Among the originalities that distinguish us in Europe, and of which we can not be proud, is the “implementing decree”, an almost exclusive specialty of the sub-Alpine administration. In the North of the Alps the laws are “complete” laws, in whose text it is written what to do, when to do it, how to do it. Our legislation, on the other hand, prefers the simple conferral of authority, the indication of the power attributed. In our latitudes, the application of the law, to produce its effects, must provide for one or more implementing decrees, without which the law remains a dead letter, unable to produce the effects for which it was compiled and approved, limiting itself to state only the general principles of reference.
The term “implementing decree” – a term that is, alas, entering the habit of daily reading – generally means a ministerial (or inter-ministerial) decree prescribed by a law, which, after outlining the fundamental principles of a given the matter, he entrusts the exact technical definition and implementation methods to the competent ministry, in charge of formulating the “implementing decree”.
“Based on the data made available by the Office for the government program – reads a recent report edited by Openpolis – we know that the acts having the force of law definitively approved since the beginning of this legislature are 171 and of these 95 require at least one implementing decree for their full application. In all, the cumulative requested implementations from 2018 to today amount to 1,178, of which 675 (57.3%) are still missing “. The Draghi government has inherited this mountain of expectations not only from the Conte 2 government, but also from the first team led by Giuseppe Conte.
Among the regulations analyzed, the one with the highest number of missing implementations and the 2020 Budget law with 57 implementing decrees not yet published out of a total of 122 requested (46.7%). We then find two measures related to the coronavirus emergency; the Relaunch decree of which 43 implementation decrees are still missing out of a total of 137 (31.4%) and the August decree (we mean August 2020, obviously) still lacking 40 implementations out of 63 (63.5%) . The law with the highest percentage of missing implementations out of the total of those requested is the Covid Simplifications decree. A measure that was designed specifically to make the assignment of public contracts easier, also as a means of relaunching the economy. To date, however, 31 out of 37 implementation decrees are still missing, 83.8%.
Statistics are exercised on not very exciting data. Data that explain the inaction, which justify – so to speak – the inability to translate programs into acts, resources into works. With all due respect to the fears that inevitably arise from the risk of not seeing the 248 billion of the National Recovery and Resilience Plan (Pnrr) used.
But in this context, it would be legitimate to ask whether a short circuit of democracy itself has not occurred. Let me explain: a large part of our laws – not only in this period of the Covid emergency – derives from the conversion of decree-laws. Prepared and admitted for the emergence of issues of “necessity and urgency”, the law decrees, then transformed into law but without the aid of the implementing decrees, end up being rules whose application extends over time, well beyond the short horizon of purposes of “necessity and urgency” that had justified the very preparation of the decree-law.
And it is not a question of lawyers. It is the subject of democracy. The decree-law, by its nature, always forces the legislative process a little, taking away from Parliament a little of its specific power, that of the Legislator. But if the outcome is not even that of the “government” – since the effects do not unfold without the implementing decrees – one wonders whether an abuse has not been perpetrated. So many abuses. Without having received any “positive” from this repeated forcing.
There are those who suggested to equip from the beginning – from the drafting of the decree-law – the rules proposed with the implementing decrees, to be modified then eventually as well as to modify the rule, during the parliamentary process of conversion into law. It would be a way to show some common sense.
A few days ago, on “Formiche”, Massimo Balducci suggested an even more radical way: to change the way laws are written (whether they are drawings or decrees): “Why, instead of having the text of the bill and the of the implementing decrees, there is no provision for the legislative office of the ministries to prepare a text of law defined in terms of process (what to do, when to do it, how to do it) in order to make the implementing decrees useless
“.
The efficiency of the administrative processes in the country is at stake, as is the constitutional democracy itself which cannot help but propose a certain and recognizable path, consistent with economic and social concerns, but respectful of parliamentary prerogatives.
