choose another language than that indicated in the declaration of language aﬃliation. A diﬀerent situation bears on the public administration and the public entities located in the Province of Bolzano/Bozen, as well as the concessionary agents of public utility services carried out in the Province of Bolzano/Bozen (subjects managing services that fall under the competence of the public administration), who are the targets of the provisions guarding linguistic rights. Because of this, the sanctions applied for infringement of the regulations, other then the already described nullity of deeds and measures, are envisaged solely for public employees. Should the latter violate their oﬃcial duties, the oﬀence is prosecutable via disciplinary measures (Art. 37 D.P.R. 574/1988), without prejudice to the possible application of Article 328 of the Criminal Code for neglect of one’s oﬃcial duties.

16 17

See ibid., 336. Art. 33 D.P.R. No. 574/1988.

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It would be incorrect to state, however, that private individuals who are not concessionary agents of public utility services are not targeted by the law. First of all, notary publics are indeed targets in this sense, considering that, in order to obtain permission to open a ﬁrm in the Province of Bolzano/Bozen they are expected to know both languages (Art. 31 D.P.R. 574/1988), as they may be called upon to draft notarial deeds in Italian or in German, or even in both languages if so required by the client (Art. 30 D.P.R. 574/1988).18 Another provision that has caused much stir regards the labels and information on leaﬂets on pharmaceutical products (Art. 36 D.P.R. 574/1988). The provision envisaged the obligation of bilingualism to come into force in the year following the implementation of the decree. Despite the fact that, in this case, a fundamental right such as health was at stake and considering the serious consequences that could arise from the incorrect use of a medicine caused by the user’s incomprehension of the dosage and administration instructions, the provision remained inactive for a long time. The pharmaceutical industry was obviously not eager to take on the added expense of translation, despite several sanctions being inﬂicted because of infringement of bilingualism regulations. The decree was subsequently amended via Article 14 of Legislative Decree No. 283/2001, according to which, in order to achieve authorization for the marketing of drugs in South Tyrol, the labels and information leaﬂets of the drugs are to be written (jointly) in both languages, while a period of no more than 6 months has been granted for the adjustment of the labels and leaﬂets of drugs already on the market in South Tyrol, on penalty of suspension of the sale permit.

IV. Trials and Proceedings A. The General Rule of the (Almost) Single-Language Criminal Trial as a Prototype for Other Proceedings The implementation of the statutory regulations regarding the use of language in relations with judicial authorities, within the framework of language parity, caused heated debate during the ﬁrst drafting of the enactment decree. The issue at stake concerned whether trials were to be conducted in a single language (Italian or German) or in both. Both options had their pros and cons. The experience of other countries (Belgium, French Flanders, etc.) spoke in favour of the single-language solution, as did the fact that bilingual trials

18

Bilingualism is not required from attorneys at law who actually, pursuant to Art. 36-bis of D.P.R. No. 574/188, introduced by Legislative Decree No. 354/1997, can choose the language in which to sit the bar examination held in Bolzano. The examination panel consists of four members, two of which belong to the Italian language group and two to the German language group, each with an adequate knowledge of the second language.

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risked being impossible in practice due to delays and possible mistakes produced by continuous translations.19 Conversely, the single-language trial has the disadvantage of rigidity, since it curtails the principle of the free use of language and, in particular, the choice of defending counsel who, especially if coming from another province, may not necessarily have knowledge of the other language. This led to a compromise of a substantially single-language trial mitigated by two important facilitations: the defending counsel may elect to participate in a language diﬀerent from that of the trial and the right to change language at all stages of jurisdiction.20 As a general rule, criminal proceedings are conducted in the language chosen by the defendant. From the moment of his/her ﬁrst contact with the judicial authorities or with the police, the defendant is asked to state his/her mother-tongue (Art. 14 D.P.R. 574/1988). All deeds drafted by the public prosecutor must be in the presumed language of the person undergoing investigation, who is entitled to ask, within 15 days from being informed that he/she is under investigation or from being served any other equivalent deeds, that the trial be conducted in the other language (Art. 15 D.P.R. 574/1988). The trial is bilingual only in the presence of co-defendants of diﬀerent languages or when the party joining prosecution as plaintiﬀ chooses the other language. The oﬀended party and any other parties diﬀerent from the defendant and the plaintiﬀ have no weight in choosing the language. The hearing of witnesses, technical consultants and experts is carried out in the language of their choice, with translation and recording in the trial language (Art. 16 para. 5 D.P.R. 574/1988). Just after its coming into force, the measure was the subject of two trials held before the Constitutional Court regarding matters somewhat related. In the ﬁrst case,21 the German-speaking defendants had elected Italian as trial language in order to retain a lawyer who intended to use the same language. They still wanted to use their own language, however, to issue spontaneous statements in the course of the proceedings. This right was not envisaged expressly in the law, which stated instead that deeds made in the language diﬀerent from that of the trial were invalid. Presidential Decree No. 574/1988, in fact, envisaged for the attorneys an exception to the trial language in order to increase the eﬀectiveness of the technical defence, forgetting to extend this measure also to the institution of self-defence. The Court ruled that the right could be extracted from the general

19

See Bonell and Winkler, op. cit. note 15, 300. Art. 15 D.P.R. 574/1988 (private defending counsel’s free choice of the language); Art. 17 (choice of language in criminal proceedings); and Art. 20 (choice of language in civil and administrative proceedings). See Jens Woelk and Francesco Palermo, “Sprache und Recht im Gerichtswesen Südtirol. Das Recht auf Gebrauch der eigenen Sprache im Prozeß auf dem verfassungsrechtlichen Prüfstand”, 2–3 Europa Ethnica (1995), 61–76. See Constitutional Court Order No. 411 of 10–17 December 1997. 21 Constitutional Court Judgement No. 271 of 22–30 June 1994. 20

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rule envisaged by the aforementioned Article 109 paragraph 2 of the Code of Criminal Procedure, according to which before a judge of a territory containing an oﬃcially recognized linguistic minority, the citizen belonging to said minority may be questioned in his/her own mother-tongue. This discipline was deﬁned by the Constitutional Court as being “not alternative but concurrent” to the special rule envisaged by the decree in this case. This issue was later deﬁnitively solved via Legislative Decree No. 283/2001. Since then, it is expressly understood that the defendant may ask to be questioned and examined in his/her own mothertongue, if diﬀerent from that oﬃcially used during the trial (Art. 16). The second ruling is also linked to the use of language with reference to technical defence, proving that in many cases it is the language chosen by the legal counsel and his/her scarce comprehension of the other language that aﬀects the selection of the trial language. The original text of the law—unlike the current one, which has extended the exception to witnesses, technical consultants and experts—read that the sole exception to the general rule, according to which all trial proceedings were to be drafted in the trial language, was represented by the interventions of the private defending counsel (Art. 15). The Constitutional Court was asked to extend the exception also to the court assigned counsel. In its ruling,22 the Court rejected the reasons for the appeal on the grounds that the two positions were not identical and that as a consequence the diﬀerent treatment was justiﬁed. One must also consider that the laws on the use of languages are drawn in the interest of the defendant in his/her capacity as a member of a linguistic minority. This is in line with the constitutional principle of the guarantee of the right to counsel (Art. 24 of the Constitution). The law in question grants the defendant the freedom to retain his/her own legal counsel even if belonging to a linguistic group diﬀerent from his/hers, with the right to choose the trial language also in function of the needs of the technical defence (the same emerged from the analysis of the previous case). Similarly, the law allows the defendant to retain a legal counsel belonging to a linguistic group diﬀerent from his/hers but without wishing to change the trial language in light of this choice. This situation does not arise—according to the Constitutional Court—when a defending counsel is assigned by the court and whose mother-tongue should actually coincide with that of the defendant so as to ensure the best defence possible. In this case, in fact, the counsel is not chosen but assigned by a third party. In this regard, the Code of Criminal Procedure envisages that, when designating the assigned counsel, the court should take into account the defendant’s ethnic group, should it be useful towards ensuring eﬀective defence. The extension to the court assigned counsel of the prerogatives envisaged for the private defending counsel would have been counterproductive, as it would have led to

22

Constitutional Court Judgement No. 16 of 12–19 January 1995.

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the unencumbered nomination of assigned counsels speaking a language diﬀerent from that of the defendant. The problem was ﬁnally solved by Legislative Decree No. 281/2001, according to which “the court assigned counsel is nominated in compliance with the linguistic group of the defendant” (Art. 18-ter). The issue concerning the use of language in criminal trials relating to the choice of legal counsel is still under debate. In this regard, in a very recent ruling, the Constitutional Court23 declared as manifestly groundless the issue of constitutional legitimacy proposed by a judge of the Court of Bolzano (Merano section), who stated that Presidential Decree No. 574/1988, where it attributed to the defendant the freedom to choose the trial language (even if diﬀerent from the mother-tongue, in order to facilitate the defending counsel’s task), brought about “a deﬂating of the law placed as safeguard of the ethnic minority” [sic]. So it was recommended that the objective criterion of ethnic aggregation certiﬁcation should be replaced with the subjective criterion of free choice of the language (which is instrumental for “very personal” needs). B. The “Territorial” versus the “Personal” Dimension of the Safeguarding of Minorities During the practical implementation phase, the provisions of D.P.R. 574/198824 immediately raised a constitutionality problem regarding the spatial extension of the regulations. A judge of the Military Court of Verona (having jurisdiction for Trentino-South Tyrol, even if located outside the geographical boundaries of the region), in the case of prosecution against a German-speaking South Tyrolese citizen, asked the Constitutional Court whether it was legitimate that the law on the use of language as per D.P.R. 574/1988 should not be applicable to military criminal proceedings but only to ordinary criminal trials. In its ruling,25 the Constitutional Court conﬁrmed the applicability of the law on the use of language solely to the Trentino-South Tyrol territory, conﬁrming that the general provisions envisaged by the Code of Criminal Procedure (Art. 109 para. 2) allowing for interrogation of a member of an oﬃcially recognized linguistic minority in that person’s mother-tongue, was equally applicable. Therefore, the right to counsel was not violated, while the application of the laws on the use of language in another region would have led to violation of the principle of equality within the same jurisdiction. The Court thus rigidly supported the thesis of the spatial extension of the law only within the regional territory. Another controversy arose regarding the “personal” range of the provisions. In fact, Article 13 of D.P.R. 574/1988 mentions “the citizens of the Province of Bolzano/Bozen” in their capacity as targets of the laws on the use of language, a

23

Constitutional Court Order No. 337 of 19 October 2006. Considering the large amount of work required in reorganizing a trial and in creating the necessary structures, the new provisions came into force only four years later, i.e., on 8 May 1993. 25 Constitutional Court Judgement No. 213 of 1–9 June 1998. 24

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fact that could entail, ab absurdo, that a German or Austrian citizen can use only the Italian language in their relations with judicial authorities. This provision is in contrast with the ban on discrimination based on nationality envisaged by Article 12 of the European Community Treaty. To this end, a ruling of the European Court of Justice26 ordained that, according to the principles of community law, the right to have a trial in the German language must be guaranteed also to citizens of other member states who are summoned to stand trial in the Province of Bolzano/Bozen, therefore conﬁrming non-compliance with community law of this “residence clause”. The Court therefore established the extension of the law also to citizens not belonging to the protected minority. C. The “Flexibilization” of the Use of Language in Civil Proceedings Civil proceedings are governed by a small number of provisions (Arts. 20 and 21 D.P.R. 574/1988), focused, as in the case of criminal proceedings, on the principle of freedom of choice of language. Over the years, these provisions have been repeatedly amended in the attempt to better reconcile the right to hold trials in the minority language with the need to prevent the legal system from being excessively burdened down with unnecessary translations. Based on the most recent amendments, in fact, the joint use of both languages now occurs only very rarely even in a bilingual trial. It should be noticed that trials are conducted in a single language when the summons and the statement of defence are drafted in the same language; otherwise, it is bilingual. There is also the possibility, expressly introduced by Legislative Decree No. 283/2001, of transforming a bilingual trial into a single-language trial. This practice had already become common in judicial oﬃces for the purpose of streamlining the trial’s course. The aforementioned legislative decree (recently amended by D.Lgs. 124/2005)27 ﬁnally introduced for all parties concerned the possibility of releasing an irrevocable statement, at any stage and at any level of trial, with which they decide to use the same language. Attenuation of the obligation of parallel use of the two languages in bilingual trials is eﬀected as follows. The judge’s measures and judgements are drafted in both languages, unless the party in question waives this right. The deeds and documents of each side are drafted in Italian or in German without obligation of translation at the court’s expense.28 Contrary to the original law, the conclusions

26 Court of Justice Judgement of 24 November 1999, Case C-274/96, Bickel and Franz, European Court Reports I-7637. In the case at hand, an Austrian lorry driver (Horst Otto Bickel) had been stopped by a police patrol while driving under the inﬂuence of alcohol. The German tourist (Ulrich Franz) instead had been accused of being in possession of a type of knife that is prohibited by the customs authorities. See Gabriel Toggenburg, “Der EuGH und der Minderheitenschutz”, 1 ELR (1999), 11–15. See the chapter by Gabriel Toggenburg in this volume. 27 See Karl Zeller, “Sprachbestimmungen in Südtirol”, at . 28 The parties coming from the outside may request translation at the care and expense of the court. The judge, however, is entitled to exclude the translation of documents deemed manifestly irrelevant.

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of both sides, the hearings of witnesses and the experts’ reports are now recorded in the language used. Recording in both languages must be expressly requested. In civil proceedings in which the plaintiﬀ is the public administration, it uses the presumed language of the defendant, identiﬁed according to the law, subsequently adopting the other language chosen by the defendant with the ﬁrst statement of defence. When acting as defendant, the public administration uses the language of the plaintiﬀ or of the appellant.29 Violations of the laws on the use of language lead to invalidity, determined ex oﬃcio, of all of the deeds drafted in the other language.30 The appeal against a judgement in order to impose such invalidity, however, may be proposed only by the party in whose interest the law on the use of language was envisaged.31 The provisions on civil proceedings are applicable, pursuant to Article 23 of D.P.R. 574/1988, also in the case of administrative (Regional Court of Administrative Justice), ﬁscal (Tax Court, Commissione tributaria) and accounting (State Auditors’ Court, Corte dei conti) courts.

V. Toponymy A. The Issue of Toponymy between the Joint Use of Language and Single-Language Toponyms The toponymy issue has been a sticky one for the South Tyrolese for almost a century, ever since the Italian translation of place names was made oﬃcial32 by Royal Decree No. 800 of 29 March 1923, which adumbrated the oﬃcial names of the municipalities and other areas annexed to Italy. The decree was then transformed into Law No. 472 of 17 March 1925, according to which the Ministry of Interior Aﬀairs was authorized to publish a ﬁnal list of the new Italian names. This happened with a ministerial decree issued on 10 July 1940. All this rendered oﬃcial the names contained in the third edition of the “Prontuario dei nomi locali dell’Alto Adige” [Table of the Place Names of South Tyrol], prevailingly attributable to Ettore Tolomei. The use of the old names was banned. When German troops occupied South Tyrol, a temporary equalization of the names in the German language was eﬀected via the “Verordnung über vorläuﬁge Ortsbezeichnung in der Provinz Bozen” [Regulation on Interim Place Names in the Province of Bolzano dated 17 September 1943. In agreement with the French saying “ce n’est que le provisoire qui dure” [only temporary things last], the ﬁnal solution to the problem of geographical names

29

New text of Art. 21 D.P.R. 574/1988, amended by D.Lgs. 124/2005. See Constitutional Court Order No. 277 of 18–25 July 1997. 31 Art. 23-bis introduced by D.Lgs. 283/2001 and amended by D.Lgs. 124/2005. 32 For an historical reconstruction of the toponymy issue with learned references to international and comparative law, see Peter Hilpold, “Die Regelung der Toponomastik in Südtirol”, in Josef Marko et al., op. cit. note 12, 386–394. 30

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is still in the pipelines.33 This has brought about the current paradoxical situation by which the (translated) Italian names are given in an oﬃcial listing while the (original) German names have never been oﬃcially recognized by Italian regulations. In this regard, as already mentioned, the Paris Agreement of 1946 stated the right to use the bilingual topographic nomenclature. Subsequently, Article 8 of the Autonomy Statute attributed to the province exclusive legislative powers on “place names, without prejudice to the requirement for bilingualism in the territory of the Province of Bolzano”.34 This has precisely been the nub of the problem over the years: no provincial law yet exists. Provincial competence may be interpreted as the power to render oﬃcial the German toponyms banned during fascist rule. For some Germanspeaking South Tyrolese, this solution is deemed insuﬃcient, while they request the abolition of the ‘translated’ or ‘invented’ names contained in the Tolomei tables and the continuance only of those names with a historical tradition and used prior to South Tyrol’s annexation to Italy. Consequently, the regulation of toponymy has been on the agenda of the coalition programmes of the provincial government for a long time, although no one has the courage to open Pandora’s box, in view of the ﬁrm positioning on both sides and the great interest in the issue shown by both the politicians and the media. Toponymy reminds everyone of the forced Italianization during the fascist era, experienced as a form of cultural aggression in South Tyrol. This digs deep into the emotional sphere and thus this aspect of the South Tyrolean autonomy has not yet been enacted. First of all, it was a question of verifying whether toponymy actually did fall under the exclusive powers of the province, considering that Article 7 of the Autonomy Statute assigns to the region competence regarding the change in municipality names. This power has been interpreted in a restrictive manner by the Constitutional Court, however: it ruled that it was to be reconciled with the general regulating power attributed to the Province of Bolzano/Bozen regarding “every kind of name of locality, with the sole exception of those of the municipalities”.35 In 1999, the issue was addressed via a proposal of the President of the provincial government Mr. Luis Durnwalder, which was picked up again by the press in 33 For a complete analytical summary of the German toponymy with translation into Italian, see Egon Kühebacher, Die Ortsnamen Südtirols und ihre Geschichte, Die geschichtlich gewachsenen Namen der Gemeinden, Fraktionen und Weiler (Athesia, Bolzano/Bozen, 2nd ed. 1995); Egon Kühebacher, Die Ortsnamen Südtirols und ihre Geschichte, Die geschichtlich gewachsenen Namen der Täler, Flüsse, Bäche und Seen (Athesia, Bolzano/Bozen, 2nd ed. 1995); and Egon Kühebacher, Die Ortsnamen Südtirols und ihre Geschichte, Die Namen der Gebirgszüge, Gipfelgruppen und Einzelgipfel (Athesia, Bolzano/Bozen, 2000). 34 Art. 101 sets out that the public administration must “use German place names in relations with German-speaking citizens if provincial law has conﬁrmed their existence and approved their idiom”. 35 Constitutional Court Judgment No. 28 of 2 April 1964.

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the spring of 2006.36 The proposal envisaged a distinction between macro-toponymy and micro-toponymy. Only the macro-toponymy sector was to be subjected to the provisions issued by the provincial government: through a speciﬁc law, the province was to determine 550 bilingual geographical names (trilingual in the Ladin valleys)37 that were to remain unchanged. The term ‘macro-toponymy’, according to the proposal, embraced all 116 municipalities in South Tyrol, the hamlets with a population of over 100 (about 340), the rivers that ﬂow through the entire valley (22), the most important passes (16) and the mountain massifs (19). As regards the other toponyms (micro-toponyms), competence was to be assigned to the individual municipalities that currently decide on the names of streets and squares. The Italian parties, in turn, favoured a single change, namely the oﬃcialization of the German place names and—in certain cases—the return to the original names of the toponyms derived from proper nouns. This minimalist proposal was challenged by the German-speaking parties, who instead requested (partial) monolingualism in the minority language, consisting in saving only the Italian toponyms that appear in written documents.38 Yet another proposal set forth by German-speaking parties39 envisages the introduction of bilingual toponyms only in those municipalities where the minority linguistic group (Italian or Ladin) reached a percentage of about 10%. It should also be mentioned that, at the national level, in the past period in oﬃce of the legislature, the then Minister for Regional Aﬀairs Enrico La Loggia had set up a speciﬁc working group that never achieved any practical results. The debate once again ﬂared up at the end of the summer, when President of the provincial government Mr. Durnwalder announced that he considered of priority importance the issuance of a provincial law on toponymy by the end of the year. His proposal has remained substantially unchanged since his last proposal in 1999, with the only exception being that, as regards micro-toponyms, as an alternative to the municipal competence, it could be possible to “set up a special commission—even at international level—that would tour the land and interrogate the population about the names of the places they lived in”.40 It should be noticed, however, that in current use, perhaps because of ignorance of the name of a micro-toponym in the other language, such as a street,

36 See, for example, “Toponomastica da Prodi il via libera”, Alto Adige, 6 May 2006, 12; and “Toponomastica, l’Ulivo non fa sconti”, Alto Adige, 7 May 2006, 11. 37 Art. 102 of the Autonomy Statute assigns Ladin people the right to toponymy in their own language. 38 Proposal of the Union für Südtirol, specifying that such geographical names would not amount to more than thirty or so. 39 In addition to the Union für Südtirol, this group also includes the Freiheitlichen. 40 See “Toponomastica, ora Durnwalder accelera”, Alto Adige, 29 August 2006, 14; “Lo scontro si allarga–Toponomastica”, Alto Adige, 31 August 2006, 17; and “Unausweichlicher Streit”, Südtiroler Wirtschaftszeitung, 1 September 2006, 1.

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for example, the population tends to use the name in their mother-tongue, even when using the province’s second oﬃcial language. This is certainly an example of de facto monolingualism.

VI. Forms of Protection A. Special Forms of Collective Protection of Linguistic Rights A peculiar aspect of the Autonomy Statute consists in a set of provisions that do not concern the individual right to use the language but rather provide a ‘positive type’ of protection to the linguistic groups via speciﬁc provisions within the sphere of both substantive and procedural law. Of some signiﬁcance in this regard is Article 56 of the Autonomy Statute, which provides two solutions for the case in which a bill is deemed prejudicial to the equality between the two linguistic groups or to the ethnical and cultural characteristics of said groups.41 Firstly, in this case, the majority of a linguistic group is entitled to ask for separate voting by linguistic groups within the Regional or Provincial Council of Bolzano (para. 1), subject to the Assembly’s consent. Secondly, a linguistic group is entitled to contest the law by collective appeal to the Constitutional Court when the request for separate voting is rejected by the Council or when the Council accepts the request but the law is approved with the contrary vote of at least two thirds of the members of the linguistic group making the request. This is therefore a second ‘safety net’ for the case in which the separate vote proves to be an ineﬀective protection tool.42 When this mechanism is activated, a separate secret ballot is held for each linguistic group and the results from each ballot are then summed. The results of the ballots are also recorded separately for any future appeal to the Constitutional Court. This ‘aﬃrmative action’ places the linguistic groups on a par, no matter what their size is, as demonstrated by the fact that the two appeals so far submitted to the Constitutional Court pursuant to Article 56 of the Statute have been made by Carlo Willeit in his capacity as sole member of the Ladin linguistic group.43

41 Since the Paris Agreement, linguistic rights are actually combined with ethnic and cultural aspects. 42 One should also mention Art. 84 para. 2 of the Autonomy Statute as a form of collective protection of the rights of linguistic groups, in that it envisages, at the request of the majority of a linguistic group, voting for individual budget items by linguistic group. In this case, however, separate voting occurs automatically without the need for Assembly approval. 43 The ﬁrst regarded Regional Law No. 3/1994 concerning the direct election of the mayor and amendment of the election system for Municipal Councils. The challenge concerned the deprivation of the Ladin group’s representation. The trial ended with the quashing of Appeal No. 261/1995 due to the inadmissibility of several elements of the appeal and to the groundlessness of others. For a more in-depth analysis, see Eleonora Maines, “Gli strumenti di tutela procedurale e giurisdizionale. La ‘quasi personalità’ dei gruppi linguistici”, in Josef Marko et al., op. cit. note 2, 632–652.

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To better highlight the aims and function of this collective protection instrument for minorities, of particular interest is an analysis of the second appeal challenging Regional Law No. 5/1998, which instituted a threshold (Sperrklausel) in the distribution of the seats of the electoral districts of Trento and of Bolzano/ Bozen in the elections for the Regional Council. The trial ended with the granting of the appeal.44 The applicant had asked that the voting for the bill be conducted by separate linguistic groups and the request for separate voting had not been granted by the Regional Council. Following the appeal of Councillor Willeit to the Constitutional Court in order that the law be declared unconstitutional, the Court conﬁrmed that the Special Statute had overall provided a system of special guarantees protecting linguistic minorities so as to safeguard their identity and ensure their representation in regional and local institutions,45 thus legitimizing the claim of the minority groups of a speciﬁc protection at political representation level. The protection of minorities, founded on the national interest in protecting linguistic minorities as per Article 6 of the Constitution, (expressly recalled by Art. 4 ASt), therefore took on an “especially important signiﬁcance in the Special Statute of Trentino-South Tyrol”.46 The decisions of the Court in this matter indicate an interpretation of the special provisions on the collective protection of linguistic groups that underlines the prejudice to the interests of a linguistic group per se, which are diﬀerent and greater than those of the group’s individual member(s), acknowledging the interest of the group in safeguarding its political identity.47 The political representation of the linguistic groups is also the assumption for the exercise of another form of collective protection, recognized by the majority of the language groups represented in the Council. It is in fact possible to appeal to the Regional Court of Administrative Justice, Bolzano section, for the protection of the principle of equality of citizens as members of a linguistic group, against the administrative actions of the bodies and organs of the pertaining administration (Art. 92 ASt). The appeal can be made by individual councillors subject to acknowledgement of the linguistic group’s prejudice by the majority of the members of the group in the Council. In this manner, the mechanism of substitution of a party in a trial by political representatives is enacted. Finally, also worthy of mention is the special reason for challenge before the Constitutional Court (Art. 98 ASt), represented by the entitlement to appeal 44

Constitutional Court Judgement No. 356 of 21 October 1998. Art. 61 of the Autonomy Statute in particular envisages the proportional representation of the linguistic groups in the composition of the organs of local bodies and the right of representation of each linguistic group in the Municipal Board when there are at least two councillors belonging to the same group in the Municipal Council. Art. 62 of the Statute instead orders that the laws on the composition of the collective organs of local public bodies guarantee the representation of the Ladin linguistic group. 46 See also Judgements No. 242 of 24 April 1989; No. 438 of 16 December 1993; and No. 233 of 6–10 June 1994. 47 Maines, op. cit. note 42, 650, which highlights the turning into “bodies” of linguistic groups thus eﬀected, namely the distinction of the group’s interest from the mere sum of individual interests. 45

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against “violation of the principle of protection of the German and Ladin linguistic minorities”. This capacity to apply to the Constitutional Court has been extended by the Second Autonomy Statute (Constitutional Law No. 1/1971) also to the Autonomous Provinces of Trento and Bolzano/Bozen and not only (as was envisaged in the First Autonomy Statute) to the Trentino-South Tyrol region.

VII. Future Prospects: the Value of Multilingualism In February 2006, the Istituto di Statistica della Provincia di Bolzano (Statistics Institute of the Province of Bolzano/Bozen, ASTAT) published a “linguistic barometer” that provides a snapshot view of the opinions expressed regarding the use of language and the linguistic identity of South Tyrol citizens.48 The conclusions of the study show a linguistic biography49 featuring strong elements of integration between the diﬀerent groups present in the province. The picture that emerges is that of a large number of South Tyrolese experiencing multilingual traditions within the family. Although, as a rule, in single-language families the parents’ mother-tongue coincides with that of the children, many of the interviewees state that the parents also speak a second language—the Ladins more than the others, the German in a large number of cases and the Italians to a lesser extent. Of considerable signiﬁcance is the opinion of the parents on the need or otherwise of knowing other languages, even though the simple fact of knowing that the parents know other languages and of listening to the parents use other languages is a stimulus for the children to learn.50 According to the survey, many South Tyrolese came into contact with a multilingual situation in early childhood, through the acquaintance of speakers with other languages within their family context. This contact and the perception of the co-presence of various languages are considered to be the ﬁrst step towards acceptance of diﬀerent language-speaking individuals and even towards learning the same language. This is based on the premise that various languages be used since childhood. The results of the survey also show the South Tyrolese’ intention not to stop at bilingualism (and trilingualism for Ladins) in the future but to learn other languages too, especially English. In this regard, diﬀerences of opinion between linguistic groups are minimal. Overall, the survey points to a widely shared need for multilingualism. The Ladin population, in particular, does not seem to have any particular problem with languages diﬀerent from theirs, perhaps also thanks to the school system, which allows for simultaneous learning of the two main

48

Statistics Institute of the Province of Bolzano, Südtiroler Sprachbarometer–Sprachgebrauch und Sprachidentität in Südtirol (Astat, Bolzano/Bozen, 2006). 49 See especially the contribution by Kurt Egger, “Sprachbiograﬁe”, in Südtiroler Sprachbarometer, op. cit. note 48, 23–66, at 23. 50 Ibid., 63.

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languages (German and Italian), which is undoubtedly deemed necessary but is also seen as an element of personal enrichment. The cross-section image of the linguistic scenario provided by the survey points to an evolution in the linguistic identity of the South Tyrolese that could be deﬁned as a phase of cultural integration without assimilation. Language is no longer identiﬁed with its ethnic group and therefore no longer rigidly categorized but is experienced in a more extensive manner, being actually considered as instrumental to more eﬀective communication. This has been demonstrated also by the analysis carried out in the foregoing pages of an extremely delicate sector, such as that of relations with the judicial authorities. In that case, linguistic problems between the citizen and the authorities can risk compromising the application of the constitutional right of equality and guarantee of the right to counsel. In this sector too, however, there is the tendency to make an increasingly more ﬂexible and functional use of the two languages, concretely demonstrated by the frequent agreement between the parties to civil proceedings to use a single trial language and especially by the parallel use of the two languages with recourse to translation only when the circumstances actually require it. Unlike in the school system, which substantially promotes a linguistic separation model while granting parents the liberty to choose the school they want for their children, lately the two main academic educational institutions present in South Tyrol, namely the Free University of Bolzano/Bozen and the European Academy, have followed the path of linguistic integration, with the addition of English. In the European Academy, a non-proﬁt private entity established in 1992 to promote applied research and to create know-how in sectors of special relevance for South Tyrol, (passive) bilingualism is experienced in a greatly spontaneous manner and, in particular, is aimed at improving the dissemination of scientiﬁc work.51 This translates into an extensive use of English in addition to German and Italian. In the multilingual Free University of Bolzano/Bozen, founded in 1997 with a strongly international proﬁle, the courses are held in Italian, German and English. In order to boost learning of these languages, a speciﬁc language centre has been created within the university. This centre organizes the admission tests and ensures linguistic assistance during the course of the students’ years of study. The criterion applied by the university is that of “content and language integrated learning” with the clear intent to promote integration between language learning and educational content.52 The vehicular use of language (implicit learning) is matched with the curriculum envisaging specialized language courses through-

51 For more information, see Jens Woelk, “La libera Università di Bolzano e l’istruzione superiore”, in Josef Marko et al., op. cit. note 2, 870–891. 52 According to Mr. Christoph Nickenig, Director of the Language Centre of the Free University of Bolzano/Bozen.

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out the entire study cycle (explicit learning). The learning of languages is also favoured by the multilingual environment (up to 70% of the teachers can be summoned from abroad) and by the international composition of the student pool. An interesting initiative of linguistic integration promoted by the university, in addition to student exchange programs (e.g., Erasmus), is the ‘Unitandem’ network, a method that has already proved successful in private language schools. The language centre favours the formation of pairs consisting in two persons with a diﬀerent mother-tongue who help each other in learning the other’s language. The rules are simple: regular meetings; the same quantity of time dedicated to each language (by alternating in playing the ‘expert’ and the ‘student’ roles); no mixing of languages; the linguistic phases must be kept separate; and the time distributed equally between the two languages. These examples show that, in the meantime in the Province of Bolzano/Bozen, the collective idea is growing according to which language is no longer simply the symbol of a minority identity and culture but also an element for personal and community enrichment that stems from mutual exchange and that can improve the linguistic skills in one’s own mother tongue. Indeed, Goethe once said: “Wer fremde Sprachen nicht kennt, weiß nichts von seiner eigenen” [those who do not know foreign languages know nothing about their own language]. The “tolerance established by law” in the Province of Bolzano/Bozen up to now has been founded on the peaceful and parallel cohabitation of two separate linguistic identities. Perhaps in the future it will be possible to see this same tolerance derive from the meeting, exchange and (trilingualism) bilingualism proudly obtained by each citizen of the province.

CHAPTER FIFTEEN

A ‘MINORITY WITHIN A MINORITY’: THE SPECIAL STATUS OF THE LADIN VALLEYS Günther Rautz

I. Introduction Being a ‘minority within a minority’ could be an advantage for the smallest ethnic group in South Tyrol but also a disadvantage if they are not able to obtain the same recognition as the ‘host minority’. The Ladins in South Tyrol, in comparison with Ladins living in other Italian provinces, have obtained some real advantages, owing to the fact that the numerically stronger host minority has considerable political inﬂuence and regulative powers in its hands. Ladin is a neo-Latin or Rhaeto-Romance language spoken in the Central and Eastern Alpine Regions. It is divided into Romansh, spoken in the Canton of Grisons (Switzerland), Ladin, spoken in the Italian Dolomite Valleys, and Friulian, spoken in the Provinces of Gorizia, Pordenone and Udine (Region FriuliVenezia Giulia) as well as in the Region of Veneto. In the Dolomite Valleys, the Val Badia and the Gardena Valley belong to the Autonomous Province of Bolzano/Bozen and therefore enjoy more rights than Livinallongo and Cortina d’Ampezzo, which come under the Province of Belluno in Veneto (Region with Ordinary Statute), or the Fassa Valley, which belongs to the Autonomous Province of Trento. The legal status of the Ladins diﬀers considerably from each other depending on the province they live in. Out of a total population of some 38,000 people in all ﬁve Ladin Valleys, approximately 30,000 speak Ladin. The majority of them live in the Province of Bolzano/Bozen, where the Ladin population in eight municipalities has been increasing steadily over the last 40 years.1 Already with the ﬁrst Autonomy Statute for Trentino-South Tyrol in 1948, the Ladins of the Provinces of Bolzano/Bozen and Trento were given rights, although diﬀerent from the German-speaking minority, such as the teaching of Ladin in primary schools, Ladin place names and the enhancement of Ladin culture in

1 See . The relevant municipalities are St. Ulrich/Ortisei/Urtijëi, St. Christina in Gröden/S. Cristina Valgardena/S. Cristina Gherdeina, Wolkenstein/Selva/Sëlva, Abtei/Badia/Badia, Corvara, Wengen/La Valle/La Val, Enneberg/Marebbe/Mareo and St. Martin in Thurn/San Martino Badia/St. Martin de Tor. In the Province of Trento, Ladins live in Campitello di Fassa, Canazei, Mazzin, Moena, Pozza di Fasa, Soraga and Vigo di Fassa. In the Province of Belluno, the municipalities of Livinallongo, Colle Santa Lucia and, historically, Rocca Pietore and Selva di Cadore are counted as part of the Ladin community.

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general. With the reform of the Autonomy Statute in 1972 and 2001, a considerable enlargement of competences was ascribed. The use of the Ladin language in education and in public life is secured, as is the preservation and promotion of the language in the media and through cultural activities. The principle of ethnic representation is implemented in accordance with the ethnic proportionality system and representation in legislative and executive political bodies.

II. Historical and Geographical Background of the Ladins in Italy The Ladin-speaking area became part of the Roman Empire in the year 15 BC, when the Roman legions of Drusus and Tiberius conquered the Dolomites. Before the Romans conquered the area, the entire Alpine region had been under the inﬂuence of Celtic tribes such as the Rhaeti. The Romans introduced Latin, which started a process of radical language shift and mixture with the idioms spoken by the local population, which, by that time, was called Ladin or RhaetoRomance.2 It is possible that Ladin is the name that was given by their neighbours who heard them speak the language of the Romans. After the fall of the Roman Empire, the movements of Germanic peoples from north to south and Veneti from south to north changed the linguistic and geographical landscape of the Central and Eastern Alpine Region. After the process of Italianization and Germanization of these Alpine valleys, three language groups were left isolated from one another, namely the Romansh, Ladins and Friulians. For more than 500 years, the Ladins and Friulians were ruled by the Habsburg Empire. In the period of Italian state-building, the Austro-Hungarian Empire lost Veneto (1866). The Ladin-speaking area remained part of Austria—with a short break between 1806 and 1813 when the territory fell to Bavaria—until the end of World War I.3 With the 1919 Peace Treaty of St. Germain and the annexation by Italy of South Tyrol and Trentino, a period of forced Italianization began, not only for the German-speaking population but also for the Ladins, especially when the democratic Italian government was replaced by the fascist regime in 1922. As a way of weakening the Ladin minority, Livinallongo and Cortina d’Ampezzo was placed within the Province of Belluno in 1923.4 In 1927, the partition of the Ladins was ﬁnalized, when the Ladin-speaking valleys were allocated to three provinces.5 Val Badia and the Gardena Valley were made part of the new founded Province of Bolzano, while the Fassa Valley remained in Trentino.

2 Dieter Kattenbusch, “Ladinien”, in Robert Hinderling and Ludwig M. Eichinger (eds.), Handbuch der mitteleuropäischen Sprachminderheiten (Narr, Tübingen, 1996), 312–333. 3 For more details about historical milestones see the contribution on the history of the South Tyrol conﬂict by Emma Lantschner in this volume. 4 Royal Decree, No. 93, 21 January 1923. 5 Royal Decree, No. 1, 2 January 1927.

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In 1939, the government oﬀered the 10,000 Ladin speakers (4% of the total population) the opportunity to emigrate under the ‘Option’. Although Ladin was oﬃcially considered to be an Italian dialect and the Ladins to be Italians, they were classiﬁed as Allogeni (foreign-born inhabitants) by the Italian government.6 The ‘Option’ was cancelled by the German occupation in 1943 but should not be underestimated in the history of the Ladin language group:7 81% of the Ladins of the Gardena Valley, who, for historical reasons, were considered to be aﬃliated to the German culture, opted to leave South Tyrol for resettlement in the German Reich. In the Val Badia, where the population sympathized more with the Italian state, only 32% of the Ladins opted for Hitler’s Germany. The Fassa Valley and Cortina d’Ampezzo were excluded from the ‘Option’, while in Livinallongo and Santa Lucia 40% chose to migrate. After World War II, Ladins and German-speaking South Tyrolese demonstrated their desire to return to Austria through petitions and manifestations but the annexation to Italy remained against the wishes of the people. The GruberDegasperi Agreement, included as Annex IV of the Peace Treaty signed with Italy in 1947, guaranteed a degree of autonomy, cultural and linguistic protection for the German speakers, as well as their representation, which should have been implemented through the First Autonomy Statute of 1948. The Ladins of the Autonomous Province of Bolzano/Bozen obtained recognition of their speciﬁcities by constitutional and provincial laws as a minority within a minority. The Ladins of the Autonomous Province of Trento were given rights, although diﬀerent from the Ladins in South Tyrol. The political division of the Ladin population and the diﬀerent levels of minority protection in the three provinces have been conﬁrmed since the end of World War II. The struggle of the Ladins for a uniﬁed administrative entity, known as the ‘Ladin Question’, was demonstrated in an impressive way for the ﬁrst time at a meeting of 3,000 Ladins at the Sella Pass on 14 July 1946 and continues today.8

III. The Status of the Ladins in Italy The Italian Constitution includes, among its fundamental principles, a speciﬁc provision on the protection of linguistic minorities, namely Article 6, which provides that “[t]he Republic shall safeguard linguistic minorities by means of special

6 On the perception of Germans and Ladins by Italians in a historical context, see Michael Völkl, Das Deutschenbild Alcide De Gasperis (1881–1954)—Ein Beitrag zur Geschichte der italienischen Deutschenwahrnehmung, PhD Thesis on ﬁle at the Faculty of Geschichts- und Kunstwissenschaften at the Ludwig-Maximilian-Universität München (2004), 172. 7 Christoph Perathoner, “Der Schutz der ladinischen Minderheit in Südtirol”, in Peter Hilpold and Christoph Perathoner (eds.), Die Ladiner—Eine Minderheit in der Minderheit (Athesia, Schulthess, NWV, Bozen/Bolzano, Wien, Zürich, 2005), 55–57. 8 The pan-Ladin meeting of 1946 was an eﬀort to constitute a common movement for common objectives and can be compared with the Siegmundskron rally in the year 1957, where 35,000 South Tyrolese called for “Los von Trient” (Away from Trento).

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provisions”. In the Italian legal system, the concept of ‘minority’ is linked exclusively to that of language or, rather, linguistic minority, on the basis of Article 6 of the Constitution, which is designed not to protect the individual members of the minority but to protect the linguistic minority as a whole, as part of the cultural and historic heritage of the community by the state, regions, autonomous provinces, towns and municipalities.9 It follows that the institutions are required not only to adopt this minimum standard when dealing with minority protection but also to use all the appropriate legislative and administrative means of achieving the objective laid down in the Constitution. A. The Legal Status of the Ladins in South Tyrol In the case of South Tyrol, the protection of the Ladins is provided not only in the Constitution but also in the Gruber-Degasperi Agreement, which prepared the ground for the granting of the Special Autonomous Status to the region of Trentino-South Tyrol and the introduction of a series of provisions in favour, not only of the German-language group, but also the Ladins in the Province of Bolzano/Bozen. Although the Ladins were not explicitly mentioned in the Agreement, paragraph 2 grants the exercise of autonomous legislative and executive regional powers to the populations of the abovementioned zones. Oﬃcial legal recognition was given to the Ladins in the First Autonomy Statute of 1948, in which the Ladins were explicitly mentioned (Art. 87). For the Ladin minority in South Tyrol, the First Autonomy Statute was, as in the case of the German-speaking minority, very restrictively applied. Article 87 has secured the teaching of Ladin in elementary schools, the respect of traditional place names and special funding for the promotion of cultural happenings. The implementation of the First Autonomy Statute was disappointing for both groups, South Tyrolese and Ladins. The situation escalated into violence and demonstrations in which Ladins took part actively. Alcock describes the phenomenon as an economic and social crisis that changed into a political one.10 The creation of a better social balance, the transformation of a predominantly agricultural society into one with an appropriate proportion of persons in public and private service—especially the tourist industry in the case of the Ladin community—was necessary in order to avoid the risk of immigration weakening the language groups.11 With the reform of the Autonomy Statute in 1972, the competences delegated to the Autonomous Province of Bolzano/Bozen were considerably enlarged and 9 Roland Riz, “Der verfassungsrechtliche Schutz der Ladiner in Italien”, in Hilpold and Perathoner, op. cit. note 7, 87–88. 10 Antony Alcock, “The South Tyrol Autonomy—A Short Introduction”, Booklet of the Autonomous Province of Bolzano/Bozen, County Londonderry, Bozen/Bolzano (2001), 10, available at . 11 Since the Winter Olympic Games in Cortina d’Ampezzo in 1956 the Ladin Valleys have developed one of the strongest tourist areas in Europe.

