On 27 October 2017, the Presidente della Repubblica Italiana (President of the Italian Republic, hereinafter President), Mr. Sergio Mattarella, refused to promulgate the law^[1] drafted and approved by the Parliament titled “Misure per contrastare il finanziamento delle imprese produttrici di mine antipersona, di munizioni e sub munizioni a grappolo” (Measures to combat the financing of firms manufacturing antipersonnel landmines, cluster munitions and submunitions, hereinafter Law no. 57)^[2]. In the Italian constitutional system, in order for a law to enter into force the President has to promulgate it, according to Article 73 of the Constitution. To this end, Article 74 confers the President the power to require that the law undergoes a new debate in the two Houses of the Parliament, expressing the reasons for such a request. As explained in the opinion sent to the Senato della Repubblica (Senate of the Republic) and the Camera dei Deputati (Chamber of Deputies), the President identified two problematic features of the law, which are here illustrated.

In the first place, there was a lack of coherence between the main purpose of the law and some measures adopted to pursue that purpose. Secondly, a specific provision of Law no. 57, i.e. Article 6(2), appeared to clash with two norms of the Constitution: Article 117(1), regarding the status of Italy’s international obligations vis-à-vis domestic legislation, and Article 3, establishing the principle of equality of all citizens before the law. The President opened his opinion describing the relevant provisions:

The law (composed of seven articles) was approved on 6 October 2016 by the 6ª Commissione permanente [6th Permanent Committee] of the Senate through the deliberative process,^[3] and definitively on 3 October 2017 by the Chamber of Deputies. By means of Article 1 of this law, a comprehensive prohibition is introduced for authorized intermediaries^[4] […] on financing those firms that, in Italy or abroad, directly or through (other) controlled or associated firms, perform activities that are in any way connected to the production or distribution or commercialization of antipersonnel landmines, cluster munitions and submunitions. 

President Mattarella appreciated this innovation and affirmed: 

The law contains innovative aspects, which undoubtedly appear positive as they strengthen the measures to combat the manufacturing of these dangerous and insidious warfare devices, providing for, among other things, administrative liability for legal persons. 

However, a few lines below, the President introduced his first ground of concern: 

At the same time, the presence, within the law, of a provision that appears to clash with the declared aims of this legislative intervention and seems to be characterized by significant critical aspects should be noticed. I am speaking of Article 6, titled “Sanzioni” [Sanctions], which, at paragraph 2, decriminalizes those operations of financing firms that produce antipersonnel landmines and cluster bombs, whenever those operations are carried out by subjects at the head of authorized intermediary bodies. 

The President continued describing the content of the provision taken into consideration: 

In that paragraph, an administrative monetary sanction between € 50,000 and € 250,000 is provided for physical persons who have managerial or directorial roles of authorized intermediary bodies or who, on behalf of them, perform control functions, in the case the prohibition on financing firms that operate in the field of anti-personnel landmines and cluster munitions is violated. 

In this respect, as noted above, the President took the view that the administrative sanctions provided for the conduct covered by the law were inconsistent with its purpose, spelt out by Article 1 quoted above. 

President Mattarella also manifested a second ground of concern, by highlighting the incompatibility of Article 6(2) with two articles of the Italian Constitution. As far as Article 117(1) is concerned, it must be noted that Article 6(2) of Law no. 57 was at odds with some laws enacted by the Parliament in order to incorporate into the Italian legal system some international obligations regarding anti-personnel landmines and cluster munitions. The President explained this point as follows: 

The issue at the center of the provision cited earlier is already generally regulated by the criminal provisions contained in Law no. 374 of 1997 and Law no. 95 of 2011. This latter provides for the ban of cluster munitions, as well as ratifies and implements the Oslo Convention (made in Dublin on 30 May 2008), criminalizing, at Article 7, the financial assistance in favor of whoever employs, develops, produces, acquires in any way, stockpiles, stores or transfers, directly or indirectly, cluster munitions or parts of them, and punishing such conducts with the imprisonment between three and twelve years and a fine from € 258,228 to € 516,456. Therefore, the conduct of “financial assistance” (included among those that are prohibited by the Oslo Convention) fully corresponds to the one prohibited by Article 1 of the law under review, for which only an administrative sanction is provided by Article 6, paragraph 2, if committed by those authorized subjects indicated above. 

In this passage, President Mattarella referred to the law of the Parliament that incorporated the 2008 Convention on Cluster Munitions (Oslo Convention),^[5] whose Article 9 requires States to adopt “all appropriate legal, administrative and other measures to implement th[e] Convention, including the imposition of penal sanctions to prevent and suppress any activity prohibited to a State Party” under its provisions. By means of the law cited by the President – Legge 15 giugno, n. 95 (Law no. 95 of 2011)^[6] – Italy implements this obligation, establishing a criminal liability regime for the financing of behaviors that are proscribed by the Oslo Convention. In light of this, Article 6(2) of Law no. 57 appeared to be incompatible with the obligations arising out of the domestic implementation of the convention, as it regulated a specific conduct already criminalized by Law no. 95 of 2011, downgrading the related sanction from a penal to an administrative one. 

