Italy and Spain during Covid-19 health crisis: a

State-Region coordination problem

Final essay for the course Comparative Public Law – 2022 Spring Semester

Riccardo Carboni - 648822

Introduction

In this paper I am going to discuss about the problem concerning the crisis management in terms of
internal governance and the competences overlap. I will focus particularly on the Italian and the Spanish
cases, which struggled (with different degree of intensity) to coordinate their actions between the
Central State and their territories. The two cases are analysed separately by describing the process that
led to appeal to the supreme courts, with the latter being the main actor re-establishing and re-
distributing their exclusive powers to whom they originally belonged. A final consideration is made on
the two different realities and their strategies, together with an observation on the States’ constitutions
emergency mechanisms.

Valle d’Aosta’s case

The Italian Constitutional Court issued a judgment on the pandemic response of the Region Valle
d’Aosta by declaring the regional law no.11/2020 as unconstitutional through ruling no.37/20211. In
fact, according to decision no.37/2021, the Constitutional Court stated that the specific regional law
adopted was taking over the State’s exclusive competences. The regional law enacted by Valle d’Aosta
was providing the Region with the instruments to manage the Covid-19 emergency within its territory2.
Moreover, the regional law no.11/2020 was allowing the Region to approve an array of measures
presumably different from those adopted by the State3. Consequently, the national Government decided
appealing to the Constitutional Court claiming that the regional law was violating many articles of the
constitution, particularly some letters of articles 25.3, 117.2, 117.3, 118 and 120 along with the principle
of loyal cooperation and Article 44 of constitutional law no.4/1948 (i.e., Valle d’Aosta’s special
statute)4. In the first place, the Court suspended the effects of the regional law as a preventive measure
claiming that there was a “risk of irreparable damage to the public interest”5, particularly stressing the
point on possible “serious and irreparable damage to people’s health” 6 . The correct repartition of
competences in order to face the pandemic is the key problem here. The Italian Constitution defines
that regional and local authority must follow the competence criterion established in Article 1177. That
said, Government’s regulations are only accountable within the exclusive legislative competence of the
State’s sphere, whereas regional regulations and laws can operate all the not mentioned subjects 8 .
However, Article 117.3 defines a list of fields for which the State’s role is limited to determine the
general and fundamental principles as well as identifying the necessary levels of provisions and

1
[2021] https://rb.gy/dftf5p
2
M.Pignataro, ‘The first Italian Constitutional ruling concerning the Covid-19 pandemic’, Lex-Atlas: Covid-
19 (17 March 2021) | https://rb.gy/9dul5i
3
Valle d’Aosta Reg. Law no.11/2020 (9 December 2020), Art. 2 par. 4°, 6°, 7°, 9°, from 11° to 16°, 18°, from
20° to 25°, 2 par. 1° letter a) and 4.
4
Corte cost., sent. 24 febbraio 2021, n.37
5
Corte cost., ord. 14 gennaio 2021, n.4
6
Ibid.
7
Italian Constitution, Article 117
8
S. Civitarese Matteucci, A. Pioggia, G. Repetto, D. Tega, M. Pignataro, M. Celepija, ‘Italy: Legal Response
to Covid-19’, Oxford Constitutional Law (April 2021) | https://rb.gy/bhhhe5

1
assistance. In such circumstances, the legislative power regarding all the listed subject (among which
healthcare and civil contingencies) de facto belongs to the Regions9. Moreover, the Government decided
to face the pandemic through a common regulatory framework whereby Regions could enjoy the
concrete daily administrations 10 . In addition, with the intention of guaranteeing the complete
functioning and adaptation of the national laws in the different Regions’ contexts and to the ever-
evolving situations, the Government, through Article 1 of decree 33/2020, provides the Regions with
the power to adopt either more or less restrictive measures compared to the national ones11. These
measures aim to better manage the pandemic by providing the Regions with the instruments to shape
policies according to the different circumstances12. After evaluating which regulation falls under the
competence either of the State or the Regions, the Court underlined that even if the Regions are actually
capable of enacting measures regarding the management of the health crisis, they rather have the power
to approve administrative acts (instead of regional law) in such circumstances13. Therefore, the court
has declared that none of the Regions could intervene with the normative framework issued and
established by the State with regional laws. Furthermore, the Court underlined that in this case the
competence falls under the State since the Covid-19 crisis has expanded worldwide, thus its
management would now be accounted as a matter of “international preventive treatments”14. For these
reasons, with the regional law no. 11/2020, the Region Valle d’Aosta has certainly violated a matter of
exclusive competence of the State, hence acting in an unconstitutional way15.