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the legal position of the Ladins was strengthened.12 Some 20 of its 115 Articles have been of immediate relevance to the Ladins. Education, as the most important instrument of identity-building for a minority, is based on the general principle of parity, teaching the same number of hours in German and Italian, whereas Ladin is used as an assistant language. Article 19 regulates the teaching of Ladin in kindergarten and in schools of every order and grade. Ladin is prevalently used in kindergarten and in the ﬁrst grade of elementary schools. In the ﬁrst school year, children attend a German–Ladin or Italian–Ladin class and Ladin is used as a language of communication. From the second year onwards, schoolchildren have two hours of Ladin a week, as a language of instruction for religion and, from 1988 onwards, for geography in lower secondary schools.13 In upper secondary schools, Ladin is part of the curriculum for one hour a week.14 At university level, the Faculty of Educational Science in Bressanone/Brixen oﬀers speciﬁc preparation for Ladin teachers at primary level. In the Ladin school system, teachers have to pass a trilingual exam and Ladin candidates receive absolute priority in terms of job placement. The majority of the Ladins are in favour of the Ladin school system. The language competences of Ladin speakers in Italian and German, which are only slightly lower than that of mother tongue speakers, underline the quality of the Ladin school system.15 In comparison with the separate school system for German speakers and Italians, the function of the Ladin school model is more integrative and tailored for a small minority that is supposed to speak the languages of the major language groups. Under the 1948 Autonomy Statute, Ladins could use their language before public authorities but the proceedings were basically in Italian, with interpreters present. Rules implementing the Special Statute of 1972 provide that the Ladins of the Province of Bolzano may use their mother tongue, both orally and in writing, in their relations with the public authorities in the Ladin municipalities of the province.16 Local and provincial authorities, with the exception of the armed forces and police, are required to reply in Ladin, even if they are established outside the Ladin areas but working in the interest of the Ladin minority. If they are replying in written form, they may use German or Italian but have to include a

12

D.P.R. No. 670/1972. D.P.R. No. 89/1983, amended and supplemented by Legislative Decree No. 434/1996. By this decree, a number of powers concerning the legal status of teaching staﬀ were delegated to the Province of Bolzano. 14 Provincial Law No. 13/1995. On the parity of instruction, see Günther Rautz, Die Sprachenrechte der Minderheiten—Ein Rechtsvergleich zwischen Österreich und Italien (Nomos, Baden-Baden, 1999), 109–111. 15 See Günther Rautz, “Il sistema scolastico”, in Joseph Marko, Sergio Ortino and Francesco Palermo (eds.), L’ordinamento speciale della Provincia autonoma di Bolzano (Cedam, Padova, 2001), 756–760; and Sigfried Baur, “Schulpolitik in Südtirol”, in Joseph Marko et al. (eds.), Die Verfassung der Südtiroler Autonomie (Nomos, Baden-Baden, 2005), 361–366. For more details about the diﬀerent school systems, see the contribution on cultural autonomy and the educational system by Siegfried Baur and Roberta Medda-Windischer in this volume. 16 D.P.R. No. 574/1988 and Legislative Decree No. 446/1996. For more details about the use of languages, see the contribution by Cristina Fraenkel-Haeberle in the present volume. 13

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Ladin translation. The right to use Ladin with the help of interpreters is also provided in court proceedings. Ladins can use their language, oral or written, before the courts or can opt for either German or Italian in both criminal and civil cases. On the third level, the Supreme Court in Rome or the Council of State, only the Italian language may be used. As far as the use of Ladin in public life is concerned, Ladin toponomy is recognized by Article 102, which undertakes to respect Ladin place names and traditions. In accordance with the principle of the proportional quota system, the assignment of public posts, subsidies for cultural activities and public housing is carried out on the basis of a nationwide general population census, which ensures the proportional ethnic representation of all three language groups in the Province of Bolzano/Bozen. When completing the general census forms, residents of the province must also ﬁll in an individual declaration of linguistic aﬃliation. Following the ﬁgures of the census of 2001, 18,736 Ladins are living in the Province of Bolzano/Bozen, which amounts to 4.37% of the total population. The equality of access to posts in the public sector and privatized bodies according to the size of the language group is laid down in Article 89 of the Autonomy Statute.17 Knowledge of Ladin and the other co-oﬃcial languages is a fundamental requirement for access to public posts that are strictly reserved for the Ladin language group. Trilingualism has to be proven by a certiﬁcate, which is obtained after passing a written and oral examination. In order to fulﬁl the quota reserved for the Ladin language group, Ladin-speaking public servants are supported by the payment of a trilingualism allowance. The right of political representation is one of the most important rules for the peaceful cohabitation of the language groups in South Tyrol.18 The principle of equality between the linguistic groups in the Province of Bolzano/Bozen is expressed in Article 56 paras. 1–2 of the Statute: If a bill is considered prejudicial to the equality of rights between citizens of the diﬀerent linguistic groups or to the ethnic and cultural characteristics of the groups themselves, the majority of the members of a linguistic group in the Regional Council or Provincial Council of Bolzano/Bozen may request a vote by linguistic group. If the request for separate voting is not accepted, or if the bill is approved notwithstanding the contrary vote of two-thirds of the members of the linguistic group which had put forward the request, the majority of that group may contest the law before Constitutional Court.

The guarantee of political representation is also ensured within local bodies by Articles 61 and 62 of the Statute: “[t]he regulations for local public bodies shall

17

D.P.R. No. 571/1978. In Judgment of the Constitutional Court No. 356/1998, the court elaborated that the introduction of percentage quotas in the elections contradicts the potential representation of the Ladinspeaking community. See Eleonora Maines, “Gli strumenti di tutela procedurale e giurisdizionale. La ‘Quasi Personalità’ dei gruppi linguistici”, in Marko, Ortino and Palermo, op. cit. note 15, 632–652. 18

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contain provisions to ensure the proportional representation of linguistic groups in the composition of the organs of those bodies” (Art. 61 para. 1). In the case of municipalities, each linguistic group has the right to be represented in the municipal board if there are at least two members belonging to that group in the municipal council (Art. 61 para. 2). Furthermore, “[r]egulations on the composition of the corporate organs of local and public bodies in the Province of Bolzano/Bozen shall guarantee representation of the Ladin linguistic group” (Art. 62). The representation of Ladins in legislative and governmental bodies was largely improved with the reform of the Autonomy Statute in 2001.19 Previously, Ladins forming only approximately 4% of the population would be practically excluded from election to higher political posts. Under the revised Statute, Ladins may become president or vice-president of the Regional Council if the member belonging to the Ladin language group is elected by a majority of members from the Italian or German linguistic groups (Art. 30 para. 3). In addition, “the Ladin linguistic group is guaranteed representation in the Regional Government, even derogating from proportional representation” (Art. 36 para. 3). At the provincial level, laws for the election of the Provincial Council of Bolzano/Bozen have to guarantee representation of the Ladin linguistic group (Art. 48 para. 2). A Ladin member of the Provincial Council of Bolzano/Bozen may become president of the Council if the majority of the German and Italian linguistic groups approve the elections (Art. 48 para. 3). “The Ladin linguistic group may be given representation in the Provincial Government of Bolzano/Bozen, even derogating from proportional representation” (Art. 50 para. 3). However, Ladins are neither represented in the Administrative Tribunal, where members belong only in equal numbers to the two major linguistic groups (Art. 91 para. 1), nor in the ‘Commission of Six’. There are some proposals for further reforms regarding the participation of Ladins in these bodies, such as a consultative vote of a Ladin member in cases concerning Ladins. Finally, access to media in the Ladin language in South Tyrol is based on the provisions of State Law No. 103 of 14 April 1975 and agreements reached between the Presidency of the Council and RAI.20 RAI, the Italian public service broadcaster, transmits 350 hours (170 hours news) radio and 50 hours (30 hours news) of television per year in Ladin. In the print sector, a former monthly, La Usc di Ladins, is published as a weekly for the entire Ladin area and plays an important role for the extension of the Ladin vocabulary.21

19 Constitutional Law No. 2/2001. Regarding the representation of the Ladins, see Meinhard Durnwalder, “Die Reform des Südtiroler Autonomiestatuts”, in Norbert Wimmer et al. (eds.), Schriftenreihe Italienisches Öﬀentliches Recht an der Leopold-Franzens-Universität Innsbruck (STUDIA Universitätsverlag, Innsbruck, 2005), 73–85. 20 The agreement concluded between the Ministry of Communications and RAI for the three year period 2003–2005 was adopted by Presidential Decree of 14 February 2003. 21 State Law No. 250/1990 provides subsidies granted to daily newspapers in French, Ladin, Slovenian and German in the autonomous regions of Valle d’Aosta, Friuli-Venezia Giulia and Trentino-South Tyrol. For further information regarding print media, see Toni Ebner and Günther

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The Special Autonomous Statute for Trentino-South Tyrol contains many provisions that also protect the Ladins in the Province of Trento. Although a number of provisions are designed to protect the Ladins and to ensure that the Ladins of the Province of Trento enjoy the same protection as those of the Province of Bolzano/Bozen, the implementation of the Statute never reached the same level as in South Tyrol. Based on the revised Autonomy Statute of 2001, some rules contain special provisions for the Ladins of the Fassa Valley in Trentino. In accordance with Article 2 of the Statute, where the equality of rights for all citizens in the region is recognized, regardless of the linguistic group to which they belong, “[t]he Province of Trento shall assure the allocation of funding to an appropriate extent in order to promote the protection and the cultural, social and economic development of the Ladin [. . .] population[s] resident in its territory, taking into account their size and speciﬁc needs” (Art. 15 para. 3). Political representation in the Provincial Council is given concrete forms in Article 48 para. 3, which ensures that “[o]ne seat in the Provincial Parliament of Trento shall be assigned to the territory containing the communes [. . .] where the Ladin-Dolomitic linguistic group of Fassa is settled”. Furthermore, “administrative acts [. . .] considered prejudicial to the principle of equality between Italian, Ladin [. . .] citizens resident in the Province of Trento may be contested before the Regional Court of Administrative Justice in Trento by members of the Regional or Provincial Parliaments and, in the case of measures by communes, also by Municipal Councillors in the Ladin [. . .] areas, whenever they are considered prejudiced by one ﬁfth of the Municipal Council” (Art. 92 para. 2). Finally, with the reform of the Autonomy Statute in 2001, the regulations on Ladin language teaching were further developed. Article 102 para. 2 guarantees the teaching of the Ladin language and culture in the schools of the communes in the Province of Trento where Ladin is spoken. In the ﬁeld of culture “[t]he Ladin [. . .] population[s] in the communes [. . .] shall have the right to develop their cultural, press and recreational activities as well as to have their place-names and traditions respected” (Art. 102 para. 1).22 Even though the level of minority protection of the approximately 7,000 Ladin speakers in the Fassa Valley do not enjoy the standards set for the Ladins of the Province of Bolzano/Bozen, the Ladins from Trentino have obtained, step by step, a high degree of protection. Following the establishment of regulations that allowed for the use of Ladin as a vehicle language in kindergartens in order to guarantee the best possible acquisition of Italian and the teaching of the Ladin language and culture in elementary school, only in the mid-1990s would Ladin

Rautz (eds.), MIDAS: European Association of Daily Newspapers in Minority and Regional Languages 2001–2005 (Athesia, Bozen/Bolzano, 2005), 51–59. 22 For more details regarding bilingual toponomy, see Fabio Calliari, La minoranza ladino-dolomitica (Maggioli, Rimini, 1991), 172.

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became a language of instruction in all compulsory school grades.23 These provisions are to be found in Legislative Decree No. 592 of 16 December 1993, which lays down “Rules for the Implementation of the Special Statute of the Region of Trentino-Alto Adige containing Rules for the Protection of the Ladin-speaking Populations of the Province of Trento”. The Ladin language was introduced as a medium of instruction on a basis of parity with Italian in kindergarten. In primary school, Ladin is used as a vehicle language for one hour and as a subject for two hours per week. In secondary school, Ladin is taught for one hour per week as a subject and for two hours a week as a medium of instruction. Furthermore, Decree No. 592/1993, which can be considered to be the Ladin Basic Law in Trentino,24 ensures that “persons belonging to the Ladin communities of the Province of Trento may use their own language in their oral or written communications with the school, regional, provincial and local authorities established in the Ladin areas, and also with the regional and provincial oﬃces which perform their duties in the exclusive interest of the Ladin populations even though they are situated outside the areas referred to above”. The oﬃces and authorities concerned are required to reply orally in Ladin or, in writing, in Italian and subsequently to provide a Ladin translation. Public documents addressed to the populations of the Ladin areas must be drafted in Italian and accompanied by a translation into Ladin. In the Ladin areas of the Province of Trento, meetings of the local authorities may be held in the Ladin language or bilingually, with translation into Italian. Knowledge of Ladin is required for staﬀ in public oﬃces situated in the Ladin areas. Within the framework of the procedures for recruitment in Ladin areas, for example, vacant and available posts for teaching and administrative staﬀ are to be reserved for those who fulﬁl the relevant conditions and have been examined in the Ladin language and culture before a selection board including at least one person who is a Ladin teacher in those schools.25 C. The Diﬀerent Legal Status of the Ladins and its Impact on the ‘Ladin Question’ In raising the ‘Ladin Question’, it is necessary to emphasize the Statute of the Region of Veneto, a region with ordinary statute, which only very generally guarantees the culture and language of the local communities.26 “The Region shall assist the development of the cultural and linguistic heritage of all communities”

23

D.P.R. No. 667/1976 and D.P.R. No. 405/1988. Fabio Calliari, “Gli strumenti di tutela a favore della frazione della minoranza ladino-dolomitica della provincia di Trento previsti dal decreto legislativo 16 dicembre 1993, n. 592”, 1 Informator (1996), 33. 25 Legislative Decree No. 321/1997. 26 Regional Statute of Veneto, Law No. 340/1971, Art. 2 para. 2. See also, for example, Law No. 40 of 1 August 1974, “Protection of the Historical, Linguistic and Cultural Heritage of Veneto”; and Law No. 73 of 23 December 1994, “Promotion of the Ethnic and Linguistic Minorities in Veneto”. 24

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(Art. 2); however, the Ladins of the Province Belluno are not recognized as a separate language community. Laws on the ﬁnancial support of cultural initiatives, explicitly mentioning Ladins, have still to be properly implemented.27 Political requests to join South Tyrol from municipalities located on the border with the Province of Bolzano/Bozen are often discussed in public. According to the Italian Constitution, a change of municipalities from one region to another is—under certain circumstances—legally possible (Art. 132). In the case of South Tyrol, the territorial enlargement of the province could be problematic because the constitutional and international framework—the Gruber-Degasperi Agreement, the First and Second Autonomy Statutes and the formal conﬂict settlement act at the United Nations—limits all measures for the protection of minorities within the historical territorial borders of the Province of Bolzano/Bozen.28 The diﬀerent degree of recognition and diﬀerent level of minority protection in favour of Ladins in the three provinces makes it diﬃcult to establish common objectives, such as the reuniﬁcation of the Ladin area.29 The Union Generela di Ladins dla Dolomites, organized as a pan-Ladin organization representing their diverse realities, views the ‘Ladin Question’ mostly in cultural terms.30 Insisting on the political nature of the issue, the Ladins of the Fassa Valley were able to separate themselves from the major Italian national parties in 1983, whereas the Ladins in South Tyrol have a historically-guaranteed representation as part of the South Tyrolean People’s Party (Südtiroler Volkspartei, SVP). Notwithstanding this co-representation by the dominant German-speaking party, Ladin issues are articulated within the interethnic Green Party and through an independent political Ladin movement that was founded after the formal conﬂict settlement of the South Tyrol question in 1992.31 In order to assure an eﬀective Ladin policy, an oﬃcial inter-provincial and inter-regional organ of coordination has been discussed, which can be installed under the provisions of the State Framework Law for the Protection of Linguistic Historical Minorities (Law No. 482/1999). The use of Ladin in private and semi-public life, as the main indicator of the social status of a language, diﬀers from valley to valley. In all three provinces, with tourism as the main income source, multilingual relationships are increasing. In particular, Ladins in the Val Badia and the Gardena Valley, located in the Autonomous Province of Bolzano/Bozen, still use Ladin not only within the family but also in public. Consequently, even the increasing number of non-Ladin residents, 27 Regional Law No. 60 of 22 December 1983, “Grants for Initiatives to Improve Ladin Culture”; Law No. 24 of 22 May 1984; and State Law No. 482/1999 for the protection of linguistic historical minorities. 28 Riz, op. cit. note 9, 88–89. 29 Using diﬀerent Ladin idioms in each valley, another controversial discussed project is SPELL which aims to elaborate a common Ladin language. 30 Cesare Poppi, “The Ladins—People of the Pale Mountains”, in European Bureau for Lesser Used Languages (eds.), European Languages 10 (EBLUL, Dublin, 2001), 33–35. 31 Hilda Pizzinini, “Die ladinische Frage—immer noch oﬀen”, in Siglinde Clementi and Jens Woelk (eds.), 1992: Ende eines Streits—Zehn Jahre Streitbeilegung in Südtirolkonﬂikt zwischen Italien und Österreich (Nomos, Baden-Baden, 2003), 95–98.

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due to the tourist industry, usually learn Ladin in these two valleys. Furthermore, an active cultural life covering Ladin associations, church services, private radios, museums, libraries and cultural institutes promotes the use of Ladin in public life. The favourable situation of the Ladins in South Tyrol is due to economic stability, the preservation of traditions like wood-carving and, ﬁnally, the high standards of minority protection, as a ‘minority within the minority’, that are guaranteed by the Autonomy Statute.

IV. The Ladins as a ‘Minority within a Minority’ The character of South Tyrol’s minority protection is to seek reconciliation between the province’s three language groups. In addition to the German-speaking population explicitly named in the Gruber-Degasperi Agreement, the Ladinspeaking community is indirectly recognized in paragraph 2 of the Agreement as “populations of the above-mentioned zones”. The equality between the German and Italian language groups provided by the territorial autonomy should place neither one of the two groups in a minority position at either the provincial or municipal level.32 For this reason, the province’s Italian-speakers, belonging to the national majority, are not to be classiﬁed as a minority, or as a ‘minority within a minority’.33 In contrast, the Ladins, inhabiting a compact area but not protected by a kin-state and constituting scarcely 4% of the total population, are not on an equal footing with the two larger language groups under the terms of the Autonomy Statute. In particular, the Ladin-speakers’ political representation was only given preference in relation to their actual proportion in the most recent reform of the Autonomy Statute in 2001. Preceding this reform, the Constitutional Court had decided that the introduction of percentage quotas in the elections for the Regional Council and Provincial Council of Bolzano/Bozen contradicted the Autonomy Statute, because this provision made it de facto impossible for a ‘Ladin-only’ party to stand for election.34 With this judgement, the Constitutional Court sought to prevent the Ladins, as a ‘minority within a minority’ from having to form coalitions—unlike the other two language groups—with other parties and sought to ensure the potential representation of the Ladin-speaking community via its own ticket.35 Another judgment of the Constitutional Court aﬃrms the de facto discrimination

32 For a general discussion of this issue, see Peter Hilpold, “Der Schutz der Minderheit in der Minderheit”, in Hilpold and Perathoner, op. cit. note 7, 9–30. 33 For more details about the ongoing discussion, see the contribution by Günther Pallaver in this volume. 34 Judgement of the Constitutional Court No. 356/1998. See Roberto Toniatti, “Die Evolution der Südtiroler Sonderautonomie von konkordanzdemokratischer Garantien zur territorialen ‘Selbstbestimmung’”, in Marko et al., op. cit. note 15, 77–82. 35 Peter Hilpold, Modernes Minderheitenrecht (Nomos, Schulthess, Manz, Baden-Baden, Zürich, Wien, 2001), 146–151.

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against German and Italian-speaking children living in the Ladin Valleys. In these areas, the Ladin school model is the only available form, excluding the possibility to choose an Italian or German school.36 According to the Constitutional Court, the right to attend Italian or German language schools, guaranteed to the two larger language groups elsewhere in the province, is directly precluded in the Ladin municipalities under the terms of Article 19 of the Autonomy Statute, which is a constitutional provision. Both of these judgments demonstrate that, in some cases, a smaller minority can beneﬁt from positive discrimination in relation to a larger minority. As in the relationship between a majority and a minority, oftentimes a substantive equality between two minorities can only be guaranteed through positive discrimination. It is notable, however, that the protection of Ladins in South Tyrol, as a ‘minority within a minority’, is merely a side-eﬀect of the high degree of protection granted to the German-speaking minority. The Ladins of the Province of Bolzano/Bozen therefore enjoy considerable minority protection at the level of the territorial autonomy by virtue of constitutional rules, such as the Autonomy Statute, or speciﬁc rules ranking below the Constitution, such as enactment decrees, whereas the Ladins outside South Tyrol are less well protected by the law. The legal framework of the Autonomy Statute—including instruments such as territorial autonomy, equal political representation, the ethnic proportional system, aﬃliation and the use of language—aﬀects the daily life of each citizen in South Tyrol.37 Especially in the case of the Ladin language group, these legal instruments and some aﬃrmative action for the protection of a ‘minority within a minority’ are strengthening their local identity even more, as is the case for the German-speaking South Tyrolese.

36

Judgement of the Constitutional Court No. 101/1976. Günther Rautz, “Das Zusammenleben in einem mehrsprachigen Gebiet am Beispiel Südtirol”, in Joseph Marko and Günther R. Burkert-Dottolo (eds.), Multikulturelle Gesellschaft und Demokratie (Nomos, Baden-Baden, 2000), 69–83. 37

CHAPTER SIXTEEN

SOUTH TYROL’S SPECIAL STATUS IN PRIVATE LAW: THE ‘ENTAILED FARM’ AND THE ‘GRUNDBUCH ’ SYSTEMS Giovanni Poggeschi

I. Introduction Autonomy is a peculiar way of governing a territory, in the frame of a common state but with a (more or less) strong recognition of some distinctive features. Normally, autonomy is taken into consideration from the point of view of public law; this is an obvious starting point, as the amount of rules concerning the system of government and their practice is what mostly shapes the autonomy. Discussion on autonomy normally focuses on the institutions of self-government of a certain territory, i.e., a regional assembly, a regional government and the links between them, etc. A fundamental part of the analysis of autonomy regards the relations between the state and the region (or province, Land, autonomous community, etc.), and the most common approaches deal with the competences that a sub-state entity has or has not, or may have in concurrency with the state. All the abovementioned issues are thus typical of the analysis of public and constitutional law. However, when we analyze the contents of these competences, it is easy to ﬁnd questions of private law, the branch of law that deals with the legal rights and relationships of private individuals. This chapter is devoted to a juridical analysis of a traditional institution under Austrian law that still exists within South Tyrol, the ‘entailed farm’.1 Reference will also be made to another peculiar institution, the ‘Grundbuch’ (‘Real Properties Register’).

II. The System of the ‘Entailed Farm’, the Austrian Law of  and the Act of the Province of Bolzano/Bozen of November  South Tyrol, as is also the case in other strong and ambitious autonomous sub-state entities (such as Catalonia and Euskadi within the Spanish state2 or Vojvodina

1

Also known as the ‘closed farm’. For Catalan private law, see Miquel Martì Casals, “Catalan Civil Law and its Main Institutions”, in Jürgen C. Gödan and Bernard D. Reams Jr. (eds.), Catalonia, Spain, Europe, and Latin America: Regional Legal Systems and Their Literature (William S. Hein & Co, Buﬀalo, New York, 1995), 87–106. A more general book is José Castan Tobeñas, Derecho civil español común y foral (Editorial Reus, Madrid, Vols. 1–5, 1992–2005). 2

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within Serbia), has peculiar forms of private law,3 which reﬂect even more than some public law features the distinctiveness of the local legal environment. The most important of those (South)4 Tyrolean features is the system of the ‘entailed farm’, ‘maso chiuso’ in Italian and ‘geschlossener Hof ’ in German.5 The purpose of this juridical institute is to ensure the unity of a family agricultural enterprise in its management and through successive inheritances. On the death of the owner, the farm is inherited by the older son (‘Anerbe’ in German), who becomes the sole owner of it. It would be more exact to deﬁne the holder of the right (‘Übernehmer’ in German, ‘assuntore’ in Italian) as a kind of usufructuary, as the real owner of the farm is the family, throughout the centuries. It is very important to provide an exact value of the good, as the inheritor who will take possession of the farm has to compensate the other heirs with a sum of money.6 The juridical institute of the ‘geschlossener Hof ’ is rooted in the Germanic tradition and was introduced into South Tyrol in the ﬁrst centuries of the Middle Ages.7 A more complete regulation was made by an Imperial Law of 1 April 1889, which delegated the regulation of the issue to provincial legislation. This was eﬀected by the law that still inspires the South Tyrolean legislation on the issue, the ‘Tiroler Höfegesetz’, Law No. 47 of 12 June 1900.8 A very rough and short historical and sociological analysis of the institute of the ‘entailed farm’ suggests that its acceptance by the Austrian legislature can be explained by the desire to maintain tradition practices that both safeguard the unity of the group and the positive exploitation of the land. The maintenance of the system shows the desire to maintain a strong collective protection, which undeniably may at least appear to infringe upon some individual rights (in this case, the rights of the second-born children). It is not by chance that it was in the second part of the nineteenth century that the German and Austrian juridical doctrine elaborated

3

I carefully avoid the term ‘‘ ‘civil law’ ”, which would be the norm in continental Europe (droit civil, Zivilrecht, diritto civile, derecho civil ) in order not to confuse the English-speaking reader who is more familiar with the conception of ‘civil law’ as diﬀerent from the conception of ‘common law’. 4 I put ‘South’ in parentheses because actually the institution of the ‘Geschlossener Hof ’ is more of a pan-Tyrolean peculiarity (without forgetting that similar institutions exist in other Germanic and Northern European areas). However, as this handbook deals only with South Tyrol, I use this term in the text, even if, on this particular occasion, I add the parentheses. 5 Other peculiarities are the ‘land registers’ (see section IV), which are arranged according to the Austrian model, and the so-called ‘regole dell’arco alpino’ (alpine rules), collective properties of pieces of land, which can be exploited for timber, pasture or plantation. 6 For a very detailed analysis of the requisites of the ‘maso chiuso’, see Carlo Frassoldati, “Maso chiuso”, in Novissimo Digesto Italiano (UTET, Torino, 1964), 292–305. 7 It is interesting to add that in Italy other agricultural traditions rooted in Germanic law from the Middle Ages still exist: this is the case of the ‘partecipanze agrarie’ (‘shared agricultural properties’) of the municipalities of Nonantola, San Giovanni in Persiceto, Cento, Pieve di Cento, Sant’Agata Bolognese and Medicina (locality of Villafontana) in the Region of Emilia-Romagna. See Carlo Frassoldati, Le partecipanze agrarie emiliane (Cedam, Padova, 1936). 8 This law is still in force, constituting, together with the ‘Kartner Erbhöfgesetz’ of 13 December 1989, the exceptions to the general discipline. See Winfried Kralik, System des österreichischen allgemeinen Privatrechts—Das Erbrecht (Manz Verlag, Wien, 1983), 82–83.

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some of its most important institutions, such as the “juridical person”,9 which ﬁtted perfectly to combine traditional Germanic law with the needs of modern and reﬁned juridical instruments, which proved to be useful for social and economic evolution. The ‘entailed farm’ system, which relied on old Germanic customs,10 has been thus conﬁrmed in norms in the last two centuries also because of the favourable trend in the south German world for the strengthening of the collective identity of the ‘group’. It is also important to understand the origins of the system. An ‘entailed farm’ is so called because the farm was surrounded, closed, by some land for cultivation and by the wood where timber-cutting for the needs of the family was possible and necessary for survival. The property of the farm was very limited and normally the wood belonged to the church or to the municipality, which allowed those customs. However, the development of the economy caused some changes: there was a growing need for timber for the farm but the timber in the meantime had become more expensive. The owners of the ‘entailed farms’ had to ask the authorities for the power to exploit larger parts of the wood, as an easement. This ‘right of way’ was nevertheless very precarious and these problems became more pronounced by the end of the nineteenth century, when the authorities of the state intended to regulate in a clearer way the properties of the land. The abovementioned laws of 1889 and 1900 were the outcome of this question and the normative recognition of the ‘entailed farm’ system had thus been achieved. Easement and the consequent right to exploit the part of the wood needed for timber-cutting was “the backbone of the entailed farm, absolutely indispensable for the survival of the family”.11 After South Tyrol became part of Italy, the institution remained in force until it was abolished in November 1928, when a decree introduced a regulation that held that land law must be consistent across all of Italy; the policy of ‘Italianization’ was to be extended to the ﬁeld of agriculture also. The South Tyrolean Autonomy Statute (ASt) of 1948 reintroduced the institution, however, including among the normative competences of the province, under Article 11 paragraph 8, the “regulation of the ‘entailed farms’ and of the family communities based on old statutes and customs”. Provincial Law No. 1 of 29 March 1954 was the ﬁrst detailed regulation of this institution by the domestic—in this case provincial—legislator.12 Also, the Second Autonomy Statute of 1972 contains a 9 The theory of the ‘juridische Person’ is strictly linked to the ‘organic theory’, whose most accurate analysis is provided by Otto Gierke, Die Genossenschaftstheorie und die deutsche Rechtsprechung (Weidmann, Berlin, 1887). For the inﬂuence on the Italian civil procedure of the ‘organic theory’, see Raﬀaele Poggeschi, Le associazioni e gli altri gruppi con autonomia patrimoniale nel processo (Giuffré, Milano, 1951), 50–54. 10 Similar systems survive in many Germanic and northern countries. See Frassoldati, op. cit. note 6, 292. 11 Carlo Isotti, “Maso”, in Nuovo Digesto Italiano (UTET, Torino, 2nd ed., Vol. VIII, 1939), 213–220, at 214. 12 Alberto Trabucchi, “Il rinnovato riconoscimento legislativo del maso chiuso”, Rivista Diritto Agrario (1954) No. 1, 437–448, at 439.

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mention of the ‘geschlossene Hof ’, with the same wording as the old Statute. The provincial laws that specify the general provisions of the Statute are the ‘testo unico’,13 Provincial Law No. 32 of 28 December 1978 and Act No. 10 of 26 March 1982. Those norms have adapted the institute of the ‘maso chiuso’ with the reform of Italian family law but have saved the peculiar and traditional features of it.14 The last norm dealing with the institution is Act No. 17 of 28 November 2001 of the Province of Bolzano, ‘Legge sui masi chiusi/Höfegesetz’.15 According to the tradition and to the law, the ‘entailed farm’ is an agricultural farm, with a building for the family to live in, which is inscribed in a special section of the catalogue of real estates (‘libro fondiario’ in Italian or ‘Grundbuch’ in German, another special feature of the private law of South Tyrol, as we will see in Section IV), whose size cannot be changed without the permission of a special Commission of the Municipality (the ‘local commission’). The farm should provide for a family of at least ﬁve members. The Provincial Act of 2001 is a very long and detailed text that inherits the traditional features of the system, adapting it to the general legislative framework, as was also ‘suggested’ by the Constitutional Court. Article 1 provides a deﬁnition of ‘geschlossener Hof ’: “the complex of buildings, with the connected estate rights, inscribed in section 1 (‘entailed farms’) of the ‘Grundbuch’”. Article 2 foresees that the number of persons supported by the ‘entailed farm’ must be at least four—thus diminishing the threshold established by the 1900 Tyrolean law—but the income cannot exceed three times that needed for four persons. Article 2 paragraph 4 speciﬁes that the ‘entailed farm’ does not lose its qualiﬁcation if the income exceeds the abovementioned threshold but, in such cases, the stakeholders (like the ‘Anerbe’ or other heirs) may request the “local commission for the entailed farms” to assess the new situation, detracting the exceeding land from the farm. A fundamental provision is Article 14, which indicates the many criteria (7 ranked criteria) for the choice of ‘assuntore/Hofübernehmer’, who can now also be female (‘assuntrice/Hofübernehmerin’). Other provisions of the law regulate the modiﬁcation of the farm and the complex system of inheritance and liquidation of the other heirs by the ‘Anerbe’. Article 29 and the following contain the fundamental provisions of the law on the ‘supplementary inheritance division’. A special care is provided for the widow of the ‘Anerbe’ and for the minors. Article 40 and the following regulate the composition and the functioning of the “local commission for the entailed farms”. The president and the two members are appointed by the local ‘farmers association’.16 A system of appeal is also 13

The ‘testo unico’ is a mini-code, a collection of norms regarding the same subject. Donata Borgonovo Re, “Agricoltura e foreste, caccia e pesca, usi civici e masi chiusi”, in Commentario alle norme di attuazione (Regione Trentino AltoAdige/Südtirol, Trento, 1995), 480–482, at 481. 15 Commented online by Barbara Pietra, at . 16 The ‘Bauernverband ’, the association of the farmers, is very important and powerful in South Tyrol. The actual ‘Landeshauptmann’, Luis Durnwalder, was previously the provincial president of it. 14

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foreseen: it is possible to challenge the decisions of the “local commission for the entailed farms” to the “provincial commission for the entailed farms” (Articles 46 and the following). The system of the ‘entailed farm’, even if repealed by the fascist regime, had de facto survived and it was natural to reintroduce it once Italy had once again restored democracy through the Constitution of 1948, which included the notions of autonomy and minority protection, which are the juridical grounds for the system of ‘geschlossener Hof ’. Even before its reintroduction into the normative framework of the Italian state, the Italian courts recognized its validity. So did the Italian Supreme Court in Judgment No. 1698 of 25 June 1951,17 in which it recognized the right of the ‘Anerbe’ (in German, the ﬁrst-born) to become the heir of the farm, as this was possible through the application of the principles of international law, which can be inserted into Italian law unless they are detrimental to the public order. However, what was contrary to the principle of Italian law was the system of liquidation of the other heirs. This question was not satisfactorily settled by the judge, who ruled in a very unclear way that seemed to discriminate against the other heirs. Thus, the abovementioned Judgment No. 1698 of 25 June 1951 and another judgment, Judgment No. 1979 of 12 June 1954, were brought to the Constitutional Court, which speciﬁed the fundamental principles that the institution of ‘geschlossener Hof ’—now transposed into a norm and thus oﬃcially ‘saved’—had nevertheless to respect. The following section is devoted to an analysis of the judgments of the Italian Constitutional Court on the question of the ‘entailed farm’ system.

III. The Legitimacy of the System of the ‘Entailed Farm’ According to the Constitutional Court The Constitutional Court issued some judgments about the legitimacy of the ‘entailed farm’ system, which, as already mentioned, could seem to breach the principle of equality articulated in Article 3 of the Italian Constitution.18 However, the ‘entailed farm’ system has always succeeded in being declared fully legitimate within the framework of the Italian system, being a deeply rooted institution that has a consolidated constitutional anchorage in the Autonomy Statute. Already, in one of the ﬁrst judgments of the Constitutional Court, Judgment No. 4 of 1956 (that is to say, the fourth judgment in its history), the ‘entailed farm’ system was saved: the Court speciﬁed that, due to the tradition and the pre-existing law, the matter of the ‘entailed farms’, which does not have its roots

17 The judgment was commented on by Gottardi, “La minima unità colturale familiare (maso chiuso) nel diritto italiano e straniero”, Giurisprudenza Cassazione Civile (1952) No. 31, 196–231, at 198. 18 A comprehensive analysis is made by Giovanni Gabrielli, “Maso chiuso”, Novissimo Digesto Italiano (UTET, Torino, 1983), 1171–1178.

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in the Italian legal tradition, can be regulated by the legislative assembly of the Province of Bolzano/Bozen in a broader and more free way than other matters enumerated by Article 11 of the Autonomy Statute of 1948, which is the article where the legislative powers of the province were laid down. Judgment No. 35 of 1 March 1972 conﬁrms the legitimacy of the ‘entailed farm’ system, in a case raised by the Province of Bolzano/Bozen, which petitioned against the invasion of its competences by State Law No. 11 of 11 February 1971, which regulated the rent of land properties.19 The court found that, even if the province had not, at the time, enacted a law on the same subject, such that the validity of the State Law would extend to the jurisdiction of South Tyrol, the state is not allowed to regulate speciﬁc issues that are already covered by the institute of the ‘geschlossener Hof ’, which thus resists a general state law on a ‘parallel issue’. In this case, there is a restraint of the state legislation towards the provincial legislation. Some ‘corrections’ to the system of ‘geschlossener Hof ’ have been caused by two judgments of the Constitutional Court: Judgment No. 505 of 21 April 1988 and Judgment No. 340 of 14 October 1996.20 After having noted that the system has its roots in a religious-juridical conception, for which the holder of the rights exercises the duties relating to the care of the land for a general interest, entrusted by God, the ﬁrst judgement considers that some rules regarding the ‘geschlossener Hof ’ are not justiﬁed by the nature and the aim of the institution and are contrary to the principle of equality. This is the case of the diﬀerence established by Article 30 of Provincial Act No. 1 of 29 March 1954, which was declared unconstitutional on the grounds that the farm is to be sold through a procedure of compulsory purchase and the undertaker does not have a duty to deposit to the hereditary mass the diﬀerence of the price of the sale and the price that originally was decided. The ‘entailed farm’ system is fully constitutional but the right of the ﬁrst-born does not have to discriminate against the other heirs, who have to be compensated in a satisfactory way. Judgment No. 340 of 1996 tackles a very similar question. In this case, there was a doubt as to whether the sale of the farm through expropriation of public interest entails a right on the part of the other heirs to receive the diﬀerence of the value from the original price by the ‘Anerbe’. The provincial law on the ‘geschlossener Hof ’ does not foresee this possibility. The reasoning of the Court was the following: the exceptions to fully guaranteed rights must be applied only insofar as the nature of the institution, in this case the ‘entailed farm’ system, does not conﬂict with them; a broader application of the institution must be avoided.

19 Alessandro Pizzorusso, “Illegittimità della legge statale sui fondi rustici in rapporto alla disciplina regionale del maso chiuso”, Rivista di Diritto Agrario (1972) No. 2, 255–261, at 255. 20 The ﬁrst was redacted by Luigi Mengoni, an eminent professor of civil law who happened to originally come from Trentino and was thus also possessed of a practical understanding of the institution.

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Thus, even if the expropriation is a diﬀerent type of sale from the compulsory sale considered under the judgment of 1988, the outcome is the same: the ‘Anerbe’ receives a surplus of money, with which he has to compensate the other heirs.21 Prior to the two judgments analysed above, the Constitutional Court had issued another judgment, Judgment No. 188 of 21 May 1987, on a very similar issue, which considers also some aspects of the linguistic regime of the province.22 The Constitutional Court declared that two provisions of a provincial draft law of 1983, aimed at modifying some parts of Act No. 10 of 1982, were contrary to the Constitution. The content of this draft had been already referred by the Italian government to the Provincial Assembly, which had conﬁrmed the ﬁrst draft. The critiques centred on two issues: ﬁrst, the use of the term ‘Erbhof ’ was only in German and this contravened the rule on the compulsory use of the two oﬃcial languages, Italian and German. The second point was that the certiﬁcation given to the holder of the ‘Erbhof ’, in order to entrust him/her with the care of the farm, was only provided for in a monolingual version, in Italian or German,23 not, as is demanded in Decree No. 670 of 31 August 1972, in a bilingual form. The ‘Erbhof ’ is a peculiar kind of ‘entailed farm’. It is actually an ‘entailed farm’ that, according to the mentioned (draft) law, has to be owned by the same family for at least two centuries. The certiﬁcate of ‘Erbhof ’ is given to those who can claim this right “in order to honour with dignity examples of loyal and praiseworthy safeguard of the farmers’ properties handed down from generation to generation”.24 The Province of Bolzano/Bozen assumed that it was not possible to translate the term, which is a compound of ‘Erb’ (heritage) and ‘Hof ’ (farm) because it is an unknown institute in the Italian tradition. Certainly, the ‘entailed farm’—‘geschlossener Hof ’ in German, which is, as we know, translated into ‘maso chiuso’—was a German rather than an Italian tradition. However, the ‘Erbhof’ is a new institution created by the provincial legislator, which can be translated using the two parts of the term. The province had, on the contrary, stated, in its defence, that it was not possible to translate the term into Italian. In fact, the opposite is true: it is possible to call this institution ‘maso avito’ in Italian, which means ‘long time inherited farm’, as this term had already been used in the abovementioned norm of 1982. Also, another point regarding the monolingual leaﬂet was noted by the Constitutional Court, which reminded the Province of Bolzano/Bozen of the duty to use bilingual documents rather than monolingual documents in one of the two

21 Of course, here the reasoning of the Court has been simpliﬁed. The text takes into consideration many details of the inheritance law of Italy. However, at the end of the analysis the result is very simple: the ‘Anerbe’ must compensate the other heirs. 22 For more, see the chapter by Cristina Fraenkel-Haeberle in this volume. 23 Almost all of these farms being in the possession of German-speaking citizens, it is evident that most of those documents were released only in German. Perhaps it was a breach of the law but not a breach of common sense. 24 Act No. 10 of 1982, Art. 16.

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oﬃcial languages.25 There is a possible exception to the bilingual documents rule, which regards, according to the abovementioned Decree No. 670 of 31 August 1972 (Art. 100), those cases when the documents do not address the general public. The Constitutional Court decided that documents that have to be issued to the holder of the right of the ‘Erbhof ’ have to be bilingual because they concern a land property whose features are of public interest: this is the reason why the document must be bilingual.

IV. The ‘GRUNDBUCH ’ System of Registration of Real Properties The institution of the ‘land register’ (‘Grundbuch’ in German, ‘Libro Fondiario’ in Italian) is also peculiar of the Austrian tradition and it has been more easily maintained within the Italian system than the ‘entailed farm’. The system had been known in Bohemia since the ﬁrst half of the fourteenth century. The system, for which registration is not only a proof but rather a condition for the purchase and the transfer of properties of real estates, had proven to be reliable and was declared valid for the entire territory of the Austrian Empire: ﬁrst, with the Universal Code of 1811 and then with Act No. 95 of 25 July 1871. This law was incorporated into the Italian system for the territories that were once part of the Austrian Empire by Royal Decree No. 499 of 28 March 1929. There was also a project to extend the system to the whole territory of Italy but this project was considered too expensive. Thus, in Italy there are two diﬀerent systems of publicity of real estate properties: the transcription, inspired by the French Law of 1855, and the ‘land register’. The ‘Grundbuch’ system may be deﬁned as “the list of real properties belonging to a due territory, for any one of which is provided a topographic representation and the corresponding data and the name of the owner”.26 It is based upon the principles of registration, legality and good faith. According to the system, the main subject is the property not the persons who own it. Access to the data is much easier than in the transcription system because the documents related to the real estate property are constantly updated, irrespective of the people who own it. It is commonly said that what it is ﬁled in the ‘Grundbuch’ exists, even if in reality it does not, and, on the other hand, what it is not ﬁled in the ‘Grundbuch’ does not exist, even if in reality it does exist. However, the system is really reliable, even if delicate, as the procedure for recognition of the inscription in the ‘Grundbuch’ is a matter for a judge, supported by a special public servant of the region Trentino-South Tyrol, the ‘Keeper’ of the ‘Grundbuch’.

