Constitutionalist Grosso: "Unconstitutional to close museums? Very complex issue."

Yellow, orange and red: this is the “mobile” tricolor of Italy’s health emergency. Unmovable seemed, on the other hand, the decision to maintain the closure of museums and places of culture after December 3: “we do not know how long it will be necessary to keep museums closed,” Minister Dario Franceschini said about ten days ago in the long interview with Federico Giannini in these columns. From rumors, however, it seems that the new Dpcm will loosen the mesh on this front as well.

A measure that exhausted sector operators can no longer accept after the efforts made to adapt exhibition spaces with contingency measures (temperature detection at the entrance, spacing, masks, online booking of the visit by time slots, etc.). An effort, including economic, squandered by the new lockout. If no voice was raised last March, when museums, unprepared to handle the emergency, closed, now Salvatore Settis’s letter to Conte in the “Corriere della Sera” on November 11 was followed by an appeal to Franceschini by 80 museum directors and operators in the sector; while Vittorio Sgarbi has appealed against the closure to the Tar.

If the issue is of national importance, then there is the specific caseof the Sicilian Region. The only one, even among those with a special statute, to be endowed with exclusive competence in cultural heritage matters, by virtue of Article 14 of the Statute and the 1975 implementing decrees (Presidential Decrees 635 and 637), would it have been able to act independently, or will it be able to keep museums and exhibitions open in the region, regardless of the decisions of the government in Rome, if more closures become necessary in the coming months?

Then there is a second question. In 2015 with the so-called “Colosseum Decree,” later converted into law (No. 182/2015), museums and cultural venues were equated with essential public services, such as schools, health care and transportation. While anti-covid security measures were adopted for these categories, for museums, on the other hand, despite (we said) being adjusted, it was decided to close them altogether.

Not simple issues, which from the legal terrain go to social issues related to public health. “With closed museums not only budgets suffer but citizens, and in particular children, students, families,” reads the appeal of the 80 museum directors.

We talked about this with Enrico Grosso, Professor of Constitutional Law at the Department of Law, University of Turin. The lengthy interview does not provide definitive answers: there may be different opinions, Grosso points out. The discussion remains open, then, but the questions with which the constitutionalist closes his remarks allow us to focus on the heart of the issue, which transcends from the legal to the scientific and cultural spheres. They invite, with new arguments, a reconsideration of the role and purpose of museums, which was discussed last year at the 25th ICOM Conference in Kyoto. The time is ripe: it is precisely after the experience of the global health emergency that the debate should receive renewed impetus toward a new definition of museums, which was not achieved on that occasion. All its necessity emerges from the reflections that follow.

Enrico Grosso

H.M. Professor, let us start from the specificity of the case of the Sicilian Region. Regardless of the appropriateness or otherwise of the measure that led to the closure of the museums, could the Region legitimately act autonomously, although, instead, it also implemented this measure of the Dpcm of last November 3? That is to say, in the legal-institutional hierarchy, can a law of constitutional rank such as the Sicilian Statute prevail over a Dpcm, an administrative measure, which rests on a law and or a decree (“I’m staying home,” dl Semplificazioni, dl agosto,etc.) that enshrine its scope and limits, but which are still acts of “lower rank” than a statute?

E.G. The questions you raise are interesting and complex. Let us start with three general clarifications. First. Every source of law (a law, a government or individual minister’s regulation, a regional law, a mayor’s ordinance... ) finds its legal basis in another source that is a condition of its validity. It can be said, in general terms, that there is a hierarchical relationship between sources whenever it can be said that one source “owes” its validity to another source, which is (precisely) in a hierarchically superordinate position with respect to it: the Constitution is superordinate over the law (and sources equated to it such as decree-laws); the law (as well as decree-laws, legislative decrees, etc.) is superordinate over government regulations (as well as DPCMs, ministerial decrees, orders of the minister of health, etc., etc.).

Second. In the relations between state sources and regional sources, the issue is somewhat different. These relations are governed, as a rule, by the criterion of competence. There is a source, hierarchically superordinate to both state law and regional law, which determines which of the two entities has the competence to regulate a certain object. That source is normally the Constitution (specifically the famous “Title Five” of Part Two, and more specifically Article 117). Then there is another source that regulates these relations, and that operates only for regions with a special statute: the special statute, precisely, which not by chance is a source of constitutional rank. The special statutes (unlike the ordinary statutes) contain additional and different lists of matters that, in the reference regions alone, are attributed to the exclusive competence of the region. If a state source “invades” the competence attributed by the Constitution (or by a special statute) to the region, that source is invalid. Mind you: it is invalid not insofar as it violates the regional norm that conflicts with it (there is no hierarchical relationship between the two), but insofar as it violates a source of constitutional rank (Art. 117 of the Constitution, i.e., the norm of the special statute attributing competence). I point out in this regard that the Sicilian statute (as well as the statutes of the other four special regions) is not a regional source, but a state source. Thus a state law that violates the Sicilian statute is invalid because it violates a source hierarchically superordinate to it (i.e., a state source of constitutional rank).