Spanish legal approach to Covid-19

Spain decided to face the Covid-19 pandemic by declaring the state of alarm16, that is the first of three
different degrees of state of emergency17 (LOAES, regulated in article 116.2 of the Constitution of
Spain) through the royal decree 463/2020. This measure gives the Central Government the power to
impose limitations to rights, but not their suspension18. However, there is a controversial problem of the
royal decree concerning the centralization of the response at Government level since it was de facto
ignoring the quasi-federal organization of the State. As a matter of fact, during the first state of alarm
declared, the regional Governments continued to manage their jurisdiction but in a framework of direct
orders from the Central Government. Moreover, among other devolved competences to the autonomous
communities, healthcare became centralized without previous negotiation19. Overall, these have been
the first centralized and uniform measures applicable to the
territory, without involving the autonomous communities.

Other problems of decentralisation and Madrid’s case

As a result, the first state of alarm was bringing some decentralization problems, and a first attempt to
counter it came in April 2020 with 4 phases of de-escalation plan, to return to the so-called normality.
The attempt was made at Central level, in order to prevent the violation of territorial competences,
however, it did not completely succeed because of the lack of clarity in the distribution of

9
Italian const., Art. 117
10
C.Fasone, ‘Coping with Disloyal Cooperation in the Midst of a Pandemic: The Italian Response’,
Verfassungsblog (8 March 2021) | https://rb.gy/oarq3g
11
Decreto legge n.19/2020
12
Ibid.
13
Corte cost., sent. 24 febbraio 2021, n.37
14
Ibid.
15
Ibid.
16
BOE-A-2020-3692
17
D.Utrilla, M. Antonio García-Muñoz, T. Pareja Sánchez, ‘Spain: Legal Response to Covid-19’, Oxford
Constitutional Law (April 2021) | https://rb.gy/9syjr9
18
Ibid.
19
J. King, O. Luiz Motta Ferraz, ‘A brief comment on the Spanish Constitutional Court Judgment concerning
the first Covid-19 state of alarm’, Lex-Atlas: Covid-19 (28 July 2021) | https://rb.gy/i4amgj

2
competences20 . In fact, the problem emerged clearly since there were still some measures that the
Central State had to adopt. Some other problems arose between the first and the second state of alarm:
the autonomous communities were responsible for measures to limit the spread of the virus, thus, to
implement any lockdowns. However, Madrid decided not to take this measure of prevention despite
being the autonomous community with more positive cases of Covid-19. Therefore, the Central
Government decided to intervene through a "coordinated measure" through the Ministry of Health to
impose a lockdown in the Region21. Unfortunately, the High Court of Justice of Madrid declared that
the measure was lacking legal bases. Consequently, the Central Government declared a second state of
emergency (royal decree 926/2020, 9th of October) 22 to provide itself with the power to establish
lockdowns limited to certain geographical areas, including Madrid, despite the strong dissent of the
Government of the Region itself. This second state of alarm was declared mainly to overcome some
issues raised by the first one in terms of principles of Governance since the first one saw many of the
subjects of competence overlapping between the Central Government and the Autonomous
Communities’ ones. The problem of territorial jurisdiction here was still so relevant that the
Government enabled the autonomous communities to adjust the application of the concrete
extraordinary measures to their territories. The purpose of this choice stands in the prevention that, in
exceptional circumstances, the containment measures adopted by the Central Government could be
declared invalid by regional tribunals, hence determining asymmetries as previously shown.