25 As was the case for Catalonia. See Giovanni Poggeschi, Le nazioni linguistiche della Spagna autonómica (Cedam, Padova, 2002), 263. 26 Flavio Margonari, “Libro fondiario e catasto”, in Commentario alle norme di attuazione (Regione Trentino AltoAdige/Südtirol, Trento, 1995), 356–357.

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Some technical problems have arisen when the reform of family law was enacted in the 1970s. Some possible features of unconstitutionality may be present, especially in the relations between spouses who share their property (the ‘communion system’),27 but so far no judgment of the Constitutional Court has gone against the ‘Grundbuch’ system. The Italian courts have also softened other possible negative consequences of the system, recognizing, in limited and sure cases, the rights of the owner in good faith, even if the owner does not correspond to the ‘Grundbuch’ list.28 The regional laws regulating the issue are Act No. 3 of 1 August 1985, modiﬁed by Act No. 8 of 3 November 1989, and Act No. 3 of 30 April 1987, modiﬁed by Act No. 6 of 8 March 1990, concerning the institution, the reestablishment and the improvement of the ‘Grundbuch/Libro Fondiario’. Normally, in case of inactivity on the part of the regional and provincial institutions, the Italian Minister of Finance may adopt acts that are considered to be necessary to ensure the eﬀectiveness of the whole system but this power of substitution does not exist regarding the peculiar ‘Grundbuch’ institution.29 The reception of the system of ‘Grundbuch’, which is considered fully legitimate within the Italian system, is another important feature which conﬁrms that the ‘speciality’ of South Tyrol lies also in its peculiar juridical institutions of civil law. When those institutions are widely acknowledged and appreciated, as is the case with the ‘Grundbuch’ system, then it is easier for the state legislator to accept the distinctiveness of the juridical situation of a certain territory.

V. Conclusions At the end of this short analysis and in light of the others chapters of this book that focus on the autonomy of South Tyrol, it should be evident that the system of the ‘entailed farm’ is a typical and important feature of this autonomy. It assures both the protection of the group and its traditional way of life and the preservation of the soil and the landscape. It is a perfect example of the link between the territory and the people who live in it. If the autonomy is normally associated with territory, then we easily understand how decisive is the institute of ‘maso chiuso’/‘geschlossener Hof ’ for the protection of the German and Ladin minorities who have inhabited this territory for centuries. This does mean that the Italian-speaking group is normally left out of this system; however, it could transpire that, in the future, families (even those coming from abroad) who do not have deep roots in South Tyrol could yet take advantage of the system of the

27

A deep analysis is provided by Giovanni Gabrielli, “Libri fondiari”, in Novissimo Digesto italiano., Appendice, V, s.d. (UTET, Torino, 1983), 950–963. 28 For a comprehensive comment on the ‘Grundbuch’ system, see Giovanni Cervai, “Libri fondiari”, in Novissimo Digesto Italiano (UTET, Torino, 1963), 901–906. 29 Margonari, op. cit. note 26, 357–358.

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‘entailed farm’. However, so far, the system has given strength and cohesion especially to the historical minorities,30 the Germans and the Ladins. If we take a ‘minority blind’ approach, we may observe that the ‘geschlossener Hof ’ has been and remains very useful to protect and foster Alpine agriculture and to help preserve a beautiful but fragile territory from events such as landslides. The same does not happen in other parts of Italy, especially in the Apennines. It is certainly possible through ﬁnancial aid but, nonetheless, the juridical institution here analysed has also proven to be a very useful means for the protection of the land and, at the same time, the people who inhabit this land and take care of it. The percentage of persons living on agriculture in South Tyrol is much higher than in the rest of Italy and of the European Union (around 13%). The ‘entailed farm’ system, which has some features that could appear questionable from the point of view of non-discrimination, is still a valuable means for the diﬀerent aims that have been described in this essay. Like the proportional system and other techniques of the South Tyrolean autonomy, it will just need to be updated to keep on being useful and lively, as has been done with the provincial ‘Höfegesetz’ of November 2001. In the ﬁnal analysis, South Tyrol is a territory where not only linguistic minorities live but also ‘juridical minorities’ from the point of view of civil law. Of course, the institutions of ‘geschlossener Hof ’ and ‘Grundbuch’ are applied to all citizens irrespective of their linguistic belonging or aﬃliation and conﬁrm the close link between the territory and the law of South Tyrol.

30 Of course, the Germans are a minority only within the Italian state, being the majority in South Tyrol.

PART IV

LESSONS TO BE LEARNED

CHAPTER SEVENTEEN

SOUTH TYROL’S CONSOCIATIONAL DEMOCRACY: BETWEEN POLITICAL CLAIM AND SOCIAL REALITY Günther Pallaver*

I. Consociational Democracy South Tyrol’s political system corresponds to the model of consociational democracy described by Arend Lijphart.1 The core principles of minority protection and the rules for the coexistence of the language groups in South Tyrol were thus established under the ‘Paris Agreement’.2 The consociational democracy model lessens political competitiveness and the majority principle. It strongly emphasizes cooperation among groups so that the distribution of political power only partly reﬂects the result of elections. The model assumes the cooperation of diﬀerent parties and political groupings, and is characterized by the veto power of minorities and the consensus of elites.3 This core principle of ‘power sharing’4 refers to four basic principles, which are especially embodied in ethnically fragmented societies such as South Tyrol: 1) Participation of all relevant language groups at the governmental level and at diﬀerent subordinated sub-systems. This concerns the principle of inclusion of all language groups;

* I am grateful to Elisabeth Alber, Institute for Studies on Federalism and Regionalism, European Academy Bozen/Bolzano, for her valuable contribution. 1 Arend Lijphart, Democracy in Plural Societies. A Comparative Exploration (Yale University Press, New Haven, London, 1977); Arend Lijphart, “The Power Sharing Approach”, in Joseph V. Montville (ed.), Conﬂict and Peacemaking in Multiethnic Societies (Lexington Books, Lexington, 1990), 492–494. See also Gerhard Lehmbruch, Proporzdemokratie. Politisches System und politische Kultur in der Schweiz und in Österreich (J.C.B. Mohr, Tübingen, 1967); and Jan Markusse, “Power-sharing and ‘Consociational Democracy’ in South Tyrol”, 43(1) GeoJournal (1997), 77–89. 2 See Rolf Steininger, Selbstbestimmung oder Autonomie? Die Südtirolfrage 1945/46 und das Gruber-De Gasperi-Abkommen (Studienverlag, Innsbruck, Wien, Bozen/Bolzano, 2006); Michael Gehler, “Compimento del bilateralismo come capolavoro diplomatico-giuridico: la chiusura della vertenza sudtirolese fra Italia e Austria nel 1992”, in Andrea Di Michele, Francesco Palermo and Günther Pallaver (eds.), 1992. Fine di un conﬂitto. Dieci anni dalla chiusura della questione sudtirolese (Il Mulino, Bologna, 2003), 23–119, at 23–28; and Claus Gatterer, Im Kampf gegen Rom. Bürger, Minderheiten und Autonomien in Italien (Europa Verlag, Wien, 1968), 952. 3 See the chapter by Stefan Wolﬀ in this volume. 4 Timothy Sisk, Power Sharing and International Mediation in Ethnic Conﬂicts (United States Institute of Peace Press, Washington DC, 1996).

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2) Decision-making autonomy for relevant language group in matters pertaining to questions that are not of common interest. This is a matter of group protection in the ﬁelds of cultural and educational autonomy; 3) Proportional representation of each language group in political organs (by means of the proportional electoral system), in the recruitment of personnel to the public sector (ethnic quota system) and in the allocation of public funds; 4) Veto power for the relevant language group, if a decision needs to be made upon the defense of vital interests in group protection and if the agreed forms of conﬂict resolution do not suﬃce. The precondition for the functioning of such a consociational democracy model within an ethnically fragmentized society is a climate of tolerance and dialogue, the so-called “institutional equality”.5 The basic elements of the consociational model in South Tyrol are identiﬁed in the relationships between the elites of the German (and Ladin) and the Italian language group, as well as in international safeguards and in the relationship between Italy as a unitary state and South Tyrol. South Tyrol’s consociational model was the antithesis of the past negative experiences under the fascist and Nazi regimes. The political elites of the territory drew strength from the antifascist and antinationalist resistance, although the political aims of the Italians with their desire to maintain the Brennerpass as the mountain frontier were confronted by those of the German-speaking South Tyrolese who desired a return to Austria.6 Nevertheless, both elites were convinced of the fact that the future of the territory could only be guaranteed by a common management of all problems. The ongoing deep ethnic fragmentation, the continuity of the antagonistic ethnic mentality of the diﬀerent groupings and the social divide between the language groups should be overcome by a permanent declared consensus on the part of the elites. The international political framework and the legal bases (the Paris Agreement and the Autonomy Statute) encouraged such a conception.

5 Joseph Marko, Autonomie und Integration. Rechtsinstitute des Nationalitätenrechts im funktionalen Vergleich (Böhlau, Graz, Wien, Köln, 1995), 172. 6 Günther Pallaver, “Abhängigkeit, Verspätung, ethnische Versäulung. Folgen einer verfehlten Epurazione und Entnaziﬁzierung in Südtirol”, in Gerald Steinacher (ed.), Südtirol im Dritten Reich/L’Alto Adige nel Terzo Reich 1943–1945 (StudienVerlag, Innsbruck, Wien, München, Bozen/ Bolzano, 2003), 361–374.

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Table 1: Population Development in South Tyrol 1900–2001 according to Language Groups (%) Year

Italians

Germans

Ladins

1900 1910 1921 1961 1971 1981 1991 2001

4.0 2.9 10.6 34.3 33.3 28.7 27.6 26.4

88.8 89.0 75.9 62.2 62.9 64.9 67.9 69.1

4.0 3.8 3.9 3.4 3.7 4.1 4.2 4.3

Source: ASTAT, Statisches Jahrbuch für Südtirol 2001 (Athesia, Bozen/Bolzano, 2001), 108.

This consensus on the part of the elites was favoured by the common ideological basis (Catholic) of the two dominant political parties. On the one hand, the South Tyrolean People’s Party (Südtiroler Volkspartei, SVP) had oﬃcially described itself since 1964 as a party based on Catholic-social principles,7 although, being an ‘ethnic catch-all-party’ for all South Tyrolese, it would as such be committed to internal political plurality. On the other hand, the Italian Christian Democrats (Democrazia Cristiana, DC) identiﬁed itself as a Catholic people’s party. Notwithstanding numerous diﬃculties, the German-speaking elite never abandoned the path of legality and always acted according to the pact concluded with the mostly Catholic Italian elites. The abovementioned diﬃculties covered a range of problems connected with the implementation of the Autonomy Statute (ASt), the displacement of the more liberal elements of the SVP by conservative farming elites at the end of the 1950s and the critical approach, as well as a number of bomb attacks during the 1960s. The same is true for the Italian elites. Despite all of their reservations in regard to autonomy they never completely gave up the path based upon dialogue.8 Even though nationalist tendencies were again ﬂaming up and arising on both sides, one can aﬃrm that social dialogue was never totally abandoned. Such a consensus between the elites was visible in the autonomy procedures and in the concrete elaboration of the autonomy; this meant that, in essential questions, no decision against the veto power of a language group could be prosecuted. The procedural design of the autonomy system (based on parity and negotiation, mirroring the basic framework for international relations) includes all language groups; it proved its value also in the relations between the state and the

7 Günther Pallaver, “The Südtiroler Volkspartei: from Irredentism to Autonomy”, in Lieven De Winter, Margarita Gómez-Reino and Peter Lynch (eds.), Autonomist Parties in Europe: Identity, Politics and the Revival of the Territorial Cleavage (Aleu, Barcelona, 2006), 161–188, at 165; and Anton Holzer, Die Südtiroler Volkspartei (Kulturverlag, Thaur, 1991). 8 Alcide Berloﬀa, Gli anni del Pacchetto. Ricordi raccolti da Giuseppe Ferrandi (Raetia, Bozen/ Bolzano, 2004).

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province and between the central government in Rome and the SVP.9 This model is based on the procedural institutionalization of institutions and fora in charge of conﬂict resolution. The ﬁrst time such an institutionalized conﬂict resolution mechanism came into play was in the early 1960s. After the failure of the First Autonomy Statute (1948), which codiﬁed the dominant position of the region vis-à-vis the province and thus the predominant position of Italians vis-à-vis the German-speaking South Tyrolese, a so-called ‘Commission of Nineteen’ elaborated a report on how the dispute concerning the proper implementation of the Paris Agreement could be resolved. The name of the commission comes from the number of its members, who were representatives of the state, the region and the province; 12 of them were Italian speakers, six German speakers and one was a Ladin. On the basis of the report of the commission and after further negotiations that lasted about four years, the so-called ‘Package’ was adopted in 1969. The ‘Package’ is a bundle of measures in favour of the minority, which led in 1972 to the amendment of the ASt and was gradually enacted until 1992 (in 1992, the SVP informed the Austrian government that the ‘Package’ had been implemented to its satisfaction). The adoption and implementation of the ‘Package’ was based on an exchange relationship between Rome and Bolzano/Bozen providing for stability in the province by means of autonomy.10 This model of procedural inclusion of the diﬀerent linguistic groups and democracy based on negotiations11 is visible in a range of other commissions that were appointed to regulate the relationship between the state and the province and between the diﬀerent language groups; in addition, they were also meant to consult the Italian government on the further elaboration and adaptation of the autonomy and the protection of minorities.12 Hence, the ‘Commission of Twelve’ is competent for handling speciﬁc areas attributed to the region Trentino-South Tyrol and the ‘Commission of Six’ deals with areas concerning the Province of Bolzano/Bozen. Both commissions are composed of representatives of the state, the region and the province, respectively, and are composed of equal numbers of Italian and German speakers. The function of these commissions, however, has developed from a consultative mechanism into a decision-making body, essential for the further development of the autonomous system. Also the ‘137-Commission’ (the name comes from point number 137 of the ‘Package’), which is charged with looking after the development of the autonomy, is composed of representatives

9

See the chapters by Francesco Palermo and Jens Woelk in this volume. Guido Denicolò, “Die politischen Parteien Südtirols”, in Barta Heinz (ed.), Gaismair-Kalender 1984 (Michael-Gaismair-Gesellschaft, Innsbruck, 1984), 77–79. 11 Anton Pelinka, “Minderheitenpolitik im politischen System Österreich”, in Rainer Bauböck (ed.), . . . Und raus bist du. Ethnische Minderheiten in der Politik (Verlag für Gesellschaftskritik, Wien, 1988), 23–27. 12 Werner Pramstrahler, “Sozialer Dialog in Südtirol”, unpublished manuscript, Bozen/Bolzano (1999). 10

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of the state and the province but the share of the language groups mirrors their strength in the population.13 This model of procedural inclusion14 also shapes the substance of the autonomy. All in all, a series of checks and balances characterize the autonomy. One element, trying to achieve a balance among linguistic groups, is focused on the so-called ‘ethnic quota system’.15 The ethnic quota system establishes that all public posts are distributed according to the size of the language groups resulting from the last census. This principle applies also to the allocation of public funds. All means are allocated in conformity with the proportional system (for example, study grants, social housing (where also the criterion of necessity comes into play), public welfare and culture). The ethnic quota system is also taken into account in the composition of political bodies as well as in the composition of all commissions of public law (legislative commission of the provincial assembly, associations of districts, municipalities, city councils and also the boards of public companies).16 The ASt and the resulting decision-making processes are characterized by a system of forced cooperation between the diﬀerent language groups. Even though the SVP has gained an absolute majority of votes in the province since the ﬁrst elections of 1948, this party cannot rule alone because of the principle of inclusion of the other language groups. On the one hand, the provincial government has to be composed according to the size of the language groups represented in the provincial assembly. The Ladins, being the smallest language group (4.3%) have to obtain at least one seat in the provincial assembly due to the provisions anchored in the ASt and, if they are represented by two delegates in the assembly, they must also be represented in the provincial government. The institutional representation, on the other hand, follows the principle of alternation. The ASt states that the presidency of the provincial assembly rotates; the German-speaking group appoints the president for the ﬁrst 2.5 years, the Italian group for the second half of the mandate. The Ladins had been, until recently, excluded from this alternation principle. After the reform of the ASt in 2001, however, the Ladins can also oﬃciate if the other groups agree. Ministers can also be appointed from outside the assembly. Due to this new possibility of ‘externals’, Ladins can also hold an appointment as a provincial minister if there are not already two 13 See the chapter in this volume by Francesco Palermo on the implementation and amendment of the Autonomy Statute. 14 See Francesco Palermo, “Rolle und Wesen der paritätischen Kommissionen und ihrer Durchführungsbestimmungen”, in Joseph Marko et al. (eds.), Die Verfassung der Südtiroler Autonomie. Die Sonderrechtsordnung der Autonomen Provinz Bozen/Südtirol (Nomos, Baden-Baden, 2005), 395–405. 15 See Giovanni Poggeschi, “Volkszählung und Sprachgruppenzugehörigkeitserklärung”, in Joseph Marko et al., op. cit. note 14, 306–321. 16 For details on the quota system, see the chapter by Emma Lantschner and Giovanni Poggeschi in this volume.

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Ladin delegates (independently from their party membership) in the provincial assembly.17 A further ethnic corrective meant to avoid the dominance of one language group over the other is the request for separate voting by the majority of the representatives of one linguistic group in the assembly (Art. 56 ASt). This method foresees that each language group may vote separately upon an act that is considered to have adverse eﬀects upon the equality of rights between citizens of diﬀerent linguistic groups or to the ethnic and cultural characteristics of one of the groups. Article 84 of the ASt foresees the same procedure for voting on the budget, whereby the individual chapters of the estimate of the ﬁnancial budget can be voted on separately by the linguistic groups. A joint (with equal representation) ethnic procedure is opened if the single chapters of the ﬁnancial budget do not secure a majority of votes within each language group.

II. The Principle of Ethnic Division The consociational democracy model for the elites stands in stark relation to the ethnic division of South Tyrolean civil society. Nowadays, in South Tyrol, the cornerstone for the cohabitation of diﬀerent language groups is the ‘Package’, a bundle of measures that represent a compromise between the Italian state and the SVP (with the approval of the Austrian government). It guarantees South Tyrol far-reaching legislative and administrative powers, including the necessary ﬁnancial resources. However, its implementation was not characterized by a vision of coexistence but by the aim of increasing autonomous powers18 and by the protection of the German- and Ladin-speaking minority. Finally, both, the ‘Package’ and the Second Autonomy Statute (1972) were interpreted as instruments in order to reduce the inﬂuence of Italian elites and to delimit ethnicities. The ‘Package’ was understood as a sort of ‘concordat’, particularly for the reason that the compromise foresees closeness and cooperative grading instead of democracy and individual liberty.19 The more the parties insisted on the principle of minority protection, the more rigorously the ethnic division was achieved.

17 See Roberto Toniatti, “L’evoluzione statutaria dell’autonomia speciale nell’Alto Adige/Südtirol. Dalle garanzie della democrazia consociativa alla ‘autodeterminazione territoriale’”, in Joseph Marko et al. (eds.), L’ordinamento speciale della Provincia Autonoma di Bolzano (Cedam, Padova, 2001), 34–88. 18 Siegfried Baur, Irmi von Guggenberg and Dietmar Larcher (eds.), Zwischen Herkunft und Zukunft. Südtirol im Spannungsfeld zwischen ethnischer und postnationaler Gesellschaftsstruktur. Ein Forschungsbericht (Alpha & Beta, Bozen/Bolzano, 1998), 11. 19 See Alexander Langer, Die Mehrheit der Minderheiten (Wagenbach, Berlin, 1996), 168; and Id., “Volksgruppen- und Minderheitenpolitik—Südtirol nach dem Paketabschluß”, in Bauböck, op. cit. note 11, 78–88.

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After years of social isolation, this model has opened up opportunities for German and Ladin speakers to catch up in diﬀerent sectors, such as, for instance, the labour market. However, this very phenomenon has put a certain kind of ethnopolitical thought and action into motion and the importance of belonging to a certain ethnicity has thus been re-enforced.20 Due to this logic, all three language groups back out into their own reservoir and communicate through their own institutional channels. This renewed emphasis on ethnicity expresses itself in the tendency of all three language groups to organize themselves in ethnically homogenous parties. This trend encourages a return to an ethnic society, characterized by pre-modern family-like structures.21 The consequence is an accentuated division of South Tyrolean society into separated sub-societies, whereas institutional contacts, which could blur this division, are discouraged or, in any case, made diﬃcult. The separation of South Tyrolean society along ethnic lines pervades the whole political–administrative system with its intertwined subsystems. Thus, the political parties in South Tyrol are organized from an ethnic point of view. After the provincial elections in 2003, in the provincial assembly there are three German, ﬁve Italian and one interethnic party (the Greens). The German-speaking parties do not compete with the Italian-speaking parties. Hence, in South Tyrol, two political arenas exist, separated by ethnic cornerstones.22 The division of the political arenas into linguistically deﬁned sub-arenas traces back to the Austrian monarchy; at the end of the nineteenth century, parties organized themselves according to nationality. This method was also applied after the annexation of South Tyrol in 1918 as well as after 1945. Nowadays, the South Tyrolean multi-party system is characterized by a deep ethnic cleavage. The SVP was founded immediately after World War II as an ethnic-catch-all party for German and Ladin speakers. For a long time, the SVP had an ethnic monopoly. Only in 1964 did the German-speaking liberal-conservative Tyrol Homeland Party (Tiroler Heimatpartei) get into the provincial assembly.23 A few years later, another two German-speaking social democratic parties24 followed and, in the 1970s and especially the 1990s, further national liberal parties25

20

Baur, von Guggenberg and Larcher, op. cit. note 18, 272. Günther Pallaver, “The Südtiroler Volkspartei and Its Ethno-populism”, in Daniele Caramani and Yves Mény (eds.), Challanges to Consensual Politics. Democracy, Identity, and Populist Protest in the Alpine Region (Peter Lang, Brussels, 2005), 187–208, at 193–196. 22 Günther Pallaver, “Südtirols Parteiensystem: Versuch einer Typologisierung nach den Landtagswahlen 2003”, in Peter Filzmaier et al. (eds.), Jahrbuch für Politik Tirol und Südtirol 2003/La politica in Tirolo e in Sudtirolo (Athesia, Bozen/Bolzano, 2004), 103–121, at 104. Meanwhile, there also exists a third electoral arena with the creation of a party representing the Ladin minority, entitled ‘Ladins’. 23 Günther Pallaver, “Die Südtiroler Volkspartei. Erfolgreiches Modell einer ethnoregionalen Partei. Trends und Perspektiven”, in Institute for Ethnic Studies (ed.), Razprave in Gradivo/Treaties and Documents (38/39) (Eurota, Ljubljana, 2001), 314–358. 24 Südtiroler Fortschrittspartei and Sozialdemokratische Partei Südtirols. 25 Partei der Unabhängigen, Union für Südtirol, Freiheitliche Partei. 21

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entered the provincial assembly. No German party apart from the SVP has ever reached more than ~15% of the German-speaking vote, however. Whereas the German parties are pro-autonomy (SVP) or separatist parties (Union für Südtirol ), the Italian party panorama always reﬂected the national situation. At the national level, eight relevant parties competed during the socalled ‘ﬁrst republic’ (1948–1992).26 Fragmentation was also correspondingly high among the Italian party panorama in South Tyrol. However, the Christian Democrats dominated. Next came the socialist party Partito Socialista Italiano (PSI) and the social democrats Partito Socialista Democratico Italiano (PSDI), the communists Partito Comunista Italiano (PCI) and the neofascist party Movimento Sociale Italiano (MSI). All these parties were represented at the provincial level. The implosion of the Italian party system in 1992–1993 and the end of the ‘ﬁrst republic’ touched also the Italian parties in South Tyrol, which partly disappeared (for example, the DC and the PSI) or were replaced by new ones (for instance, Forza Italia or Lega Nord ). Only the Greens (Grüne/Verdi/Verc) and its predecessors since 1978 have had an interethnic basis and been present in all ethnic sub-arenas. Attempts on the part of the PSI and the PCI in the 1970s and 1980s to organize themselves interethnically failed. As we have seen, at the provincial level, the political parties are divided ethnically. At the national electoral level, regional German and national Italian parties seek arrangements and compromises to better represent their interests. In the 1990s, this tendency towards an ethnic electoral division included also the Ladins, who until then had maintained a traditionally relatively strong and close political relationship with the SVP and, in a softer way, with the Democrazia Cristiana. In political terms, this meant that ethnic belonging prevailed over the primacy of politics. Such a party-political ethnic separation has far-reaching consequences, as this political logic of ethnic division is reﬂected in individual policy ﬁelds. Thus, in South Tyrol, elections to the provincial assembly and the national parliament are driven by the ‘we’ and the ‘others’, despite the fact that there are no longer serious threats to the continuance of the German- and Ladin-speaking minorities. This is especially valid for the SVP but also for the Italian-speaking center-right party National Alliance (Alleanza Nazionale, AN), which tries to replicate the SVP model of being an Italian ‘ethnic catch-all-party. In South Tyrol, the political climate is characterized by an alternating incitement resulting from the ethnicity question, on the one hand, and the interethnic normalization process, on the other hand. Even if there is a kind of ethnic stand still, one can observe how ethnic tension is used as a potential mobilizing factor for promoting one’s own aims.

26 During the ﬁrst republic (1947–1992), Italian politics were dominated by the DC; this was more or less the case until the ‘Tangentopoli’ scandal (‘bribeville’, referring to a corruption-based system) and the operation ‘Mani Pulite’ (‘Clean Hands’), which involved all of the major Italian parties (especially those in the government coalition) and led to the second republic (1992-present); after Tangentopoli and Mani Pulite, most of the Italian parties were dissolved.

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The preferably complete separation of language groups is inevitably and essentially followed by a prolongation of ethnic tensions. The separation of language groups is taking place in all signiﬁcant institutions and also in everyday practical experience.27 It is thus not surprising that almost three quarters of the South Tyrolese population has a circle of friends belonging predominantly or even exclusively to the same language group.28 Table 2: Distribution of Mandates according to Language Groups in the South Tyrolean Provincial Assembly 2003 and 1998 German 2003 Südtiroler Volkspartei (South Tyrolean People’s Party, ‘ethnic catch-all’ Germanspeaking party)

20

Alleanza Nazionale (National Alliance, Italian right-wing party)

Ladin Italian German 2003 2003 1998

1

21

3

3

Grüne-DPS (Green Party)

3

1

Union für Südtirol (German rightwing party militating for selfdetermination)

2

2

Die Freiheitlichen (German nationalistic liberals)

Ladin Italian Changes 1998 1998* 2003–1998

+1 1

+1 2

1

Pace e Diritti (Italian left-wing party)

1

1

Unione Autonomista (Italian centre)

1

2

Forza Italia (Italian centre-right party)

1

1

-1

27 Peter Bettelheim and Rudi Benedikter (eds.), Apartheid in Mitteleuropa? Sprache und Sprachenpolitik in Südtirol (Jugend & Volk, Wien, 1982); and Rudolf Benedikter (ed.), Nationalismus und Neofaschismus in Südtirol (Forschungsprojekt des Instituts für Friedensforschung und Friedenserziehung) (Braumüller, Wien, 1987). 28 Werther Ceccon, “Sprachidentität/Identitá limguistica”, in ASTAT (ed.), Südtiroler Sprachbarometer. Sprachgebrauch und Sprachidentität in Südtirol 2004—Barometro linguistico dell’Alto Adige. Uso della lingua e identità linguistica in provincia di Bolzano 2004 (La Bodoniana, Bozen/Bolzano, 2006), 105–164, at 123.

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Table (cont.)

German 2003

Ladin Italian German 2003 2003 1998

Unitalia (Italian right-wing party)

Ladin Italian Changes 1998 1998* 2003–1998

1

1

Ladins

1

-1

Alternativa Rosa (women’s party) Comunisti Italiani (Party of Italian Communists) Lega Nord (Northern League) Total

27

1

7

25

1

9

%

77.1

2.9

20.0

71.4

2.9

25.7

Proportional quota according to the census

69.2

4.4

26.5

68.0

4.4

27.6

Source: Hermann Atz, “Die Landtagswahlen 2003 in Südtirol”, in Peter Plaikner, Isabella Cherubini and Günther Pallaver (eds.), La politica in Tirolo e in Sudtirolo (Athesia, Bozen/Bolzano, 2004), 196–217, at 202. *From the delegates listed as members of the Unione Autonomista, one belonged to the political list Popolari-Alto Adige Domani (Populists-Alto Adige Tomorrow) and the other delegate belonged to the list Il Centro-Unione Democratica Alto Adige (The Centre-Democratic Union Alto Adige).

There is a separate school and education system, from kindergarten to the faculty of education, where teachers are trained. Furthermore, there are separate departments of culture, cultural institutions and facilities, libraries and associations, social housing facilities and homes for the aged.29 Also, the media tends to follow the principle of ethnic division.30 Normally, there is a tendency to strongly privilege the reporting of and on one’s own language group, whereas the commentaries of the other language group are neglected. The diﬀerent language groups are thereby only to a (very) limited extent taking part in the life of the language group they do not belong to. It is nevertheless noticeable that those professional categories that are of a high social proﬁle avoid constructing ethnic fences. The association of entrepreneurs

29

See the chapter by Siegfried Baur and Roberta Medda-Windischer in this volume. Günther Pallaver, “Nationalismus und Kommunikation. Der TV-und Zeitungsblick über den ethnischen Schrebergarten”, in Jakob Wolf (ed.), Regionale Medienlandschaft. Tirol, Südtirol, Vorarlberg (Studia, Innsbruck, 1996), 129–145; Günther Pallaver (ed.), Die ethnisch halbierte Wirklichkeit. Medien, Öﬀentlichkeit und politische Legitimation in ethnisch fragmentierten Gesellschaften. Theoretische Überlegungen und Fallbeispiele aus Südtirol (Studien-Verlag, Innsbruck, Wien, Bozen/Bolzano, 2006); and Anton Pelinka, “Politica e mass media tra modernità e tradizione”, in Di Michele, Palermo and Pallaver, op. cit. note 2, 319–326. 30

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is organized interethnically, as is the chamber of lawyers, the chamber of doctors, the chamber of architects and others. The presidencies and the managerial positions of these associations are mostly assigned accordingly to a rotation system, which alternates exponents from the diﬀerent language groups. The situation diﬀers in regard to employees. Next to the three traditional trade union federations ASG/CGIL,31 SGB/CISL32 and SGK/UIL,33 which are all interethnic, since 1964 there has also been an ethnic German-speaking Autonomous South Tyrolean Trade Union (Autonomer Südtiroler Gewerkschaftsbund, ASGB). This ethnic fragmentation has decisive consequences for the distribution of resources, which is codiﬁed through the ethnic quota system. The system has a twofold dimension: vertical and horizontal. Although the quota has to be respected on all the diﬀerent levels of the administrative hierarchy, there is a tendency that Italians generally ﬁll positions as vice-presidents, vice-delegates, etc.34 At the level of top positions, the system should be more penetrable for Italian speakers in order for them not to feel disadvantaged by the system. However, the quota system is not only a mathematic means to allocate public funds according to the size of the individual language groups but it is also a political instrument. An emerging understanding of social necessities due to demographic and societal changes in recent decades has forced the political elite to make the proportional quota system more ﬂexible. As a consequence, the public sector does not risk becoming paralyzed if the relevant language group is unable to ﬁll the vacancy. The change in the quota mechanism shows that also this apparently untouchable pillar of the ASt has to adapt to social reality. As demonstrated above, the proportional quota system can channel conﬂicts in the distribution of public posts and in the allocation of resources but it can also evoke new conﬂicts. This is the case if people are excluded from resources due to their language declaration. Once symmetry among the language groups is established, the proportional quota system should set the course for merit as the main criteria.

III. The Breaches in the Model The political elites of South Tyrol of all three language groups—but especially the German- and Italian-speaking ones—were legitimized to a large extent by their homogeneity and uniform representation after World War II up until the adoption of the Second Autonomy Statute. The results of elections for the provincial assembly and the steady high presence and percentage rates of parties such as the SVP and DC are proof of this contention.

31

Allgemeiner Gewerkschaftsbund (AGB)/Confederazione Italiana del Lavoro (CGIL). Südtiroler Gewerkschaftsbund (SGB)/Confederazione Italiana Sindacati Lavoratori (CISL). 33 Südtiroler Gewerkschaftskammer (SGK)/Unione Italiana del Lavoro (UIL). 34 Norbert Dall’Ò, “Der Frust der Ausgeschlossenen”, ﬀ-Südtiroler Wochenmagazin, 5 October 2006, 16–21. 32

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Due to the constancy of the individual language groups, South Tyrol enjoyed a relatively high level of political-cultural stability and homogeneity, which made it possible for the elites to pursue political aims that were legitimized by the whole group, although some inner cleavages were emerging. Within the German- (and Ladin-speaking) language group, cultural homogeneity was visible because of common characteristics within the population (a farmers’ society). This was not the case for the Italian language group present in South Tyrol; this latter population group was characterized by strong internal diﬀerences due to the reason that Italians came from diverse territories in Northern Italy and had settled down in South Tyrol individually. Therefore, the Italian group was not socially and culturally as compact as the German- and Ladin-speaking groups. Nevertheless, there was also a relatively strong feeling of unity within the Italian linguistic group in accepting overall political aims, which was enabled by the common religion, the Catholic faith. The politics of ethnic separation—which had and still has as its ﬁnal aim the strengthening of the respective language group—often favoured the maintenance of the abovementioned homogeneity within the political system(s). Conﬂicts within a single language group were transformed very easily into conﬂicts against the other language group. Despite all such conﬂicts at the interethnic level, however, economic and political cooperation between the elites of each language group was evident from the very beginning of their relationships.35 These preconditions for a successful paciﬁcation of the region’s ethnic conﬂicts became diluted in recent years. Nowadays, the South Tyrolean model of ethnic conﬂict resolution tends to break up because some of the abovementioned prerequisites are no longer present. This includes a breach in the continuity within the political elites of the Italian-speaking population and the concurrent exclusion of a consistent part of civil society from vital decision-making processes in the province. For that reason, the consociational model, which should guarantee the maximum ethnic inclusion, is slightly falling apart. This has led to a centrifugal development of the party system in South Tyrol. Also, the societal modernization process and the importance of the issue of ‘minority protection’ have contributed to an erosion of the entailed political cultures and the interlinked strict ethnic separation. After all, the consolidation of minority protection has led to a new tension between collective and individual (minority) rights. A. The Breach in the Continuity of the Elites within the Italian-speaking Language Group and the Erosion of the Inclusion System of all Ethnic Groups The Democrazia Cristiana was a traditional coalition partner of the SVP at the level of both the provincial and the regional government. The broadening of the coalition (to include the Social Democrats and the Socialist party) was thereby a

35 Brendan O’Duﬀy, “Containment or Regulation? The British Approach to Ethnic Conﬂict in Northern Ireland”, in Brendan O’Leary (ed.), The Politics of Ethnic Conﬂict Regulation (Routledge, New York, London, 1993), 128–150.

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reﬂection of the changes in coalitions from 1963 onwards in the national government. In Rome, within the national government, the shrinking support for the DC has forced this party to accept a centre-left alliance. The coalition was based upon the ideological spindle of the two Catholic parties. The SVP was the dominant party within the German- and Ladin-speaking population and the DC the dominant party within the Italian speakers. From 1948 to 1993, the SVP and the DC together were represented in the province with a percentage rate of 78.75% in 1956 and 70.67% in 1989. In 1993, they lost this stability because of the crisis and the internal split of the DC at the national level (56.47%). An analysis of the development of the Italian parties since 1948 shows that the DC had reached a level of support among the Italian speaking population of 40.41% in 1956 and 30.99% in 1988. This means that the DC always represented at least a third of the Italian-speaking population. Table 3: Composition of the Provincial Assembly from 1948 to 2001 1948– 1952

1952– 1956

1956– 1960

1960– 1964

1964– 1968

1968– 1973– 1978– 1984– 1989– 1993– 1999– 1973 1978 1983 1989 1993 1998 2003

SVPDCPRI

SVPDC

SVPDC

SVPDC

SVPDCPSDI

SVPDC

SVPDCPSI

SVPDCPSDI

SVPDCPSI

2003– 2008

SVP- SVP- SVPSVP DC PPI- DSPace e PSI PDS/ PPI- Diritti, AD Centro Unione Autonomista

PRI = Partito Repubblicano Italiano (Italian Republican Party); PSDI = Partito Socialista Democratico Italiano (Italian Socialist Democratic Party); PDS = Partito democratico della Sinistra (Party of the democratic left); PPI = Partito Popolare Italiano (Italian People’s Party). Source: Günther Pallaver, “Südtirols Parteiensystem: Versuch einer Typologisierung nach den Landtagswahlen 2003”, in Peter Filzmaier, Peter Plaikner, Isabella Cherubini and Günther Pallaver (eds.), Jahrbuch für Politik Tirol und Südtirol 2003/La politica in Tirolo e in Sudtirolo (Athesia, Bozen/Bolzano, 2004), 103–121, at 119.

Table 4: SVP-DC and Successor Parties Electoral Share Percentage Rates 1948– 1952– 1956– 1960– 1964– 1968– 1973– 1978– 1984– 1989– 1993– 1998– 2003– 1952 1956 1960 1964 1968 1973 1978 1983 1989 1993 1998 2003 2008 SVP 67.60 DC 10.78 Total 78.38

64.76 13.72 78.48

64.40 63.86 61.27 60.69 56.42 61.27 59.44 60.38 52.04 56.6 14.35 14.61 13.52 14.40 14.08 10.79 9.55 10.29 4.43 4.5* 78.75 78.47 74.79 75.09 70.50 72.06 68.99 70.67 56.47 61.1

55.6 3.7** 59.3

* These ﬁgures refer to the results of the DC successor parties. In 1998, these were Popolari Alto Adige (People’s South Tyrol, 2.7%) and Il Centro-Unione Democratica dell’Alto Adige (The Centre-Democratic Union of South Tyrol, 1.8%). ** In 2003, there were four centre parties running for elections within the alliance Unione Autonomista (Autonomous Union): Insieme per l’Alto Adige (Together for South Tyrol), Lista Di Pietro (Di Pietro’s List), Unione di Centro (Union of the Centre) and Margherita. Source: Data compiled from Südtiroler Landesregierung, Südtirol Handbuch (22/2003) (Arti Graﬁche Tezzele, Bozen/Bolzano, 2003); and Marco Rizza, “La corsa all’unità, l’approdo alla frammentazione. I partiti italiani in Sudtirolo”, in Peter Filzmaier, Peter Plaikner, Isabella Cherubini and Günther Pallaver (eds.), Jahrbuch für Politik Tirol und Südtirol 2003/La politica in Tirolo e in Sudtirolo (Athesia, Bozen/Bolzano, 2004), 124–133.

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Table 5: Voters’ Conﬁdence Share* of the DC and its Successor Parties (%) 1948

1952

1956

1960

1964

1968

1973

1978

1983

1988

1993

1998

2003

33.80

39.32

40.41

38.94

37.21

38.96

39.53

35.08

32.12

30.99

16.01

17.64

17.01

* Refers to the Italian ‘Indice di ﬁducia’, which is a measure of the trust of citizens in the party, based on opinion polls. Source: Data compiled from Südtiroler Landesregierung, Südtirol Handbuch (22/2003) (Arti Graﬁche Tezzele, Bozen/Bolzano, 2003); and Günther Pallaver, “Südtirols Parteiensystem: Versuch einer Typologisierung nach den Landtagswahlen 2003”, in Peter Filzmaier, Peter Plaikner, Isabella Cherubini and Günther Pallaver (eds.), Jahrbuch für Politik Tirol und Südtirol 2003/La politica in Tirolo e in Sudtirolo (Athesia, Bozen/Bolzano, 2004), 103–121, at 107.

Taking all the percentage rates of the other Italian coalition partners and combining the number with the election results of the DC, one observes that Italians in South Tyrol were strongly represented in the provincial government from 1948 until 1993. As is visible in the attached table, the Italian coalition partners represented the Italian population of South Tyrol in the abovementioned time span with a maximum of 55.37% in 1973 and a minimum of 38.94% in 1960. Only with the breakdown of the ‘ﬁrst republic’36 and the crisis within the DC did the Italian coalition partners fail to reach a percentage rate of 30% in 2003 (28.3%). In 1998, the quota was still slightly above 30%. In the legislative period between 1993 and 1998, they reached only 26.64%. Table 6: Share of the Italian Coalition Parties in Absolute Terms and Relative to the Number of Italian Voters 1948–2003 (%) 1948 1952 1956 1960 1964 1968 1973 1978 1983 1988 10.78 13.72 14.35 14.61 13.52 14.40 14.08 DC/PPI Unione Autonomista Il Centro/ UDA PSI 5.64 PRI 3.58 PSDI 3.82 PDS/DS Pace e Diritti Total 14.36 13.72 14.35 14.61 17.34 14.40 19.72 Percentage 42.48 39.32 40.41 38.94 47.72 38.96 55.37 of Italian voters

10.79 9.55 10.29

1993

1998

2003

4.43

2.7*

3.7**

1.8* 3.91 4.03 2.29 2.94

3.5

3.8

13.08 13.46 14.32 7.37 8.0 7.5 42.53 45.27 48.94 26.64 31.37 28.35

* The succession party of the DC, the Popolari, did split once more in the provincial assembly elections in 1998. ** In 2003, four centrist parties ran for elections. Source: Data compiled from Südtiroler Landesregierung, Südtirol-Handbuch (19/2000) (La Commerciale, Bozen/ Bolzano, 2000); and Günther Pallaver, “Südtirols Parteiensystem: Versuch einer Typologisierung nach den Landtagswahlen 2003”, in Peter Filzmaier, Peter Plaikner, Isabella Cherubini and Günther Pallaver (eds.), Jahrbuch für Politik Tirol und Südtirol 2003/La politica in Tirolo e in Sudtirolo (Athesia, Bozen/Bolzano, 2004), 103–121, 107.

36

Bettelheim and Benedikter, op. cit. note 27; Benedikter, op. cit. note 27.

