Authors: Matteo Bonelli and Mariolina Eliantonio.

On Sunday 4^th December 2016, a vast majority of Italians voters (59.11%) rejected, in a referendum, the constitutional reforms approved by the Parliament earlier this year. The referendum was called on the basis of Article 138 of the Italian Constitution, which provides the procedure for constitutional amendment and requires that a confirmative referendum be held when a constitutional reform is approved by a simple majority of the members of the two chambers.

The result marked a sound defeat for the government of Matteo Renzi, who announced his resignation few hours after the closing of polling stations. While the “No” win was largely anticipated by previous polls, the proportions of the result, as well as the high turnout reached (65.48% of voters took part to the referendum, including a 30% of Italians living abroad), have been a surprise for many. The outcome of the referendum and the resignation of Mr. Renzi will most likely open a period of uncertainty for Italy, its institutional system, and possibly for Europe as a whole. In this blog post, we want to discuss the effect of the vote on the Italian constitutional system, the internal political developments and the dilemma of the electoral laws, and finally the possible consequences for Europe and the European Union.

Constitutional reform
When his government took power in February 2014, Matteo Renzi, speaking for the first time in front of the Senate, boldly proposed a radical transformation of the Italian constitutional and institutional system: “I want to be the last Prime Minister to ask this chamber for a confidence vote”, he stated, before winning that confidence vote by a fairly big margin. The constitutional reform Renzi-Boschi – Maria Elena Boschi was the Minister in charge of Constitutional Reforms and Relations with the Parliament – was then presented before the Senate in April 2014. After being approved three times by each chamber, the constitutional bill was finally approved in the Camera dei Deputati in April 2016. While part of the opposition, notably Silvio Berlusconi’s Forza Italia, voted in favor of the reform in the first readings, the final vote did not reach the two-thirds threshold required to avoid a constitutional referendum. In any case, Matteo Renzi and the Democratic Party had already guaranteed that final approval by the electorate would have been necessary, regardless of the majority reached in the final vote.

The reform had two main objectives: modifying the unique Italian bicameral system – often defined as a “perfect bicameralism” (bicameralismo perfetto), since the two chambers have identical powers under the existing Constitution – and clarifying the division of competences between the central State and regions. Moreover, the proposed amendments aimed to reduce the number and costs of political institutions, abolishing the CNEL (Consiglio Nazionale dell’Economia e del Lavoro) and removing any reference to “provinces” in the constitutional text, and attempted to improve citizens’ participation, modifying the rules on referenda and on citizens’ initiative laws. At the same time, the reform left untouched the provisions concerning the powers of the Government and of the President of the Republic.   

In particular, the Senate would have been transformed into a regional chamber, modeled, according to the proponents, on the basis of similar bodies in Germany, France, and Spain. Indirectly elected by Regional Councils and composed by mayors and members of the Regional Councils (for a total of 95 members plus 5 members nominated by the President of the Republic), the Senate would have had competence on a limited number of matters, mostly affecting regions and other local entities, as well as on the adoption and the implementation of EU law and policies. Outside these areas, the Senate would still have had the possibility to intervene in the legislative process, but the lower chamber, the Camera dei Deputati, could have overruled it by taking the final decision. Finally, in order to enhance governmental stability – Italy has had 64 governments in 70 years as a Republic, it is often repeated -, the Senate would have lost its function of oversight on the Government: no more confidence votes, as Renzi had promised.

As for the division of competences between State and regions, the reform would have abolished the category of “shared competences”, mostly recentralizing matters such as energy, infrastructures, and tourism. Moreover, it better clarified the responsibility of the State and of local entities in the areas of health and education: the State would have had the competence to set general and common rules to guarantee the right to health and on education, while regions would have been in charge of practical implementation on the ground. The reform had thus the aim to constitutionalize the jurisprudence of the Constitutional Court and reduce litigation before it, as the category of shared competence – created by an earlier constitutional reform of 2001 – has often provoked contrasts between center and periphery over the last years.

The failure of the referendum leaves the Constitution untouched. The composition and functions of the Senate will not change, nor will the competences of the Regions be modified. Leaving aside merits and shortcomings of this particular reform, we can note that this is only one of many attempts to reform the Italian Constitution: the sixth in the last thirty years, if one considers that three so-called “bicameral commissions” (i.e. composed of equal members of both chambers of the Italian parliament) were unable to produce a final text, that the 2006 Berlusconi reform was rejected in another constitutional referendum, and that the earlier attempt in this legislature under the Letta government was aborted when Renzi became Prime Minister.

This seems to suggest that reforms to the Italian Constitution are needed. From politicians to constitutional lawyers, many share the view that the current Italian bicameral system is unfit to the present context and should be overhauled,¹ and that the division of competences between center and peripheries must be clarified in order to reduce the caseload of the Constitutional Court. However, the political system as a whole has so far failed to agree on a common platform and the current political climate makes shared reforms in the foreseeable future unrealistic.