Third (and last). Things, in practice, are never that simple. It would be nice if it were always possible, having in front of a norm, to establish with certainty and ease that that norm pertains to (is ascribable to) “a” matter, and therefore pertains to (is ascribable to) the competence of the state or the region. In most cases, a norm (or rather, a set of norms contained in an articulated source, be it a law, a regulation, a regional law, a trade union ordinance, etc.) actually regulates, at the same time, different, intertwining and overlapping matters. It was an illusion that was pursued by the Constituents to “cut”, as with a knife, the subjects, sticking “labels” on them and thus hoping to have a simple and “governable” framework of competences. Those labels are mostly quite indeterminate. Added to this is the fact that, in implementation of Article 5 of the Constitution, the state always has the power to ensure, throughout the national territory the “unitary needs,” or “non-fractionable needs” (what used to be called the “national interest” and which since 2001, after the constitutional reform of Title Five, is no longer expressly stated, although it remains immanent in the system). There is still, vivadiously, Article 5 of the Constitution, which proclaims the principle of unity and indivisibility of the Republic. This principle always justifies state intervention to protect the overall holding of that unity. For this reason, the jurisprudence of the Constitutional Court (whose task it is to resolve disputes that may arise, between the state and the regions, over the respective boundaries of their competences) has had to make an immense effort to redefine the boundaries, in the (very many) cases in which the same object seems to pertain simultaneously to several subjects, some of which are the responsibility of the state, and others the responsibility of the regions. It has thus invented some general concepts and criteria for resolving the endless disputes that have arisen on this point. The first criterion is that of so-called “cross-cutting subjects.” these are objects which, having been assigned to the legislative competence of the state, do not indicate “matters” in the proper sense, but rather a competence of the state capable of investing all matters (“transversally,” precisely), and thus overcoming the objections raised by the regions (including those with special statutes) regarding the alleged violation of their competence (a classic example is that of the so-called “essential levels of services concerning civil and social rights,” which must be ensured throughout the national territory, and which therefore justify interventions of state law in all areas in which, although there is regional competence, the state must ensure a uniform minimum treatment for all Italian citizens: think of health protection, which is of concurrent competence and on which therefore the regions have broad detailed competence; there is still a competence of the state to define the minimum levels of health service that each region has a legal obligation to ensure, and can therefore dictate, in health matters, even very detailed rules to regulate those minimums). The second criterion is that of the “finalistic” (“teleological,” the jurists say) interpretation of the individual lists, so that the framing of an individual object in one rather than in another ’other matter (and thus in state or regional competence) actually depends on the “purpose,” the “ratio” of the legislative intervention as a whole and in its central and fundamental aspects, and not instead on marginal or merely “reflex” aspects. A third criterion is then that of “prevalence”: since, as mentioned above, it is very difficult for a law to be inspired by a single objective, or aimed at a single object, subjects inevitably tend to overlap. Therefore, a “prevalence criterion” is enunciated by the Constitutional Court, according to which it is assessed whether the “essential core” of the provision under consideration (naturally conceived in the sense of the fundamental “interests” it brings into play) falls more under one than another “heading.” And normally, at least in its general lines and tendencies, the Court has a predisposition in such cases to let the fundamental “interests” gravitating to state competence prevail.

Well, on the basis of these three theoretical assumptions, let us now try to examine the specific cases that you bring to my attention.

The entire state legislation of an emergency order that has regulated (and continues to regulate) the ways of coping with the pandemic is based on a general competence of the state in matters of the protection of public safety, public order and security, and the determination of the essential levels of health protection. For these purposes is, among other things, prepared the entire system of so-called “civil protection,” which the state guarantees through its administrative organization, and which to the protection of these supreme constitutional interests is expressly functionalized. So much so that the legislative source on which the entire “regulatory chain of the emergency” is ultimately rooted is the Civil Protection Code (Legislative Decree No. 1/2018), on the basis of which, as early as last January 31, the so-called “state of emergency” was proclaimed by the government (and then subsequently already twice extended), which then legitimized all subsequent measures. On the basis of this competence of a general order (and certainly incumbent on the state), a series of decree-laws were adopted over time, later converted into law, which in turn authorized the adoption of DPCMs, or decrees of the minister of health, or other secondary state sources of various kinds. So far, no problem: there is a direct hierarchical relationship between the Constitution and the law, and a direct hierarchical relationship between the law and the DPCMs/DMs.