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Since 1993, a majority of Italians in South Tyrol were no longer represented in the decision-making bodies. Subjectively perceived, this means that the consociational democracy model and its principle of inclusion of all language groups in decision-making processes is no longer being fully implemented. The strongest party among the Italians in South Tyrol, the Alleanza Nazionale (a right wing party), is no longer considered to be an anti-system party but, from a political autonomy point of view, it is still deﬁned as a semi-anti-system party. Therefore, it remains excluded from a decisive involvement in the provincial government and this also automatically entails the exclusion of a quite relevant part of the Italian population. This tendency was already visible in 1988. At that time, the Movimento Sociale Italiano outran the DC for the ﬁrst time; today, AN is virtually unchallenged and presents itself as the strongest party among Italian voters. Table 7: Electoral Results of the Parties DC and MSI/AN 1988–2003

DC/PPI/Unione Autonomista MSI/AN*

1988

1993

1998

2003

9.07

4.43

4.5

3.7

10.29

11.64

9.7**

8.4

* In 1995, at the party congress in Fiuggi, the MSI (Italian Social Movement) changed its name into Alleanza Nazionale (National Alliance, AN). ** Together with the Liberals. Source: Günther Pallaver, “Südtirols Parteiensystem: Versuch einer Typologisierung nach den Landtagswahlen 2003”, in Peter Filzmaier, Peter Plaikner, Isabella Cherubini and Günther Pallaver (eds.), Jahrbuch für Politik Tirol und Südtirol 2003/La politica in Tirolo e in Sudtirolo (Athesia, Bozen/Bolzano, 2004), 103–121, at 107.

This exclusion had an eﬀect not only in the provincial assembly but also in all of the important commissions, which act as interlocutors between the ethnic minority and the national government in Rome. With the accession of the centre-right national government in 2001, Alleanza Nazionale was for the ﬁrst time present in all of the commissions (in the ‘Commission of Six’ and the ‘Commission of Twelve’, as well as in the ‘Commission of 137’). The electoral victory of the leftwing coalition of Romano Prodi in 2006 reversed this situation, however. The exclusion of a quite relevant part of the Italian society from political decision-making structures called for an Italian catch-all-party that could compete co-equally with the hegemonic SVP. This meant that the fragmentation within the Italian political scenario had to stop. Alleanza Nazionale fulﬁlls this function only to a very limited extent. Also, the Ladins feel disadvantaged by their exclusion from the central decision-making apparatus in South Tyrol. The Ladins are entitled to be represented in the provincial assembly. The Autonomy Statute of 1972 guarantees the Ladins one mandate. However, they were neither able to hold the oﬃce of president of the provincial assembly nor that of deputy president. Furthermore, they qualify

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for a governmental seat only in the case of having two Ladins in the provincial assembly. Only after the reform of the ASt in 2001 were the Ladins provided with the possibility to be coopted into the provincial government regardless of their size. Furthermore, they can run for elections and become (vice-)president of the provincial assembly if the German or Italian Language group abstain from doing so. Moreover, they are excluded from the joint commissions (the commissions of 6 and of 12), for which only the equal representation of German and Italian speakers was foreseen. In the judiciary, they are legally left out from the administrative court, because the latter has to be composed only by German and Italianspeaking South Tyrolese, according to the ASt. The low percentage rate of Ladins (4.3%, according to the last census) leads to the situation that they are also disadvantaged in the allocation of public positions according to their low number. The results of the ‘Social Survey’ in 1997 showed that, in the last ﬁve years, Ladins have perceived themselves to be discriminated against in terms of access to the labour market vis-à-vis people belonging to the German and Italian language groups. Another result was that Ladins have a generally more pessimistic outlook for the future. This is particularly so in regard to their protection as a linguistic minority. They perceive this aspect to be much more of a vital problem than do the members of the other language groups.37 This uneasiness of the Ladin minority, which historically supported the SVP by majority, led in 1993 to the creation of its own, purely ethnically conceived, Ladin party, named ‘Ladins’. This party sent out the sole Ladin delegate to the legislative body, whereas until then the Ladin delegate had always been drawn from the party ranks of the SVP;38 since 2003, this has again been the case due to the loss of the Ladin party in elections. The example of the Ladins shows how minority problems are shifting and how new ethnic cleavages are growing in South Tyrol. This is especially true for new minorities, whose quota within the resident population constitutes ~5% (25,466 on 31 December 2005). After all, nowadays the conﬂict between immigrants and locals is seen as the biggest problem by most South Tyrolese.39

37 Max Haller, Social Survey 1997. Arbeitswerte und wirtschaftlich-sozialer Wandel in Südtirol (Presel, Bozen/Bolzano, 2000), 93. 38 On 25 October 2000, a reform of the ASt was approved in Rome at the second reading. 39 Haller, op. cit. note 37, 93.

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Table 8: Foreigners Residing in South Tyrol as a Proportion of the Available Resident Population Data from 1990 to 2005 1990

1995

1998

2001

2005

Total resident population

438,918

451,563

459,687

468,078

485,042*

Proportion of foreigners in the resident population

1.2%

1.8%

2.5%

3.3%

5.3%

Source: ASTAT, “Ausländer in Südtirol”, ASTAT Information No. 21 (1999), 5; ASTAT, “Wohnbevölkerung in Südtirol”, ASTAT Information No. 10 (2002), 1; ASTAT, “Ausländische Bevölkerung in Südtirol 2001”, ASTAT Information No. 11 (2002), 1; and ASTAT, “Ausländer in Südtirol 2005”, ASTAT Information No. 17 (2006). * Evaluation on 30 June 2006.

B. Majority vs. Autonomy in Governmental Decision-making Processes and the Re-ethnicization of the Party System The breaches in the political culture of the consociational model are expressed also through other facets. The basic principle of consensus on important questions of autonomy is more frequently failing to transpire. Due to its hegemonic position and its absolute majority in the South Tyrolean Provincial Assembly, the SVP often decides upon questions that exclusively concern Italian-speaking South Tyrolese against the will of the majority of Italians. This occurred, for example, in the discussion upon the so-called ‘immersion teaching’ system (some subjects would be taught in the Italian language, others in the German language) in schools having Italian as the teaching language. This kind of immersion teaching is not welcomed by the SVP due to fears that its success would open the ﬂoodgates to demands to introduce ‘mixed’ schools, although a survey in 2004 attested that not only 83.4% of Italians but also 56.8% of German speakers and 98.1% of Ladin speakers in South Tyrol welcomed this teaching method.40 All language groups have to be proportionally (according to their size in the provincial assembly) present in the provincial government due to the basic principle of consociational democracy. This principle is only partly implemented because of the existence of the principle of majority and the absence of an absolute veto power in decision-making processes in the ﬁelds of competence of the individual language groups, which rule in the South Tyrolean provincial government.

40 Kurt Egger, “Sprachbiograﬁe/Biograﬁa linguistica”, in ASTAT (ed.), Südtiroler Sprachbarometer. Sprachgebrauch und Sprachidentität in Südtirol 2004—Barometro linguistico dell’Alto Adige. Uso della lingua e identità linguistica in provincia di Bolzano 2004 (La Bodoniana, Bozen/Bolzano, 2006), 23–66, at 55–56.

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The exclusion of a signiﬁcant part of civil society from central decision-making structures and the deﬁcit of inclusion of the individual language groups led to a re-ethnicization process in the party system and not to an interethnic language-comprehensive opening. All this obviously also had consequences for the dynamics of the party system itself. Since the elections of the provincial assembly in 1998, a centrifugal tendency within the party system has been visible. It is also important to bear the 1993 elections of the provincial assembly in mind within this analysis too, as, although many of the Italian parties were still running for elections with their traditional party signs at that time, the implosion of the Italian party system was already fully initiated. In 1993, the autonomy parties supporting the autonomy arrangement in the provincial assembly had 61.17% of the votes, in 1998 61.10% and in 2003 only 59.3%. This corresponds to a reduction of 1.87%. On the other hand, the semiand anti-autonomy parties gained 2.6% (in 1993, they had 22.5% of all votes and, in 2003, 25.1%). The autonomy reform parties had more or less the same and stable results in the period from 1993–2003 (a loss of only 0.13%). This proves that the South Tyrolean party system has become slowly but steadily characterized by the two extreme poles. This tendency becomes especially clear in a comparative analysis of the provincial assembly elections in 2003 and 1988. The ‘autonomy parties’ (SVP, DC and PSI) together won 73.4% of the votes cast at the elections of 1998. If one adds the result of the autonomy-friendly PCI, the percentage grows to 76.49%. Three quarters of the parties represented in the provincial assembly were located around the centre-pole, whereas the anti- and semi autonomy parties (MSI-DN and the Südtiroler Heimatbund ) reached only 12.58%. The Italian parties represented in the provincial assembly revealed by means of their rising popularity and their election results a tendency towards political extremism within South Tyrolean society. In 1993, the anti- and semi-autonomy friendly parties represented 11.64% of the total vote, in 2003 they reached a percentage rate of 13.3% (+1.66%). The German-speaking parties did not register such a tendency among their voters. Nevertheless, they also expanded from 10.86% of the vote in 1993 to 11.8% in 2003 (+0.94%). Nowadays, the South Tyrolean party system is characterized by a centrifugal dynamic, which tends to place emphasis on the antagonistic poles being focused politically on the autonomy. If this tendency continues, it would mean that, in the longer run, the tense relationship between the extreme wings of the system, the anti- and semi autonomy-parties, and the autonomy parties, will become tenser and tenser. This includes the risk that sooner or later there will be a breaking test for both the centre-autonomy pole and the parties belonging to the extreme poles. The ﬁnal consequence could be that the autonomy system will break apart. Thus, this represents a tendency, indeed, that is counterproductive within the consociational democracy model. This could only be stopped if political reforms are implemented that would be able to narrow voters’ aﬃnity for parties belonging to the extreme poles.

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Table 9: Centrifugal Election Behaviour (%) Year

Autonomy parties

Autonomy reform parties

Semi- and antiautonomy parties

1993

61.7

11.87

22.5

Grüne, Ladins, PDS

1998

SVP, DC/PPI, Lega Nord, Unione Centro 61.10

MSI, Freiheitliche, Union 23.2

SVP, Popolari, Il Centro UDA

Grüne, Ladins-PDS, Progetto Centrosinistra

59.3

11.7

SVP, Unione Autonomista

Grüne, Pace e Diritti

–1.87

–0.13

2003

Variation

13.6

AN-I Liberali, Union, Lista Civica/FI, Freiheitliche, Unitalia 25.1 AN, Union, FI Freiheitliche, Unitalia +2. 6

Source: Data from Südtiroler Landesregierung, Südtirol Handbuch (22/2003) (Arti Graﬁche Tezzele, Bozen/Bolzano, 2003); and author’s own supplements.

IV. The Erosion of the Logic in the System of Ethnic Separation Even though for a long time there had been concordance among the elites, the relationship between the members of the three language groups was also tense and marked by conﬂicts. Step by step, with the expansion of the protection of minority right, the consolidation of the German- and Italian-speaking minorities and the economic transformation that changed the status of the once oppressed minority into a dominant one, the model of strict separation among ethnicities is becoming increasingly criticized and questioned within civil society. This questioning of a system based on ethnic barriers is a bottom-up process in South Tyrol and is not being guided by the elites. The attempt to create a public sphere with the aim of creating a multicultural society that considers multi-linguistic cohabitation to be a high democratic value derives ﬁrstly from the initiative of individuals and groups, who organize themselves in interethnic or ethnically indiﬀerently initiatives and social, cultural and economic projects.41 This could be the beginning of a multilingual participatory and cooperative civil society. Since the 1970s, this evolution has resulted in an increasingly tense and conﬂictual relationship between the institutions and intellectuals. This relationship is centred, on the one hand, on maintaining the status quo of the traditional ethnic

41

Baur, von Guggenberg and Larcher, op. cit. note 18, 274.

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separation; on the other hand, it emphasizes the decrease of institutional barriers to favour interethnic cooperation and the multicultural system. The creation of language-comprehensive structures (if sometimes only in an informal manner) within parties, trade unions and associations, represents a reaction (also if only informal) to the ethnic separation system.42 More successful were common initiatives in the ﬁelds of ecology and environmental protection as well as in the defense of citizens’ and human rights, which are connected with the declaration of linguistic belonging (for instance, the exclusion of the passive voting right due to a missing declaration of linguistic aﬃliation). These are initiatives, indeed, which belong to the informal policy ﬁeld rather than to the formal one. Such an institutional broadening of visions (to a certain extent, even also in the formal policy ﬁeld) would never have been possible without pressure from civil society. However, this spotted expanding cooperation among the language groups comprises only a small part of civil society. Nevertheless, surveys prove that, in the last 15 years, interethnic cooperation is becoming increasingly widely supported. In 2004, 23.1% of the surveyed population in South Tyrol stated that cohabitation does not represent a problem and 60% were of the opinion that the problem was less relevant than in former times. Only 11.1% considered coexistence to be a very big or quite big problem. In 1991, this rate had still been at 38%. Cohabitation itself is seen as positive; just 2.1% consider it to be insuﬃcient and only 0.3% as very bad. Respectively, more than a third expect that the cohabitation of language groups will improve (35.5%) or remain the same (35.8%) in the future. Everybody recognizes the improvements but the Italians with 54.5% and the Ladins with 49.3% support this opinion much more strongly than do the Germans (28.6%). The most popular response was, however, that of those who do not give or just do not want to give any answer to this question.43 One has to consider that, due to the geographic situation, interethnic contacts and relations often don’t exist because the other language group is simply not present. This is valid for the periphery, where the Italian language group is much less numerous and tends to become fully assimilated. The Italian-speaking South Tyrolese are concentrated mostly in the few urban centers in the province and, especially, in the capital city of South Tyrol, Bolzano/Bozen, which comprised, in 2001, 73.00% Italians (in 1991, 72.59%), 26.29% Germans (in 1991, 26.62%) and 0.79% Ladins (in 1991, 0.71%).44 However, despite physical closeness, the two language groups inhabit and cultivate ethnically separated environments. Educational background plays a central role in all these questions. The higher the education, the more positive is the approach to the other language group.

42

Ibid., 285. Kurt Egger and Werther Ceccon, “Leben im mehrsprachigen Raum/Vivere in un contesto multilingue”, in ASTAT, op. cit. note 40, 167–206, at 179–198. 44 Hans Heiss, “Der ambivalente Modellfall: Südtirol 1918–1998”, 21 Mitteilungsblatt des Instituts zur Erforschung der europäischen Arbeiterbewegung (1998), 225–241. 43

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In comparison with the year 1991, there has been one additional eye-catching change. The percentage rate of people who consider ethnic diversity to be a cultural richness increased considerably in 2004 from 36.0% to 55.5% (Germans 59.6%; Italians 38.2%). These percentage rates have to be analyzed taking into account the results of the survey on disadvantage. 69.1% of the Italians are of the opinion that their language group is disadvantaged in the ﬁelds of labour, politics, economy, housing, culture and communication, whereas ‘only’ 32.6% of the Ladins consider themselves to be disadvantaged in politics, society, communication, public administration and 20.1% of Germans in administrative matters and public bodies.45 Here we can observe the cradle of ethnic tensions, which could easily lead to new conﬂicts if the tensions grow more acute. It is the task of politics to avoid this scenario. The gradual reduction of ethnic conﬂicts is also conﬁrmed by a study on the youth population in South Tyrol. This 1995 study states that the South Tyrolese youth considers the coexistence among young people in South Tyrol to be free of any conﬂict and rather unproblematic.46 A consistent majority of young people do not feel any need to consciously establish borders between the language groups. However, the young population is aware of the fact that the ethnic borders are relatively impenetrable. This is especially felt by the Italian-speaking South Tyrolese. Young people with a higher educational background show a signiﬁcantly lower tendency towards ethnic separation in daily life. Moreover, the study also showed that the male youth possesses a more strongly developed ethnic identiﬁcation and interethnic diﬀerentiation than does the female youth.47 These results are more or less conﬁrmed by a study on youth population in the year 1999.48 The reason for the elimination of social distance depends also on the level of knowledge of the second language, which increased positively in the last decades, especially among the Italian-speaking South Tyrolese.49 The knowledge of the second language depends on the age and on the formal education level; this is clear from a survey from 1991, as well as from other polls. 67% of the Italian-speaking and 90% of the German-speaking South Tyrolese

45

Egger and Ceccon, op. cit. note 43, 190–200. Heinz Ulrich Kohr, Massimo Martini and Roland Wakenhut, Jugendstudie 1994/Indagine sui giovani 1994 (ASTAT, Autonome Provinz Bozen/Südtirol-Provincia Autonoma di Bolzano, Alto Adige, Bozen/Bolzano, 1995). 47 Jutta Gallenmüller-Roschmann, “Die drei Sprachgruppen Südtirols im Vergleich”, in Roland Wakenhut (ed.), Ethnische Identität und Jugend. Eine vergleichende Untersuchung zu den drei Südtiroler Sprachgruppen (Leske & Budrich, Opladen, 1999), 83–108, at 97. 48 ASTAT, Jugendstudie. Werthaltungen, Lebensformen und Lebensentwürfe der Südtiroler Jugend 1999/Indagine sui giovani. Valori, stili di vita e progetti per il futuro die giovani altoatesini 1999 (Presel, Bozen/Bolzano, 2000). 49 Ornella Buson, “Bilinguismo, relazioni interetniche e formazione: risultati dell’indagine Astat 1991”, in Hermann Atz and Ornella Buson (eds.), Interethnische Beziehungen: Leben in einer mehrsprachigen Gesellschaft (Presel, Bozen/Bolzano, 1992), 1012–1115; Roberto Baccellini and Hermann Atz, “Il gusto di conoscere un’altra lingua. Valutazione della campagna di sensibilizzazione sul bilinguismo promosso dall’Uﬃcio Bilinguismo della Provincia Autonoma di Bolzano—Alto Adige. Interpretazione dei risultati”, Relazione illustrata al committente (apollis), Bozen/Bolzano (1999). 46

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surveyed in 1991 understood or used the other language, whereas this percentage rate was even higher among the Ladin speakers.50 More recent analyses in 1997 refer to the fact that the knowledge of the other language varies according to diﬀerent age groups; these analyses prove that, among German-speaking South Tyrolese aged 25–44, bilingualism is highly developed, while this high level of bilingualism is visible in Italian-speaking South Tyrolese in the age group 18–24.51 In 2004, one German speaker out of four declared to be able to speak spontaneously and ﬂuently in Italian; one out of three can express him/herself in the other language without problem and easily communicate in daily life. Merely 5.1% declared that they are not able to do so at all. According to this study, the Ladins speak the Italian language at a level that is almost comparable with their mother tongue. In regard to the Italians, 27.2% stated that they are able to properly speak and interact in German, whereas 38.8% do not have this ability.52 The higher levels of language knowledge and the increasing educational level lead to the conclusion that the legally conceived model of coexistence among different language groups within the logical frame of ethnically separated communities is nowadays being questioned by a bottom-up process. At this juncture, new lines of tension are being created between the part of civil society that no longer clings to basic ethnic principles and the representatives of ethnically separated institutions.

V. The Tense Relationship between the Collective Rights of Minorities and Individual Rights The Autonomy Statute (1972) has a double legal nature. On the one hand, it grants the region of Trentino-South Tyrol and the provinces of Bolzano/Bozen and Trento a territorial autonomy and, on the other hand, it incorporates a series of collective rights for the protection of ethnic minorities living in the territory. Thus, the Autonomy Statute contains an overlap of territorial and personal principles. Firstly, the protection of collective rights for guaranteeing minority protection will be discussed. A series of measures in the Autonomy Statute refer to this collective dimension. These measures aim at the protection of the group, not of

50

Buson, op. cit. note 49, 102. Fondazione Censis, Identità e mobilità dei tre gruppi linguistici in Alto Adige. Rapporto ﬁnale (Censis, Roma, 1997), 93. 52 See Werther Ceccon, “Sprachidentität/Identità linguistica”, in ASTAT (ed.), Südtiroler Sprachbarometer. Sprachgebrauch und Sprachidentität in Südtirol 2004—Barometro linguistico dell’Alto Adige. Uso della lingua e identità linguistica in provincia di Bolzano 2004 (La Bodoniana, Bozen/ Bolzano, 2006), 143–152. 51

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individuals.53 The example of the declaration of aﬃliation with a linguistic group best illustrates this situation. By this declaration, all Italian citizens living on the territory of South Tyrol have to aﬃliate or aggregate themselves with one of the three linguistic groups, which are protected through the ASt. The individual declaration as to linguistic aﬃliation or linguistic aggregation is certiﬁed by name. The size of the diﬀerent language groups is simultaneously ascertained through an anonymous declaration.54 The declaration of linguistic aﬃliation serves to establish the size of the respective language group in order to be able, in a second step, to calculate the ethnic proportional quota. According to the results of this calculation, the abovementioned quota system is put into practice. Thus, a list of rights is connected with this linguistic declaration of resident South Tyrolese. If somebody refuses such a declaration, he/she automatically renounces a series of subjective rights, which are interlinked with his/her status as a member of one of the oﬃcial language groups in South Tyrol (not with his/her status of being a citizen), such as, for example, certain political rights. In South Tyrol, approximately 13% of children belong to linguistically mixed families,55 6.1% of the South Tyrolese youth aged between 14 and 25 declare that they feel belonging to none or more than one language group, or are irresolute about the question.56 Also there are more or less 25,000 foreigners who reside in the territory. All those people have to subordinate themselves to the collective protection clause of the three traditional groups. Non-standard forms of identity are excluded and consequently so are all the facilities that would meet their necessities eﬃciently. As a result, the individual right of freedom to choose whether to be treated as a person belonging to a national minority or not, without suﬀering any disadvantage from that choice or from the exercise of the rights that are connected to that choice,57 is limited, for the sake of the protection of the group. The other level of the ASt concerns the territorial autonomy that refers to all citizens living on the territory independently from their belonging to one of the

53 Francesco Palermo, “I due volti dello Statuto”, il mattino di Bolzano e provincial, 24 October 2000, 1–13; Eleonora Maines, “Die Quasi-Rechtspersönlichkeit der Sprachgruppen”, in Joseph Marko et al., op. cit. note 14, 297–305; and Peter Hilpold, Modernes Minderheitenrecht. Eine rechtsvergleichende Untersuchung des Minderheitenrechtes in Österreich und in Italien unter besonderer Berücksichtigung völkerrechtlicher Aspekte (Nomos, Baden Baden, 2001). See also the chapters in this volume by Jens Woelk on individual and group rights and by Emma Lantschner and Giovanni Poggeschi on the quota system and the declaration of aﬃliation to a language group. 54 See the chapter in this volume by Emma Lantschner and Giovanni Poggeschi on the quota system and the declaration of aﬃliation to a language group. 55 Baur, von Guggenberg and Larcher, op. cit. note 18, 35. 56 Patrizia Venturelli Christensen, “Zugehörigkeitsgefühl/Senso di appartenenza”, in ASTAT (ed.), Jugendstudie. Werthaltungen, Lebensformen und Lebensentwürfe der Südtiroler Jugend 1999/ Indagine sui giovani. Valori, stili di vita e progetti per il futuro die giovani altoatesini 1999 (Presel, Bozen/Bolzano, 2000), 91–119, at 106. 57 Art. 3 FCNM.

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three language groups oﬃcially recognized by the ASt; the territorial autonomy includes also people as immigrants, bilingual socialized citizens and much more.58 Thus, in the ﬁrst case, the main emphasis is put on the protection of the minority as a group and the group’s substantial equality (for the purpose of reparation for historical injustices). In the second case, individual rights and consequently formal equality are stressed independently from ethnic belonging. The historical starting point of the Autonomy Statute was the collective protection of minorities. The Autonomy Statute embedded this concept in a fairly inﬂexible legal model with its legal institutions. This model legitimizes deviation from the basic principle of formal equality. The ethnic proportional quota system represents an exemplary practice thereof. However, this deviation from the basic principle of formal equality has to be considered to be an exception rather than a rule. Such exemptions have to be justiﬁed and motivated; additionally, they have to be transitory and exclusively earmarked. Ultimately, they also have to be restricted by the principle of proportionality; this means that all measures have to compromise individual rights to the least extent possible. Such measures are no longer justiﬁed if their purpose has been served.59 As long as the declaration of linguistic aﬃliation is required for an eﬀective implementation of the ethnic quota system, that system being a measure for the purpose of reparation of suﬀered injustices, instruments that limit citizens’ individual rights are justiﬁed. In this case, deviations from the principle of formal equality for the beneﬁt of the principle of substantial equality are legitimized. However, as soon as the ethnic proportional quota system is implemented in the public sector, the system should again be based on merit (for instance, bilingualism should be a prerequisite for accession to posts in the public sector, as is already in place).60 The stronger the ethnic conﬂict decreases (and empirical data documents this clearly), the less one can justify collective protection measures, which are disproportionately aﬀecting individual rights. The South Tyrolean autonomy is situated in the tense relationship between historically legitimized protection measures in favour of the collectivity (with the automatic subordination of individuals for the beneﬁt of the collectivity) and the new societal realities that no longer justify such a deviation from individual rights. These contrasts could lead to new ethnic tensions if one adheres too dogmatically to a purely legally conceived model. The utopian aim consists therefore in a deconstruction of the strong ethnic component and an annulment of the extreme folklore in favour of speciﬁc

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Antonio Lampis, Autonomia e convivenza. Tutela delle minoranze e regole della convivenza nell’ordinamento giuridico dell’Alto Adige/Südtirol (European Academy, Bozen/Bolzano, 1999). 59 Palermo, op. cit. note 53, 13. 60 For another reason that might justify the perpetuation of the ethnic quota system, see the chapter in this volume by Emma Lantschner and Giovanni Poggeschi.

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characteristics (historical, social, generational and gender) that are important for the South Tyrolese population. The mass media and other crucial actors within the socialization processes could play a decisive role in furthering this aim.61

61 See Anton Pelinka, “Pandaemonium? Zur Zerstörungskraft ethnischer Identität”, in Christoph Hartungen et al. (eds.), Demokratie und Erinnerung. Südtirol—Österreich—Italien. Festschrift für Leopold Steurer zum 60. Geburtstag (Studien-Verlag, Innsbruck, Bozen/Bolzano, Wien, 2006), 125–130.

CHAPTER EIGHTEEN

COMPLEX POWER SHARING AS CONFLICT RESOLUTION: SOUTH TYROL IN COMPARATIVE PERSPECTIVE1 Stefan Wolﬀ

I. Introduction The institutional arrangements for South Tyrol draw on several traditional conﬂict resolution techniques but also incorporate features that were novel in 1972 and have remained precedent-setting since then. First of all, South Tyrol can be described as a case of territorial self-governance; that is, “the legally entrenched power of ethnic or territorial communities to exercise public policy functions (legislative, executive and adjudicative) independently of other sources of authority in the state, but subject to the overall legal order of the state”.2 The forms such regimes can take include a wide range of institutional structures from enhanced local self-government to full-ﬂedged symmetrical or asymmetrical federal arrangements, as well as non-territorial (cultural or personal) autonomy. South Tyrol, in its speciﬁc Italian context, falls into the category of asymmetric arrangements in its relationship with the central government in Rome when compared to other Italian regions and provinces. However, it also comprises elements of non-territorial autonomy internally, especially in relation to the education system. These non-territorial autonomy regimes ﬂow from the application to South Tyrol of another well-known and relatively widely used conﬂict resolution mechanism—consociational power sharing. Apart from the feature of ‘segmental autonomy’ (i.e., non-territorial autonomy for the two major ethnic groups in the province, primarily in the ﬁeld of education), South Tyrol also displays other

1 In this chapter I draw on previously published and ongoing research, including Stefan Wolﬀ, “Territorial and Non-territorial Autonomy as Institutional Arrangements for the Settlement of Ethnic Conﬂicts in Mixed Areas”, in Andrew Dobson and Jeﬀrey Stanyer (eds.), Contemporary Political Studies 1998, Vol. 1 (Political Studies Association of the United Kingdom of Great Britain and Northern Ireland, Nottingham, 1997), 423–434; Id., Disputed Territories: the Transnational Dynamics of Ethnic Conﬂict Settlement (Berghahn, New York, Oxford, 2003); Id., “The Institutional Structure of Regional Consociations in Brussels, Northern Ireland, and South Tyrol”, 10(3) Nationalism and Ethnic Politics (2004), 387–414; Stefan Wolﬀ and Marc Weller, “Self-determination and Autonomy: a Conceptual Introduction”, in Marc Weller and Stefan Wolﬀ (eds.), Autonomy, Selfgovernance and Conﬂict Resolution: Innovative Approaches to Institutional Design in Divided Societies (Routledge, London, 2005), 5–37; and Marc Weller and Stefan Wolﬀ, “Recent Trends in Autonomy and State Construction”, in Marc Weller and Stefan Wolﬀ (eds.), Autonomy, Self-governance and Conﬂict Resolution: Innovative Approaches to Institutional Design in Divided Societies (Routledge, London, 2005), 358–370. 2 Wolﬀ and Weller, op. cit. note 1, 13.

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characteristics traditionally associated with consociationalism: mandatory executive power sharing between parties representing both major ethnic groups in the province; veto rights for the local minority group; and the principle of proportionality, including in public sector employment and the make-up of the executive. This consociational arrangement is replicated at the regional level, where executive power sharing is again mandatory between German and Italian parties, minority veto rights exist (this time for the Germans who are a minority at the regional level) and proportionality governs public sector employment. From this perspective, the arrangements for South Tyrol could be described as ‘nested consociationalism’. A third conﬂict resolution mechanism that is less widely used is related to the cross-border dimension of the South Tyrol conﬂict. The German-speaking population’s historical aﬃnity with the Habsburg Empire and later Austria, both in terms of ethnic identity and national belonging, manifested itself in campaigns against incorporation within Italy after 1919, for reincorporation into Austria after 1945 and, eventually, for substantive provincial autonomy within the Italian state. Yet, the cross-border dimension also meant a role for Austria in the process of conﬂict resolution—as a negotiating partner for Italy in 1945/1946, leading to the Paris Agreement, which established an Italian commitment to autonomy for South Tyrol, and again in the 1960s paving the way to the 1969 ‘Package’ deal in whose implementation Austria was involved insofar as the Austro-Italian dispute regarding the fulﬁlment of the 1946 Paris Agreement could only be resolved subject to Austrian (and by extension South Tyrolean) consent to depositing a declaration at the UN to the eﬀect that the dispute had been resolved (which happened in 1993). In addition, cross-border cooperation between South Tyrol and the Austrian Bundesland of North Tyrol has been formally institutionalized and also involves, in the framework of a Euroregion, the Province of Trento. This brief overview of the institutional arrangements that were made in the settlement of the South Tyrol conﬂict forms the background against which the subsequent analysis is set. I will demonstrate that the complexity of the arrangements for South Tyrol is not very well captured by existing theories of conﬂict resolution, as it involves, contrary to many traditional assumptions, techniques and mechanisms from a range of diﬀerent approaches traditionally pitted against each other as incompatible. A chronological account of the development of the arrangements now in place for South Tyrol shows that these arrangements emerged gradually in a process of dynamic evolution of the status of South Tyrol within the Italian state. The main features that characterize South Tyrol as an example of what I call an emerging practice of ‘complex power sharing’3 will then

3

I borrow the term ‘complex power sharing’ from a research project funded by the Carnegie Corporation of New York (entitled ‘Resolving Self-determination Disputes through Complex Power Sharing Arrangements’). In this project, complex power sharing regimes are distinguished “in that they no longer depend solely on consociational theory, or solely upon integrative theory”, involve international actors that “are often key in designing, or bringing experience to bear upon,

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be used to establish, by means of a comparison with other recent conﬂict settlements, that South Tyrol is by no means unique as a case of conﬂict resolution practice eclipsing existing conﬂict resolution theories.

II. Complex Power Sharing and Existing Theories of Conflict Resolution A. Institutional Design in Divided Societies From the perspective of conﬂict resolution in divided societies, institutional design needs to address a number of issues. These include: (1) The composition and powers of the executive, legislative and judicial branches of government and the relationship between them; (2) The structure and organization of the state as a whole; and (3) The relationship between individual citizens, identity groups and the state. All these provisions will require robust legal entrenchment to ensure their durability and thus the predictability of the political process to which (former) conﬂict parties agree. 1. The Composition and Powers of the Executive, Legislative and Judicial Branches of Government and the Relationship between Them The key aspects of institutional design in this area relates, ﬁrstly, to the nature of the government system, i.e., whether it is a parliamentary, presidential or semipresidential system. A second dimension is the issue of whether executive power sharing is mandatory and, if so, what the extent of prescribed inclusiveness is. Inclusiveness, at the same time, is also an important feature of legislative design and is primarily realized through the choice of an electoral system. Power-sharing features and inclusiveness may also extend into the judicial branch, primarily in relation to provisions for the appointment of judges and prosecutors. A ﬁnal issue in this regard is the overall relationship between the three institutions of

the structure of the eventual agreement, or its implementation” and “consider a far broader range of issues [. . .] and [. . .] address structural issues as diverse as economic management, civil-military relations and human and minority rights, and [. . .] do so at many diﬀerent levels of government”, thus recognizing “that at diﬀerent levels of government, diﬀerent strategies may be more, or less, applicable, and consequently more, or less, successful, in engendering peace and stability”. Carmen Kettley, James Sullivan and Jessie Fyfe, “Self-Determination Disputes and Complex Power Sharing Arrangements: a Background Paper for Debate”, Cambridge University Centre of International Studies (2001), 4–5, available at . O’Leary uses the term ‘complex consociation’ in a similar manner. Brendan O’Leary, “Debating Consociational Politics: Normative and Explanatory Arguments”, in Sid Noel (ed.), From Powersharing to Democracy (McGill/Queen’s University Press, Montreal, Kingston, 2005), 3–43, at 34–35.

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government; that is, the degree of separation of powers between them. While this partially relates to the choice of governmental system (see above), it is also about the degree of independence of the judicial branch and its powers of legislative and executive oversight. Institutional design thus not only prescribes certain outcomes in relation to the composition of the executive, legislative and judicial branches of government and the structure and organization of the state as a whole but also entrenches them in diﬀerent ways from hard international law to domestic legislation. 2. The Structure and Organization of the State as a Whole The most important institutional design challenge in this area has to do with the territorial organization of the state. While the principal choice is generally between unitary and federal systems, there is a great deal of variation within these two main categories and there are a number of hybrid forms as well. The most important institutional design decision is about the number of layers of authority with substantive decision-making competences and the extent of these competences. Several further decisions follow from this. The ﬁrst relates to the structural and functional symmetry of the political-territorial organization of the overall state. At the one end of the spectrum, a state may be organized territorially in a completely symmetric fashion, with all territorial entities enjoying the exact same degree of functional competences, exercising them through an identical set of local political institutions. An example of this would be German or US federalism, regionalized states, such as France, or more strictly unitary states, such as Ireland. However, the nature of institutional design in divided societies may necessitate a diﬀerent approach. Thus, even where there is structural symmetry, functionally speaking the competences enjoyed by diﬀerent self-governing entities may diﬀer and/or they may exercise them through diﬀerent sets of political institutions. For example, in cases where territorial sub-state entities comprise ethnic groups distinct from that of the majority population, they may be granted additional competences to address the particular needs of their communities. In cases in which these sub-state entities are ethnically heterogeneous, executive power sharing, reﬂecting local ethnic and political demographies, might be an additional necessary feature of conﬂict resolution. A second element of institutional design as far as the structure and organization of the state as a whole are concerned relates to coordination mechanisms, including dispute resolution arrangements, between diﬀerent layers of authority. This is primarily related to the diﬀerent types of such mechanisms (e.g., cooptation, joint committees, judicial review) and their leverage (consultative vs. legally binding). 3. The Relationship between Individual Citizens, Identity Groups and the State Institutional design in this area is about the recognition and protection of diﬀerent identities by the state. On the one hand, this relates to human and minority rights legislation; that is, the degree to which every citizen’s individual human

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rights are protected, including civil and political rights, as well as the extent to which the rights of diﬀerent identity groups are recognized and protected. While there may be a certain degree of tension between them, such as between a human rights prerogative of equality and non-discrimination and a minority rights approach emphasizing diﬀerential treatment and aﬃrmative action, the two are not contradictory but need to complement each other in ways that reﬂect the diversity of divided societies and contribute to its peaceful accommodation. Secondly, the relationship between individuals, groups and the state is about the degree to which institutional design favours particular groups and excludes others. This is related to whether diﬀerent groups are given diﬀerent status (e.g., constituent nations vs. minorities) and the political, economic and resource implications of this (e.g., mandatory inclusion in government, participation in proportional public sector job allocation, reception of public funding, etc.). In other words, the question here is about the degree to which speciﬁc group identities are recognized and protected and how this manifests itself in the way in which the boundaries of authority are shaped by territory or population groups. B. Institutional Design Approaches in Existing Theories of Conﬂict Resolution Existing theories of conﬂict resolution generally acknowledge the importance and usefulness of institutional design in conﬂict resolution but oﬀer rather diﬀerent prescriptions as to the most appropriate models to achieve stable conﬂict settlements. Three such theories are of particular signiﬁcance, as they speak directly to the three areas of institutional design identiﬁed above: the two diﬀerent schools of thought on power sharing—consociationalism and integrationism—and the more recent theory of power dividing. I will discuss the main tenets of these three sets of theories in turn, focusing on their recommendations in each of the three areas. This discussion will necessarily be brief and, to an extent, generalizing and does not aim at a comprehensive examination of these theories, nor do I attempt an assessment of how practically feasible or morally justiﬁable they are. 1. Liberal Consociationalism Consociational power sharing is most closely associated with the work of Arend Lijphart, who identiﬁed four structural features shared by consociational systems: a grand coalition government (between parties from diﬀerent segments of society); segmental autonomy (in the cultural sector); proportionality (in the voting system and in public sector employment); and minority veto.4 Consociationalism has been developed further in the context of its use as a mechanism of interethnic accommodation in Lijphart’s own later writings on the subject5 but, more

4 Arend Lijphart, Democracy in Plural Societies (Yale University Press, New Haven, London, 1977), 25–52. 5 See, for example, Arend Lijphart, “Self-determination versus Pre-determination of Ethnic Minorities in Power-sharing Systems”, in Will Kymlicka (ed.), The Rights of Minority Cultures

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especially, by John McGarry and Brendan O’Leary.6 The most important modiﬁcation of Lijphart’s original theory is O’Leary’s contention that ‘grand coalition’ (in the sense of an executive encompassing all leaders of all signiﬁcant parties of all signiﬁcant communities) is not a necessary criterion. Rather, O’Leary demonstrates that what matters for a democratic consociation “is meaningful cross-community executive power sharing in which each signiﬁcant segment is represented in the government with at least plurality levels of support within its segment”.7 The scholarly literature on consociationalism distinguishes between corporate and liberal consociational power sharing, the latter now the more common policy prescription among consociationalists.8 The main diﬀerence between the two is that a “corporate consociation accommodates groups according to ascriptive criteria, and rests on the assumption that group identities are ﬁxed, and that groups are both internally homogeneous and externally bounded”, while “liberal [. . .] consociation [. . .] rewards whatever salient political identities emerge in democratic elections, whether these are based on ethnic groups, or on sub-group or trans-group identities”.9 Territorial self-governance is a signiﬁcant feature within the liberal consociational approach that, in this context, emphasizes that the self-governing territory should deﬁne itself from the bottom up, rather than be prescribed top-down.10 Liberal consociationalists favour arrangements in which there are more than

(Oxford University Press, Oxford, 1995), 275–287; and Id., “The Wave of Power-sharing Democracy”, in Andrew Reynolds (ed.), The Architecture of Democracy: Constitutional Design, Conﬂict Management and Democracy (Oxford University Press, Oxford, 2002), 37–54. 6 John McGarry, “Iraq: Liberal Consociation and Conﬂict Management”, unpublished draft working paper; John McGarry and Brendan O’Leary, The Northern Ireland Conﬂict: Consociational Engagements (Oxford University Press, Oxford, 2004); O’Leary, op. cit. note 3; and Id., “Powersharing, Pluralist Federation, and Federacy”, in Brendan O’Leary, John McGarry and Khaled Salih (eds.), The Future of Kurdistan in Iraq (University of Pennsylvania Press, Philadelphia, 2005), 47– 91. See also Wolﬀ, Disputed Territories . . ., op. cit. note 1; Id., “The Institutional Structure . . .”, op. cit. note 1; and Weller and Wolﬀ, op. cit. note 1. 7 O’Leary, op. cit. note 3, 13. On this basis, O’Leary distinguishes between three sub-types of democratic (i.e., competitively elected) consociation: complete (executive composed of all leaders of all signiﬁcant segments); concurrent (all signiﬁcant segments are represented and the executive has at least majority support in all of them); and weak (all signiﬁcant segments are represented and the executive has at least one segmental leadership with only plurality support). 8 Corporate consociationalism, however, is still evident to some extent in political practice: for example, Bosnia and Herzegovina under the original Dayton Accords; Northern Ireland under the 1998 Agreement; Lebanon under the National Pact and under the 1989 Ta’if Accord; Cyprus under the 1960 constitution and proposed (but rejected) Annan Plan. Each display features of pre-determined arrangements based on ascriptive identities. 9 McGarry, op. cit. note 6, 3. See also Lijphart, “Self-determination versus Pre-determination . . .”, op. cit. note 5; and O’Leary, op. cit. note 3. 10 In the context of Iraq, McGarry explains how this process has been enshrined in the Iraqi constitution: “Kirkuk can choose to join Kurdistan if its people want. Governorates in other parts of the country are permitted to amalgamate, forming regions, if there is democratic support in each governorate. In this case, a twin democratic threshold is proposed: a vote within a governorate’s assembly and a referendum [. . .] It is also possible for Shi’a dominated governorates that do not accept SCIRI’s vision to remain separate, and, indeed for any governorate that may be, or may become, dominated by secularists to avoid inclusion in a sharia-ruled Shiastan or Sunnistan.” McGarry, op. cit. note 6, 6–7.

