The constitutional reform introduces important innovations in the sectors of culture and tourism.
With reference to cultural heritage, first of all, the reform corrects the main defect produced by the 2001 amendments: the exclusive legislative power is expressly attributed to the State in matters not only of protection, but also of valorisation. In this way, the interpretation that the Constitutional Court has had to painstakingly elaborate, in the last fifteen years, to recognize to the State the power to adopt regulations on the assets belonging to it (sentences n. 9 and n. 26 of 2004) is consolidated.
Suffice it to say that, in the absence of such rulings and rigidly applying article 117 of the Constitution, the State could not have dictated a regulatory framework for the use of the Colosseum, the archaeological site of Pompeii, or other important national sites. The reform, therefore, correctly brings the legislative power in matters of valorisation back to the State. This does not mean that the Regions and municipalities will be able to enhance the cultural heritage: it is one thing who adopts the laws, another is who carries out the administrative functions which, for the enhancement, have always been distributed according to the most logical criterion, i.e. that of the availability of Well. Furthermore, the new article 117 attributes legislative power to the Regions in the matter of «promotion of environmental, cultural and landscape assets», in any case allowing regional interventions from a legislative point of view.
Also in the field of "cultural activities", from 2001 to today, the Constitutional Court has managed to fill the gaps in article 117, generally in favor of the State. The scope of the matter "promotion and organization of cultural activities", included among those of concurrent power in the current article 117, has been interpreted to include the regulation of the cinematographic sector (judgment n. 285 of 2005), today affected by an important process of government-initiated reform (Senate Act 2287, “Disciplina del cinema
of audiovisual and entertainment and delegations to the Government for the regulatory reform on cultural activities”), which otherwise would not have been possible to launch. Even the opera-symphonic foundations have been brought under state legislation, as national public bodies (judgment no. 153 of 2011). The reform, therefore, aims to maintain the balance of skills achieved in fifteen years in the subject of "cultural activities", recognizing an express mention to such important areas for the nation, such as cinema and live entertainment: from on the one hand, it is up to the State to adopt «general and common provisions regarding cultural activities»; on the other hand, it is up to the Regions, as far as they are of regional interest, to dictate the discipline of cultural activities.
Also for "landscape assets", since 2001 the absence, in article 117, of a reference to "landscape" has been complained by many, despite this being expressly mentioned in article 9 of the Constitutional Charter. To fill this gap, the Constitutional Court brought the "landscape" back to the "environment" formula: a choice in some ways anachronistic, and not corresponding to the respective organizational realities of the state administrations (Ministry of Cultural Heritage and Activities and Tourism and Ministry of the environment and the protection of the territory and the sea), but inevitable in order to keep the sector within the scope of the exclusive competence of the State (judgment n. 367 of 2007). With the reform, the state legislator is assured, without margins of uncertainty, the task of providing for the regulation of the protection and enhancement of "landscape assets". This expression is a precise formula, more suitable than the term "landscape", which has a wider scope, including the entire territory.
Overall, the reform therefore aims to simplify the division of legislative powers between the State and the Regions, insisting on the subject of "cultural and landscape assets" and not on the related functions, also in consideration of the fact that the protection of the historical and artistic heritage is a task entrusted to the Republic (art. 9). In this arrangement, the current regional competences in the field of valorisation would in any case be safeguarded by the possibility of delegating to the Regions the exercise of the legislative function in this sector: a delegation which, if necessary, could be considered already implicitly present in the current Code of cultural heritage and of the landscape (legislative decree n. 42 of 2004).
Finally, among the further changes made, there is the inclusion in the exclusive state legislative power of the definition of "general and common provisions on tourism". The reform thus explicitly assigns the State the competence to dictate a general discipline - and uniform throughout the national territory - of this sector, unfortunately "forgotten" in 2001
The Constitutional Court, moreover, had to specify that, although tourism today falls within the areas of exclusive residual competence of the Regions, the State must be recognized the power to issue «regulations affecting the matter of tourism, areas of its exclusive competence and for the protection of interests of certain national significance" (judgment no. 80 of 2012).
The reform therefore allows the State to be given a general and overall function of "strategic planning" for the entire tourism sector. But it also makes it possible to overcome significant application problems, due to the current regional fragmentation of the disciplinary framework. Each Region, for example, has provided its own definition of the various categories of accommodation facilities (hotel, non-hotel, or outdoor), with the consequence of determining some differences, regarding the different types of facilities included in the three categories, depending on the region of reference. Even the classification of hotels, today, is based on regional disciplines: with the consequence that, from Region to Region, the accommodation services offered may vary, with the same number of "stars". Even the regulation of tourist guides is based on a regional basis: it should be considered that, only since 2013, thanks to the intervention of the state legislator, the qualification to the profession of tourist guide allows to carry out the professional activity throughout the national territory. The reform, therefore, by explicitly guaranteeing the definition of a national framework, will correct these differences.
In conclusion, the new article 117 improves and rationalizes the structure of competences in the field of culture and tourism: it corrects the errors and fills the shortcomings of the changes introduced in 2001, it returns to the State tasks of strategic planning and uniform regulation of these sectors throughout the national territory, in any case it leaves the regional prerogatives intact.
Extract from “L'Economia del Sì”, edited by Irene Tinagli. Download the full document.