A similar problem arose also with regard to the regulation of the conduct involving anti-personnel landmines. In 1997, with regard to these items, Italy enacted Legge 29 ottobre 1997, n. 374 (Law no. 374 of 1997),^[7] and subsequently ratified and implemented the Ottawa Convention on Landmines^[8] by means of Legge 26 marzo, n. 106 (Law no. 106 of 1999).^[9] President Mattarella explained the incompatibility in the following passage of his message: 

For what regards antipersonnel landmines, Article 7 of Law no. 374 of 1997 criminalizes, with similar penalties, whoever uses, sells, gives at any title, exports, imports, and possesses antipersonnel landmines or parts of them, or uses or gives away, directly or indirectly, patent rights or manufacturing technologies, in Italy or abroad. Such a regulation is confirmed by Article 9 of Law no. 106 of 1999 that ratified and implemented the Convention regarding the prohibition of using, stockpiling, producing and transferring antipersonnel landmines and their destruction, signed in Ottawa on 3 December 1997. Financing the conducts prohibited by Article 7 is considered among the behaviors listed by Article 1, paragraph 1, of the Ottawa Convention, which explicitly obligates the States to forbid, among other things, to “assist, encourage or induce, in any way, anyone to engage” in the activities prohibited by the Convention itself. ^[10]

According to Article 117(1) of the Constitution, the legislation enacted by the Parliament must comply with Italy’s international obligations.^[11] Such a provision grants a special status to international treaties ratified and implemented by Italy. Domestic laws that clash with these international norms can be struck down as unconstitutional, in that they are deemed to be conflicting with Article 117(1) itself. President Mattarella referred to this issue in his message: 

The two incriminating provisions^[12] are the outcome of the implementation of international obligations contained within the two conventions, ratified by Italy, which explicitly require, both at Article 9, the imposition of penal sanctions in order to prevent and suppress the activities they prohibit.^[13] 

Therefore, the normative core of the provisions cannot be modified without directly harming the principle defended by Article 117 of the Constitution, which provides for the obligation to exercise the legislative power “in compliance with the constraints deriving from EU legislation and international obligations”. ^[14] 

The President also highlighted that this principle is strengthened by two judgments of the Italian Constitutional Court of 2007:^[15]

Since the Judgments nos. 348 and 349 of 2007, the Constitutional Court has clarified that Article 117 of the Constitution is capable of granting international norms a particular position in the system of the sources, as interposed norms in a possible judgment of constitutionality, so that the acts that clash with international treaties that have been executed in the domestic legal system are unconstitutional. 

Applying this principle to the international as well as national norms on anti-personnel landmines and cluster munitions, President Mattarella explained that Article 6(2) of Law no. 57 may not exclude the criminal relevance of the conduct it regulates. Indeed, such criminal relevance is provided by domestic laws implementing international obligations and thus, as explained above, is required and protected by Article 117(1) of the Constitution. Furthermore, the President stressed that the particular status of those laws does not permit the removal of criminal liability, which is an effective tool to combat financial assistance to conduct related to the use and circulation of anti-personnel landmines and cluster munitions. 

As President Mattarella explained, within the Italian legal system, the adoption of administrative sanctions for a certain conduct, without considering the simultaneous applicability of relevant criminal provisions, leads to excluding criminal liability altogether. With regard to the norms of interest here, the President clarified this issue as follows: 

The norm contained in Article 6, paragraph 2, of the law under review, which does not provide for a “safeguard clause in criminal matters” ^[16] (unless the fact constitutes a criminal offence), exerts its effect in the described normative framework. Because of the principle of specialty of the administrative wrongdoing dictated by Article 9 of Law no. 689 of 1981, this would have the effect of depriving the intentional conducts of financing, brought about by authorized subjects, of their criminal relevance, as they would be sanctioned only by administrative means, in contrast with international obligations. This would concern not only the future conducts that violate the prohibition of financing, but also those carried on before the entry into force of the present law, with respect to which, lacking a transitory regulation, not even the administrative offence regime would be applicable (Corte di Cassazione, Sezioni Unite Penali, Judgment no. 25457 of 2012). 

As anticipated above, a conflict of Article 6(2) of Law no. 57 with Article 117(1) of the Constitution is not the only ground of incompatibility with the fundamental text. Indeed, the President explained to the Houses that the promulgation of Law no. 57 would unjustifiably create two different legal regimes for the same conduct, whose application would depend on the role played by the subject involved. Such a situation would not be in line with Article 3 of the Constitution, which sanctions the principle of equality of every citizen before the law: 

With regard to a different, but connected, aspect, I must again highlight that the creation for the same financing-related conduct of two different sanctioning systems – one criminal and the other administrative – only depending on the different role played by the subject acting within the scope of an authorized intermediary or on the status of the user (a firm and not an individual entrepreneur), raises doubts about its compatibility with Article 3 of the Constitution. Indeed, the physical persons exercising managerial and directorial functions of authorized intermediaries or undertaking control functions on their behalf would benefit, by effect of the regulation contained in Article 6, paragraph 2, from a solely administrative sanctioning regime. Vice versa, all other subjects who provide financial assistance outside the circuit of authorized intermediaries (that is, because of the absence of an authorizing administrative act) would remain subjected to the abovementioned criminal sanctions. 