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two—and ideally even more than three—self-governing entities within a given state, as this increases the chances of state survival. Moreover, liberal consociationalists equally support the principle of asymmetric devolution of powers, i.e., the possibility for some self-governing entities to enjoy more (or fewer) competences than others, depending on the preferences of their populations. Naturally, self-governance is complemented with what liberal consociationalists term ‘shared rule’, i.e., the exercise of power at and by the centre across the state as a whole. While the other three key features of Lijphartian consociationalism (apart from ‘segmental autonomy’) continue to be favoured by liberal consociationalists, such as grand coalitions, proportionality and minority veto rights, the emphasis is on cooperation and consensus among democratically-legitimized elites, regardless of whether they emerge on the basis of group identities, ideology or other common interest. They thus favour parliamentary systems,11 proportional (PR list) or proportional preferential (STV) electoral systems, decisionmaking procedures that require qualiﬁed and/or concurrent majorities and have also advocated, at times, the application of the d’Hondt rule for the formation of executives.12 This means that liberal consociationalists prefer what O’Leary refers to as ‘pluralist federations’ in which co-sovereign regional and central governments have clearly deﬁned exclusive competences (albeit with the possibility of some concurrent competences) whose assignment to either level of authority is constitutionally and, ideally, internationally protected, in which decision-making at the centre is consensual (between self-governing entities and the centre, and among elites representing diﬀerent interest groups) and which recognize and protect the presence of diﬀerent identities.13 In order to protect individuals against the abuse of powers by majorities at the state level or the level of self-governing entities, liberal consociationalism oﬀers two remedies: the replication of its core institutional prescriptions within the self-governing entity;14 and the establishment and enforcement of strong human and minority rights regimes both at the state and sub-state levels. In addition, the rights of communities—minorities and majorities alike—are best protected in a liberal consociational system if its key provisions are enshrined in the constitution and if the interpretation and upholding of the constitution is left to an

11 Note, however, that, empirically speaking, collective presidential systems are as widespread in existing functioning consociations as they are in parliamentary ones. See Brendan O’Leary, “Consociation”, unpublished manuscript. 12 See Arend Lijphart, “Constitutional Design for Divided Societies”, 15(2) Journal of Democracy (2004), 96–109; O’Leary, op. cit. note 3. See also Wolﬀ, Disputed Territories . . ., op. cit. note 1. For details on the d’Hondt rule, see Brendan O’Leary, Bernard Grofman and Jørgen Elklit, “Divisor Methods for Sequential Portfolio Allocation in Multi-party Executive Bodies: Evidence from Northern Ireland and Denmark”, 49(1) American Journal of Political Science (2005), 198–211. 13 O’Leary, “Powersharing, Pluralist Federation . . .”, op. cit. note 6. 14 On regional consociations, see Wolﬀ, “The Institutional Structure . . .”, op. cit. note 1.

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independent constitutional court whose decisions are binding on executive and legislature.15 2. Integrative Power Sharing Integrative power sharing emphasizes that rather than designing rigid institutions in which elected representatives have to work together after elections, “intergroup political accommodation” is achieved by “electoral systems that provide incentives for parties to form coalitions across group lines or in other ways moderate their ethnocentric political behaviour”.16 This school of thought is most prominently associated with the work of Donald Horowitz17 and, more lately, with that of Timothy D. Sisk, Benjamin Reilly and Andreas Wimmer.18 While Horowitz’s remains the standard-setting integrationist work, Reilly’s theory of centripetalism tries to encourage, among others, “electoral incentives for campaigning politicians to reach out to and attract votes from a range of ethnic groups other than their own [. . .]; (ii) arenas of bargaining, under which political actors from different groups have an incentive to come together to negotiate and bargain in the search for cross-partisan and cross-ethnic vote-pooling deals [. . .]; and (iii) centrist, aggregative political parties or coalitions which seek multi-ethnic support”.19 This is partially echoed by Wimmer in his proposals for the Iraqi constitution to introduce “an electoral system that fosters moderation and accommodation across the ethnic divides”, including a requirement for the “most powerful elected oﬃcial [. . .] to be the choice not only of a majority of the population, but of states or provinces of the country, too”, the use of the alternative vote procedure and a political party law demanding that “all parties contesting elections [. . .] be organized in a minimum number of provinces”.20 In addition, Wimmer advocates non-ethnic federalism,21 at least in the sense that there should be more federal entities than ethnic groups, even if a majority of those entities would be more or less ethnically homogeneous or be dominated by one ethnic group. Furthermore, “a strong minority rights regime at the national level, a powerful independent 15

See O’Leary, “Powersharing, Pluralist Federation . . .”, op. cit. note 6, 55–8. Donald Horowitz, “The Alternative Vote and Interethnic Moderation: a Reply to Fraenkel and Grofman”, 121(3–4) Public Choice (2004), 507–517, at 507–508. 17 Donald Horowitz, Ethnic Groups in Conﬂict (University of California Press, Berkeley, 1985); Id, “Ethnic Conﬂict Management for Policymakers”, in Joseph Montville (ed.), Conﬂict and Peacemaking in Multiethnic Societies (Lexington Books, Lexington, 1990), 115–130; Id., A Democratic South Africa? Constitutional Engineering in a Divided Society (University of California Press, Berkeley, 1991; and Id., “Constitutional Design: Proposals versus Processes”, in Andrew Reynolds (ed.), The Architecture of Democracy: Constitutional Design, Conﬂict Management and Democracy (Oxford University Press, Oxford, 2002), 15–36. 18 Timothy Sisk, Power Sharing and International Mediation in Ethnic Conﬂict (United States Institute of Peace Press, Washington DC, 1996); Benjamin Reilly, Democracy in Divided Societies: Electoral Engineering for Conﬂict Management (Cambridge University Press, Cambridge, 2001); and Andreas Wimmer, “Democracy and Ethno-religious Conﬂict in Iraq”, 45(4) Survival (2003), 111–134. 19 Reilly, op. cit. note 18, 11 (emphasis in original). 20 Wimmer, op. cit. note 18. 21 Ibid., 123–125. 16

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judiciary system and eﬀective enforcement mechanisms are needed”, according to Wimmer.22 In what remains a classic work in the ﬁeld of ethnic conﬂict and conﬂict resolution theories, Donald L. Horowitz discusses a range of structural techniques and preferential policies to reduce ethnic conﬂict.23 Among them, he emphasizes that “the most potent way to assure that federalism or regional autonomy will not become just a step to secession is to reinforce those speciﬁc interests that groups have in the undivided state”.24 Horowitz also makes an explicit case for territorial self-governance (i.e., federalism) in his proposals for constitutional design in post-apartheid South Africa25 and argues, not dissimilarly to power-dividing advocates, for federalism based on ethnically heterogeneous entities. Horowitz emphasizes the usefulness of electoral systems that are most likely to produce a ‘Condorcet winner’, i.e., a candidate who would have been victorious in a two-way contest with every other candidate in a given constituency. The most prominent such electoral systems are the alternative vote (AV) and the Coombs rule, both of which are preferential majoritarian electoral systems26 that are said to induce moderation among parties and their candidates, as they require electoral support from beyond their own ethnic group in heterogeneous, singleseat constituencies.27 3. Power Dividing In the context of conﬂict resolution, the theory of power dividing has been put forward most comprehensively by Philip G. Roeder and Donald Rothchild in their edited volume Sustainable Peace: Power and Democracy after Civil Wars.28 Power dividing is seen as “an overlooked alternative to majoritarian democracy and power sharing” as institutional options in ethnically divided societies.29 Three strategies that are said to be central to power dividing—civil liberties, multiple majorities, and checks and balances—in practice result in an allocation of power between government and civil society such that “strong, enforceable civil liberties [. . .] take many responsibilities out of the hands of government”, while those that are left there are distributed “among separate, independent organs that represent alternative, cross-cutting majorities”, thus “balanc[ing] one decision-making 22

Ibid., 125. Horowitz, Ethnic Groups . . ., op. cit. note 17. 24 Ibid., 628. 25 Horowitz, A Democratic South Africa . . ., op. cit. note 17, 214–226. 26 Under AV, lower-order preferences are redistributed among candidates by eliminating the candidate with the lowest number of ﬁrst preference votes in each round until one candidate with more than 50% emerges. Under the Coombs rule, candidate elimination is based on the highest number of last-preference votes achieved. That means, under AV the least popular candidate is eliminated in each round, under Coombs it is the most unpopular one. 27 Donald Horowitz, “Electoral Systems and their Goals: a Primer for Decision-makers”, 14(4) Journal of Democracy (2003), 115–127, at 122–125. 28 Phillip Roeder and Donald Rothchild (eds.), Sustainable Peace: Power and Democracy after Civil Wars (Cornell University Press, Ithaca, 2005). 29 Ibid., 6. 23

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centre against another so as to check each majority [. . .] [f ]or the most important issues that divide ethnic groups, but must be decided by a government common to all ethnic groups”.30 The key institutional instruments by which power dividing is meant to be realized are, ﬁrst of all, extensive human rights bills that are meant to leave “key decisions to the private sphere and civil society”.31 Second, separation of powers between the branches of government and a range of specialized agencies dealing with speciﬁc and clearly delimited policy areas are to create multiple and changing majorities, thus “increas[ing] the likelihood that members of ethnic minorities will be parts of political majorities on some issues and members of any ethnic majority will be members of political minorities on some issues”.32 Third, checks and balances are needed “to keep each of these decision-making centres that represent a speciﬁc majority from overreaching its authority”.33 Thus, the powerdividing approach favours presidential over parliamentary systems, bicameral over unicameral legislatures, and independent judiciaries with powers of judicial review extending to acts of both legislative and executive branches. As a general rule, power dividing as a strategy to keep the peace in ethnically divided societies requires “decisions [that] can threaten the stability of the constitutional order, such as amendments to peace settlements” be made by “concurrent approval by multiple organs empowering diﬀerent majorities”.34 4. The Diﬀerent Theories Compared The preceding overview of the three main theories of conﬂict resolution illustrates two important aspects of current academic and policy debates about how to establish sustainable institutional settlements in cases of self-determination conﬂicts. First, while there are fundamental diﬀerences in the underlying assumptions about how such settlements can succeed, certain institutional arrangements that complement the basic prescriptions of each approach are largely similar, if not identical (see Table 1).

30 31 32 33 34

Ibid., 15. Ibid., 15. Ibid., 17. Ibid., 17. Ibid., 17.

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Table 1: Main Institutional Arrangements Recommended by Diﬀerent Theories of Conﬂict Resolution

Principle recommendation

Integrationist power sharing

Consociational power sharing

Interethnic cooperation and moderation induced by electoral system design

Interethnic Cooperation cooperation at elite between diﬀerent, level induced by changing coalitions institutional structure of interest induced requiring executive by separation of power sharing powers Parliamentary Presidential Yes: guaranteed No, except in initial transition phase after civil wars PR list or PR Plurality preferential Yes Yes

Government system Presidential Executive power Yes: voluntary sharing Electoral system

Plurality preferential

Independent judicial branch Unitary vs. federal territorial organization Structural symmetry Functional symmetry Individual vs. group rights

Yes

Federal: heterogeneous Federal: units homogeneous units Yes Yes Emphasis on individual rights

Recognition of Yes but primarily as distinct identities private matter Legal entrenchment Yes

Power dividing

Federal: heterogeneous units

Possible but not Yes necessary Possible but not Yes necessary Emphasis on Emphasis on combination of individual rights individual and group rights Yes but as private and Yes but primarily as public matter private matter Yes Yes

III. Complex Power Sharing beyond South Tyrol: an Empirical Analysis The essential feature of the South Tyrolean conﬂict settlement is the territorial self-governance regime that it created. Such self-governance regimes have been used widely in the resolution of self-determination conﬂicts around the globe. This reﬂects the assumption—but not necessarily the reality—that such regimes can contribute to local, national, regional and international stability. In ethnically, linguistically and/or religiously heterogeneous societies in which corresponding group identities have formed and become salient, the degree of self-governance enjoyed by the diﬀerent segments of society is often seen as more or less directly proportional to the level of acceptance of an overall institutional framework within which these diﬀerent segments come together. Self-governance regimes are thus

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also meant to provide institutional solutions that allow the diﬀerent segments of diverse societies to realize their aspirations for self-determination while simultaneously preserving the overall social and territorial integrity of existing states. In doing so, self-governance regimes above all oﬀer mechanisms for conﬂict parties to settle their disputes by peaceful means. Yet, territorial self-governance on its own is often insuﬃcient to oﬀer viable solutions to self-determination conﬂicts. As the analysis of the features and evolution of the South Tyrolean settlement above has demonstrated, further conﬂict resolution mechanisms are required to ensure that an overall stable and durable democratic settlement can be achieved. This has been increasingly understood by practitioners of conﬂict resolution and has led to an emerging practice of conﬂict settlement that I refer to as ‘complex power sharing’. Complex power sharing, in the way that it is understood in this paper, refers to a practice of conﬂict settlement that has a form of self-governance regime at its heart but whose overall institutional design includes a range of further mechanisms for the accommodation of ethnic diversity in divided societies, including those recommended by advocates of consociationalism,35 integrationism36 and power dividing.37 Complex power sharing is thus the result of the implementation of a self-governance regime whose success as a conﬂict settlement device requires a relatively complex institutional structure that cannot be reduced to autonomy/(ethno)federalism, (traditional) power sharing or power dividing. In order to appreciate fully the degree to which the case of South Tyrol is one example of this practice of complex power sharing, the following empirical analysis of other cases compares and contrasts them in a number of diﬀerent respects. The dimensions of the comparative analysis ﬂow directly from the discussion of institutional design and the examination of the three approaches to conﬂict resolution above. As far as the composition and powers of the executive, legislative and judicial branches of government and the relationship between them is concerned, I will consider three separate issues: – The nature of the government system and the choice of the electoral system; – Power sharing; and – Legal entrenchment. The comparative analysis of the structure and organization of the state as a whole in all the cases considered will focus on three aspects:

35 See, for example, McGarry and O’Leary, op. cit. note 6; McGarry, op. cit. note 6; and O’Leary, op. cit. note 3. 36 See, for example, Horowitz, Ethnic Groups . . ., op. cit. note 17; Id., “Ethnic Conﬂict Management . . .” op. cit. note 17; Id., A Democratic South Africa . . ., op. cit. note 17; Id., “Constitutional Design . . .”, op. cit. note 17; Id., op. cit. note 16; Id., “Strategy Takes a Holiday: Fraenkel and Grofman on the Alternative Vote”, 39 Comparative Political Studies (2006), 652–662; Reilly, op. cit. note 18; Sisk, op. cit. note 18; and Wimmer, op. cit. note 18. 37 Roeder and Rothchild, op. cit. note 28.

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– Symmetry and asymmetry in institutional design; – Distribution and separation of powers; and – Coordination mechanisms. Finally, when examining the relationship between individual citizens, identity groups and the state, two dimensions are of particular importance: – Human and minority rights provisions; and – Recognition and protection of identities. My starting point in case selection is that the settlement in question involves a form of territorial self-governance. There are a large number of such settlements that provide evidence for this trend in North America (Canada), Central and South America (Panama, Colombia, Mexico, Ecuador and Nicaragua), Africa (Sudan and Zanzibar),38 Asia (Iraq, Indonesia, Papua New Guinea and the Philippines)39 and Europe (Belgium, Bosnia and Herzegovina, Macedonia, Moldova, Russia, Serbia and Montenegro,40 Ukraine and the United Kingdom).41 In addition, proposals for self-governance regimes also ﬁgure prominently in proposed peace agreements, including in the Annan Plan for Cyprus,42 the Georgian president’s peace initiative for South Ossetia,43 and Sri Lanka.44 Thus, in virtually every conﬂict situation involving self-determination claims by territorially concentrated identity groups, at the very least proposals for territorial self-governance have been made. In many of them, these proposals have been implemented. From among these cases, I selected eight countries in addition to Italy/South Tyrol in which territorial self-governance regimes were established as part of a complex power sharing settlement: Bosnia and Herzegovina (BiH),45 Bougainville/ 38 Proposals for decentralization/federalization also exist in Ethiopia, Nigeria and the Democratic Republic of Congo but, in all three cases, serious implementation eﬀorts have been lacking. I am grateful to Sandra Joireman and Donald Rothchild for providing me with this information. 39 In India, one could include the so-called Union Territories, such as Pondicherry (Puduchery). 40 The 2003 Constitution of the Union of Serbia and Montenegro provided for a bi-national federation between the two entities and included an option for Montenegrin independence after three years if at least 55% of people participating in a referendum opt for it. The referendum was held on 21 May 2006 and Montenegro declared its independence on 3 June after the country’s referendum commission conﬁrmed as oﬃcial the preliminary result, which had already been recognized by all ﬁve permanent members of the UN Security Council on 23 May. For the text of the Constitutional Charter of the State Union of Serbia and Montenegro, see . 41 This is not meant to be a comprehensive list of cases. For an analysis of some examples and general trends in the spread of territorial self-governance regimes as part of conﬂict settlements, see contributions in Weller and Wolﬀ, op. cit. note 1. 42 For the full text of this document, see . 43 For the full text of this document, see . 44 See documentation at , a website run by the Secretariat for Coordinating the Peace Process set up by the government of Sri Lanka. 45 General Framework Agreement for Peace in Bosnia and Herzegovina, at .

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Papua New Guinea,46 Brussels/Belgium,47 Crimea/Ukraine,48 Macedonia,49 Mindanao/Philippines,50 Northern Ireland/United Kingdom51 and South Sudan.52 The degree and nature of complexity in each of these regimes diﬀers but, as the following comparative analysis will demonstrate, they all exhibit mechanisms in addition to territorial self-governance that allow their classiﬁcation as complex power sharing arrangements. A. The Composition and Powers of the Executive, Legislative and Judicial Branches of Government and the Relationship between Them 1. The Nature of the Government System and the Choice of Electoral Systems All three approaches to conﬂict resolution favour independent judicial systems and these are present in all the cases discussed here, at least in the structural sense that a formal judicial branch of government exists alongside the executive and legislature. A key diﬀerence between consociationalists, on the one hand, and integrationists and power dividers, on the other, is their disagreement over the utility of parliamentary or presidential systems, i.e., whether the chief executive of the government should be directly elected or emerge from within parliament. These diﬀerences are reﬂected in the practical aspects of the conﬂict settlements discussed here (see Table 2). There is a slight predominance of parliamentary systems, both at the central and, where applicable, regional levels of government. Of these, the United Kingdom, Papua New Guinea,53 Bougainville54 and Crimea use plurality electoral systems, all others rely on PR systems for the election of the members of their respective

46 The Bougainville Peace Agreement, at ; and the Constitution of the Autonomous Region of Bougainville, at . 47 The Constitution of Belgium, at . 48 The Constitution of Ukraine, at ; and the Constitution of the Autonomous Republic of Crimea, at . 49 Framework Agreement, at ; and the Law on Local Self-government of the Republic of Macedonia, at . 50 “Peace Agreement”, . 52 Protocol between the government of Sudan (GOS) and the Sudan People’s Liberation Movement (SPLM) on Power-Sharing, at . 53 Elections to the parliament of Papua New Guinea used a version of AV, the so-called ‘limited preferential vote’, between 1964 and 1975, and since 2002. Between 1975 and 2002, a single member plurality system was in operation. 54 According to the Bougainville Constitution, there are three reserved seats each for former combatants and women, representing the three regions of the Autonomous Region of Bougainville. Mandatory representation of former combatants can be abandoned by a two thirds majority vote in the regional parliament.

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Table 2: Parliamentary vs. Presidential Systems Central parliamentary system

Central presidential system

Regional parliamentary system

BiH*

Brussels South Tyrol55 Federation of BiH

Belgium Italy Macedonia Papua New Guinea Philippines Sudan Ukraine* United Kingdom

Regional presidential system

Bougainville Mindanao South Sudan Crimea Northern Ireland

* Denotes semi-presidential system

parliaments. It is noteworthy, however, that there is also the use of preferential systems in Northern Ireland (Single Transferable Vote) and South Tyrol (open party list system). Such preferential systems are generally more closely linked to integrationist power sharing, even though Horowitz’s clear preference is plurality preferential systems. The fact that consociationalists have come to appreciate preferential systems more as well, indicates both a greater openness towards the potential beneﬁts of preferential systems (election of more moderate leaders), and a ‘liberalization’ and ‘democratization’ of consociationalism away from Lijphart’s preference for the elite cartel.55 In presidential systems, both at the central and regional levels of government, the method of electing presidents is by simple majority vote with a second-round run-oﬀ between the two candidates topping the ﬁrst-round ballot. The lower chambers of parliament at the central level are elected by either plurality systems in single-seat constituencies (Sudan), parallel mixed systems (Philippines and Ukraine) or List PR (Bosnia and Herzegovina). At the regional level, the electoral system for the parliament in Mindanao is a parallel mixed system. No elections have yet taken place in South Sudan and no electoral system has been determined yet. 2. Power Sharing One element of the complexity of self-governing regimes as a mechanism to resolve self-determination conﬂicts stems from the fact that constitutional engineers have developed innovative ways to combine traditional structures of

55

According to the 2001 revised Autonomy Statute, the Landeshauptmann can now be elected directly but will at the same time remain head of the provincial government, which needs to be elected by the provincial parliament. Once the relevant legislation for the direct election of the Landeshauptmann has been passed, South Tyrol’s system of government will be an unusual type of parliamentary system with a directly elected prime minister who at the same time is head of ‘state’.

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horizontal and vertical power sharing and power dividing. All the cases examined in this paper are examples of state structures characterized by multiple vertical layers of authority and, in all but one of them, formal horizontal structures of power sharing exist as well (see Table 3).56575859606162 Table 3: Horizontal Executive Power Sharing at the Central and Regional Levels of Authority No horizontal power sharing

Horizontal power Horizontal power Horizontal power sharing at the centre sharing at the sharing at the regional level only central and regional levels Macedonia56

Crimea57 Northern Ireland South Tyrol58

BiH59 Bougainville60 Brussels Mindanao61 South Sudan62

As the cases of Macedonia and Mindanao demonstrate, the absence of formal structures of power sharing at the centre does not preclude power nevertheless being shared to some extent. In Macedonia, this is more obvious, as the country’s demographic balances, structure of the party system and electoral formula combine in a way that make the formation of government coalitions between ethnic Macedonian and ethnic Albanian parties likely (and a reality since 1992).63 In Mindanao, on the other hand, there is a somewhat greater degree of formality in power sharing arrangements at the centre, as members of the regional governments are coopted into the respective branches of the national government. Cooptation, however, limits the extent of the inﬂuence that can be exercised by

56 Even though there is no mandatory power sharing at any level in Macedonia, the power balance of national politics makes coalitions at the centre between ethnic Macedonian and ethnic Albanian parties highly likely. In fact, so far, ethnic Albanian parties have been present in all coalition governments since Macedonia’s independence, except for the 1990–1992 ‘government of experts’, which was not structured around political parties but also included three ethnic Albanians. My thanks to Eben Friedman for providing this information. 57 Power sharing at the regional level is not mandatory but a likely outcome of the regional demographic and power balances. 58 The self-governance arrangements in South Tyrol combine horizontal power sharing at the level of the province (South Tyrol) and the region (Trentino-South Tyrol). 59 Mandatory power sharing at the regional level only applies to the federation and cantons within it. 60 The regional constitution of Bougainville determines mandatory inclusion of representatives of Bougainville’s three regions into the regional government. 61 To the extent that certain members of the government of the Autonomous Region of Muslim Mindanao are coopted into structures of the national government, there is a certain degree of power sharing at the national level in addition to the mandatory power sharing at regional level. 62 In the period prior to elections. 63 See Eben Friedman, “Electoral System Design and Minority Representation in Slovakia and Macedonia”, 4(4) Ethnopolitics (2005), 381–396.

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the region at the centre, as regional cooptees are outnumbered by other members of the national government and have little, if any, leverage compared to situations in which a regional party is a member of a governing coalition and can potentially exercise veto powers. Horizontal power sharing at the regional level exists in all those cases where there is signiﬁcant ethnic or other diversity within the region, i.e., where mere devolution of powers to a lower level of authority would simply replicate the conﬂict at the national level. This is clearly the case in Bosnia and Herzegovina (federation level), Brussels, Mindanao, Northern Ireland and South Tyrol.64 More speciﬁcally, the South Tyrol arrangements can be described as a ‘nested consociation’, that is consociational structures exist at both the provincial (South Tyrol) and regional (Trentino-South Tyrol) levels, a situation that has its causes in the particular territorial, demographic and political dynamics of the South Tyrolean autonomy. On the one hand, it reﬂects the territorial organization of the Italian state into regions and (normally) subordinate provinces. On the other hand, Germans are a minority at the regional level, while Italians are in a minority position in the province. Given that, until the 2001 reforms, the region was a much more important political player in relation to the exercise of South Tyrol’s competences: the concerns of German-speakers in regard to political inﬂuence were addressed by making their inclusion in the regional cabinet mandatory. At the same time, the Italian minority in South Tyrol required similar protective mechanisms. To achieve a stable equilibrium in the face of this dual minority situation required the establishment of such an interlocking consociational mechanism that would recognize and protect both main linguistic groups within the existing structure of territorial-political organization. In contrast to the ‘abundance’ of power sharing arrangements in the case of South Tyrol, mandatory state and sub-state horizontal power sharing mechanisms are lacking in Macedonia but their absence can be explained with reference to the same territorial, demographic and political factors. The territorial concentration of ethnic Albanians, the range of powers devolved to the municipal level and the opportunity for citizens to establish a further layer of authority at the neighbourhood level addresses a wide range of self-government concerns among ethnic Albanians. In addition, the numerical strength of ethnic Albanians in the Macedonian polity and the structure of its party and electoral systems guarantee signiﬁcant representation of ethnic Albanian parties in the national parliament and make their participation in a coalition government at least highly likely. This strength of Albanians, which allows them to beneﬁt fully from the implementation of local autonomy as foreseen in the Ohrid Agreement, is another explanation for the absence of horizontal power sharing: the geographical concentration

64 Crimea’s Constitution does not provide for formal structures of power sharing but local power demographic and power balances make voluntary interethnic power sharing at least likely.

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and size of the minority make a federal solution less attractive for ethnic Macedonians, as it could be construed as a ﬁrst step to the partition of the country. This indicates that, under certain conditions—relative territorial concentration of ethnic communities, suﬃcient levels of devolution and a minimum degree of representation at the centre—vertical division of powers can function as a useful substitute for formal structures of horizontal power sharing both at the national and regional levels and can suﬃce in addressing institutional dimensions of power (re)distribution in self-determination conﬂicts. The fact that vertically divided powers can only substitute for horizontal levels of power sharing under very speciﬁc conditions is also highlighted by the example of Bosnia and Herzegovina, where, despite wide-ranging devolution, horizontal power sharing remains mandatory at the level of state institutions and at the level of the Bosnian-Croat Federation. It is important to note, however, that the absence of formal power sharing structures, i.e., the lack of a consociational requirement for a cross-community representative executive, should not be equated with either the absence of power sharing at all or the derogation of communal identities from the public to the private sphere. Furthermore, voluntary executive power sharing arrangements that emerge do not necessarily do so on the basis of a speciﬁc electoral system. The integrationists’ favourite AV model is absent in all the relevant cases: deputies to the Crimean Supreme Council have been, since 1998, elected on the basis of a single-seat non-preferential majoritarian system and Macedonia’s members of parliament are elected by a parallel mixed system. 3. Legal Entrenchment Guarantees of institutional structures of horizontal and vertical power sharing and power dividing are essential to prevent the arbitrary abrogation of devolved powers and thus to ensure conﬂict parties of the relative permanence of the institutions they agreed upon. Guarantees are particularly important for the relatively weaker party in a self-determination dispute, i.e., a speciﬁc minority, to protect it from a state reneging on earlier concessions. However, such guarantees are also valuable for states in that they commit all parties to an agreed structure and, in most cases, imply that there can be no unilateral change of recognized international boundaries outside pre-determined procedures, such as the referenda provided for in the settlements for Bougainville, Northern Ireland and South Sudan. In principle, guarantees can be either international or domestic and, in the latter case, they can be part of a country’s constitution or other legislation (see Table 4). Given the complexity of many of today’s self-determination conﬂicts, guarantees often exist at more than one level. In addition, international guarantees can take the form of hard guarantees (international treaties) or of ‘soft’ guarantees (non-binding standards and norms, declarations of intent, etc.).

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Table 4: Guarantees of Self-governance Institutions65 International guarantees

Domestic guarantees

‘Hard’

‘Soft’

Constitutional guarantees

Guarantees in speciﬁc laws

BiH Northern Ireland South Tyrol

Bougainville Macedonia Mindanao South Sudan

BiH Bougainville Brussels Crimea Macedonia Northern Ireland65 South Tyrol

Bougainville Brussels Crimea Macedonia Mindanao Northern Ireland South Tyrol

Table 4 illustrates that there is great variance across the cases considered here. In terms of the strength of the protection that they aﬀord for established horizontal and vertical power sharing and power dividing structures, hard international guarantees are preferable over other forms of guarantees, provided there is signiﬁcant commitment on the part of the international community to uphold its guarantees. In Bosnia and Herzegovina, this commitment is unquestionable, with the presence of peacekeeping forces in both territories and with the investment that has been made over the past years by the international community in order to foster economic development, institution building and institutional reform. Whereas in Bosnia and Herzegovina there exist international bodies with a clear mandate (the multinational Peace Implementation Council and the UN Security Council, respectively), the situation in Northern Ireland is such that the hard international guarantee of the 1998 agreement exists in the form of a British-Irish treaty. The crucial diﬀerence here is that for any violation of the treaty (as has arguably occurred on several occasions with the unilateral suspension of the power sharing institutions by the UK government) to be addressed, one of the signatory parties needs to bring a case before a relevant international legal institution (e.g., the European Court of Justice). If this does not happen, the protection theoretically aﬀorded by the link between the agreement and an international bilateral treaty remains an empty shell. In the case of South Tyrol, the Paris Treaty of 1946 between Austria and Italy, annexed to the Italian Peace Treaty, called for the granting of autonomous status to South Tyrol. In 1992, the Austrian government deposited a declaration with the United Nations in which it declared that its dispute with Italy over the implementation of the Paris Treaty had been resolved following the implementation of the majority of the measures agreed in the Second Autonomy Statute of 1972. Both countries—Italy and

65 I am grateful to Brendan O’Leary for pointing out to me that the 1998 Agreement on Northern Ireland has guarantees in the Irish Constitution and that the House of Lords in the UK also read the 1998 Northern Ireland Act, together with the Agreement, as a constitution.

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Austria—subsequently agreed that any future dispute between them in this respect would be referred to the International Court of Justice. Soft international guarantees primarily manifest themselves in the form of the involvement of international organizations in the negotiation, implementation and (potentially) operation of a particular peace agreement. While not of the same legally binding and thus potentially enforceable status as hard international guarantees, a signiﬁcant presence of international agents is often instrumental in shaping preference and opportunity structures for the conﬂict parties. In the cases studies, this has taken diﬀerent forms. In Bosnia and Herzegovina, similar to Macedonia, an international troop presence, as well as the involvement of various international governmental and nongovernmental organizations on an unprecedented scale have, for better or worse, been instrumental in the implementation and operation of the respective agreements thus far. In Bougainville, a UN observer mission has been crucial in facilitating demilitarization. In South Sudan, the signiﬁcant engagement of regional and international organizations and individual states in the peace negotiations and their commitment to the reconstruction of Sudan ensures a certain degree of ‘compliance enforcement’ as well. At the level of domestic guarantees, constitutional guarantees are more entrenched than those that have their source in normal legislation. Incorporation of speciﬁc provisions of peace agreements into national constitutions is a common way of realizing constitutional guarantees and has occurred in Bosnia and Herzegovina, Bougainville, Brussels, Crimea, Macedonia and South Tyrol. In the case of Bougainville, an additional safeguard exists in that no changes to the agreed and constitutionally entrenched structure of the institutions created by the peace agreement are permissible except with the explicit consent of at least two thirds of the members of the Bougainville parliament. Similarly, in South Tyrol, interlocked provisions in the Italian constitution and ordinary legislation provide a very strong set of domestic guarantees. Guarantees through speciﬁc laws exist in the cases of Bougainville, Brussels, Crimea, Macedonia, Mindanao, Northern Ireland and South Tyrol. In practice, they have proven weakest in Northern Ireland, where, in the absence of a written constitution, another law on the statute books has given the UK government the power to suspend the power sharing institutions at any given time, even though this appears to be in contravention of the legally binding international treaty between the UK and the Republic of Ireland of which the 1998 Agreement is a part.66 All three theories of conﬂict resolution emphasize the importance of judicial institutions and enforcement mechanisms to uphold the letter and spirit of conﬂict settlements. They also recognize the role of external actors but are divided on the usefulness of international intervention: power dividers see a limited,

66

I am grateful to Brendan O’Leary for clarifying this point for me.

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transitional role for them; advocates of power sharing embrace them more readily as facilitators and guarantors of settlements. B. The Structure and Organization of the State as a Whole 1. Symmetry and Asymmetry in Institutional Design The ﬁrst element to consider in the context of questions about symmetry and asymmetry of institutional design is the number of layers of authority that actually exist across the eight case studies (Table 5). Table 5: Variation in the Vertical Layering of Authority67 Two-layered structures

Three-layered structures

Multi-layered structures

Macedonia

Bougainville Crimea Northern Ireland

BiH Brussels Mindanao South Sudan South Tyrol

Table 5 illustrates that self-governance regimes rely predominantly on more than two layers of authority. In the cases of Bougainville, Northern Ireland and Crimea, these three layers are central, regional and local government. In Macedonia, on the other hand, the middle level of government—the region—is missing, reducing the levels of government to two, namely the central government and local governments, which are both prescribed in the constitution and whose functions and powers are detailed there and in relevant legislation. There also exists a legally guaranteed opportunity for citizens to develop a further layer of government at the level of neighbourhoods but this is regulated by by-laws of the individual local governments and thus a matter of local decision-making rather than of state construction. In the cases of Bosnia and Herzegovina, Brussels, Mindanao, South Sudan and South Tyrol, more than three levels of government exist. In Bosnia and Herzegovina, this is a result of the interplay of domestic, regional and international factors in the process of state creation at Dayton, leading to a complex federal-confederal structure of the state. The complexity of domestic divisions and the process of federalization in Belgium, leading to a structure in which regions and communities are simultaneously components of the overall federal structure, accounts for the four-layered structure of the Belgian system. Interestingly, looking only at Brussels, only a three-layered structure exists. However, within it, at the regional level, three parallel layers of authority exist: the regional council and government;

67 This classiﬁcation ignores purely or mostly ceremonial heads of state, as well as the fact that, for all West European cases, the European Union is an additional layer of authority.

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and the institutions of the French, Flemish and Joint Community Commissions. In the case of Mindanao, an existing four-layered structure of government was altered with the creation of a speciﬁc and unique ﬁfth layer—the legal-political entity of the Autonomous Region of Muslim Mindanao—to which powers were devolved in an eﬀort to resolve the underlying self-determination conﬂict. This is similar to the case of Sudan (and, for that matter, Ukraine/Crimea and the UK/Northern Ireland), where a three-layered structure was altered in relation to South Sudan that represents an additional level of government between the central and state governments manifesting the distinct identity of the southern states. Another way of looking at structural types of vertically layered authority is to examine the degree to which these cases represent institutions that are structurally and/or functionally symmetric or asymmetric (Tables 4–6), as this perspective provides a more comprehensive picture of the structure of the entire polity concerned and the place and status of self-governance institutions within it. Table 6: Structural Symmetry and Asymmetry of Institutions Structural symmetry

Structural asymmetry Single asymmetry

Bougainville Brussels Macedonia South Tyrol

Crimea Mindanao Sudan

Multiple asymmetry BiH Northern Ireland

Table 7: Functional Symmetry and Asymmetry of Institutions Functional symmetry

Functional asymmetry

Macedonia

BiH Bougainville Brussels Crimea Mindanao Northern Ireland South Sudan South Tyrol

Tables 4 and 5 indicate that there is no clear-cut predominance of symmetric or asymmetric forms of institutional structures across the case studies but that, from a functional perspective, i.e., the way in which powers and functions are distributed horizontally at the relevant levels of government in a polity, asymmetry is more frequent than symmetry. In other words, the vertical layering of authority, regardless of whether it is structurally ‘coherent’ across a given state or not, facilitates asymmetric distribution of powers and functions, thus enabling central governments and speciﬁc regions to create a special relationship in the

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Table 8: Structural and Functional Symmetry and Asymmetry of Institutions Compared

BiH

X

Asymmetric

Symmetric

Multiple asymmetric

Functions

Single asymmetric

Symmetric

Structures

X

Brussels

X

X

Bougainville

X

X

Crimea Macedonia

X X

Mindanao

X X

Northern Ireland

X X

South Sudan South Tyrol

X

X X

X X X

sense that more powers and functions or parts thereof are devolved to a particular region, which thereby acquires greater autonomy in a wider range of policy areas compared to other territorial entities in the same country. This is also demonstrated in Table 8, which illustrates that, while symmetric structures and symmetric functions correlate more frequently (Macedonia), symmetric structures do not preclude asymmetric functional capacities (Bougainville). South Tyrol does not stand out from the other cases. It is characterized by structural symmetry in the sense that the province of South Tyrol (and the Region of Trentino-South Tyrol) are, from a structural point of view, regular territorial entities within the overall Italian context. Importantly, however, in relation to the competencies enjoyed by South Tyrol, these are signiﬁcantly beyond the level of those enjoyed by similar territorial entities elsewhere in Italy.68 As discussed in greater detail above, there are very few policy areas in which South Tyrol does not exercise executive and/or legislative powers; thus, the range of its competences

68

In the context of the ‘federalization’ of Italy, which began with the Constitutional Reforms of 2001 (Constitutional Law No. 3 of 18 October 2001), there is now greater functional symmetry between provinces and regions across Italy. The point, however, that is important for an understanding of more general principles of complex power sharing is that, for over thirty years, signiﬁcant functional asymmetry co-existed with structural symmetry without any particular problems.

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under the asymmetric functional arrangement in operation is impressive but, as I will demonstrate below, not unique in comparison with some of the other cases discussed. From a theoretical point of view, it is worth noting that both varieties of power sharing, albeit to diﬀering degrees, allow for asymmetric structures and functions. While liberal consociational power sharing is principally in favour of territorial conﬁgurations reﬂecting the expressed wishes of self-deﬁned communities (whatever the basis of such self-deﬁnition), integrative power sharing is not opposed to the use of territorial self-governance arrangements in either symmetric (federalism) or asymmetric (autonomy) forms. Where integrationists and advocates of power dividing tend to agree is their preference for territorial self-governance to be based on ‘administrative’ rather than ‘ethnic’ criteria, in an eﬀort to prevent the institutionalization of group identities and enable coalitions of interest based on policy rather than identity (integrationists) or multiple and changing majorities (power dividers). Having said that, it is evident that in the cases that form the basis of this empirical comparison the entities of territorial self-governance are exclusively those in which group identities form the basis of boundaries.69 2. Distribution and Separation of Powers One of the key questions to ask of any self-governance regime is where powers rest, i.e., how diﬀerent competences are allocated to diﬀerent layers of authority and whether they are their exclusive domain or have to be shared between diﬀerent layers of authority. As with other dimensions in this analysis, there is a certain degree of context-dependent variation across the cases under examination. Variation exists primarily with regard to the ways in which powers are allocated and the degree of ﬂexibility concerning new ﬁelds of policy making that were not relevant or not included at the time a speciﬁc agreement was concluded. The principle mechanism to handle the distribution of powers is the drawing up of lists that enumerate precisely which powers are allocated to which levels of authority and/or which are to be shared between diﬀerent such levels. These lists can be very speciﬁc for each layer of authority (Bougainville, Mindanao, South Sudan and South Tyrol)70 or they can be speciﬁc for one or more layers and ‘open-ended’ for others (Bosnia and Herzegovina, Crimea, Macedonia and Northern Ireland). The key diﬀerence in the latter case is which layer of authority has an ‘open-ended’ list, i.e., which layer retains residual authority for any partly devolved power or any other policy area not explicitly allocated elsewhere (see Table 9).

69

I will return to a discussion of territory and population as boundaries of authority below. Since the Constitutional Reform of 2001, South Tyrol has been in the unusual situation that it has both speciﬁc lists of competences allocated to diﬀerent layers of authority, as well as a general clause automatically assigning all policy areas that have not been speciﬁcally mentioned to the legislative competence of the province. 70

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Table 9: Power Allocation in Self-governance Regimes71 Speciﬁc lists

Bougainville Mindanao Northern Ireland71 South Sudan

Combination of speciﬁc and ‘open-ended’ lists Open-ended list at centre

Speciﬁc list at centre

Brussels Crimea Macedonia

BiH South Tyrol

In Brussels, Crimea and Macedonia, the centre holds residual authority over all matters not expressly devolved to the lower layers of authority, while in South Tyrol and Bosnia and Herzegovina the two entities retain all the competences not explicitly delegated to the centre (with the qualiﬁcation that, in the case of Bosnia and Herzegovina, the Federation cantonal institutions assume most of these powers from the Federation entity). In Mindanao, the multi-layered system of public authority that is in place there has very speciﬁc lists of powers allocated to the individual levels within it, even though the central government remains the original source of all authority, i.e., the reverse of the situation in South Tyrol since 2001. This is also the case in Northern Ireland but here the system of allocating powers operates on the basis of three diﬀerent lists enumerating devolved, reserved (with the future possibility of devolution) and excepted (without the future possibility of devolution) matters. In Bougainville, which also operates a system of speciﬁc power allocation to the diﬀerent layers of public authority, an additional feature is that there are speciﬁc arrangements as to how to deal with emerging policy areas (a joint commission that will resolve disputes over the allocation of new powers). Another distinctive feature of the Bougainville system is that, initially, all powers allocated to the autonomous province are retained at the central level and are, albeit almost automatically, devolved to Bougainville upon application to the central authorities by the provincial authorities. In the case of South Sudan, notably, speciﬁc lists of powers exist for the centre, the government of South Sudan and the state governments, as well as a list of so-called concurrent powers whose exercise falls under the competence of more than one layer of government. None of the three theories of conﬂict resolution discussed above oﬀers much speciﬁc guidance on this issue of power allocation to diﬀerent vertical layers of authority. Some inferences can nevertheless be made. Power dividers, who express a certain preference for the American model of federalism,72 favour strong central governments and are thus likely to opt for residual authority to remain with the

71 Should the Assembly in Northern Ireland ask for it, the regional power sharing institutions could enjoy an open-ended list of powers allocated to them, with only speciﬁcally excepted matters retained by the Westminster government. 72 See, for example, Roeder and Rothchild, op. cit. note 28.

