È possibile derogare all’art. 133, comma 1, della Costituzione in caso di riordino complessivo delle province?

Nella relazione al disegno di legge di iniziativa governativa n. 3396 per la conversione del decreto-legge n. 95/2012 (spending review) si legge: “anche a voler prescindere dalla considerazione che, trattandosi di riordino complessivo, non trova applicazione l’art. 133 della Costituzione, va rilevato in ogni caso che detto articolo è, nella sostanza, rispettato visto che i Comuni sono pienamente coinvolti tramite il Consiglio delle autonomie locali” (pag. 371 della relazione di accompagnamento). Secondo il Governo, quindi, in caso di riordino delle Province che coinvolga tutto il territorio nazionale, è possibile derogare al procedimento legislativo di tipo aggravato di cui all’art. 133, comma 1, della Carta costituzionale. La norma costituzionale, pertanto, troverebbe applicazione unicamente per modifiche di circoscrizioni provinciali ed istituzioni di nuove Province limitate all’ambito regionale.

Sul punto, tuttavia, sorgono alcune perplessità. Premesso che anche il caso di riordino complessivo produce i suoi effetti sempre e comunque all’interno di una Regione, non essendo consentita un’ipotesi di riduzione/accorpamento concernente Province di Regioni contermini (perché, in questa evenienza, la Provincia dovrebbe prima staccarsi dalla Regione di appartenenza e poi aggregarsi a quella confinante ai sensi dell’art. 132, comma 2, Cost.), dalla lettura dell’art. 133, comma 1, del Testo costituzionale non pare vi siano elementi funzionali ad una interpretazione derogatoria nell’evenienza di un intervento generalizzato sulle Province. Nell’unica volta in cui la Corte costituzionale si è occupata dell’art. 133, comma 1, Cost., ossia nella sentenza n. 347/1994 relativa al caso della istituzione della Provincia di Lodi, il giudice delle leggi ha “concesso” che la istituzione di Province o la modifica di quelle esistenti possano essere effettuate, oltre che con legge formale, con ricorso ad una delega legislativa (punto 3 del cons. in dir.), ma sempre nel rispetto di quel procedimento ascensionale che vede coinvolti, in primis, i Comuni. Al potere legislativo, ha poi proseguito la Corte, “spetta soltanto (il corsivo è mio) valutare, nella fase conclusiva dello stesso procedimento, l’idoneità e l’adeguatezza dell’ambito territoriale destinato a costituire la base della nuova Provincia”.

Infine, sostenere, come ha fatto l’Esecutivo, che la norma costituzionale è comunque rispettata in quanto prevede un coinvolgimento delle amministrazioni comunali tramite i CAL, non sembra fondato. Infatti, l’iniziativa comunale di cui all’art. 133, comma 1, Cost. si configura in modo molto diverso rispetto alla deliberazione del piano di accorpamenti e riduzioni che devono adottare i Consigli delle autonomie locali o, in mancanza, gli organi regionali di raccordo, come prevede l’art. 17, comma 2, del decreto-legge n. 95/2012. Sono i Comuni, enti locali territoriali singolarmente considerati, ad essere titolari della riserva di competenza ad attivare un eventuale procedimento revisorio e non altri organismi. Inoltre, l’iter procedurale previsto dal provvedimento sulla spending review delinea un percorso il cui contenuto è già precostituito dal Governo e non è affatto rimesso alla libera ed autonoma iniziativa delle amministrazioni comunali, per di più prevedendo un intervento in via sostitutiva dell’Esecutivo (art. 17, comma 4) nel caso in cui le deliberazioni non dovessero essere assunte.

Daniele Trabucco

Foto | Flickr.it

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