Spanish Constitutional Court’s judgment

Moreover, Spain has also found problems in the constitutionality of the various states of alarm
established to combat the health crisis. In fact, on 14 July 2021 the Spanish Constitutional Court
rendered its judgment on the constitutionality of many articles of royal decree 463/2020 (the first state
of national alarm). The “Tribunal Constitucional” declared the Article 19 of the Spanish Constitution,
which protects the freedom of movement, violated with the first state of alarm insofar as the Central
Government exceeded what Article 11 LOAES called for 23 . In fact, the Government imposed an
effective suspension (and not limitation) of the right to freedom of movement under decree 463/2020,
a measure not allowed during the state of alarm. In addition, the Spanish Constitutional Court declared
section 6 of Article 10 of the same decree unconstitutional since it gave enough powers to the Head of
a ministerial department to further reduce the freedom space previously fixed, thus granting the
Government the capability to limit the right to freedom to conduct a business24. More precisely, the
Government de facto surpassed what paragraphs 1,3, and 4 of royal decree 463/2020 allowed without
the ex-ante consent of the Congress of Deputies25. Later, Spain’s Constitutional Court ruled on the
second state of alarm declared with royal decree 926/2020 by proclaiming it unconstitutional through
the decision 183/2021 due to the fact that some autonomous communities adopted health measures that
were restricting fundamental rights provided for in the royal decree (e.g., regional lockdowns and
curfews). More specifically, the Articles of the Spanish Constitution violated were the freedom of
movement (Article 19) as well as the freedom of assembly (Article 21). A case in point is the Valencian
Community’s one. In fact, the Valencian Community adopted the decree 2/2021 to implement measures
to limit the spread of the virus such as restricting the gathering of people both in public and private
places, the interdiction of entrance and exit from the Region, and the restriction of travel between the
various municipalities on weekends 26 . The Supreme Court in stated in its judgment that the
proclamation of unconstitutionality of the royal decree 926/2020 (i.e., the second state of alarm) was

20
Ibid.
21
D.Utrilla, M. Antonio García-Muñoz, T. Pareja Sánchez, ‘Spain: Legal Response to Covid-19’, Oxford
Constitutional Law (April 2021) | https://rb.gy/9syjr9
22
BOE-A-2020-12898
23
Judgment 2054/2020, Spanish Constitutional Court
24
Ibid.
25
Ibid.
26
P.Garcia Majado, ‘Spain, Constitutional Court, 27 October 2021, No. 183/2021’, Covid-19 Litigation (20
March 2022) | https://rb.gy/tvwma8

3
due to Autonomous Communities gaining powers to adopt health measures restricting fundamental
rights beyond what was provided by the Spanish Constitution. By consequence, the norms adopted in
these circumstances have been judged null by the Supreme Court.

Final observations

Although Italy is a parliamentary republic and Spain is a constitutional monarchy, the two countries
have had similar problems in terms of constitutionality in the distribution of competences during the
health crisis of recent years. The unpredictability of the pandemic and the need to take swift action have
certainly challenged the various mechanisms of Government efficiency and civil support, which have
not always been clear or up to the situation. The proof of this lies in the unconstitutional implications
of measures taken perhaps too lightly. Moreover, the main problem encountered in the Italian case is
that of a Region (Valle d'Aosta) which is trying to overcome the measures of the Central Government
to shape its action in accordance with the characteristics of the Region itself. In the Spanish case,
however, when the autonomous communities (i.e., the Valencian community) have tried to pursue their
own approach and adopt measures that differ from those of the State Government, The latter imposed
a generalized tactic through royal decrees and states of emergency (later proclaimed unconstitutional)
violating not only the principles of distribution of powers but also the fundamental rights of Spanish
citizens. Therefore, while on the one hand Italy has found fewer problems because the state of
emergency 27 provided for action guided mostly by the intervention and directives of the Central
Government, on the other hand Spain has found itself in difficulty as regards the lack of autonomy
granted to the various territories following the imposition of the Central Government to pursue what
was thought to be the right strategy to counter the crisis through the royal decrees.

27
Deliberation of the Council of Ministers (31 January 2020)