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central government. As for the two power sharing schools, for both of them it is important that power sharing is a more attractive option to conﬂict parties than recourse to violence, hence both approaches should be interested in substantive powers assigned to territorial self-government entities, which is best done either by way of assigning residual authority to these entities or by drawing up speciﬁc lists that clearly distribute powers between central and regional governments. 3. Coordination Mechanisms The distribution and separation of powers, horizontally and vertically, in complex power sharing systems requires mechanisms for the coordination of law and policy making. This is generally an important issue in the operation of any multi-layered system of government but it assumes additional signiﬁcance in the context of self-determination conﬂicts, as coordination failures not only have an impact on the eﬀectiveness of government but also have repercussions for the perception of the usefulness of a particular institutional structure to resolve a conﬂict. The cases studied in this analysis suggest that, although there is a wide spectrum of individual coordination mechanisms, these can be grouped into four distinct categories: cooptation; joint committees and implementation bodies; judicial review and arbitration processes; and direct intervention by the international community (see Table 10). Table 10: Coordination Mechanisms in Self-governance Regimes

Cooptation

Brussels Mindanao

Joint committees and implementation bodies Bougainville Brussels Macedonia Mindanao Northern Ireland South Sudan South Tyrol

Judicial review and arbitration BiH Bougainville Brussels Crimea Macedonia Mindanao Northern Ireland South Sudan South Tyrol

Direct intervention by the international community BiH

As Table 10 indicates, with the exception of Crimea, all the cases exhibit at least two diﬀerent coordination mechanisms, with one of them always (in the case of Crimea, the only one) being judicial review and arbitration processes. This suggests that there is a strong reliance upon the legal regulation of the relationships between diﬀerent layers of public authority and an emphasis on the separation of powers between the diﬀerent branches of government, creating an independent judiciary. This is similar to any other country that has adopted the rule of law as a basic principle of running its own aﬀairs. It is therefore more interesting to

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consider the other three types of coordination mechanisms in greater detail with a view to examining the degree to which they are the speciﬁc results of adopting self-governance regimes as settlements for self-determination conﬂicts. Cooptation, adopted in Belgium and the Philippines, is a mechanism to ensure the representation of regional oﬃcials (from Brussels and the Autonomous Region of Muslim Mindanao, respectively) at the centre. In all cases, regional and oﬃcials are ex oﬃcio members of relevant national government departments. This arrangement is symbolic and emphasizes the special relationship between central government and autonomous region. In the case of Mindanao, it is also necessary as the autonomous entity is an artiﬁcial construction from an administrative point of view and does not ﬁt into the preexisting structures of authority in the Philippines. Cooptation thus becomes a potential mechanism to overcome this kind of administrative ‘abnormality’ and ensure that the special circumstances of the autonomous regions are borne in mind in the process of national law and policy making. Cooptation is notably absent in the similar cases of Crimea and South Sudan but well compensated for in the latter through extensive power sharing mechanisms. In Crimea, the representative oﬃce of the president of Ukraine acts, in part, as a coordination mechanism with oversight but no executive powers. In the context of coordination between diﬀerent vertical layers of authority in self-governance regimes, the need for joint committees and implementation bodies often arises from two sources: to ﬁnd common interpretations for speciﬁc aspects of agreements and regulations; and to coordinate the implementation of speciﬁc policies at the national and regional levels. An example of the former is Bougainville, while the latter can be found in Macedonia (interethnic relations), Mindanao (development), Northern Ireland (cooperation between Northern Ireland and the Republic of Ireland and among all entities party to the British-Irish Council) and South Sudan (constitutional review, application of Sharia law, human rights, elections, referenda, ﬁscal and ﬁnancial allocation). Such bodies usually hold regular meetings (Bougainville, Macedonia, Mindanao, Northern Ireland, South Sudan) and they can be by nature domestic, centreperiphery bodies (Bougainville, Macedonia, Mindanao, South Sudan) or reﬂect the international dimension of a particular self-determination conﬂict (Northern Ireland). They may be prescribed in agreements between the conﬂict parties (Bougainville, Mindanao, Northern Ireland, South Sudan) or arise from actual needs (Macedonia). In the case of South Tyrol, signiﬁcant aspects of the original negotiations of the autonomy statute in the 1960s were carried out by the so-called ‘Commission of Nineteen’, involving representatives of South Tyrol and the Italian government. Subsequently, two separate commissions were created to facilitate and oversee the implementation of the statute in relation to provincial and regional aspects of autonomy. Since 1997, a further commission, required according to Article 137 of the Autonomy Statute, has been operational, which deals speciﬁcally with questions of minority protection and the economic, social and cultural development of the ethnic groups in South Tyrol. This commission must be consulted in

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case of any planned changes to the Autonomy Statute. A further special commission was created in 2001 to deal with the implementation of changes resulting from the 2001 reforms to the Autonomy Statute and Italian Constitution. A standing commission at the oﬃce of the Italian prime minister, created to monitor the implementation of the Autonomy Statute, has been in place since 1972. In addition to policy coordination at the level of commissions, South Tyrol’s autonomy also beneﬁts from a strong and independent judicial system, whose role, however, has changed signiﬁcantly in the operation of the system, especially the role of the Constitutional Court in protecting South Tyrol’s legislative acts from undue interference by the central government. Unique to Bosnia and Herzegovina is the direct intervention of the international community as a mechanism to coordinate law and policy making. In both cases, powerful international oﬃcials retain signiﬁcant powers, enabling them to intervene directly into the political processes of the two entities. This results primarily from the unprecedented involvement of the international community in the process of resolving the two underlying self-determination conﬂicts and the responsibility that international agents thereby assumed for post-conﬂict state construction, as well as from the particularly bitter nature of the disputes concerned. The three theories of conﬂict resolution discussed above oﬀer some limited guidance on how they see this issue of coordination best addressed. All three generally emphasize the importance of a law-based system and thus of the role played by independent judicial institutions. Consociationalists further allow for additional coordination mechanisms. In fact, a key characteristic of regional consociations is the presence of such coordination mechanisms.73 Integrationists, even where they explicitly discuss federal-type arrangements,74 say very little on how policy can best be coordinated in multi-layered systems of authority. C. The Relationship between Individual Citizens, Identity Groups and the State 1. Human and Minority Rights Provisions Relevant human and minority provisions exist in all cases included in this analysis, albeit to diﬀering degrees. Applicable law includes international and regional standards and more speciﬁc state-wide and, in some cases, local human and minority rights legislation, as summarized in Tables 11–13.

73

See Wolﬀ, “The Institutional Structure . . .”, op. cit. note 1. See, for example, Horowitz, A Democratic South Africa . . ., op. cit. note 17, 214–226; and Wimmer, op. cit. note 18. 74

Complex Power Sharing as Conﬂict Resolution

357

1975

1983

1983

1994

Yes

—

BiH

Yes

1992

1993

1993

1993

1995

Yes

1993

Italy

Yes

1952

1976

1978

1978

1978

Yes

1966

Macedonia

Yes

1994

1994

1994

1994

1994

Yes

1997

PNG

Yes

1982

1982

—

—

—

Yes

—

Philippines

Yes

1950

1967

1974

1986

1989

Yes

1964

Sudan

Yes

2003

1977

1986

1986

—

Yes

—

Ukraine

Yes

1954

1969

1973

1973

1991

Yes

1962

UK

Yes

1970

1969

1976

1976

—

Yes

1962

UNESCO Convention against Discrimination in Education

Optional Protocol to the International Covenant on Civil and Political Rights80

1951

UNESCO membership

International Covenant on Civil and Political Rights79

Yes

International Convention on the Elimination of All Forms of Racial Discrimination77

Belgium

UN membership

International Covenant on Economic, Social, and Cultural Rights78

Convention on the Prevention and Punishment of the Crime of Genocide76

Table 11: International Human and Minority Rights Instruments757677787980

75 The 2005 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions has not yet been signed by any of the countries concerned. 76 Status as of 1 November 2006 (). 77 Status as of 1 November 2006 (). 78 Status as of 1 November 2006 (). 79 Status as of 1 November 2006 (). 80 Status as of 1 November 2006 ().

Stefan Wolﬀ

358

European Charter for Regional or Minority Languages

(European) Framework Convention for the Protection of National Minorities

European Convention for the Protection of Human Rights and Fundamental Freedoms

Council of Europe membership

Table 12: Regional Human and Minority Rights Instruments: Europe81828384

Belgium

Yes

1955

(2001)81

--

BiH

Yes

2002

2000

(2005)82

Italy

Yes

1955

1998

(2000)83

Macedonia

Yes

1997

1998

(1996)84

Ukraine

Yes

1997

1998

2006

UK

Yes

1953

1998

2001

There are no regional human and minority rights instruments applicable to the Asian case studies in this analysis (Papua New Guinea and the Philippines). Sudan ratiﬁed the African Charter for Human and Peoples’ Rights85 in 1986. This is not the place to examine in detail the legal provisions contained in any of these documents, nor the degree to which law translates into policy and is enforced in the countries covered by this comparative analysis. The general trend in legal provisions for human and minority rights, however, is obvious in that constitutional human rights provisions are universally present and in that, with the exception of Papua New Guinea, all countries are states parties to the key international conventions. There seems to be signiﬁcantly greater reluctance to include minority rights provisions in constitutions or even provide for separate minority rights legislation either at the state or local level. This emphasis on

81 82 83 84 85

Not yet ratiﬁed. Not yet ratiﬁed. Not yet ratiﬁed. Not yet ratiﬁed. For the text of the Charter, see .

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Local minority rights legislation

Local human rights legislation

State-wide minority rights legislation

Constitutional minority rights provisions

Constitutional human rights provisions

Table 13: Domestic and Local Human and Minority Rights Provisions

Belgium/Brussels

Yes

No

No

Yes

Yes

BiH

Yes

Yes

Yes

Yes

Yes

Italy

Yes

Yes

Yes

Yes

Yes

Macedonia

Yes

Yes

Yes

N.A.

N.A.

PNG

Yes

No

No

Yes

No

Philippines

Yes

No

Yes

No

No

Sudan

Yes

Yes

No

Yes

No

Ukraine

Yes

Yes

Yes

Yes

No

Yes

No

No

Yes

No

20

UK

individual human rights over (group-speciﬁc) minority rights is consistent with the recommendations of power dividers and integrationists. Consociationalists, too, appreciate the value of individual human rights provisions but their recommendations do not caution against the parallel use of minority rights provisions, which is consistent with their generally more pronounced emphasis on the recognition and protection of (self-determined) group identities.86

86 The UK does not have a single constitutional text, in accordance with the doctrine of parliamentary sovereignty.

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Stefan Wolﬀ

2. Recognition and Protection of Identities: Territory and Population as Boundaries of Authority Authority as the legitimate exercise of political power has two boundaries: it is normally limited to a speciﬁc territory and/or a deﬁned group of people. The degree to which both of these categories shape the boundaries of authority of speciﬁc institutions of government contributes to an assessment of the degree to which group identities are institutionally recognized and protected. A national government has the authority to exercise its power within the territorial conﬁnes of the state it is governing and over the residents of this territory (albeit with the exception of foreign diplomats, for example). Some elements of a national government’s authority may also extend beyond the territorial boundaries of its state but then they will normally be limited to that particular state’s citizens, for example in the ﬁeld of tax collection. In terms of self-governance regimes, the extent of these two limitations placed on the exercise of authority is similar. Regional, territorial self-governance regimes are spatially conﬁned. The powers devolved to them only apply within the territorial boundaries of the region and, by extension, only to (permanent) residents of the region. An analogue to authority extending beyond territorial boundaries are instances of personal autonomy in which the autonomous body has authority over all individuals belonging to it no matter where they live in the territory of the state or region concerned.87 These observations are particularly relevant in two of the cases examined here. The territory of the Autonomous Region of Muslim Mindanao was determined by a referendum at the local level, giving the population an opportunity to express in a free vote whether they want to live under the authority of a newly created regional government or want to continue being governed within the existing structure of vertically layered institutions. This vote took place at the level of provinces and towns, thus allowing for a much more ‘precise’ gauging of popular will and the degree to which a Muslim identity expresses itself, in part, through a desire for self-governance. In both cases, the result was that the autonomous territory thus created is not in fact a contiguous area but is made up of a number of patches of territory. Early indications suggest that this is not necessarily detrimental to the exercise of authority at the level of the autonomous territory. A degree of personal autonomy exists in the Autonomous Region of Muslim Mindanao with regard to judicial aﬀairs, as Sharia and tribal courts have authority alongside lower-order courts of the national judicial system in religious and family aﬀairs to cater for the speciﬁc needs of the diﬀerent religious, ethnic and tribal communities in these areas. In South Sudan, the relevant territory comprises the southern states as they existed at Sudan’s independence. Special provisions apply to two

87

In reverse, this means that all members of the ethnic group concerned can enjoy the rights accorded to them in the autonomy arrangement anywhere in the territory of the relevant state. This form of autonomy is particularly useful in instances where groups are more dispersed. It is also used to complement territorial forms of autonomy in speciﬁc policy areas (culture, religious aﬀairs, education, etc.) when autonomous territories are ethnically heterogeneous.

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disputed areas: Abyei and the Southern Kordofan/Nuba Mountains and Blue Nile States. The former is deﬁned as the area of the nine Ngok Dinka chiefdoms, which were transferred to Kordofan in 1905. Both territories were accorded special status during the interim period prior to the referendum on independence for South Sudan and have diﬀerent options in this referendum.88 The case of Mindanao suggests that there is an additional degree of diﬀerentiation available that goes beyond the traditional territorial delimitation of authority in that it incorporates a public consultation process for the deﬁnition of the territorial boundaries of the autonomous area. If combined with levels of personal autonomy in speciﬁc policy areas, the range of authority that a self-governance entity enjoys can be tailored to the speciﬁc demographic and geographic situation, taking account of settlement patterns and ethnic, religious, cultural and other types of heterogeneity. While such ‘ﬁne-tuning’ increases the complexity of self-governance regimes, it may also make them more suitable to particular contexts and thus more acceptable. In other words, careful territorial and personal delimitation of self-governance potentially increases the belief in the authority of the institutions established among those governed by them and is thus likely to contribute to greater stability of these same institutions and the political process of which they are part. However, as I have previously indicated, adding a further layer of authority to those already existing within the structure of an established state increases the complexity of institutional design, places greater demands on policy coordination and has the potential to undermine the authority of the territorial entity created speciﬁcally to increase the degree of self-governance enjoyed by a particular population group. However, what is striking about the arrangements in Mindanao89 is the fact that, while the relevant local government units can decide in a referendum on whether they want to belong to the newly created autonomous entity, there seems to be no provision for the reverse process, i.e., units leaving the autonomous entity. In case of signiﬁcant changes in the population balance in one or more such units, a new minority would be created within the autonomous entity (whose demands would have to be accommodated). Demographic developments always have implications for security perceptions and the stability of settlements of complex self-determination conﬂicts90 but it is reasonable to assume that their implications would be even more severe in cases where territorial (re)arrangements are recent, precisely because they will imply a degree of ﬂuidity that is threatening

88 For further analysis of this issue, see Marc Weller, “Self-governance in Interim Settlements: the Case of Sudan”, in Marc Weller and Stefan Wolﬀ (eds.), Autonomy, Self-governance and Conﬂict Resolution: Innovative Approaches to Institutional Design in Divided Societies (Routledge, London, 2005), 214–245. 89 In Mindanao, an initial referendum took place in 1989 in which four of the twenty-two provinces and cities opted for inclusion into the Autonomous Region of Muslim Mindanao. In 2001, a second referendum was held and one further province and one further city joined the Autonomous Region of Muslim Mindanao. 90 I am grateful to Tom Trier for pointing this out to me.

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to majorities and minorities at the same time. On the other hand, given reasonably and rationally acting political elites, there is nothing to say that signiﬁcant demographic shifts could not be addressed constructively. In a third case, Macedonia, devolution of signiﬁcant powers to the local layer of authority was accompanied by boundary revisions to take better account of ethnic settlement patterns. In South Tyrol, the boundaries of the autonomous province were largely determined on the basis of the historical entity of South Tyrol but some ‘adjustments’ were made to incorporate some predominantly German-speaking municipalities that would have otherwise been part of the Province of Trento. Thus, in almost half of the cases considered in this comparative analysis, the recognition and protection of group identities went beyond the application of mere territorial principles. This is not to say that in the other cases identities are not institutionally recognized or protected. After all, self-governance in all cases is applied to territories inhabited, wholly or in part, by ethnically or otherwise distinct groups. Furthermore, in most cases, power sharing arrangements exist that explicitly recognize group identities and aﬀord them a measure of institutional protection precisely because of the inclusiveness of resulting governance arrangements at various levels. What is important, though, is to recognize that among some of the complex power sharing arrangements discussed here the recognition and protection of group identities extends beyond the application of these principles and establishes territorial entities or adjusts preexisting ones to facilitate the inclusion of the maximum possible number of members of one particular ethnic group into self-governance regimes without, of course, engaging in their (involuntary) resettlement. The recent use of local referenda, moreover, means that there is no automatic, predetermined equivalence of identity and territory. This issue of privileging group identities is one in which liberal consociationalist views dominate in conﬂict resolution practice—territorial boundaries of self-governing entities are self-deﬁned by their populations. The resultant ‘ethnic’ entities run counter to recommendations made by either integrationists or power dividers, both of whom generally prefer administrative, heterogeneous entities to ethnically self-deﬁned ones with particular group majorities or pluralities.

IV. Conclusion: Complex Power Sharing Lessons from South Tyrol and Beyond The South Tyrol conﬂict was primarily an ethnic conﬂict in which one ethnic group—South Tyrolese German-speakers—challenged the Italian state over its apparently discriminatory policy against an ethnic minority that had been annexed to the Italian polity after World War I. The institutional arrangements of the conﬂict settlement are an example of the practice of complex power sharing, which is so far under-theorized in the literature on conﬂict resolution. While complex power sharing does not oﬀer a blueprint for conﬂict settlements, the

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foregoing case study of South Tyrol and the comparative analysis of a further eight cases in which similar complexity in institutional design prevails oﬀers important insights into the general nature of complex power sharing designs, including, at an analytical level, into the relationship of complex power sharing practice with existing conﬂict resolution theories. While the South Tyrol model has not been ‘transferred’ to other conﬂict settlements, its institutional design has exemplary character for complex power sharing arrangements more generally, as demonstrated in the comparative analysis above. This means that lessons from South Tyrol, in particular as far as they concern the long-term stability of complex power sharing arrangements, are extremely important for the practice (and any emerging theory) of this conﬂict resolution approach. The two main features of complex power sharing in South Tyrol are territorial self-governance and (consociational) power sharing. This appears to be common to all the cases studied, the only diﬀerence being the degree to which power sharing is predetermined or emerges as a result of demographic and electoral factors. It is therefore possible to glean important lessons for the stability of complex power sharing arrangements more generally, as South Tyrol is one of its oldest and longest-lasting examples. Given the presence of consociational structures, the existing literature on consociationalism oﬀers a range of diﬀerent factors that inﬂuence their success.91 Most of Lijphart’s assumptions about “favourable conditions for consociational democracy” appear to be present in South Tyrol.92 Overarching loyalties, the small number of political parties in each ethnic group and the existence of some cross-cutting cleavages with otherwise segmental isolation were all found in part either essential or helpful for the stability of the consociational settlement in South Tyrol. However, the success of the South Tyrolean consociation had its sources also in a number of other internal and, importantly, external factors, whose inﬂuence must not be underestimated.93 Notwithstanding the particularity of some of the power sharing features in South Tyrol, the factors that have contributed to the durability and stability of arrangements in South Tyrol bear relevance for other complex power sharing cases as well. These factors include: – The territorial integrity of Italy has not been challenged by either the Germans in South Tyrol or any Austrian government since 1946;

91 For a critical assessment of the changing nature of these factors, see Matthijs Bogaards, “The Favorable Factors for Consociational Democracy: a Review”, 33(4) European Journal of Political Research (1998), 475–496. For a balanced defence, compare McGarry and O’Leary, op. cit. note 6. 92 Lijphart, op. cit. note 4, 53. 93 For a recent appreciation of the role of external factors in the negotiation, implementation and operation of consociational settlements, see McGarry and O’Leary, op. cit. note 6.

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– Remaining issues of conﬂict were gradually resolved within an agreed institutional framework and without taking recourse to violence, as the institutions have proven ﬂexible enough over the years to accommodate changes in the interest structures of the two major ethnic groups in the province; – None of the disputes that occurred were about the essence of the settlement, as all involved conﬂict parties accepted the principle nature and structure of the package deal agreed in 1969 as the best possible solution; – While the degree of cooperation between the ethnic groups has varied over time—but has generally increased, especially among the younger and urban sections of the population—that between their respective elites has always remained high; and – Gradually, a set of common territorial institutions and a sense of loyalty to these power sharing institutions have developed and proven to be advantageous for the stability of the settlement. Consequently, a majority within both ethnic groups and their political elites have been satisﬁed with the particular settlement adopted in South Tyrol. The empowerment of the South Tyrolese Germans through the complex power sharing arrangements that were established has been acceptable to both the Italians in the province and the region and to the Italian state. The segmental autonomy of the groups in clearly deﬁned areas, such as education, language and religion, where community-speciﬁc rather than intercommunal issues are at stake, has been similarly accepted. Furthermore, successive Italian governments have demonstrated a willingness to recognize and protect identity-based diﬀerences rather than to suppress or eliminate them. State institutions, especially the judiciary and various joint commissions, have, where necessary, mediated between the ethnic groups or played the role of an arbitrator. In the process of implementing the agreed settlement, the Italian state has been a fairly impartial administrator, independent of the various governments in oﬃce during this lengthy process, which was possible because of the high level of cross-party consensus among the political parties in Rome with respect to the desirability of the success of the ‘Package’ solution. Externally, cooperation with Austria has been an additional positive factor. Not only have relations between Rome and Vienna contributed to creating a general environment of constructive cooperation but the room that South Tyrol and, in particular, its German-speaking population was given to establish and develop cross-border institutions and less formal contacts has been beneﬁcial. This has been helped by the fact that in Austria, too, a high overall level of cross-party consensus has prevailed since the adoption of the 1972 Autonomy Statute. The country has abstained from any policies aimed at destabilizing this settlement and has contributed to its long-term success. Austria’s accession to the European Union in 1995 has been the latest in a sequence of steps the country took towards closer integration with European institutions. The international context has thus generally been very favourable towards the durability and stability of the settlement in

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South Tyrol, even to the extent that a number of European regulations are not applicable in the province in order to avoid a destabilization of the situation. South Tyrol has proven a success because the institutions and mechanisms of the complex power sharing arrangements established have interacted with political dynamics that operate in the province and region, in Italy and Austria, and in a broader European and international context in such a way that elites, as well as members of all ethnic groups concerned, have powerful incentives to preserve the settlement. The main factors operational at each level are summarized in Table 15 below. Table 15: Factors Contributing to the Success of Complex Power Sharing in South Tyrol x In South Tyrol: Flexibility among all three groups in the implementation and operation of the Autonomy Statute; High degree of political consensus among German-speaking population and virtual monopoly position of the SVP; Decreasing levels of interethnic tensions; Economic prosperity of South Tyrol; Ethnic division of labour; Segmental cultural autonomy of all three groups; Growing cross-communal loyalty to the autonomous institutions; and Increasingly, the development of a common interest structure. x In Italy: Two-level negotiation approach of the Italian government, including both the South Tyroleans and the Austrian government in the settlement process; Greater preparedness to compromise after the swift containment of violence; Acceptance and gradually full implementation of a comprehensive settlement with a double arbitration mechanism; and Development of an asymmetric framework of regional structures and diﬀerent autonomy statutes across Italy. x In Austria: Commitment to continue settlement eﬀorts despite the diﬃcult bilateral relationship with Italy; Encouragement of the political leadership of the SVP to settle for an inner-Italian solution; Constant consultations with representatives of the German-speaking minority during the negotiation process and subjection of any agreement to their consent; and Policy of strict non-interference once a settlement had been reached, except in areas where the settlement provided for Austrian engagement. x International Context: Bilateral commitment to ﬁnding a mutually acceptable solution; Sensitivity towards the constraints within which each side was operating; International encouragement to settle the conﬂict peacefully; Built-in guarantees for international mediation in case of disputes over the implementation of the settlement; and Opportunities oﬀered by European integration and Austria’s accession to the European Union.

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South Tyrol demonstrates that complex power sharing works because it adapts macro-political approaches to conﬂict settlement to speciﬁc cases. The fact that all the cases studied in this comparative analysis combine territorial self-governance with power sharing only tells half the story. It is the speciﬁc nature of both of these macro-political conﬂict resolution techniques and the range of ‘supplementary’ mechanisms—be they speciﬁc electoral systems, human and minority rights legislation, or coordination and arbitration mechanisms—that need to ﬁt the speciﬁcities of the particular case to which they are applied but also—and importantly—have to ﬁt each other. This means that there are limits to the extent to which the design of complex power sharing settlements can choose at random from the available menu of mechanisms and techniques. This is borne out by the broader comparative analysis in this chapter, which placed South Tyrol in a global context of recent conﬂict resolution practice that I refer to as complex power sharing. This analysis starts from the empirical observation that a signiﬁcant number of recent conﬂict settlements establish territorial self-governance regimes that combine forms of horizontal and vertical power sharing and power dividing in an eﬀort to establish stable political and institutional processes conducive to resolving self-determination conﬂicts. Vertical power sharing and power dividing prove necessary complements of territorial self-governance in two ways: self-governance regimes cannot be established in speciﬁc territorial entities without it; and such entities become a locus of power, no power can be shared at the sub-state level. Power sharing and power dividing in the Bosnian-Croat Federation, in Bougainville, in Brussels, in the Autonomous Region of Muslim Mindanao, in Northern Ireland, South Sudan and South Tyrol would not be possible if these regions had not been established as legal-political entities and powers had not subsequently been devolved to them. The main diﬀerence between regions with horizontal structures of power sharing and those without is ﬁrst of all one of the degree of ethnic (or other) heterogeneity. The bipolar ethnic and/or political demography of the Bosnian-Croat Federation, Bougainville, Brussels, Northern Ireland and South Tyrol, as well as the religious and tribal mix in the provinces that opted for membership in the Autonomous Region of Muslim Mindanao and in South Sudan, required constitutional designers to devise mechanisms of conﬂict regulation below the central state level and beyond traditional notions of subsidiarity and devolution. Context-sensitive institutional design is reﬂected, among others, in the diﬀerences in power that regional power sharing authorities have in all these cases and the degree of power that lower levels of authority within them enjoy, such as the cantons in the Bosnian-Croat Federation, the individual provinces that make up the Autonomous Region of Muslim Mindanao or the states that are part of South Sudan. Where regional or national (formal) horizontal structures of power sharing are missing, demography and the vertical layering of authority have combined favourably in ways that make them superﬂuous. In Crimea, demography, the

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electoral system and the party system have combined to result in a reasonably equitable representation of the region’s three main groups—Russians, Ukrainians and Crimean Tatars—in parliament and also to encourage executive interethnic power sharing. In Macedonia, the territorial concentration of ethnic Albanians in the west of the country, combined with a substantial degree of autonomy and power for local communities is, by and large, suﬃcient to address the key concerns of the minority community. Moreover, the fact that the demographic balance in the country and the structure of its party system facilitate interethnic coalitions at the centre contributes to the relative overall satisfaction that majorities in both ethnic groups derive from this settlement. Mechanisms of power dividing exist in all of the cases discussed as well. Apart from the vertical division of power, i.e., the distribution of powers between different vertical layers of authority, one also ﬁnds a range of horizontal mechanisms advocated by power dividing theory: most obviously, there is, in all of the cases, an emphasis on independent judicial institutions tasked with the upholding of the constitutional order and the enforcement of human and minority rights legislation. Division of power between the executive and legislative branches of government exists as well but is not as universal. Indeed, parliamentary systems are marginally more common both at the central and regional levels of government. Where these systems are an integral part of the conﬂict resolution eﬀorts, they are strongly correlated with the establishment of executive power sharing: they are prescribed in Belgium, Brussels, the Federation of Bosnia and Herzegovina, Northern Ireland and South Tyrol but emerge voluntarily in Macedonia and Crimea. By the same token, presidential systems, favoured by power dividers, do not preclude executive power sharing. Bosnia and Herzegovina (albeit with a semi-presidential system), Sudan and South Sudan serve as illustrations. From this degree of variation across the case studies one can draw a number of both analytical and empirical conclusions. Empirically, there are four important conclusions for the role that complex power sharing regimes have in the conﬂict resolution toolkit. First, dividing power along a vertical structure of institutions can serve as a useful substitute for formal horizontal power sharing at either the national or regional levels, provided that national or regional ethnic demographies create suitably homogeneous territories and that substantial powers are devolved from the centre. In other words, such cases lend themselves to the application of forms of territorial autonomy or of the subsidiarity principle, instead of the use of executive co-decision making, as foreseen by power sharing institutions. Moreover, a reasonable degree of representation of minority groups at the relevant ‘central’ level (regional in the case of Crimea, central state in the case of Macedonia), in addition to these other two conditions, also seems to facilitate this kind of institutional structure. Second, no attempt was made in any of the cases studied to create heterogeneous entities as subjects of territorial self-governance. Heterogeneity, where it exists, was addressed by means of consociational power sharing within the

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self-governing territorial entity. This means that one key recommendation by advocates of integrationist power sharing and power dividing was not followed by practitioners of conﬂict resolution in any of the cases studied. Third, coordination between diﬀerent vertical layers of authority and the establishment of clear hierarchies are important to ensure that vertical layering of authority remains meaningful and can contribute to the long-term sustainability of a particular conﬂict settlement. Where there is a danger of eroding the degree of self-governance enjoyed by speciﬁc territorial entities and their populations created as a particular layer of authority with the speciﬁc purpose of conﬂict resolution (such as Mindanao, South Sudan and, with some qualiﬁcations, Crimea), conﬂict settlements may not be sustainable in the long term. This means, fourth and ﬁnally, that without safeguards against arbitrary government interference, it is unlikely that the conﬂict parties will develop a sense of satisfactory permanence and predictability in relation to a particular conﬂict settlement. Legal and constitutional entrenchment, possibly alongside international guarantees, is thus one important mechanism for the stabilization of institutional structures. These and other power dividing strategies that provide checks and balances on the exercise of power serve to ensure that principles of liberal democratic state construction shape complex power sharing regimes and enhance their longer-term legitimacy. However, from the perspective of the minority community, another mechanism can be equally important; namely, the option to secede in case of major constitutional, demographic or political changes. Thus, Bougainville has a future option for a referendum on its independence from Papua New Guinea; in Northern Ireland, the popular will regarding uniﬁcation with the Republic of Ireland is to be gauged at regular intervals; and South Sudan is set to have a referendum on independence after an interim period of six years. These two observations on entrenchment and popular consultation also underscore again that the preservation of democratic procedures is a key factor for stabilizing institutional structures created for the purpose of resolving self-determination conﬂicts, because it is through this longevity that institutions acquire their legitimacy. While democratic institutions in themselves are not necessarily and automatically technically viable, compliance with rules and regulations agreed between all conﬂict parties and their democratic accountability to voters increases the survival chances of smooth and eﬃcient institutional processes. Any form of complex power sharing regime will always modify and constrain majoritarian forms of democracy but this does not mean that its institutions can or should be run without popular support. Complex power sharing regimes do depend upon the willingness and ability of elites to cooperate and make compromises but they also depend on the willingness of the people to support their respective elites in this process and to uphold a settlement negotiated to bring about a non-violent, stable and predictable political process. Analytically, it appears clear that none of the three theories of conﬂict resolution fully capture the current practice of complex power sharing. Having said

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that, two additional points need to be made. Liberal consociationalism seems to be the one theory that is most open to incorporation of elements of integrationist power sharing and power dividing. Within a liberal consociational framework, there is room for a range of power dividing strategies, including a strong role for judicial entrenchment and enforcement mechanisms and universally applicable and enforceable human rights legislation. Liberal consociationalism is also open to a vertical division of power on the basis of non-ascriptive, i.e., non-ethnic criteria, but, in contrast to power dividing and integrative power sharing, does not rule it out either should self-determined entities on that basis emerge and desire territorial or corporate self-governance. Liberal consociationalists and integrationists also share some common ground in terms of the principle of preferential electoral systems, even though they disagree about whether preferential PR or majoritarian systems are better suited to achieve outcomes conducive to stable settlements in the long-term. However, the empirical evidence presented in this paper indicates that executive interethnic power sharing is a component of all of the institutional designs discussed above. The second point worth emphasizing is related to the stability of the settlements discussed. In other words, is complex power sharing a feasible alternative to the purist implementation of existing theories or is it the result of misguided and ill-informed diplomats and policy makers making choices of short-term convenience rather than long-term prudence? There is little point in making immodest claims at this stage about the feasibility of complex power sharing, as analyzed in this paper, as a conﬂict resolution strategy equal, if not superior to what existing theories prescribe. While complex power sharing practice may eventually lead to a synthesis of existing theories in a complex power sharing framework, there is as yet not enough real-world evidence about how stable such regimes can be under varying conditions. The cases examined in this paper were all similar to the extent that they comprised self-determination claims by territorially concentrated identity groups that lent themselves to the establishment of complex power sharing regimes with territorial self-governance arrangements at their heart. Some of them have proven relatively stable over time (i.e., over ten years): Belgium, Brussels, Bosnia and Herzegovina, Crimea and South Tyrol. Northern Ireland has, despite incomplete implementation, achieved a reduction of violence. Others, including Bougainville, South Sudan and Macedonia are too short-lived to provide reliable data about their long-term stability. Mindanao has only achieved partial success in bringing peace to a troubled region of the Philippines. In all these cases, however, further analysis is required to determine causal relations between institutional design and the durability of peace. Having said that, neither is power sharing generally doomed to collapse in renewed violence (as power dividing theory at times implies), nor is consociationalism practically dangerous or morally unjustiﬁable, as some of its integrationist critics tend to suggest. For complex power sharing to develop into a theory of its own, further research is necessary. While I hope to have demonstrated that it describes a particular phenomenon of conﬂict resolution practice in adequate detail, more work needs

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to be done to increase its predictive capabilities (i.e., when are complex power sharing regimes likely to emerge) and its explanatory value (i.e., when and why does it succeed). The latter especially will require conﬂict resolution theorists to engage more thoroughly with conﬂict theory: what are the underlying causes of conﬂict that complex power sharing is meant to address? Only then will it be possible to make sure that complex power sharing does not emerge accidentally as a patchwork of diﬀerent conﬂict resolution mechanisms cobbled together to accommodate a wide range of diverse (and most likely incompatible) interests but to provide a framework within which stable, lasting and ultimately successful conﬂict settlements can be designed.

CHAPTER NINETEEN

IS THERE A SOUTH TYROLEAN ‘MODEL’ OF CONFLICT RESOLUTION TO BE EXPORTED? Joseph Marko

I. Segregation or Integration? The Main Issues Surrounding the Regulation of Conflict in the Balkans Can South Tyrol provide a ‘model’ for the solution of ethnic conﬂicts? Or, put diﬀerently, what are the case-speciﬁc features to be distinguished from the more general lessons that can be learned and applied to other situations? An analysis of the South Tyrolean experiences that have accrued from decades of implementation and working autonomy might provide valuable insights beyond the state and evolution of this speciﬁc case regarding the general tendencies, potential and limits of the development of minority protection and territorial autonomy. These insights might be useful to consider with a view to the processes of transformation under way in Southeastern Europe. The wars in the Balkans between 1991 and 2001 have generally been perceived as violent ethnic conﬂicts. Both the wars in Bosnia and Herzegovina (BiH) and in Kosovo could only be stopped by the armed intervention of NATO forces in 1995 and 1999, respectively. Conﬂict settlement devices in the case of BiH were laid down in the Dayton Framework Agreement on Peace, including in Annex 4 the ‘Constitution’ of BiH with the institutional arrangements for reconstruction and reconciliation of the war-torn state, society and economy under the supervision of both an international military presence (SFOR) and an international civil administration, the High Representative and his Oﬃce (OHR), which had to be established according to Annex 10 of the Dayton Agreement. Conﬂict settlement devices in the case of Kosovo were based on UN Security Council Resolution 1244, establishing full military and civilian power through an international military presence (KFOR) and the United Nations Mission in Kosovo (UNMIK) under the leadership of the Special Representative of the UN Secretary-General (SRSG). In stark contrast to this reactive crisis management following from the military and diplomatic initiatives of the US, the outbreak of a fully-ﬂedged war in Macedonia in 2001 was successfully prevented through the mediation of EU and US envoys and the conclusion of the Ohrid Agreement, as well as a Stabilisation and Association Agreement with the EU based upon the promise of future full membership in the EU.1

1

For on overview on these events and conﬂict settlement agreements in the Balkans, see Joseph

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A closer look into the external and internal factors and processes of conﬂict resolution in the Balkans reveals a double learning curve on the part of both international and domestic political elites. First, reactive crisis management became replaced in 1999 and 2000 through the creation of the Stabilisation and Association Process (SAP) and the prospect of full membership in the EU at the European Council in Feira for the conﬂict-ridden societies of the now so-called ‘Western Balkan’ countries. Secondly, the treaties for conﬂict settlement as well as national constitutional and legal arrangements for BiH and Kosovo were inspired by Lijphart’s ‘model’ of consociational democracy through power-sharing with strict, predetermined ethnic representation of ethnic groups in the legislature and executive combined with mutual veto powers in the political decision-making processes and segmental autonomy.2 In contrast, the Ohrid Agreement of 2001 and the following constitutional amendments did not closely follow this pattern. Instead of ethnically predetermined, ﬁxed political representation and veto power, there is no such constitutionally prescribed ethnic key for parliamentary seats in Macedonia but ‘only’ for the civil service and, instead of absolute veto power, only the requirement of ‘double majorities’ for certain matters of legislation that aﬀect the linguistic and cultural identity of the ethnic communities.3 It is obvious that the institutional designers of the Ohrid Agreement tried to avoid the pitfalls of strict ethnic quotas and absolute veto power, which had already become clear from the implementation of the Dayton Agreement. Instead of providing for an elite consensus to cooperate through power sharing at the state level, the strict ethnic quota system and absolute veto power for ‘constituent peoples’ in BiH ended in a blockage of the legislature that forced the High Representatives to intervene and decree the necessary laws instead of the parliament. Thus, power sharing could not establish trust and provide the necessary ‘willingness’ of political elites to cooperate or to search for a compromise, the ‘essence’ of any democratic process. Quite to the contrary, the ethno-national elites were strengthened in their attitude of ‘divide and rule’ and became more and more democratically legitimized general election after general election, since they could blame in election campaigns ‘the’ international community or the High Representative for having taken decisions that ran contrary to their electorate’s ‘national’ interests and thus present themselves as staunch defenders of the respective Serb, Croat or Bosniac peoples. It is no wonder, therefore, that the

Marko, “Constitutions and Good Governance: Challenges for Post-Conﬂict Reconstruction and EU-Integration”, in Stefano Bianchini et al. (eds.), Regional Cooperation, Peace Enforcement and the Role of the Treaties in the Balkans (Brill, The Hague, 2007, forthcoming). 2 See Arend Lijphart, Patterns of Democracy. Government Forms in Performance in Thirty-Six Countries (Yale University Press, New Haven, 1999); and Stefan Wolﬀ ’s analysis of the development of power-sharing models in this volume. 3 For a more detailed analysis of interethnic relations in the Republic of Macedonia before and after Ohrid, see Joseph Marko, “The Referendum on Decentralization in Macedonia in 2004: a Litmus Test for Macedonia’s Interethnic Relations”, 4 European Yearbook for Minority Issues (2004/2005), 695–721.

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mono-ethnic parties have been able to hold their grip on power in the ethnically divided segments of society to the present day.4 After the outbreak of unrest in March 2004 in Kosovo,5 in which 200 Serbian homes and 30 Serbian churches and monasteries were set on ﬁre, 3,600 Serbs (and also other minorities, such as Roma and Ashkali) left or were forced to leave the province and 28 civilians and one KFOR soldier were killed, so that not even basic physical security in this UN-governed region could be spoken of, let alone democratic normalization, guarantee of the rule of law or any kind of economic development.6 The claim to external self-determination as a means to conﬂict resolution was successfully raised in the Balkans in 2006 when, after the three year moratorium period laid down in the Belgrade Agreement of 2003 that had been negotiated under the auspices of EU Foreign Policy Special Representative Javier Solana, the former Federal Republic of Yugoslavia, having been brieﬂy transformed into the ‘State Union’ of Serbia and Montenegro, once again broke apart and Montenegro ﬁnally became an independent state after the advocates of independence won a narrow majority in a referendum. Meanwhile, in March 2007, status negotiations over Kosovo between the Serb government and the representatives of the Kosovo institutions under the mediation of UN Special Envoy Martti Ahtisaari have failed due to the uncompromising positions of both parties: like the Milosevic regime, the democratic government in Belgrade under the leadership of Prime Minister Kostunica considers Kosovo to be an integral part of Serb territory and is therefore—based on the international public law principle of the territorial integrity of states, conﬁrmed by Security Council Resolution 1244 for the former Federal Republic of Yugoslavia—strictly opposed to the claims of all Kosovar parties for independent statehood,7 in itself based on the other international public law principle of the self-determination of peoples. With the publication of the Ahtisaari plan for the future status of Kosovo at the beginning of March 2007, the road to independence for Kosovo became clearer. The Ahtisaari plan submitted to the UN Security Council provides for

4 A detailed analysis of Bosnian aﬀairs can be found in Joseph Marko, “Post-conﬂict Reconstruction through State- and Nation-building: The Case of Bosnia and Herzegovina”, European Diversity and Autonomy Papers (2005) No. 4, at <www.eurac.edu/edap>; and Florian Bieber, “After Dayton, Dayton? The Evolution of an Unpopular Peace”, 5(1) Ethnopolitics (2006), 15–32. 5 See Harald Schenker, “Violence in Kosovo and the Way Ahead”, European Centre for Minority Issues Issue Briefs, March 2004, at <www.ecmi.de/doc/public_issues/html>; and European Stability Initiative, “The Lausanne Principle: Multiethnicity, Territory and the Future of Kosovo’s Serbs”, June 2004, at <www.esiweb.org/kosovo/reports.php>. 6 A comprehensive assessment of the UNMIK administration until the end of 2004 is given by Helmut Kramer and Vedran Džihić, Die Kosovo Bilanz. Scheitert die internationale Gemeinschaft? (Lit, Wien, 2005). 7 This is made clear by the Preamble of the new Serb Constitution adopted in December 2006. See also International Crisis Group, “Serbia’s New Constitution: Democracy Going Backwards”, Europe Brieﬁng No. 14, 8 November 2006; and Venice Commission, “Opinion on the Constitution of Serbia”, 19 March 2007, CDL-AD(2007)004.

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‘conditional’ independence, following more or less the lines of the international supervision in BiH: KFOR will remain in place as military supervision and UNMIK will be replaced by a civil administration under the leadership of the EU, together with an international presence in the judiciary and the police. Kosovo will get a fully ﬂedged constitution providing institutions for the full exercise of state power, the right to conclude international treaties and membership in international organizations. For the moment, Russia is threatening on the diplomatic scene to use its veto power in the Security Council to enforce further ‘negotiations’ between Belgrade and Pristina but it seems likely that the Ahtisaari plan may be implemented even without endorsement from the Security Council. With it comes the question as to what eﬀect such changes to the political map would have on the Albanian community in Macedonia and the Republika Srpska within Bosnia and Herzegovina. Would it result in renewed violent conﬂict over ethnically deﬁned territories? Have we—Europeans, diplomats, social scientists—learned anything in terms of conﬂict resolution after more than a decade of violent conﬂicts and eﬀorts towards the reconstruction of state and economy in the Balkans? When we look at European politics in 2007, we can observe an obvious paradox: on the one hand, we can celebrate 50 years of European integration as a ‘model’ and ‘success story’ of supra-national integration, which had started as a ‘peace project’ to overcome the ‘century old tensions’ between France and Germany by creating the European Coal and Steel Community with a supra-national institution to regulate and control the war-making potential of these industries. In particular, the European Economic Community with the Treaty of Rome signed in 1957 then became the centre of gravitation for ‘deepening’ and ‘widening’ the European Community from an original number of six member states with a freetrade area into a common market with a single currency and a political union that cooperates also in terms of Common Foreign and Security Policy and Justice and Home Aﬀairs, now totalling 27 member states across Europe, with the exception of the Western Balkan countries. On the other hand, the break-up of the State Union of Serbia and Montenegro and the conditional independence of Kosovo are only the latest examples of the century long state formation processes under the auspices of the nationality principle, i.e., that a people deﬁned along ethnic lines has a right to form its own state. The consequences of this political principle became clear over the nineteenth and twentieth centuries:8 as far as territory is concerned, through the strict identiﬁcation of territory with ethnicity (which never and nowhere coincided with state borders), the dissolution of multiethnic empires and wars of aggression ended up in territorial separation and thereby the creation of smaller and smaller 8 See Rogers Brubaker (ed.), Nationalism Reframed. Nationhood and the National Question in the New Europe (Cambridge University Press, Cambridge, 1996).

