Elisabeth Alber, Eurac Research
Relevance of the Practice
The challenge of having too many and too small municipalities affects all of Italy. Mergers are seen as an instrument of rationalization. The process of merging two or more adjacent municipalities is governed by Articles 15 and 16 of Legislative Decree no 267/2000. These Articles refer to Articles 117 and 133 of the Constitution and provide that it is exclusively up to the regions to modify the territorial boundaries of the municipalities and to establish new ones through mergers. The obligation for the regional legislator is to ‘hear the populations concerned’ (Article 133(2)) before adopting a regional law. The very details of this rule vary from region to region and are in continuous change. Therefore, it is of interest to highlight the most innovative approaches regarding the procedural and interpretative frameworks that the regions opted for and to assess their implications.
Description of the Practice
In Emilia-Romagna, the legislative procedure for the merger of municipalities is regulated by Regional Law no 24/1996, and its numerous amendments. Accordingly, and in addition to the parties entitled to exercise the regional legislative initiative under the region’s statute (Law no 13/2005), the legislative initiative for the establishment of a new municipality is exercised by citizens and provincial and municipal councils, in accordance with Article 18 of the regional statute and by the regional government and other subjects authorized according to Article 50 of the regional statute. Municipal councils may also submit a request to the regional government to call for the start of a merger, and the majority of voters living in the concerned municipalities may do so too. If all conditions are properly met, in this case, the regional government submits a draft law to the regional legislator. The referendum is called by the president of the regional council, who decides on the question to be submitted to the popular consultation, specifies a proposed name to be given to the new municipality or a list of names to be submitted to the consultative referendum and defines the territorial scope within which voters are called upon to give their opinion (those voters living in the areas affected by the merger or by a merger by incorporation). The Regional Law no 15/2016 specifies the criteria according to which the regional legislator interprets the will of the people (with a set of highly sophisticated provisions for the different scenarios in the field of municipal mergers, and municipal merges by incorporation). The criteria consider both the overall outcome of the referendum (in relation to all municipalities concerned) and its articulation in each concerned municipality (or part of a municipality that intends to change boundaries). The legislative process for the merger of municipalities does not continue if the votes cast in the majority of the municipalities and those cast overall are against the merger. If there is divergence and votes cast overall are in favor of the merger, but the votes cast in the majority of municipalities against the merger are equal to or greater than the votes cast in favor, the regional legislator, only after consulting the concerned municipal councils, may proceed towards the approval of the merger of municipalities by regional legislation. This possibility exists also if the overall votes casted are against the merger but the votes in favor of it prevail in the majority of the concerned municipalities. In 2018, however, with the Regulation no 263, the regional assembly committed itself to stop any merger process also if a negative vote prevails only in one municipality, regardless of the result of the overall casted votes. This confirms the participatory rather than ‘dirigist’ approach Emilia-Romagna increasingly opts for. Put differently, from 2018 onwards, the regional assembly has committed itself to be a mere executor of the popular will regarding mergers. Interestingly, the successful merger of Valsamoggia 2013-2014 – well-known because it involved five municipalities with 30,000 inhabitants – would have never been approved following this new approach.
Tuscany has been experimenting with mergers for many years, often without success (also because some attempts aimed to merge too many municipalities; for example, ‘del Casentino’ with 13 municipalities). The legislative initiative is vested with those having regional legislative initiative and with two or more neighboring municipalities that are part of the same province and that have expressed their will of merging by means of a joint agreement (in case of top-down forced mergers initiated by the regional council this is not the case). The procedure of merging municipalities can also be initiated by the voters if they represent at least 10 per cent of those entitled to vote in each involved municipality and if they altogether represent at least 15 per cent of the entire electorate that would be called to vote in the referendum. Regional law no 62/2007(V) regulates the consultative referendum and specifies that it is the regional assembly that validates the votes cast by separately taking into consideration the municipalities concerned. There is no explicit provision regarding the parameters of how to interpret the results of the vote. Interestingly, the regional assembly itself in 2016 decided (risoluzione no 39/2016) to proceed with the approval of legislation regarding mergers if the majority of votes in all municipalities is in favor or if the yes votes overall equal two thirds of the valid casted votes, as long as in none of the concerned municipalities the percentage of votes contrary to the merger is superior to three quarters of the votes (so-called ‘anti-merger clause’).
In Lombardy, Regional Law no 29/2016 regulates the merger of municipalities. Two procedures are referred to: the classical one, like the ones described above in the other regions and a simplified one. Taking into account the technical-legal difficulties that were arising throughout the process of the first merger by incorporation in Italy (Gordona and Menarola), the regional legislator has provided for the possibility to undertake the consultative referendum in case of a merger by incorporation before initiating the necessary regional draft law. This possibility allows local administrators to better manage the consultation process and to carefully assess the evaluation of the results. Only afterwards the results of the vote are forwarded to the president of the regional council who then initiates the actual draft law. In general, and unlike the Region Emilia-Romagna, Lombardy is an example of strong contrasts. On the one hand, the region does not provide many incentives and contributions for municipalities newly created from mergers; also, the rule that a merger is implemented only if the votes cast in all the municipalities are in favor, makes mergers less feasible. On the other hand, the introduction of a simplified procedure does allow municipal councils to keep control and to be the ones that ultimately take the decision regarding mergers.