In light of the above, the President exercised his power under Article 74 of the Constitution and requested a new deliberation by the Houses.  

All in all, President Mattarella’s intervention appeared to be a balancing exercise between the safeguard of constitutional norms and respect of the legislative initiative. Indeed, the President explained his choice according to constitutional principles but, at the same time, he hinted at how the problems he identified could be avoided. Speaking about the “safeguard clause in criminal matters”,^[17] he seemed to suggest that the Parliament should have coordinated Law no. 57 with the earlier laws implementing the Oslo Convention and the Ottawa Convention. It is noteworthy that the choice not to promulgate such law possibly prevented a subsequent ruling of the Constitutional Court. Indeed, the Court would have likely considered the law as unconstitutional because of its clashing with Article 117(1) of the Constitution on identical or similar grounds as those spelt out by President Mattarella. 

[1] The word “law” is used to refer to a bill passed by the Parliament even though not yet signed and, therefore, promulgated by the President, whereas the term “bill” refers to a legislative proposal that has not been passed by both Houses of the Parliament yet. This terminology is in accordance with the English translation of the Italian Constitution provided for by the International Affairs Service of the Senate of the Republic (Servizio Affari internazionali, Senato della Repubblica): Constitution of the Italian Republic. Costituzione Italiana Edizione in Lingua Inglese, available here.  This translation is used throughout the whole text to render the Italian legal vocabulary. 

[2] This is the name given to the bill during the preparatory works. For more details, see Parlamento Italiano, “Disegno di Legge S. 57 – 17a Legislatura”, available here. 

[3]  In the original version of the opinion, the expression “sede deliberante” is used. Such an expression refers to the procedure in which a bill is voted and approved within the competent committee of a House of the Parliament in a legislative capacity, without passing through the plenary assembly of the House itself. Such a possibility is admitted by Art. 72 of the Italian Constitution. 

[4] Art. 2 of the law defines the expression “intermediari abilitati” (authorized intermediaries). The provision lists different kinds of companies, banks, financial intermediaries, bank foundations, pension funds and other entities that are involved with the investment of money.

[5] Convention on Cluster Munitions, 30 May 2008, entered into force 1 August 2010 (Cluster Munitions Convention or Oslo Convention).

[6] Law no. 95 of 2011, titled “Ratifica ed esecuzione della Convenzione di Oslo sulla messa al bando delle munizioni a grappolo, fatta a Dublino il 30 maggio 2008, nonché norme di adeguamento dell’ordinamento interno” (Ratification and implementation of the Oslo Convention on the ban on cluster munitions, done in Dublin on 30 May 2008, and norms for bringing the domestic order in compliance). The Italian text of the law is available here.

[7] Law no. 374 of 1997, titled “Norme per la messa al bando delle mine antipersona” (Norms for the ban on antipersonnel landmines). The Italian text of the law is available here.

[8] Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, 18 September 1997, entered into force 1 March 1999 (Ottawa Convention), available here.

[9] Law no. 106 of 1999, titled “Ratifica ed esecuzione della Convenzione sul divieto d’impiego, di stoccaggio, di produzione e di trasferimento delle mine antipersona e sulla loro distruzione, firmata ad Ottawa il 3 dicembre 1997. Modifiche alla legge 29 ottobre 1997, n. 374, riguardante la disciplina della messa al bando delle mine antipersona” (Ratification and implementation of the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, signed in Ottawa on 3 December 1997. Amendments to Law no. 374 of 1997, concerning the regulation of the ban on anti-personnel mines). The Italian text of the law is available here.

[10] The President’s words recall those of Article 1(c) of the Ottawa Convention.

[11] Art. 117(1) states: “Legislative powers shall be vested in the State and the Regions in compliance with the Constitution and the constraints deriving from EU legislation and international obligations”. 

[12] That is, Art. 7 of Law no. 374 of 1997 and Art. 7 of Law no. 95 of 2011, already mentioned by the President earlier in his message.

[13] Both the 1997 Ottawa Convention and the 2008 Cluster Munitions Convention contain a similar Art. 9, titled “National implementation measures”, whose content is described above.

[14] This sentence of Art. 117(1) reads in full: “Legislative powers shall be vested in the State and the Regions in compliance with the Constitution and the constraints deriving from EU legislation and international obligations”.

[15] On these two judgments see IYIL, XVII (2007), p. 292 ff., with a comment by Cataldi. 

[16] The expression “safeguard clause in criminal matters” translates the Italian “clausola di salvaguardia penale”. As the President explained, there would have been no issue if Art. 6(2) of Law no. 57 had included a provision, called “safeguard clause in criminal matters”, keeping the previous relevant criminal liability regime in force. On the contrary, the absence of any mentions to earlier criminal provisions in the law under review is problematic. Indeed, such law would abrogate earlier criminal provisions and substitute them with administrative sanctions.

[17] See previous footnote.

President Mattarella, Senate of the Republic, 27 October 2017.