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political units.9 As far as group formation is concerned, the ethno-nationalist as well as racist idea of the ‘ethnic purity’ of the nation provided the basis not only for discrimination and institutional segregation but also for ethnic cleansing or genocide of ‘others’ from the territory of the nation state. The ‘logic’ of the ethnic nation state therefore follows the design of a Russian Matrioshka puppet. The longing for ethnic purity creates smaller and smaller political entities and nobody can say whether there is an ‘indivisible’ national atom that cannot be split. So Kosovo and Montenegro need not necessarily be the end of this sort of national ﬁssion. Tomorrow Vojvodina in Serbia, Republika Srpska in BiH or the Albanian settled territories in Macedonia could follow; and we need in no way forget the conﬂict areas in Western Europe, such as the Basque region, Northern Ireland or even Scotland, and a possible dissolution of Belgium along linguistic lines.10 There are obviously two intertwined political and legal fault lines behind this European ‘paradox’. Firstly, there is the ongoing contradiction in public international law between the respect for the territorial integrity of states based on the principle of the sovereign equality of states enshrined in the Charter of the United Nations, on the one hand, and the right to self-determination of peoples, including secession, on the other. How can—as the case of Kosovo clearly demonstrates—these mutually exclusive principles be balanced? Only through renouncement of the claim to external self-determination in exchange for a guarantee of internal self-governance through territorial autonomy and/or other minority protection instruments as the case of South Tyrol demonstrates? However, many ethnic groups, not only Albanians in Kosovo or Serbs in BiH but also Catalans in Spain and Scots in Great Britain do not consider themselves to be ‘minorities’ and are not therefore satisﬁed with ‘minority’ rights. Moreover, if the legal equality of citizens and cultural diﬀerences of peoples are reconciled by democratic systems in an international environment of European integration guaranteeing freedom of movement of persons, goods, services and capital, why should a claim to selfdetermination through secession still be justiﬁed, except through clinging to oldfashioned, immanently racist theories? Secondly, closely intertwined with these general legal and political principles are questions of institutional design.11 Even if the principle of sovereignty is replaced by the principle of autonomy against claims of state formation through 9 See, in particular, Stefano Bianchini, “Partitions: Categories and Destinies”, in id. et al. (eds.), Partitions. Reshaping States and Minds (Routledge, New York, 2005), 47–91. 10 See the country studies and comparative analyses of these conﬂicts in Farimah Daftary and Stefan Troebst (eds.), Radical Ethnic Movements in Contemporary Europe (Berghahn, New York, Oxford 2003); Sid Noel (ed.), From Power Sharing to Democracy. Post-conﬂict Institutions in Ethnically Divided Societies (McGill/Queen’s University Press, Montreal, 2005); and Marc Weller and Stefan Wolﬀ (eds.), Autonomy, Self-governance and Conﬂict Resolution: Innovative Approaches to Institution Building in Divided Societies (Routledge, New York, 2005). 11 See Andrew Reynolds (ed.), The Architecture of Democracy. Constitutional Design, Conﬂict Management, and Democracy (Oxford University Press, Oxford, 2002).

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territorial separation, every democratic system—and in particular those created after a violent ethnic conﬂict in a still deeply divided society—has to create an institutional balance between autonomy and integration. The idea that it is possible to overcome the ethnic divide through the concept of the ‘civic state’, which would constitutionally organize all state institutions in an ethnically ‘neutral’12 way and guarantee individual equality before the law, is—in ethnically divided societies with deeply rooted mistrust against domination by other ethnic groups, often precisely based on democratic values and procedures such as the majority principle in decision-making processes and equality of individuals—an illusionary concept at best. Ethnic diﬀerences cannot simply be decreed away with reference to democratic standards, neither in BiH nor in Northern Ireland. Hence, the institutional wisdom looked for is created by the problem of how to organize autonomy for the protection of ethnic identities, in particular of minorities, on the basis of inclusion and participation of all groups in democratic decision-making processes. In other words, is institutional segregation simply a violation of the equality principle or—from the perspective of conﬂict resolution—how much segregation is ‘necessary’ to stabilize power-sharing or power-dividing systems immediately after violent conﬂict in order to create trust as a precondition for cooperation both at the elite and mass levels? In terms of theories of democratic institution-building, the axiomatic question thus is: is the ‘will’ of political elites and mutual tolerance a precondition for consociational democracy or the result of legal and institutional arrangements of power sharing or power dividing? Is peace on earth only possible among men of good will or is it possible to institutionally engineer ‘tolerance through law’?13 Can South Tyrol thus be seen as a ‘model’ for tolerance through law that all of the weak and failed states in the Balkans and other regions of the globe are looking for? However, if we try to assess the ‘success’ of the South Tyrolean model beyond the absence of physical violence after 1972, we learn from this volume that we have to distinguish between goals and eﬀects. What is the ‘overall’ goal in terms of the creation of a ‘political’ community in South Tyrol? Is it minority protection and interethnic coexistence or is it interethnic cooperation both at the elite and mass levels in order to overcome the ethnic divide or ethnic ‘pillarization’ of society? Or, do even these ‘ultimate’ goals change in the course of conﬂict resolution through the ‘social learning’ of elites and masses? Hence, if mutual trust can be established through means of power

12 For a ‘deconstruction’ of this myth of ethnic neutrality, see Will Kymlicka, “Introduction”, in Will Kymlicka and Magda Opalska (eds.), Can Liberal Pluralism be Exported? (Oxford University Press, Oxford, 2001), 16–21. 13 This problem is tackled in extenso only by Ulrich Schneckener, Auswege aus dem Bürgerkrieg. Modelle zur Regulierung ethno-nationalistischer Konﬂikte in Europa (Suhrkamp, Frankfurt, 2002), 484–487. Schneckener takes over theories on ‘social learning’ developed already by Karl Deutsch in his seminal work on the ‘nerves of government’. Karl Deutsch, Nerves of Government: Models of Political Communication and Control (Free Press, New York, 1963).

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dividing or power sharing, is it possible to give up the institutional pillars of this model of consociational democracy so that coexistence can be transformed into cooperation and social cohesion be established on the basis of a ‘new’, no longer ethno-national, exclusive and group-oriented, but multiple, inclusive and regional identity? A glance through newspaper commentaries and letters to the editors shows that two opposing proposals are still being made by politicians, diplomats, lawyers and sociologists, as well as the ‘man on the street’: the ‘realists’ assume that only by means of territorial separation and institutional segregation with contemporaneous ethnic homogenization of ever smaller areas can a ‘negative’ peace and political stability be guaranteed. On the other hand, the ‘idealists’ are of the view that democracy, the rule of law and protection of human and minority rights— in other words, everything that the EU after the establishment of the so-called ‘Copenhagen Criteria’ proscribed that the candidate states must meet as requirements of membership—along with the (re)construction of multiethnic societies are the requirements for regional political stability, democratic consolidation and sustainable economic development. Thus, ethnic homogeneity on the basis of territorial separation and institutional segregation, on the one hand, and regional and supranational integration on the basis of multiethnic societies, on the other, appear to be the ‘great’ alternatives not only for the prevention of conﬂicts but also for their regulation.

II. The Complementary Functions of Segregation and Integration in the South Tyrolean Model A. The ‘Model’ Function: Comments on Methodology When searching for examples and thereby possible ‘role models’ for a ‘successful’ resolution to conﬂict and peace within an ethnic dispute, the South Tyrolean ‘model’ is time and again referred to in diplomatic negotiations, international conferences or academic symposia.14 The common sense logic of the model stems from the obvious fact that the population of South Tyrol live today—more than

14 See Stephan Böckler, “Das Autonomiestatut für Trentino-Südtirol: Ein Modell für die friedliche Reglung des Kosovokonﬂiktes”, in Joseph Marko (ed.), Gordischer Knoten Kosovo/a: Durchschlagen oder entwirren? (Nomos, Baden-Baden, 1999), 87–104; Stephan Böckler and Rita Grisenti, Lo Statuto di Autonomia del Trentino-Alto Adige: un modello di paciﬁcazione etnica per l’area centrale danubiana?—Das Autonomiestatut für Trentino-Südtirol: ein Modell für die Befriedung ethnischer Konﬂikte im mittleren Donauraum? (Dunker and Humblot, Berlin, 2000). The case of South Tyrol was again discussed in the status negotiations for Kosovo in 2005/2006. In particular, the Kostunica government referred to it as an example several times (information provided to the author by Slobodan Samardzic, legal advisor to Vojislav Kostunica). The most comprehensive comparison is elaborated by Caka Gresa, “Decentralisation in Kosovo: A Key to the Status Settlement? Lessons from South Tyrol”, Master’s thesis submitted to the Master of European Studies Programme, European Academy, Bozen/Bolzano (2006).

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ﬁfty years after fascist oppression and persecution—in legal security, economic wellbeing and interethnic peace under a democratic government in autonomous self-governance. However, can such a successful ‘model’ actually be ‘exported’ to other, in particular, European crisis regions? In relation to the everyday logic, there are two preliminary problems on the theoretical and methodological levels dealing with the issue of the ‘model function’ of the South Tyrolean Autonomy Statute and also its ‘transferability’ to other conﬂict situations. As far as the issue of the export of institutional mechanisms of conﬂict regulation is concerned, there are again two diametrically opposed extreme positions: there are those who represent—in my view—the naïve opinion that institutional mechanisms can simply be ‘implanted’ without taking into account the demographic, cultural, socio-economic and, last but not least, political variables of the state, region or conﬂict in question. This view is exemplarily illustrated by the author of the book entitled Instant Democracy—published in 1990 at the same time as the fall of the Communist empire in Eastern and Central Europe—which, in all seriousness, gave the prognosis that, with the introduction of a particular variant of the proportional voting system, within ten months stable democracies could be founded in all of the former Communist states from Estonia to Romania.15 A further less harmful example was the proposal for the ‘cantonization’ of BiH following the model set by Switzerland, which was raised after the beginning of the war but resulted in a breakdown of the Muslim-Croat defence coalition in 1993 and the beginning of a ‘war within the war’ between them in order to create a fait accompli on the battleﬁeld with regard to the proposed cantonal borders.16 Already, at the beginning of the twentieth century, Karl Renner had warned against an export of the ‘Swiss model’ to Central and Southeastern Europe in respect of conﬂicts between nations at the time of the Habsburg monarchy,17 as the demographic structures—territorially concentrated areas of language groups in Switzerland as opposed to territorially dispersed settlements and intermingling with members of the majority population in Central and Southeastern Europe—plainly and simply were and remain diﬀerent. It was against this very demographic contrast that the concept of cultural and personal autonomy as opposed to territorial autonomy was developed by the Austro-Marxist school of thought (notably by Karl Renner and Otto Bauer). The opposite view takes the position that each nation and each situation is so ‘unique’ and can only be understood in itself, so that comparisons—not to mention the transferability of institutional models—are simply not feasible.

15 David Chapman, Instant Democracy. Constitutional Proposals for Emerging Democracies (Institute for Social Innovation, London, 1990). 16 On this point, see Joseph Marko, “The Ethno-national Eﬀects of Territorial Delimitation in Bosnia and Herzegovina”, in Publications de l’Institut suisse de droit comparé (ed.), Autonomies locales, integrité territoriale et protection des minorités (Schulthess, Zürich, 1996), 121–143, at 128. 17 Karl Renner, Der Kampf der österreichischen Nation um den Staat (Vienna, 1902), 34.

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I am not of this view and believe that, within the framework of systems theory and the comparative method,18 based on the search for functional equivalences, the possibility does in fact exist to comparatively analyze institutional models and, at the same time, also consider the transferability of legal and political proposals.19 On the other hand, there remains the issue as to what really the ‘success’ of the South Tyrol conﬂict settlement has been and what the factors are that led to it. Was it the whole manner of going about the conﬂict settlement that was legally institutionalized by means of the 1972 Autonomy Statute or was it individual elements—such as the principle of ethnic proportional representation, the international securing of the internal right to self-determination, the opportunity for mutual control of the state and autonomous legislation through the courts or the opportunity for mother tongue education in primary and secondary schools, not only for the German but also the Italian language group—that are indeed possibly transferable, depending upon the speciﬁc context and situation? An empirical comparison of the similarities and diﬀerences of power-sharing systems shall not be repeated here. This has been addressed by Stefan Wolﬀ in extenso in this volume. I am nevertheless convinced by several preparatory works on the South Tyrolean model itself 20 that not only individual elements but also the ‘founding idea’ of the South Tyrolean Autonomy Statute together with its process of implementation are capable of theoretical generalization and therefore have the necessary character of a ‘model’.

18 See already Karl Deutsch’s central argument against hypotheses of ‘uniqueness’ of events or situations, denying the possibility of comparison in his The Nerves of Government, op. cit. note 13, 13–14. 19 See, in particular, my chapter on “Normen und Institutionen: Der Funktionalismus als Methode des Rechtsvergleichs”, in Joseph Marko, Autonomie und Integration. Rechtsinstitute des Nationalitätenrechts im funktionalen Vergleich (Böhlau, Graz, Vienna, Cologne, 1995), 25–36. 20 Böckler, op. cit. note 14; Antonio Lampis, “Autonomia e convivenza, Tutela delle minoranze e regole per la convivenza nell’ordinamento giuridico dell’Alto Adige/Südtirol”, European Academy Working Paper No. 17, Bolzano/Bozen (1999); Joseph Marko, “Kosovo/a—A Gordian Knot”, in id., op. cit. note 14, 231–260; Sergio Ortino, “Vom Minderheitenschutz zur funktionellen Autonomie: Bilanz und Zukunftsperspektiven”, in Die Südtiroler Autonomie in europäischer Perspektive/ L’autonomia altoatesina nella prospettiva europea, European Academy Working Paper No. 1, Bolzano/Bozen (1997), 137–143; Francesco Palermo, “Die zwei Dimensionen des Zusammenlebens in Südtirol”, Europa Ethnica No. 1–2 (1999), 9–21; Karl Rainer, “Minority Governance Concepts in Europe on the Threshold of the 21st Century—The Case of the Autonomous Province of Bolzano/Bozen-South Tyrol”, unpublished manuscript; Lampis, op. cit. note 20; Günther Rautz, Die Sprachenrechte der Minderheiten. Ein Rechtsvergleich zwischen Österreich und Italien (Nomos, BadenBaden, 1999); Jens Woelk, “Südtirol: Ein Lehrbeispiel für Konﬂiktlösung?”, 1 Die Friedens-Warte (2001), 101–124; Schneckener, op. cit. note 13; Siglinde Clementi and Jens Woelk (eds.), Ende eines Streits. Zehn Jahre Streitbeilegungserklärung im Südtirolkonﬂikt zwischen Italien und Österreich (Nomos, Baden-Baden, 2003); Jens Woelk, “Die Entwicklung der Südtiroler Autonomie im italienischen Regionalismus”, in Stephan Förster and Karl-Heinz Lambertz (eds.), “Small is beautiful, isn’t it? Herausforderungen und Perspektiven kleiner (glied)staatlicher Einheiten”, EZFF Occasional Papers (2004) No. 29, 19–45; and Stefan Wolﬀ, “Complex Autonomy Arrangements in Western Europe: A Comparative Analysis of Regional Consociationalism in Brussels, Northern Ireland and South Tyrol”, in Weller and Wolﬀ, op. cit. note 10, 117–157.

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The basic question of conﬂict resolution as referred to above—permanent deescalation by means of legally institutionalized mechanisms and procedures— will, at this stage, be further substantiated. Both in and also after a conﬂict that is perceived as an ethnic conﬂict between a ‘majority’ and a ‘minority’ by the warring factions, the fundamental issue in any successful conﬂict resolution arises: how—in particular for the weaker groups—can the feeling of security be reestablished so that a group no longer feels threatened? It is upon this ‘existential’ foundation that a reduction of mistrust can come about, which later forms the basis for coexistence or cooperation. In the opinion of one of the best-known heads of the South Tyrolean civil service, the ethnic quota system set out in the executive and the judiciary as a means to combat discrimination from the past, along with the system of mother tongue schooling in primary and secondary education with obligatory lessons of the respective other second language, has provided a “feeling of security”, as well as “a belief in the future for survival in the Italian state, which without territorial autonomy as ‘real’ self-determination of the whole population of the province would not have been possible”.21 It is this quote that shows with all clarity a mode of interpretation upon which I would like to concentrate: the complementary functionality of segregation and integration, which has also been observed and described by Francesco Palermo as the “two dimensions of co-habitation in South Tyrol”.22 Even if the time sequence in conﬂict resolution must ideally/typically be categorized into the phases of conﬂict settlement, reconstruction and ﬁnally reconciliation (which in practice largely overlap), Palermo has shown that the Second Autonomy Statute as an instrument of conﬂict settlement includes already two dimensions: on the one hand, the ‘historical-ethnic’ dimension, with the function of defensive minority protection and the eﬀect of coexistence by means of segregation; and, on the other hand, the ‘linguistic-territorial’ dimension, with the function of autonomy for the whole region with the possible eﬀect of integration through cooperation. In my view, it is exactly this ‘creative ambivalence’ laid down in the settlement agreement that provides for the possible complementary functionality of segregation and integration as the model function of the South Tyrolean Autonomy Statute against the ‘logic’ of the ‘abstract’ ideal/typical opposition of segregation and integration. The question to be asked, therefore, in the following is what the factors are which permit this complementary functionality and which therefore are to be described as the ‘actual’ ingredients of success?

21 22

Both citations from Rainer, op. cit. note 20. Palermo, op. cit. note 20.

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C. Reciprocal Recognition as Equal Partners and Relativization of the Majority/Minority Positions Even when a compromise necessitates the renunciation of maximum demands— in the case of South Tyrol, the relinquishment on the part of the German speaking minority to the right to secession from Italy and annexation to Austria in order to ‘repair’ “historical injustice”23 and, on the part of the Italian state, the establishment of territorial autonomy rather than the advancement of assimilation policies, albeit by democratic means—not each and every compromise will achieve the necessary results in terms of political stability, economic eﬀectiveness and democratic quality of reconstructed institutional structures. Hence, a guarantee of the internal right to self-determination may be a necessary tool for the advancement of these goals but it is by no means suﬃcient. The ‘negative’ compromise of ‘divide and rule’ referred to above with regard to the example of Bosnia has produced what has always been a precarious negative peace and could not prevent violent skirmishes, as shown by the events in Bosnia in 2001 in the course of the attempt to lay the foundation stone for the Ferhadija mosque in Banja Luka, which had been destroyed during the war in 1993, or by the attempt by an international auditor to investigate the illegal ﬁnancial transactions of the Hercegovaca Banka, which resulted in violent riots in Mostar and the resignation of the Croat party HDZ from state institutions, thereby triggering a state crisis. For more than two years now, there has been an ongoing public debate in BiH on constitutional reform. Most political analysts, both Bosnian and international, are of the opinion that it is necessary to replace the Dayton constitution through a totally revised new constitution in order to overcome the political blockage and economic stagnation following from the ‘negative’ compromise to divide and rule.24 However, with ‘conditional independence’ for Kosovo on the horizon, the prime minister of the Republika Srpska has already declared that he will organize a referendum on independence for the Republika Srpska, so that, again, secession from BiH is looming, since the power dividing model of the Dayton constitution could not even provide for the necessary elite consensus to stay together in one country. Seen from this perspective, it becomes obvious from the course of conﬂict in South Tyrol that the ‘negative’ side of the compromise, i.e., the renunciation of maximal demands, was transformed into a positive elite consensus through the mutual recognition of each side of the conﬂict as the ‘respective majority’. This renders the internal comparison between the ﬁrst and the second autonomy statutes clear: as the German-speaking minority became a minority in the region

23 On the history of South Tyrol, see Melissa Magliana, The Autonomous Province of South Tyrol. A Model of Self-Governance? (European Academy Bolzano, Bozen/Bolzano, 2000), as well as the contribution from Emma Lantschner in this volume. 24 For a more detailed analysis of recent proposals for constitutional amendment in BiH, see Joseph Marko, “Constitutional Reform in Bosnia and Herzegovina 2005–2006”, 5 European Yearbook of Minority Issues (2006/2007) (forthcoming).

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under the 1948 Autonomy Statute, the concept of territorial autonomy as an instrument for conﬂict resolution had by no means a de-escalating eﬀect, as they feared an advancement of the assimilation policy of the Italian state and felt even more threatened as a group. Only after the further territorial sub-division into the provinces of Trentino and Bolzano and the transfer of powers in the areas of culture and economy to the Province of Bolzano by the Second Autonomy Statute of 1972, with the eﬀect that the German-speaking minority within the province as a demographic majority obtained thereby a ‘substantial’ territorial basis, could the eﬀectiveness of the protectorial function come into play; in other words, the reform bolstered the ‘belief ’ of the German-speaking group that they would be able to maintain their existence as a group. The implementation of the so-called ‘Package’—a bundle of legal measures with the aim of reforming the First Autonomy Statute—through procedural mechanisms did not disappoint this ‘belief ’ but made it a reality. Through proportional representation in the executive and judiciary, a fundamental trust in and of ‘equal treatment’ came about and the transfer of powers to the province with the guarantee of educational autonomy gave the feeling of once again being “lord of one’s own manor”.25 One further aspect can be added to this observation: namely, that of the relativization of the majority/minority position. Already, Sergio Ortino has referred to this phenomenon:26 in the area of the exercise of state powers, the Germanspeaking majority of the province is in the minority, whilst in the area of provincial powers the Italian-speaking population becomes a de facto minority within a minority. For the individual this means, depending on the situative context, a changing majority/minority position: a German inhabitant belongs indeed to the majority population in South Tyrol but, within Italy, just as in the local selfgovernment area of Bolzano city, he/she is in a minority position; conversely, an Italian speaker is in the majority in Italy as well as in the local area of Bolzano but in South Tyrol he/she is in the minority position. The membership of Italy and Austria in the European Union adds not just one territorial level but also a further dimension to this, namely to be in the minority together, as both German and Italian are oﬃcial languages of the EU, although the relevant speakers are in the minority. In conclusion, this ‘relativized’ relationship between the two large groups in South Tyrol can be described as ‘peace creating’, which also acts as a basis for the peaceful balance of interests between the linguistic groups in Switzerland and from the democratic point of view became even reiﬁed as the very ‘essence’ of the ‘Swiss people’; namely, being able at any time and in varying situations to belong to either the majority or the minority. The ever-emerging so-called sectarian violence in Northern Ireland demonstrates all too clearly what may occur in

25 26

Rainer, op. cit. note 20. Ortino, op. cit. note 20.

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the opposing model of the ‘structural’ minority position as a result of overlapping economical, religious and ethno-national cleavages.27 With regard to the problem of ‘tolerance through law’, only this relativization of the majority/minority position can create the individual predisposition of behaviour that enables ‘acceptance of the necessity’ of compromise; a compromise, however, that permits peaceful coexistence not only as a strict momentary ‘advantage’ in (violent) encounters but being put on a permanent basis as an alternative to violence that can then be ‘internalized’ through secondary socialization by following generations. Hence, segregation and proportional representation as institutional mechanisms do create security as a necessary requirement of peaceful coexistence but not necessarily trust as a similar requirement for integration through cooperation. Segregation and proportionality are actually ‘institutionalized mistrust’! However, the question remains: how can a negative consensus of ‘divide and rule’ be held so widely open and ﬂexible that a positive consensus of interethnic cooperation remains possible or can even actively be striven towards in the second phase of reconciliation? D. Eﬀective Participation by Equality without the ‘Magic of the Greater Number’ Alongside the mechanisms outlined above, there is a second closely connected— and essential for this ‘success’—generalized aspect, which I have referred to elsewhere in dealing with the contrast between formal and substantive equality as a concept of institutional equality.28 Both the principle of formal equality with its claim on individual equality “sans distinction”—as it is referred to in the French as compared to the English text of Article 14 of the European Convention on Human Rights—on the basis of gender, race, skin colour, language, religious, political or other views, national or social origin or membership of a national minority and so on, and the principle of substantive equality cannot resolve the ‘dilemma of diﬀerence’, what has convincingly been illustrated by Martha Minow in the following example: The hearing-impaired student is diﬀerent in comparison to the norm of the hearing student—yet the hearing student diﬀers from the hearing-impaired student as much as she diﬀers from him [. . .] Unstated points of reference may express the experience of a majority or may express the perspective of those who had greater access to the power used in naming and assessing others.29

27 See Franz Valendro, Das Baskenland und Nordirland. Eine vergleichende Konﬂiktanalyse (Studienverlag, Innsbruck, 2001); and Stefan Wolﬀ, “Between Stability and Collapse: Internal and External Dynamics of Post-agreement Institution Building in Northern Ireland”, in Noel, op. cit. note 10, 44–66. 28 Marko, op. cit. note 19, 172–194. 29 Martha Minow, Making All the Diﬀerence. Inclusion, Exclusion and American Law (Cornell University Press, Ithaca, London, 1991), 51.

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Whoever has the power to determine by deﬁnition whomsoever is to be classiﬁed as ‘other’ on the basis of an existing diﬀerence, establishes him/herself to be the absolute norm. In order to demonstrate this consideration with a practical example from the area of minority protection through language rights: bilingualism is the ‘right’ of the minority to have to learn and use the language of the majority as an oﬃcial language. If, by contrast, the learning of the minority language is made obligatory—even if only in the settlement area of the respective minority—bilingualism is seen as impermissible ‘linguistic obligation’ that violates the ‘rights of the majority’, as the history of minority education under the Habsburg Empire and the Carinthian Minority Education Regulation of 1945 clearly demonstrate.30 The quintessence of these considerations is contained within the argument that neither formal nor substantial equality, rather, only institutional equality, allows a minority to participate in the social and political ‘construction of diﬀerence’ with equal eﬀectivity, in other words independent from the ‘magic of the greater number’. Again, tolerance as a social-moral requirement for the functioning of legal rules of conﬂict is not the right springboard but rather ‘tolerance through law’.31 It is therefore not about peace amongst people of good will, which implies that peace would only be possible amongst those people, but about good will as a result of legal rules that disseminate from the start the feeling of equal treatment. On the other hand, the example of South Tyrol demonstrates the high esteem in which the foundational theory of ‘institutional equality’ for the purpose of relativization of the majority/minority position has been held from the start. This was principally intended by the 1946 Gruber-Degasperi Agreement: with the participation of representatives of the German-speaking minority in the drafting of the Autonomy Statute and with the so-called Commissions of Nineteen, Twelve and Six, those bodies were created that not only permitted the German-speaking minority to properly participate in negotiations and at least make their views and interests be heard but also signiﬁcantly inﬂuence political decision making and thereby also its outcome. Furthermore, additional integrative eﬀects based on the idea of procedural justice are built into the Autonomy Statute of 1972: the division of powers creates the necessity of mutual information and communication between autonomous bodies and state authorities under the threat of legal review by the Italian Constitutional Court. At the same time, all groups within the autonomous system are bound together in the decision-making process through proportional representation, rotation and veto powers. As a result, this institutional mix represents a highly complex legal system, in which tolerance is no longer a requirement for the functioning of legal rules but is created by the institutional arrangements and ongoing political processes. It is through these procedural elements that the recognition of existence as a

30 31

Marko, op. cit. note 19, 349–386. Woelk, “Südtirol: ein Lehrbeispiel . . .”, op. cit. note 20, 113.

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minority is transformed into recognition as an equally entitled partner and not only in the context of the drafting of the basic compromise as a ‘contrat social ’ in the Autonomy Statute of 1972. Through permanent interpretation and development of the Autonomy Statute in the process of implementation by both sides, the numerical quantitative majority/minority relationship was transformed into a qualitative and permanent institutional equality that not only fulﬁlled the defensive, protective functions but also made the goal of interethnic cooperation as a means of ‘social learning’ of the elite and the population both realizable and internalizable. Just how precarious this mutual recognition and the subsequent feeling of ‘equal treatment’ have remained even 35 years after the adoption of the Autonomy Statute is demonstrated only too well through the use of names and symbols. The toponomastic disputes cannot be gone into in detail here; however, perhaps as anecdotal evidence a passage from an interview with President of the provincial government Durnwalder upon the visit of Italian President Ciampi in early July 2001 in Bolzano will suﬃce: I say this only in comparison to the visit of President Scalfaro. Then, the shouts of ‘Italia, Italia’ resounded already around the train station of Bolzano. With Ciampi, however, I didn’t see even one provoking banner! That someone or another hung out the tricolore? Oh please. We also hang the Tyrolean ﬂag out on Andreas Hofer Day. All in all it was not a nationalistic demonstration. One looks forward to the President, without however demonstrating with this against the Germans.32

That the hoisting of the national ﬂag during a presidential visit can still be perceived as a nationalistic demonstration that is reinterpreted into ‘institutional equality’ by the use of the Tyrolean ﬂag on Andreas Hofer Day shows only too realistically that equal treatment has not yet become so self-evident that parties would no longer be able to ethnically mobilize people. E. Transparency, Flexibility and Duration/Dynamics The permanence of ‘institutional equality’ between majority and minority means that the double and multi-functionality—protection of existence as a group and integration through mutual cooperation with maintenance of the system as a whole—has to be taken into account not only from the start in the institutional mixing of the conﬂict resolution arrangements. Also, in further political processes, the institutional structure has to remain suﬃciently ﬂexible that it is open for further developments that may arise out of any change in circumstances. This does not just consist of a consensual rearrangement of the original institutional mix as a result of further developments; rather—in the long run—even the ‘renunciation’ of the basic compromises on the issue of status might be the result of ‘social learning’ through a change of attitudes and ultimate goals.

32

Interview with Luis Durnwalder in Dolomiten, 12 July 2001, 9.

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Flexibility and openness are not only necessary in the contextual but also in the temporal dimension. This applies not only to the negotiations for conﬂict settlement but much more to the associated collective learning process in the reconstruction and reconciliation phase. It is here that the example of South Tyrol shows with the greatest of clarity just how long-term such reconciliation phases are likely to be and how unrealistic it therefore is for conﬂict regions in the Balkans, a mere decade after the wars and violent ethnic cleansing, to expect that the (surviving) victims of mass murder and expulsions can be ready to work together with the perpetrators as if nothing had ever happened.33

III. South Tyrol on the Way to a Multi-ethnic European Region: Problems Related to the Transfer from Territorial to Functional Autonomy A. The Ethnic ‘Midas Eﬀect’ The legal institutionalization of ethnicity not only has the eﬀect of cementing the ethnic divide in the public realm but tends also towards an ‘ethnicization’ of more and more areas of private life as a kind of ethnic ‘Midas eﬀect’. This means that legal recognition of ethnicity cannot be limited to matters of state or (political) aﬀairs but penetrates in a form of a spillover eﬀect also into the private sphere. There is a direct connection between family aﬀairs and public education and with it a problem for children of bilingual parents, as a letter to a newspaper unmistakably makes clear: the child of a German-speaking mother was required to undertake a period of probation of 25 days upon enrolment in a German-speaking kindergarten in order to prove a competent knowledge of German, simply because the child was cared for by an Italian-speaking childminder. In other examples, the period of probation was justiﬁed on the basis that one parent was Italian-speaking and the children learnt Italian more easily than German, of which the writer of the letter complained: As if it were proven, that it is not able to attend a German kindergarten. It is almost as if one speaks of an infectious illness and not of an enrichment. Did you know that many children are thereby hindered from learning good German even though it is the language of one of their parents? On the one hand, you speak highly of justice; on the other, you allow such rules. This can never really lead to an understanding between the language groups.34

33 It was not until 2004 that the commission instated by the High Representative in BosniaHerzegovina in the Republica Srpska even admitted that a massacre of Muslim men had taken place in Srebrenica. 34 “Mein Kind auf Probe”, ﬀ-Südtiroler Wochenmagazin, 29 March 2001; and Barbara Czernilofsky, “Momentaufnahme: Sprachenpolitik in Südtirol.—Muss die ‘Trennungspolitik’ überdacht werden?”, Europa Ethnica Nos. 3–4 (1998), 140–148—Recently, in April 2007, a wall dividing the German speaking sections from the Italian one in a newly built kindergarten in Brixen/Bressanone

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B. A Minority within a Minority A further clearly recognizable problem in South Tyrol is the protection of the minority within the minority: indeed, the legal and factual position of the Ladin speakers compares well with that of the Raeto-Romans in Switzerland. They are legally recognized as a numerically small minority but, as a result of their small number, are either completely excluded from proportional representation or inadequately represented. ‘Opening clauses’ that allow Ladins also to occupy public oﬃces that were previously restricted to the German or Italian language groups, such as in the Administrative Court Autonomous Division of Bolzano, have only recently been introduced into the Autonomy Statute. In contrast to the institutional segregation due to the mother tongue instruction in public primary and secondary schools, in schools for the Ladin minority the immersion model is applied; in other words, classes are given bi- or even tri-lingually. Not only in Switzerland but also in South Tyrol has the issue arisen as to whether further assimilation will take place in which the risk is not a matter of ethnic diﬀerences towards the Italian or German language groups but the attraction of English at a time of globalization. This was clearly demonstrated by the comment of the wife of a well-known Ladin political representative, that for her it is today more important for her children to learn English than to be taught in Ladin! C. Multinational or Multiethnic? The decisive question that has not yet even been openly tackled in South Tyrol in public discourse is this: what will a possible transfer from the multinational institutional setting to a multiethnic society look like? How might a change in the balance of the institutional mix with a prevailing emphasis on ethnic segregation in the ﬁrst phase of reconstruction and reconciliation to an emphasis on integrative elements in the second phase be achieved? If before it was “the more we are apart, the better we understand each other”, it has now come to a point at which children and grandchildren are beginning to say “the better we understand each other, the less we need to be apart” and new sociological studies hint at the following trend: The necessity to also learn the language of the other group provides one of the essential conditions of a reciprocal understanding and an intensiﬁcation of social interaction. Indeed, recent sociological research shows that ethnic distance especially

gave rise to a lively debate, especially in the Italian newspapers. While the oﬃcials point at jointly used courtyards and canteen as well as at a glass door which had later been opened in the wall, thus creating a possible way for meetings between the sections, Vice Mayor Dario Stablum is quoted with the following remark: “Personally, I would see it as very positive, if the school channels were not separated, but we have to be careful with delicate balances. Here all schools are separated like this. The formula for the new kindergarten reproduces South Tyrolean reality. But the door can be left open: nobody will be admonished for it.” (Corriere della Sera, 6 April 2007). This episode shows how delicate these issues still are in the South Tyrolean context.

388

Joseph Marko within the younger and middle generations is decreasing in South Tyrol giving way to a common territorial identiﬁcation of both groups.35

It is in this context that voices are getting louder in respect of the technical instrument of the declaration of aﬃliation with a language group, which impinges36 on the right contained within Article 3 of the Framework Convention for the Protection of National Minorities as ratiﬁed by Italy: that every person belonging to a national minority shall have the right freely to choose to be treated as such or not, and that no disadvantage shall result from this choice or from the exercise of the rights that are connected to that choice. This indicates that the relative priority of group rights that had been established by proportional representation in the Autonomy Statute has experienced a change,37 with a shift in emphasis towards individual human rights. This phenomenon might eﬀectively counteract the ‘Midas eﬀect’ referred to above and lead to a de-ethnicization of society and thereby prevent a situation in which each conﬂicting interest is automatically— and solely—perceived as an ethnic conﬂict. In conclusion, one can say that the route from defensive minority protection to multiethnic European regionalism has not yet come to an end even in South Tyrol. ‘Social learning’ or ‘tolerance through law’ has not yet brought an overall transformation of attitudes from coexistence to cooperation, in particular at the political elite level. However, there is an ongoing change in attitudes and basic values in civil society that sees ethnic diﬀerence not only as a separate asset worthy of protection but cultural diversity as ‘mutual enrichment’ and as an ‘added value’ and competitive advantage in an emerging European market of regions. On the whole, the Autonomy Statute of South Tyrol is not an institutional arrangement that could simply be exported, not even within the European cultural context; however, the complementary functions of segregation and integration, in particular in the settlement and reconciliation phase, and the procedural elements of institutional equality provide elements of wider importance for any construction of mechanisms and paths for conﬂict resolution.

35 All citations from Stephan Böckler, “What Can we Learn from Others? The Case of South Tyrol”, unpublished paper presented at the Summer Academy of the European Academy Bolzano/ Bozen on Regions and Minorities in a Greater Europe, Bressanone/Brixen, September 2000. 36 Convivia-Associazione plurilingue e interculturale, “Submission to the Advisory Committee under the Framework Convention for the Protection of National Minorities”, Bolzano/Bozen, 2 July 2001 (unpublished letter); and European Commission Papers, Nos. 2001–4929 37 See also Max Haller, “Weg von Proporzistan”, ﬀ-Südtiroler Wochenmagazin, 28 September 2000, 32–34.

APPENDIX Alice Engl and Alexandra Tomaselli

The Position of South Tyrol in Europe

Sterzing Vipiteno Schlanders Silandro

Meran Merano

Brunick Brunico

Brixen Bressanone

Bozen Bolzano

Sources and compilation on the basis of the graphs available at South Tyrol Online, <www.suedtirol-online.de/sudtir.gift>; and at Lyceum EASA 2004, .

390

Alice Engl and Alexandra Tomaselli

Population Distribution (German, Italian and Ladin Speakers)—

Majority-Settlement Areas (clearly over 50/70%) - Population Census 2001

Sterzig Vipiteno Br uneck Bruneck Brunico Br unico

Schlander Schlanders Silandro Silandr

Brixen Brixen Bressanone Meran Merano

Bozen Bozen Bolzano

Strongest language Group

German Ladin Italian

Sources: ASTAT, Provincial Statistics Institute ASTAT, Bozen/Bolzano, 2006, Graf.3.f.

Appendix

391

Position of the Ladin Valleys

Reschenpass Re esia P.Resia

SÜDTIROL ALTO ADIGE

Brenner Brennero Brixe Brixen xen Bressanone

Bozen Bolzano

Enneberg nneberg-Marebbe Badia Badi St. Ulric Ulrich

Vigo

Livinallongo Valley Valle

Cortina Cortin D’Ampezzo

VENETO VENET

TRENTINO Trient Trento Tr ento

Belluno

Source: I Ladini, “Accordo di Parigi e dintorni”, at .

Alice Engl and Alexandra Tomaselli

392

Resident Population by Language Group According to the Population Censuses from 1880 to 2001 (a) YEAR

Germans

Italians

Ladins

Others (b)

Total

3,513 4,862 7,149 10,770 24,506 281 475 9,593 17,657 34,308

205,306 210,285 222,794 251,451 254,735 373,863 414,041 430,568 440,508 462,999

1.7 2.3 3.2 4.3 9.6 0.1 0.1 2.2 4.0 7.4

100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0

Absolute Values 1880 1890 1900 1910 1921 1961 1971 1981 1991 2001

186,087 187,100 197,822 223,913 193,271 232,717 260,351 279,544 287,503 296,461

6,884 9,369 8,916 7,339 27,048 128,271 137,759 123,695 116,914 113,494

8,822 8,954 8,907 9,429 9,910 12,594 15,456 17,736 18,434 18,736

Percentage Composition 1880 1890 1900 1910 1921 1961 1971 1981 1991 2001

90.6 89.0 88.8 89.0 75.9 62.2 62.9 64.9 65.3 64.0

3.4 4.5 4.0 2.9 10.6 34.3 33.3 28.7 26.5 24.5

4.3 4.3 4.0 3.8 3.9 3.4 3.7 4.1 4.2 4.0

(a) Figures up to 1921 refer to the present population, whereas those of 1961, 1971 and 1981 are based on the resident population and those of 1991 as well as 2001 on the language group declarations. The language analysed up to 1961 is the commonly spoken one, from 1971 to 1981 it was the declaration of which language group they belonged to and in 1991 as well as 2001 the declaration of which language group they belonged to or were aﬃliated to. (b) The voice “others” contains diﬀerent population groups according to the year: 1880: the “locals” with a diﬀerent commonly spoken language and the “non locals”; the same is true for 1890 and 1900; 1910: Italian citizens with a diﬀerent commonly spoken language and non Italian citizens; 1921: foreigners; 1961: all residents with a diﬀerent commonly spoken language; 1971: all residents, who did not declare which language group they belonged to; 1981: resident Italian citizens without any valid language group declaration, as well as resident foreigners; 1991: invalid declarations, people temporarily absent and resident foreigners;the same applies to 2001 Source: ASTAT, South Tyrol in Figures (Provincial Statistics Institute ASTAT, Bozen/Bolzano, 2005), 19.

Appendix

393

Composition of the Population of South Tyrol According to the Census 1981

German (+ 2.00) Italian (- 4.60) Ladin (+ 0.40)

1991

German (+ 1.16) Italian (- 1.18) Ladin (+ 0.01)

4.1%

4.3%

27.6%

28.7%

67.9%

64.9%

German (+ 1.2) Italian (- 1.2) Ladin (+ 0.1)

4.4%

2001

26.4%

69.1%

City of Bozen/Bolzano, Census 2001 German Italian Ladin

0.8% 26.6%

72.6%

Source: ASTAT, South Tyrol in Figures (Provincial Statistics Institute ASTAT, Bozen/Bolzano, 2005), 15.

394

Alice Engl and Alexandra Tomaselli Declarations of which Language Group Belong to/Aﬃliated to Population Census 2001—South Tyrol

LANGUAGE GROUPS

Declarations of which Language Group Belong to

Declarations of which Language Group Aﬃliated to

Total Valid Declarations

Absolute Values Italian German Ladin Total

110,206 290,774 18,124 419,104

3,288 5,687 612 9,587

113,494 296,461 18,736 428,691

Percentage Composition by Type of Declaration Italian German Ladin Total

97.10 98.08 96.73 97.76

2.90 1.92 3.27 2.24

100.00 100.00 100.00 100.00

Percentage Composition by Language Group Italian German Ladin Total

26.30 69.38 4.32 100.00

34.30 59.32 6.38 100.00

26.47 69.15 4.37 100.00

Source: ASTAT, South Tyrol in Figures (Provincial Statistics Institute ASTAT, Bozen/Bolzano, 2005), 15.