What is next? The Electoral Law(s) dilemma
After the final adoption of the 2017 budget law by the Senate, Matteo Renzi has formally presented his resignation to the President of the Republic Sergio Mattarella on Wednesday 8^th December. In the following days, Mattarella held consultations with other institutional actors and parliamentary groups in order to reach a final decision on the outcome of the crisi di governo. After intense discussions, allegedly showing some disagreements between the President of the Republic and the Prime Minister on the possibility to call a snap election, various hypotheses emerged: a re-appointment of Matteo Renzi (Renzi bis), a new institutional government possibly led by the President of the Senate Piero Grasso, or a more technocratic one, in which former Minister of Economy and Finances Pier Carlo Padoan could act as a Prime Minister.

Somehow surprisingly, at least considering the earlier rumors, the final decision was to confer a mandate to form a new government to Paolo Gentiloni, Minister of Foreign Affairs under Matteo Renzi. Gentiloni, 62, MP and former Minister for Communications (2006-2008) is a member of the Democratic Party and widely considered a Renzi loyalist. Having accepted the mandate, the new government sworn in on Monday 12^th December. It is largely identical to the predecessor: 16 of the 18 members had already been ministers under Renzi and most of them have maintained the same portfolio.

However, the new government will most likely have a short life. Most of the political forces, including the Democratic Party itself, seem to seem to agree that elections should be held soon, possibly in Spring 2017. Yet, there is a major obstacle along the way. According to recent analyses, President Mattarella believes that, before calling new elections, the electoral laws would have to be - once again – modified. The so-called Italicum, approved by the Parliament in 2015, applies indeed only to the elections of the Camera dei Deputati – since it was implicitly linked to the project of constitutional reforms. The Italicum provides for proportional representation “corrected” by a large majority prize (premio di maggioranza) for the party gaining at least 40% of the votes – that party would have at least 55% of the seats in the Camera. If however nobody would be able to reach the 40% threshold, the two most-voted parties would take part to a second round, with the winner gaining the majority prize.

On the other hand, the Senate would currently be elected with a purely proportional electoral law and no majority prize – a system “created” by the Constitutional Court (and thus defined as Consultellum) with its earlier decision of December 2013, striking down large parts of the earlier electoral law. The Italicum and Consultellum provide thus two extremely different systems and would most likely prevent the formation of a clear majority in Parliament. If elections were to be held in the early months of 2017, the result would probably be yet another stalemate, as happened after the 2013 elections. Not unreasonably, President Mattarella would then prefer a new government to be in power until the Parliament has aligned the two electoral systems.

If the situation was not already complex enough, the Constitutional Court is also called to take a decision on the constitutionality of the Italicum on January 24^th, 2017. Experts suggest that some parts of the electoral law for the Camera could be yet again declared unconstitutional, including in particular the majority prize and the second round system. Despite the rejection of the constitutional reform, thus, political forces will in the foreseeable future still need to discuss, and most likely fight over, the functioning of the institutional system.

And what about Europe?
While the vote has often been perceived in European and international media as “the next Brexit”, this reading is probably too simplistic. Among “no voters”, there certainly are pro-Europe citizens, who simply were not convinced by the Renzi-Boschi reforms, because they opposed the policies of the government, or disagreed on the alleged benefits of the reform for the costs of politics, or because they refused the (perceived) centralization of power proposed by the constitutional amendments, and/or the new electoral law.

At the same time, there is no point in denying that the biggest winners of the referendum are two movements considered anti-Euro and anti-Europe: the 5 Star Movement of Beppe Grillo, and the Northern League of Matteo Salvini. The former has often been ambiguous in its views on European integration: rather than a full withdrawal from the EU, it has proposed a referendum on Eurozone-membership, without however clarifying how they would vote if such a referendum were held. Moreover, the M5S sits in the Euro-skeptic EFDD group at the European Parliament, together with UKIP and AFD, although their votes are not always aligned. On the other hand, the Northern League of Matteo Salvini, a strong friend and ally of Marine le Pen and Geert Wilders, has more vehemently proposed to leave the Eurozone and limit the competences of the EU – but they too have been more ambiguous on the possibility of a full withdrawal. Together, these two parties are polled at around 40-45% of the votes, although an alliance at the general elections is at the moment still extremely unlikely.

Polls show also that Italians remain overwhelmingly in favor of both EU and Euro membership (see for example: lastampa.it  ), even if that percentage has been consistently declining over the years. Moreover, only a minority affirms that Italy is currently benefitting from EU membership. To conclude, the possibility of a Italeave seems to be still small. It should also be kept in mind that the Italian Constitution prohibits in Article 75 a referendum on “laws ratifying international treaties”, provision which excludes the possibility to hold a referendum on EU membership or membership to the Euro-zone, despite the 5 Star Movement’s assertions. Leaving the EU would certainly require constitutional amendment – and the experience of the recent reform shows how hard that process can be. To conclude, the 4^th December referendum was not Italy’s “Brexit moment”, although it can mark the beginning of a period of uncertainty both at home and abroad, especially if markets were to “punish” political instability and in the light of the precarious situation of several Italian banks. With elections in the Netherlands, France, and Germany on the horizon, this is hardly good news for the European Union.
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¹ Current bills stalling in the Senate include, to name a few, bills on whistleblowers, conflict of interest, homophobia and euthanasia.