The Veneto model on mergers of municipalities is interesting to mention, as it introduces a time constraint on the submission of initiatives. Proposals of mergers that have already been rejected cannot be represented for the following three years (Regional Law no 25/1992 (3)). As far as the interpretation of the popular vote is concerned, the rule applies that both the overall votes cast as well as the votes in each involved municipality are to be considered. However, it is noteworthy that the regional council decided to anyway approve the merger process if, in mergers with four or more municipalities, only the votes cast in one municipality were against; the regional council does so by excluding the municipality contrary to the merger from the merger process (Regional Law no 25/1992 (5 bis)) The Veneto Region has opened an innovative road that aims at fully respecting the local vote in the consultation, but the veto of a single municipality in the very end cannot stop the merger of municipalities, but only the participation of the municipality in question to the creation of the new municipality.
Assessment of the Practice
The rationale behind the different regional legislation on the merger of municipalities lies in the different historical legacies and the development of regional political cultures. As the competence in this field falls in the exclusive power of the regions, procedural details and policy preferences are influenced by the way in which regional political elites understand the role of the municipalities as a governance actor in the territory. Indeed, there are some regions more concerned with the will of the population and others mainly focused on the result of the merger. Some observers see this diversity as problematic and suggest inter-regional coordination in identifying common criteria towards a harmonization of rules.
Moreover, the number and types of municipalities vary from region to region, as does the ‘ideal’ size of a municipality. While a population of 10,000 is considered appropriate in Tuscany, but this ideal may vary from region to region depending on a number of factors like territorial size of municipalities, topography, infrastructure, etc. Currently, the Tuscan Region has the lowest number of municipalities and an average number of inhabitants per municipality significantly higher than the majority of the other analyzed regions. Therefore, it does not make much sense to assess (these) regions by numbers of successful mergers. A study of the procedural aspects linked to the way popular consultation is organized and gets interpreted at regional level is much more interesting. In general, one can notice the following trend: even though mergers (and mergers by incorporation) might be initiated top-down, the policy preference of all described regions is to give the municipalities a say and a veto power. For small and very small municipalities (in peripheral areas) it might still be difficult to get their voices heard, but in presence of highly sophisticated procedural schemes as to the merger of municipalities, small and very small municipalities have more and better possibilities to represent their interests (in consultation processes leading to the merger of municipalities, and in municipal governance once the process is concluded). As for the efficiency and sustainability of amalgamations of very small municipalities, there have indeed been cases in which even the merged municipality has faced serious difficulties due to a lack of resources. Such situations have occurred especially once the financial contributions, which are generally key for continued interest in the merger in the first place, run out.
As for the expected efficiency, regions have followed the approach of letting local population choose and have refrained from opposing a referendum because an amalgamation is supposedly not sustainable. Other observers have even cast doubt on whether a referendum is the appropriate instrument to decide such a controversial issue like a merger because it would risk, especially in small municipalities, to create and reinforce strong polarization within the local community. Instead of this ‘hard power’ tool, softer and more consensus-oriented mechanisms might be better suited for municipalities in the long run.
References to Scientific and Non-Scientific Publications
Amiranda A and Gusmeroli F, ‘La fusione dei comuni: analisi normativa ed evidenze empiriche sul riordino degli enti locali’ (2019) 1 IUS in itinere
Emilia-Romagna Region, ‘Fusioni di Comuni’ [Website on Mergers of Municipalities] (Regione Emilia-Romagna, 20 April 2016) <https://autonomie.regione.emilia-romagna.it/fusioni-di-comuni/approfondimenti/osservatorio-regionale-delle-fusioni>
Iommi S, ‘Un Quinquiennio di fusioni di Comuni’ (2018) 3 Amministrare 431
Lombardy Region, ‘Fusioni e incorporazioni di Comuni in Lombardia’ [Website on Mergers of Municipalities] (Regione Lombardia, last update 7 January 2020) <https://www.regione.lombardia.it/wps/portal/istituzionale/HP/DettaglioServizio/servizi-e-informazioni/Enti-e-Operatori/Autonomie-locali/Gestioni-associate-di-servizi-e-funzioni-comunali/fusioni/fusioni>
Silvestri G, ‘Unione e fusione dei comuni: forme di cambiamento nella gestione comunale alla luce delle principali novità legislative e pronunce giurisprudenziali’ (2019) 48 Ratio Juris <https://www.ratioiuris.it/unione-e-fusione-dei-comuni-forme-di-cambiamento-nella-gestione-comunale-alla-luce-delle-principali-novita-legislative-e-pronunce-giurisprudenziali/>
Tuscany Region, ‘Fusioni di comuni’ [Website on Mergers of Municipalities] (Regione Toscana, last update 24 April 2020) <https://www.regione.toscana.it/fusioni-di-comuni> Veneto Region, ‘Fusione dei comuni’ [Website on Mergers of Municipalities] (Regione del Veneto, last update 28 May 2020) <https://www.regione.veneto.it/web/enti-locali/fusione-dei-comuni>
 Interview with Claudia Tubertini, Associate Professor, Department of Legal Studies, University of Bologna (14 May 2021).
 Statement by Sabrina Iommi, Economist, IRPET – Istituto Regionale Programmazione economica della Toscana (LoGov Country Workshop, Structure of Local Government, 23 October 2020).
 Interview with Giuseppe C Ricciardi, Research Fellow, Department Political and Social Sciences, University of Pavia (14 June 2021).
 Interview with Claudia Tubertini, Associate Professor, Department of Legal Studies, University of Bologna (14 May 2021).
 Interview with Andrea Lippi, Professor, Department of Political and Social Sciences, University of Florence (10 June 2021).