Appendix

395

South Tyrolean Economy Gross and Net Value-added at Basic Prices and Gross Domestic Product at Market Prices 2002–2003 At Current Prices 2003 2002 Thousands [EUR] Thousands [EUR]

ECONOMIC ACTIVITIES Agriculture and forestry Industry Mining and quarrying Manufacturing industry Energy supply Partial total Building Services Sales, hotels, transport Hotel and catering industry Financial intermediation Other services Gross value-added at basic prices (including ﬁnancial intermediation services indirectly measured) Financial intermediation services (to be deducted) Net value-added at basic prices (excluding ﬁnancial intermediation services indirectly measured) Net indirect taxes Gross domestic product at market prices

%

541,928 2,781,390 25,961 1,685,005 134,502 1,845,468 935,922 8,118,424 3,552,124 1,688,130 2,292,247 2,274,053 11,441,742

518,104 2,858,948 .... 1,716,886 .... 1,868,363 990,585 8,507,390 3,722,155 .... 2,434,184 2,351,051 11,884,442

4.0 22.3 .... 13.4 .... 14.6 7.7 66.4 29.0 .... 19.0 18.3 92.7

374,990

388,660

3.0

11,066,752

11,495,782

89.7

1,263,302

1,317,782

10.3

12,330,054

12,813,564

100.0

Inﬂation Rates in Bozen/Bolzano, Trento and Italy 2002–2004

Bozen/Bolzano Trento Italy

2002

2003

2004

3.0 2.6 2.4

2.5 2.2 2.5

1.7 1.8 2.0

Percentage variation of the mean consumer price index of households of workers and clerks compared to the year before. Source: ASTAT, South Tyrol in Figures (Provincial Statistics Institute ASTAT, Bozen/Bolzano, 2005), 33, 32.

396

Alice Engl and Alexandra Tomaselli

Per Capita Values of some Economic Aggregates in South Tyrol and Italy 2002–2003 At Current Prices (thousands of euro) South Tyrol 2002 2003

Italy 2002

2003

Gross domestic product at market prices per inhabitant

26,442

27,292

22,052

22,584

per full-time equivalent

53,764

55,414

52,223

53,669

33,033

33,982

30,510

31,655

79,784

82,671

56,476

57,563

17,513 2,164 4,569

18,106 2,214 4,729

13,320 2,276 3,838

13,705 2,333 4,020

Income from self-employment by employee full-time equivalent from gross operating surplus by self-employed full-time equivalent Private consumption Total consumption per inhabitant of which: food housing and related costs

Public Works 2002–2004 Thousands of euro 2002

2003

2004

Central government (state) Local Government

19,722 728,838

.... 734,712

.... 1,584,577

Total

748,560

...

...

Central carried out Central government (state) Local government

14,581 665,753

.... 670,972

.... 898,843

Total

680,334

....

....

Work stated

Work carried out

Source: ASTAT, South Tyrol in Figures (Provincial Statistics Institute ASTAT, Bozen/Bolzano, 2005), 34, 40.

Appendix

397

Gross Domestic Product of South Tyrol in the EU-25 GDP Per Capita in Purchasing Power Standards (PPS), EU-25 Average 1997–2004

South Tyrol Italy Austria EU-25 countries

1997

1998

1999

2000

2001

2002

2003

2004

172.30% 114.60% 124.50% 100.00%

174.90% 115.10% 123.50% 100.00%

169.20% 113.70% 124.90% 100.00%

160.80% 113.10% 125.50% 100.00%

151.10% 111.90% 122.00% 100.00%

145.50% 110.00% 120.00% 100.00%

141.00% 106.00% 123.40% 100.00%

140.20% 103.10% 123.40% 100.00%

200% 180%

South Tyrol

160% 140%

Austria

120%

Italy

100% 80%

EU–25 countries average 100%

60% 40% 20% 0%

1997

1998

1999

2000

2001

2002

2003

2004

Source: Eurostat, GDP per capita in PPS 1997–2008, GDP per capita in Purchasing Power Standards (PPS), at ; Eurostat, Regional per capita GDP in PPS 1995–2003, at .

398

Alice Engl and Alexandra Tomaselli

European Funds Invested in South Tyrol Budget for the Programme of the Structural European Funds 2000–2006112345678 Objective2 for the zones previous objective 5b (phasing out) Objective 3 European Social Fund3

25,111,222 € 7,307,649 € 192,110,558 €

Interreg III A4 Italy/Austria (budget for South Tyrol) Italy/Switzerland (budget for South Tyrol) Interreg III B5 Alpin Space (budget for South Tyrol) Leader+6 Equal7 Regulation (CE) no. 1257/19998

7,203,074 € 2,610,000 € 3,375,000 € 2,325,000 € 8,100,000 € 309,874,139 €

Source: European Aﬀairs Oﬃce, Province Bolzano/Bozen, Finanziamenti Comunitari in Alto Adige, 2000–2006, March 2004, at .

1

All listed ﬁnancial resources were distributed in the period 2000–2006. Support to the economic and social re-conversion of zones with structural problems, e.g., rural zones abandoned by former workers and inhabitants. 3 Development of human resources and support for the adequacy and modernization of education policies. 4 Promotion of cross-border cooperation. 5 Promotion of the alpine zone countries’ cooperation. 6 Promotion of rural zone development. 7 Fight against discrimination and inequalities in the job market. 8 Promotion of sustainable development for the rural zones. 2

Appendix

South Tyrolean Employment  Employment

Agriculture 8,1%

Industry 23,7%

Service Sector 68,1%

Unemployment rate 2,7% Public Service 43.617 public servants (of 221.900 employed persons

399

400

Alice Engl and Alexandra Tomaselli Unemployment 2002–2004

Yearly average

Job seekers Males Females Unemployment rate* Males Females Oﬃcial unemployed persons Males Females

2002

2003

2004

5,300 2,500 2,800 2.4 1.9 2.9 4,047 1,660 2,387

5,900 2,500 3,500 2.6 1.9 3.6 4,083 1,686 2,398

6,000 2,600 3,400 2.7 2.0 3.5 4,845 2,088 2,757

* Ratio of job seekers to total labour force Source: ASTAT, South Tyrol in Figures (Provincial Statistics Institute ASTAT, Bozen/Bolzano, 2005), 32.

Appendix

401

National and Provincial-Local Civil Servants in South Tyrol: ,  and  1961

1984

2004

Central national administration Provincial and local administration

12,085 2,675

14,919 13,646

7,693 35,924

Total

14,760

28,565

43,617

50.000 Total 43,617

28,565 25.000 14,760 12,085

14,919

Provincial and Local admin. 35,924

13,646

Central National administration 7,693

1984

2004

2,675 0 1961

Source: Istituto Centrale di Statistica (ISTAT), Censimento Nazionale della Popolazione-1961, Professioni Vol. 6 (ISTAT, Roma, 1961), 497; ASTAT, L’Alto Adige in cifre (ASTAT, Bolzano, 1986); ASTAT, Jahrbuch 2005 (ASTAT, Bolzano, 2005), 198-199, at .

402

Alice Engl and Alexandra Tomaselli Provincial and Local Administration Civil Servants (a) 2004 Employees expressed in full-time equivalents Other administration 12%

Health authorities 22.50%

Total: 43,617 Employees

Province 29.60%

Municipalities 12.70%

Teachers 23.20%

Source: ASTAT, South Tyrol in Figures (Provincial Statistics Institute ASTAT, Bozen/Bolzano, 2005), 45.

Local Units and Employees by Activity Sector 1981, 1991 and 2001 1981 Agriculture and ﬁshery Mining Manufacturing industry Energy, gas and water Building Trade and repairs Hotel and catering industry Transport and communications Banking and insurance Other services Total Agriculture and ﬁshery Mining Manufacturing industry Energy, gas and water Building Trade and repairs Hotel and catering industry Transport and communications Banking and insurance Other services Total

Local units 130 66 4,254 191 3,417 9,660 11,810 1,904 521 5,440 37,393 Employees 637 555 31,843 1,714 16,753 32,024 31,597 10,303 3,666 30,896 159,988

1991

2001

108 63 4,205 150 4,116 9,109 12,405 1,816 776 9,411 42,159

432 59 4,437 216 5,356 10,340 9,646 1,971 972 17,778 51,207

413 444 32,711 1,619 16,565 33,401 30,143 10,873 5,022 48,838 180,029

1,137 496 35,525 1,572 21,158 35,285 27,242 11,021 5,857 68,087 207,380

Source: ASTAT, South Tyrol in Figures (Provincial Statistics Institute ASTAT, Bozen/Bolzano, 2005), 31.

Appendix

403

South Tyrol, Budget and Tax Tributes  Budget 2006: income Tax Revenue 75%

Surplus Previous Year 6%

Allocations 8%

Sale of Goods 2%

Capital Income 9%

Total: 4,525 billion EUR

National Main Tax Tributes Assigned to South Tyrol by the State* IRPEF - Tax on Persons' Belongings

1396

Indirect Added Value Tax

898

Tax on Production of Gasoline, Oils and Gas

150

170

Tax on Bodies' Belongings

Tax on Tobacco Consume

56

Tax on Rents of Goods

45

Tax on Public Registration

54

Others

113

Tax on Tobacco Consume 2% Tax on Bodies' Belongings 6%

Tax on Rents of Goods 2%

Tax on Public Registration 2% Others 4% IRPEF - Tax on Persons' Belongings 48%

Tax on Production of Gasoline, Oils and Gas 5% Indirect Added Value Tax 31%

* Such devolved National Tax Tributes represent about 90% of the total tributes collected in South Tyrol. The total amount was consequently around 3,170 million EUR in 2006. To this amount must be added the tributes of the Province of Bolzano/Bozen, which amounted to about 496 million EUR in 2006.

404

Alice Engl and Alexandra Tomaselli Main Provincial Tax Tributes

IRAP - Regional Tax on Productive Activities

350

IRPEF - Additional Regional Tax on Persons' Belongings

55

Car Tax

Car Insurance Tax Additional Tax on Electric Energy Consume Others

49,8

Car Insurance Additional Tax Tax on Electric 4% Energy Others Consume 2% Car Tax 3% 10%

18

13,8

9,4

IRAP - Regional Tax on Productive Activities 70%

IRPEF Additional Regional Tax on Persons' Belongings 11%

Budget 2006: Expenditure General Administrative Expenses 12%

Financial Services, Reserves and Other Services 12%

Civil and Fire Protection 1%

Public Health, Social Care and Work Promotion 30%

School and Culture 15% Municipality Finances 9% Public Work, Territory, Environment 8%

Social Housing 4% Economic Promotion 7% Public Transport 2% Total: 4,918 billion EUR Total: 4,918 billion EUR

Source: Finance and Budget Oﬃce of the Province of Bolzano/Bozen, Budget 2006, 3, 5, 6 and 10, available only in Italian or German at and .

Appendix

405

Political Parties, Elections, Institutions and Procedures Political Parties’ Names, Abbreviations and Orientation Südtiroler Volkspartei—SVP (South Tyrolean People’s Party; ethnic catchall-German-speaking party)

Alternativa Rosa (Women Party) Comunisti Italiani (Party of Italian Communists)

Alleanza Nazionale—AN (National Alliance; Italian Right Wing Party)

Lega Nord (Northern League) Parties present until 1988–1993, than dissolved

Grüne—DPS (Green Party) Union für Südtirol (German Right Wing party claiming for self-determination) Die Freiheitlichen (German nationalistic liberals)

Movimento Sociale Italiano—MSI (Italian Social Movement; Italian Extreme Right Party) Democrazia Cristiana—DC (Christian Democracy; Italian Christian Democratic Party)

Pace e Diritti (Italian Left Wing party) Unione Autonomista (Italian centre) Forza Italia—FI (Italian Centre Right Party)

Partito Socialista Italiano—PSI (Italian Socialist Party)

Unitalia (Italian nationalistic party)

Partito Comunista Italiano—PCI (Italian Communist Party)

Ladins (Ethnic Ladin Party)

Elections in South Tyrol in Percentages Provincial in South Tyrol 1948–1988 Percentage 70 65 60 55 50 45 40 35 30 25 20 15 10 5 0 1948

SVP

1952

1956

1960

1964

1968

1973

1978

1983

MSI DC PSI PCI 1988

Alice Engl and Alexandra Tomaselli

406

Provincial Elections in Percentages

1993

1998

2003

(SVP) Südtiroler Volkspartei (MSI) AN–Alleanza Nazionale* Verdi-Grüne- Vèrc Die Freiheitlichen Union für Südtirol (DC) Part.Pop.A.A.* Lega Nord A.A.-S. (PDS) Democratici di Sinistra/Pace e Diritti* Ladins FI-Forza Italia Unione Autonomista Partito Comunisti Italiani Rifondazione Comunista

52.04 % 11.64 % 6.92 % 6.06 % 4.8 % 4.43 % 2.96 % 2.94 % 1.97 % –

56.6 % 9.7 % 6.5 % 2.5 % 5.6 % 2.7 % 0.9 % 3.5 % 3.6 % 3.7 % 1.8 % – 0.9 %

55.6 % 8.4 % 7.9 % 5% 6.8 % – 0.5 % – 1.4 % 3.4 % 3.7 % 0.9 % –

– –

Provincial Elections in South Tyrol 1993–2003

Percentage 60

SVP - Südtiroler Volks Partei

50 40 30

(MSI) AN-Alleanza Nazionale*

20

Verdi-Grüne-Verc

10

Union für Sudtirol

0 1993

1998

2003

Die Freiheitlichen

Years of elections

Source: Provincial Government of Bolzano/Bozen, Manuale dell’Alto Adige, January 2006, at .

Appendix

407

Provincial Elections : Parties and Seats Political Parties

21

SVP 3

AN Union für Südtirot

2

Verdi-Grüne-Vèrc

2

IL Centro-UDA Unitalia-Fiamma Tric.

1 1

Die Freiheitlichen

1

Popolari-AA Domani

1

Cent rosinistra/Mitte-Links-Projeckt

1

Ladins-DPS

1

Lista Civica-FI-CCD

1

Number of Seats

Provincial Elections : Parties and Seats Political Parties

21

SVP

AN

3

Verdi-Grüne-Vèrc

3

Union für Südtirot

2

Die Freiheitlichen

2

Unitalia

1

Unione Autonomista

1

Pace e Diritti

1

Forza Italia

1

Number of Seats

Source: Provincial Government of Bolzano/Bozen, Manuale dell’Alto Adige, January 2006, at .

Alice Engl and Alexandra Tomaselli

408

Institutions and Procedures Joint Commissions—Composition

State

Region/Province

Commission Provincial Assembly Trentino

“of 12” for the Region

Regional Assembly Commission

Trentino-South Tyrol

“of Six”

Provincial Assembly South Tyrol Italian speaker

for the Province of South Tyrol German speaker

Enactment Decrees in the Hierarchy of Norms

State Government

Joint Committee

Autonomous Province ST

Parliament

Enactment Decrees

Const. Laws Auton. Statutes

Decrees

Laws

Constitution Ordinary Law Regulations and administrative acts

Negotiated legislative process—“bypassing” Parliament

Appendix

409

South Tyrol and Trentino One Autonomous Region Two Autonomous Provinces Region

Territory South Tyrol

Trentino

South Tyrol

Competences

Trentino Region

South Tyrol

Reform 2001

Trentino Region

Institutions—Provinces and Region (1972) Trentino

Region

South Tyrol President Government

Trentino

Presidency/ Speakers 35 members Assembly

• • • •

Ge + It

Germans + Italians

South Tyrol

70 members

Right to vote for Assembly only after 4 years of residence in the Region Candidates to Assembly have to declare group-aﬃliation (ST) Ethnic rotation between President and Vice-President of Assemblies Composition of Govt. reﬂects ethnic proportions of members of Assembly

Institutions—after Const. Reform 2001 Trentino

Region

South Tyrol President Government

Trentino

Presidency/ Speakers 35 members Assembly

Ge + It

Germans + Italians

South Tyrol

70 members

• Diﬀerentiated residence-clause: 4 years in South Tyrol, 1 year in Trentino • Diﬀerentiation in election of President of Province: indirect in South Tyrol (Council), direct in Trentino • Rotation between Presidents of Provinces as Heads of Regional Government • Ladins admitted to the Presidency of Assemblies

410

Alice Engl and Alexandra Tomaselli Documents

Original Text of the Paris Agreement signed by the Italian Government and the Austrian Government on September 5th, 1946 (also called the Gruber-Degasperi Agreement) 1. German-speaking inhabitants of the Bolzano Province and of the neighboring bilingual townships of the Trento Province will be assured a complete equality of rights with the Italian-speaking inhabitants within the framework of special provisions to safeguard the ethnical character and the cultural and economic development of the German-speaking element. In accordance with legislation already enacted or awaiting enactment the said German-speaking citizens will be granted in particular: (a) elementary and secondary teaching in the mother-tongue; (b) pariﬁcation of the German and Italian languages in public oﬃces and oﬃcial documents, as well as in bilingual topographical naming; (c) the right to re-establish German family names which were italianised in recent years; (d) equality of rights as regards the entering upon public oﬃces with a view to reaching a more appropriate proportion of employment between the two ethnical groups. 2. The populations of the above-mentioned zones will be granted the exercise of autonomous legislative and executive regional power. The frame, within which the said provisions of autonomy will apply, will be drafted in consultation also with local representative German-speaking elements. 3. The Italian Government, with the aim of establishing good neighborhood relations between Austria and Italy, pledges itself, in consultation with the Austrian Government, and within one year from the signing of the present Treaty: (a) to revise in a spirit of equity and broadmindedness the question of the options for citizenship resulting from the 1939 Hitler-Mussolini agreements; (b) to ﬁnd an agreement for the mutual recognition of the validity of certain degrees and university diplomas; (c) to draw up a convention for the free passengers and goods transit between Northern and Eastern Tyrol both by rail, and to the greatest possible extent by road; (d) to reach special agreements aimed at facilitating enlarged frontier traﬃc and local exchanges of certain quantities of characteristic products and goods between Austria and Italy. Source: Alcock Antony, The South Tyrol Autonomy: a Short Introduction (University of Ulster, County Londonderry, Bozen/Bolzano, 2001), 4–5, at .

Appendix

411

Links Province of Bolzano – South Tyrol http://www.provinz.bz.it/english/default.htm Province of Bolzano – South Tyrol Provincial Statistics Institute (ASTAT) http://www.provincia.bz.it/astat/index_e.asp Special Statute for Trentino-South Tyrol (1972) http://www.provinz.bz.it/lpa/autonomy/autonomy_statute_eng.pdf Gruber-Degasperi Agreement (1946) In Alcock Antony, The South Tyrol Autonomy: a Short Introduction (University of Ulster, County Londonderry, Bozen/Bolzano, 2001), at http://www.provinz.bz.it/lpa/autonomy/South-Tyrol%20Autonomy.pdf. UN Resolution No. 1497 (XV) of 31 October 1960, “The status of the German-speaking element in the Province of Bolzano (Bozen); Implementation of the Paris agreement of 5 September 1946”, at http://www.un.org/documents/ga/res/15/ares15.htm http://daccessdds.un.org/doc/RESOLUTION/GEN/NR0/152/71/IMG/ NR015271.pdf?OpenElement UN Resolution No. 1661 (XVI) of 28 November 1961, “The status of the German-speaking element in the Province of Bolzano (Bozen)”, at http://www.un.org/documents/ga/res/16/ares16.htm http://daccessdds.un.org/doc/RESOLUTION/GEN/NR0/167/14/IMG/ NR016714.pdf?OpenElement The ‘Package’ In Alcock Antony, The History of the South Tyrol Question (Michael Joseph Ltd, London, 1970), 434–448, at http://dev.eurac.edu:8085/mugs2/do/blob.html?type=html&serial=116583231 2387. Operational Calendar In Alcock Antony, The History of the South Tyrol Question (Michael Joseph Ltd, London, 1970), 448–449, at http://dev.eurac.edu:8085/mugs2/do/blob.html?type=html&serial=116583079 9679.

412

Alice Engl and Alexandra Tomaselli

Text of the Notiﬁcation Document of the Controversy Completion Explanation, Vienna 17 June 1992 (Text der Notiﬁzierungsurkunde der Streitbeendigungserklärung, Wien 17 Juni 1992). http://dev.eurac.edu:8085/mugs2/do/blob.html?type=html&serial=116583314 4880.

EDITORS

Joseph Marko, Director of the “Institute for Minority Rights” at the European Academy of Bolzano/Bozen, is Professor of Comparative Public Law and Political Science at the University of Graz (Austria). He is a former Judge fo the Constitutional Court of Bosnia and Herzegovina and Member of the Advisory Committee of the Framework Convention for the Protection of National Minorities. He published widely on minority protection and constitutional developments in South Eastern Europe. Francesco Palermo, Director of the “Institute for Studies on Federalism and Regionalism” at the European Academy of Bolzano/Bozen, is Professor of Comparative Public Law in the University of Verona, Faculty of Law (Italy). He is Member of the Advisory Committee of the Framework Convention for the Protection of National Minorities. His research and publications mainly focus on comparative federal and regional studies, minority issues and European law. Jens Woelk, Senior Researcher at the “Institute for Studies on Federalism and Regionalism” at the European Academy of Bolzano/Bozen, is Lecturer and Researcher for Comparative Constitutional Law at the Law Faculty of the University of Trento (Italy). His research focus is on comparative federalism and regionalism, minority issues and South-Eastern Europe.

AUTHORS

Giuseppe Avolio, Institute for Studies on Federalism and Regionalism, European Academy Bozen/Bolzano—EURAC Siegfried Baur, Professor of Political Education and Intercultural Pedagogy at the University of Bozen/Bolzano, visiting-professor at the University of Klagenfurt (Austria). Thomas Benedikter, Institute for Minority Rights, European Academy Bozen/ Bolzano—EURAC Alice Engl, Institute for Minority Rights, European Academy Bozen/Bolzano—EURAC Cristina Fraenkel Haeberle, Institute for Studies on Federalism and Regionalism, European Academy Bozen/Bolzano—EURAC, and freelance conference interpreter. Emma Lantschner, Institute for Minority Rights, European Academy Bozen/ Bolzano—EURAC Roberta Medda, Institute for Minority Rights, European Academy Bozen/ Bolzano—EURAC Günther Pallaver, Professor at the Institute of Political Sciences, Innsbruck University Sara Parolari, Institute for Studies on Federalism and Regionalism, European Academy Bozen/Bolzano—EURAC Giovanni Poggeschi, Professor for Comparative Public Law at the Law Faculty, University of Lecce (Italy) and Non-Resident Research Associate, European Academy Bozen/Bolzano—EURAC Günther Rautz, Institute for Minority Rights, European Academy Bozen/Bolzano—EURAC Gabriel Nicolai Toggenburg, Institute for Minority Rights, European Academy Bozen/Bolzano—EURAC

The Authors

415

Alexandra Tomaselli, Institute for Minority Rights, European Academy Bozen/ Bolzano—EURAC Leonhard Voltmer, collaborator of the Institute for Studies on Federalism and Regionalism, European Academy Bozen/Bolzano—EURAC Stefan Wolff, Chair in Political Science at the School of Politics and International Relations, Faculty of Social Sciences, Law and Education, University of Nottingham (UK) Carolin Zwilling, Institute for Studies on Federalism and Regionalism, European Academy Bozen/Bolzano—EURAC

Translations Elisabeth Alber: Chapter 17 Matthew Isom: Parts of Chapter 13 Claudia Marsilli: Chapter 14 Rachel Paling: Chapter 4

Language Editing Matthew Ward

Coordination and Editing Alice Engl, Institute for Minority Rights, European Academy Bozen/ Bolzano—EURAC

INDEX

Accordino 163, 170, 216 n. 44 administrative competence 94, 96–98, 100, 101, 127 agreement (intesa) 126 ALPE ADRIA 163, 163 n. 7, 164, 164 n. 12 amendment (Autonomy Statute) xii, 13 n. 36, 49, 118, 121 n. 1, 131 n. 41, 133 n. 58, 143, 153–154, 154 n. 36, 156, 307 n. 13 ARGE ALP 163, 163 nn. 7–8, 164, 164 n. 11 asymmetric federalism/regionalism 43 asymmetry 33, 37, 40, 42–45, 108, 144 n. 2, 341, 349–350, 351 n. 68 Austro-Hungarian Empire 4, 280 authority 12, 27, 71, 75 n. 103, 85, 85 n. 25, 86, 93, 119, 131, 134, 181, 186, 189, 236, 238, 242 n. 20, 243–244, 329, 332–333, 335, 338, 344–345, 349, 349 n. 67, 350, 352, 352 n. 69, 353–356, 360–362, 366–368 autonomous legislation 80, 93–94, 134, 141, 379 Autonomous Province of Bolzano/Bozen xi, 3 n. 2, 45, 70, 71 n. 87, 77 n. 1, 94, 98–99, 105, 109, 111, 113, 113 n. 8, 114–116, 118, 128, 139 n. 80, 141, 145 n. 3, 250, 251 n. 48, 279, 281–282, 282 n. 10, 288, 379 n. 20 autonomy (Constitutional safeguards) 135 autonomy (evolution) (dynamic) 15, 78, 121, 123, 155, 158, 204, 216 n. 44, 330 autonomy (Procedural guarantees) 153 autonomy (political parties) 403–405 Autonomy Statute (First) (Second) 9–10, 12–13, 15, 19–20, 47–48, 53, 57, 58 n. 19, 59, 76 n. 104, 77, 80, 83 n. 14, 122, 128 n. 29, 143, 144 n. 1, 149, 155, 211, 217, 219, 225, 235, 242 n. 19, 243, 243 n. 23, 244 n. 24, 245, 261, 276, 281–282, 288, 293, 306, 308, 313, 347, 380–382 Autonomy Statute (implementation) 13, 13 n. 36, 29, 34 n. 3, 64, 133, 140 n. 85, 143, 147–149, 153, 305, 356 Badia Valley 232 “Bassanini reforms” 78 n. 5, 96 n. 71, 127, 138 bottom-up process 321, 324 census 58, 60, 148, 199, 211 n. 29, 219, 226–227, 227 n. 44, 230, 230 n. 52, 231–233, 240, 251 n. 52, 284, 307, 318

checks and balances xii, 307, 337–338, 368 civil proceedings 270–271, 277 civil society 308, 314, 320–322, 324, 337–338, 388 coexistence 141, 209, 224, 232, 303, 308, 322–324, 376–377, 380, 383, 388 cohabitation 156, 204, 212, 217, 278, 284, 308, 321–322 collective rights 204, 324 competences (administrative) 94, 96–98, 100–101, 127 competences (concurrent) 13, 79, 93, 335 competences (exclusive) 75 n. 103, 80, 83, 125, 171, 174, 335 competences (legislative) (limits) 11, 13, 81–82, 82 n. 11, 91, 94, 124, 134, 136, 199, 225, 352 n. 70 competences (residual) 84 Commission of “Six” 15, 64, 144–145, 145 n. 3, 146 n. 10, 152 n. 32, 231, 285, 306, 317 Commission of “Twelve” 64, 144, 144 n. 2, 145, 152 n. 32, 306, 317 Committee of the Regions 165, 177, 177 n. 4 Common Market 123, 180, 192–193, 196–198, 374 concurrent legislative powers 39, 137–138 conﬂict settlement xi, xiii, 14, 14 n. 39, 15, 19, 29–30, 32, 83 n. 14, 133, 140, 148, 149, 167, 209, 217, 288, 331, 333, 341 n. 41, 342, 348, 362–363, 366, 368, 370 consociational democracy xiii, 103 n. 104, 204, 303, 303 n. 1, 304–308, 317, 319–320, 363, 372, 376–377 consociationalism 210, 330, 333–334, 334 n. 8, 335, 340, 343, 363, 369, 379 n. 20 Constitution (Italian) xi, 10, 33, 33 n. 1, 45, 78, 78 n. 7, 79, 84, 92, 92 n. 59, 94, 94 n. 64, 95, 95 nn. 65, 68, 96, 97 n. 77, 98, 98 n. 86, 99–100, 105, 117, 121, 121 n. 1, 123 n. 9, 126, 139, 147, 153 n. 34, 154 n. 35, 168, 168 n. 27, 173, 198, 198 n. 92, 208, 209 n. 22, 221, 228, 281, 288, 295, 348, 356 Constitutional Court 29 n. 59, 40 n. 18, 41 nn. 25–26, 42, 46 n. 31, 58–59, 59 nn. 24, 28, 60, 60 nn. 34, 36, 61, 64, 65 n. 56, 73, 73 n. 99, 74, 79 n. 8, 84, 88, 88 n. 41, 90 n. 52, 95 n. 69, 98, 101, 112, 112 n. 6, 122, 124–125, 125 n. 15, 126, 126 n. 22, 127, 129, 129 n. 35, 134, 134 n. 59, 135, 135 nn. 61, 63, 137 nn.

418

Index

66–67, 69, 139 n. 79, 146 n. 11, 147, 148 nn. 15, 18, 149 n. 20, 150, 150 n. 26, 151, 151 n. 30, 152, 152 nn. 31, 33, 157 n. 44, 168, 173, 212, 216, 222, 222 nn. 17–18, 267, 267 nn. 20–21, 268, 268 n. 22, 269, 269 nn. 23, 25, 271 n. 30, 272, 272 n. 35, 274–275, 275 n. 44, 276, 284, 284 n. 18, 289, 289 n. 34, 290, 290 n. 36, 294–299, 336, 356, 384, 411 Council of Europe 19 n. 8, 20, 20 nn. 12–13, 30, 162, 170, 170 n. 34, 179 n. 17, 206 n. 13 cooperative regionalism 121, 124 coordination mechanisms 332, 341, 354– 356 Council of Municipalities 70–71 Council of State (Consiglio di Stato) 131 n. 46, 132, 133 n. 54, 150 n. 26, 222 n. 17, 227–228, 228 n. 46, 229, 284 cultural autonomy 6, 211, 211 n. 28, 213, 283 n. 15 cultural policy (education) 235–258 data (ethnic) (collection) 232 distribution of powers 70, 78, 122, 136, 171, 179, 350, 352, 367 diversity 30–31, 33, 44–45, 45 n. 30, 47, 121, 158, 164, 170, 174 n. 55, 181, 183, 184, 190–192, 198, 198 n. 91, 199, 199 n. 94, 208, 211, 217, 251, 323, 333, 340, 345 education system 245, 312, 329 electoral system 46, 46 n. 31, 56–57, 61, 63, 76, 129 n. 35, 212 n. 33, 304, 331, 335–337, 340, 342–343, 345–346, 366–367, 369 enactment decrees (Autonomy Statute) 100, 100 n. 94, 147 enactment of EC directives 137 entailed farm xiii, 8, 81, 91–92, 92 n. 57, 291–300 equality 10, 17, 17 n. 3, 31, 59, 61–62, 73, 92, 131, 157, 157 n. 44, 180, 194–195, 207–208, 208 n. 19, 209–210, 212, 217, 220–221, 261, 269, 274–275, 277, 284, 286, 289–290, 295–296, 304, 308, 326, 333, 375–376, 383–385, 408 ethnic cleavage 167, 309, 318 ethnicity 309–310, 374, 386 ethnicization 386, 388 Europa-Union-Tirol 166–167 European Academy Bolzano/Bozen 212 n. 31, 388 n. 35 European Commission 24 n. 34, 28 n. 55, 31 n. 72, 149 n. 21, 171 n. 42, 172, 179, 199, 231, 256 n. 86, 388 n. 36 European Court of Justice 14, 139, 149 n. 22, 177, 181, 183, 194 n. 73, 196, 199, 270, 347

European Grouping for Territorial Cooperation 172, 172 n. 46 European integration xii, 5 n. 4, 20 n. 11, 123, 165, 168–169, 171, 173, 180, 193, 193 n. 69, 197, 197 n. 88, 198, 200, 374–375 European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities (Madrid Outline Convention) 164, 170 European Parliament 171 n. 42, 172, 172 nn. 44, 46, 177–178, 179 n. 13, 180 nn. 18–19, 196, 199 n. 97 “European Region Tyrol” 166 European regional policy 165 “Euregio Tyrol” Draft-Statute 175 external relations 83, 157, 209, 216 external self-determination 3, 18, 25, 27, 31, 203, 373, 375 fascism 4, 203, 208, 238–239, 244, 260, 260 n. 4, 261 federalization xi, 78 n. 6, 123, 123 n. 6, 140–141, 341 n. 38, 349, 351 n. 68 ﬁnancial autonomy 34, 116, 122 n. 3, 248 ﬁscal federalism 108, 117, 119 ﬁxed share of revenue 109, 111, 119 foreign pupils 250, 250 nn. 44–46, 251, 251 n. 50, 252, 252 n. 59, 253, 253 nn. 60–62, 254–255, 255 n. 77, 256–257 formal equality 326, 383 “Function of Direction and Coordination” of the State ( funzione di indirizzo e coordinamento) 124–127, 127 n. 25, 133–135, 137–138 fundamental freedoms 184–185, 188, 196–197 Gardena Valley 279–281, 288 Government’s Commissioner 93, 102, 128–130 grand coalition cabinet 211 group rights xii, 199, 211, 213, 325 n. 53, 388 Gruber-Degasperi Agreement 3, 10 , 10 n. 26, 11, 14–15, 18, 26–27, 29 n. 62, 33, 48, 53, 153, 163, 163 n. 6, 170, 203–204, 207 n. 18, 208–210, 213, 215–217, 217 n. 48, 220, 220 n. 5, 224, 260 n. 6, 262, 281–282, 288–289, 384 Grundnorm 206–207 guarantee clause 112 hegemonic position 319 human rights 17, 17 n. 2, 24, 24 n. 34, 25 n. 43, 26 nn. 45, 47, 27, 27 n. 52, 196, 205 n. 9, 332–333, 338, 355, 358–359, 369, 383, 388

Index

419

inclusion 5, 32 n. 78, 129 n. 32, 232, 233 n. 67, 243, 245, 254, 303, 306–307, 314, 317, 320, 333–334, 344 n. 60, 345, 361 n. 89, 362, 376, 383 n. 29 individual rights 18, 199, 210, 212, 224, 292, 326 inheritance 91, 294, 297 n. 21 institutional design 331–333, 340–341, 349, 361, 363, 366, 369, 375 institutional equality 304, 383–385, 388 institutionalized conﬂict resolution 306 integrationism 333, 340 interethnic cooperation 322, 339, 376, 383, 385 interlocking consociational mechanisms 345 internal self-governance 375 international anchoring 15, 19, 29, 162, 203 International Community 22, 347, 354, 356, 372 International Court of Justice 14, 20–22, 28–29, 29 n. 62, 30, 153, 348 Internationalization 21, 31 Italianization 6–7, 80, 210, 238, 240, 272, 280, 293

minority (within a minority) xiii, 279, 281, 289–290, 382 minority blindness of the EU 178, 180 minority rights xi, 24, 26, 26 n. 45, 28 n. 55, 31, 157, 177–179, 179 n. 17, 180–181, 196, 198, 201, 206 n. 12, 209, 314, 331 n. 3, 332–333, 335–336, 341, 356–359, 366–367, 375, 377, 411–413 mixed schools 319 mother tongue 10–11, 85, 185, 185 n. 37, 189, 210, 235–237, 240–241, 243, 245, 247–248, 250, 253, 255–256, 256 n. 82, 263–265, 267–269, 274, 276, 278, 283, 324, 379–380, 387, 408 multiculturalism (monoculturalism) 244 multilevel government 172

Joint Commissions xii, 64, 100 n. 93, 122 n. 3, 123, 131, 145–146, 146 n. 10, 149–150, 217 n. 47, 318, 364, 406

Package 12, 12 n. 34, 13–14, 18 n. 5, 19, 19 n. 7, 22, 25, 25 n. 40, 27, 27 n. 51, 28–59, 29 n. 62, 32, 45, 53, 58 n. 22, 64, 78, 122, 133, 140, 149, 149 n. 23, 158, 193, 212, 217, 242 n. 19, 246, 306, 308, 330, 364, 382, 409 Peace Treaty of Paris (St. Germain) 10, 18, 24, 25, 33, 163, 203 personal principle 212, 324 place names 6, 13, 32, 80, 215 n. 41, 235, 238, 240, 271–272, 272 n. 34, 273, 279, 282, 284, 286 political parties 4, 31 n. 74, 72, 131 n. 45, 166, 238–239, 305, 309–310, 336, 344 n. 56, 363–364 political representation 46, 61, 155 n. 41, 157, 211, 237, 275, 284, 286, 289, 290, 372 positive discrimination 180, 193, 195–196, 224, 290 Power sharing xiii, 18, 34, 49, 76, 155, 205, 204 n. 5, 210 n. 27, 211–212, 225, 329–335, 340–342, 342 n. 53, 343–344, 344 nn. 57, 61, 345–349, 351 n. 68, 352, 353 n. 71, 354–355, 362, 370, 372, 372 n. 2, 375 n. 10, 376–377, 379 practical concordance 208 prefect 128, 128 n. 31, 130, 130 nn. 37, 39 principle of “loyal cooperation” 126 principle of differentiation 37 principle of parallelism 95–98, 100–101 principle of proportionality 192, 197, 326, 330

kin-state 19 n. 8, 23, 28, 31, 103 n. 105, 205, 209, 214, 216, 289 Ladins xii, 4 n. 3, 9, 46, 131, 212 n. 34, 213, 214 n. 37, 215, 215 n. 40, 217, 220 n. 5, 222, 231–232, 276, 279, 279 n. 1, 280–281, 281 n. 6, 282–284, 284 n. 18, 285, 285 n. 19, 286–288, 288 n. 30, 289–290, 300, 305, 307, 309 n. 22, 310, 312, 317–318, 321–324, 387, 392, 403–405, 407 land register 82, 292 n. 5, 298 language competences 283 language requirements 186–188, 188 n. 52, 192 language teaching 86, 286 legislative procedure 41 n. 26, 71–72, 74–75 liaison ofﬁce 139 linguistic groups 13, 25, 56, 60–62, 62 n. 47, 68–69, 72–73, 75–76, 86, 131, 145, 150, 156–157, 157 nn. 43–44, 158, 176, 195–196, 205, 209, 212, 220–222, 224–226, 228–230, 232, 258, 261, 274, 274 n. 42, 275, 275 nn. 45, 47, 276, 284–285, 306–308, 325, 345, 382 linguistic identity 244, 260, 276–277 linguistic rights 185–186, 213 n. 35, 259, 261, 263–265, 274, 274 n. 41

national interest 74, 83, 83 nn. 15–16, 98, 124–125, 129 n. 32, 135, 135 n. 62, 214 n. 38, 275, 372 Nested consociationalism 330 non discrimination principle 180, 184, 188 n. 52, 190–191 Option 7 n. 15, 8, 9 n. 23, 238, 260, 281 OSCE 28–29, 29 n. 61, 30, 206 n. 13

420

Index

principle of subsidiarity 96–97, 98 n. 85 privacy, protection of 229–231 privatization 88 proportional representation 61, 68–69, 210–213, 221, 225–226, 275 n. 45, 285, 304, 379, 382–384, 387–388 protecting power 10, 14, 14 n. 40, 20, 23, 27–28 Provincial Council 55, 66, 70, 129, 211–212, 236, 274, 284–286, 289 Provincial Government 226, 247 nn. 39–40, 248 n. 41, 285 public administration 7, 11, 13–14, 35, 102, 115 n. 10, 130 n. 39, 132, 183 n. 25, 186, 196, 205 n. 7, 211 n. 29, 213, 219–221, 221 n. 8, 224 n. 28, 225, 232, 239, 257, 261–263, 263 n. 11, 264 n. 15, 265, 271, 272 n. 34, 323 public expenditure 115, 117 quasi group personality 212 quota xii, 13, 13 n. 37, 61–62, 86, 106, 210, 211 n. 29, 219, 221 nn. 12–13, 222, 222 nn. 14, 16, 223–224, 225, 284, 312–313, 316, 318, 325, 325 quota system xii, 62–63, 88, 88 n. 42, 102, 130, 133, 133 n. 56, 148–149, 149 n. 20, 193, 195–196, 210, 211 n. 29, 219, 219 n. 2, 220, 220 n. 4, 222, 222 n. 17, 223–224, 224 nn. 26, 29, 228, 230–233, 284, 304, 307, 307 n. 16, 313, 325, 325 nn. 53–54, 326, 326 n. 60, 372, 380 RAI 87, 285, 285 n. 20 Regional Administrative Court (TAR, Tribunale amministrativo regionale) 128, 131, 131 n. 42, 132 n. 50, 247 n. 36 regional blindness of the EU 180 Regional Council 55, 60 n. 35, 61, 275, 284–285, 289 Regional Government 285, 407 regional participation in EU affairs 138, 140 Regions (Italian Regions) 118, 139 n. 42 Regions (with ordinary Statute) 55 n. 8 Rhaeto-Romance 279–280 right to be different 208–209 rotation 56, 131 n. 44, 210, 313, 384, 407 Schengen Agreement 14, 169 school (parity model) 235–236

school autonomy 254, 258 secrecy 227–228 segmental autonomy 329, 333, 335, 364, 372 segregation 371, 375–377, 380, 383, 387–388 self-determination 3, 11, 11 n. 29, 18, 23–25, 25 nn. 43–44, 26, 26 n. 45, 27, 27 n. 51, 30, 30 n. 69, 31, 31 nn. 72, 74, 166, 203, 203 n. 3, 311, 329 n. 1, 330 n. 3, 333 n. 5, 334 n. 9, 338–341, 343, 346, 350, 354–356, 361, 366, 368–369, 373, 375, 379, 380–381, 403 separation (institutional and social) 377 shared Community 257 social housing 11, 180, 211 n. 29, 225, 307, 312, 402 special status xi–xiii, 33, 42, 47, 77, 98–99, 121 n. 1, 145, 163, 209, 212, 214–215, 279, 291, 361 Standing Conference of the State and Regions 35, 126, 138, 138 n. 78 substantive equality 221, 290, 283, 383 taxation system 112–113, 118–119 taxes and tariffs 110, 112–113, 117 territorial autonomy xiii, 25, 148, 155, 193, 207–209, 213–214, 217, 289, 290, 324–326, 329, 329 n. 1, 367, 371, 375, 378, 380–382 territorial principle 212, 215, 362 territorial self-governance 329, 334, 337, 339–341, 341 n. 41, 342, 352, 360, 363, 366–367, 369 theories of conﬂict resolution 331 toponomy (see place names) 284 Trento (Trentino) (Province of ) 12 n. 34, 13, 46, 46 n. 33, 55, 57, 57 n. 12 United Nations (resolutions) 21 use of language 132 n. 48, 148–149, 183, 212–213, 259, 261–262, 264, 266–271, 276–277, 283 n. 16, 290 variable share (tax revenue) 111–112 veto (power) 20, 24 n. 32, 30, 84, 157, 177, 212, 303–305, 319, 330, 333, 335, 345, 372, 374, 384