On this initial normative chain many problems are grafted, generated by the fact that these regulations, at the moment when they legitimately regulate the modalities for coping with the pandemic emergency, inevitably also touch on “objects” that, in themselves would fall under matters of regional competence. Here emerges the problem, raised by you, of the exclusive jurisdiction over cultural heritage that the Sicilian Statute assigns to regional law (in Sicily). Here the “criteria” I mentioned above intervene. I will premise that the issue is inherently debatable, and each may have, in this regard, a different opinion: it is not by chance that these disputes are ultimately devolved to the Constitutional Court, which, in case of a difference of opinion between the two entities, and therefore in case of a challenge by one of the two to the act adopted by the other, decides and explains who has jurisdiction. Personally, I would reason like this: it is true that, in general, the competence in cultural property management is exclusive competence; but here two different objects overlap, referring to different competences: which one prevails? If we believe that the protection of public safety (and essential levels of health) in emergency situations, which is in any case incumbent on the state by reason of the provisions of Art. 117 of the Constitution, prevails over the competence in the field of cultural heritage, the State has the power to adopt rules limiting the enjoyment of cultural heritage even in Sicily, where such a matter would also fall to the region, by virtue of the criterion of “prevalence” and that of the “teleological” perspective: from a “teleological” point of view, the state regulation that closes museums does not do so insofar as it intends to dictate a discipline “on museums” (which, in Sicily, it could not do), but insofar as it intends to dictate a discipline on the protection of public safety (which is within its competence), which has an indirect, inevitable but not illegitimate, influence on the fruition of museums as well. And which therefore prevails.

So, the state can introduce such a limitation with a DPCM, which is an act of administrative rank, even in Sicily where it is the statute itself, i.e., a source of constitutional rank, that “preserves” the exclusive competence over cultural heritage.

The fact is that the DPCM is merely a “final” act in that “regulatory chain” I mentioned above, adopted in the exercise of a power conferred directly by state law, which is itself authorized to do so by the Constitution. So it is not the DPCM as such that “overrides” statutory competence. The DPCM is based on a law, which is itself implementing the constitutional provision that gives (state) law jurisdiction over public safety. And thus, once the “prevalence” of the state’s competence in matters of public safety over the region’s competence in matters of cultural heritage is entrenched, it is in fact the state law that allows all those limitations (including the closing of museums) that the DPCM then merely activates in practice. Therefore, there is no problem of “hierarchical contrast” between the DPCM and the Sicilian statute, because what are separated are, upstream, the constitutional spheres of competence of the two entities. Therefore, to your question whether the region could autonomously regulate the reopening of museums, my answer is: if the relations between the two spheres of competence are so reconstructed, no.

Contraction of autonomy in the name of health protection, then. Let us pose, then, the question from another point of view. It is true, however, that if we are faced with different competences, the spheres are not so clearly separated: in the contingent situation, cultural goods (museums, archaeological parks, etc.) would be enjoyed as instruments useful to the psycho-physical health of citizens, and not only as places aimed at “study, education and enjoyment,” as per the ICOM definition (unamended in Kyoto). And this is where the 2015 law comes in, which qualified museums as “essential public services,” i.e., in the same way as hospitals. If we do not really want to believe, as was also objected, that in reality the 2015 measure was nothing more than “legislative hypocrisy” with the real purpose of contracting the right to strike in the sector, we observe that numerous scientific studies show how “contact” with works of art has proven benefits for people’s psycho-physical health (in particular, we point to the "Culture is Health“ portal that records best practices in this regard). A contact that, given the specificity of the goods in question, can only take place through a visit in person to a museum, ”hospital of the soul," and not through the virtual ones experimented on a large scale precisely during this emergency (and which have, moreover, registered little response from users). The benefits on the psyche constitute an element of particular relevance especially in this period of semi-isolation (or isolation, depending on the levels of restriction for different areas of the country) related to the pandemic. Ultimately, shouldn’t this role recognized by numerous medical studies make them useful tools to participate in that “public safety protection”? If it is permissible to take a walk in the open air, why is this same walk prohibited in an archaeological park, which has a health benefit not only physically, but also on the spirit for the cultural enrichment it produces? Thus, it is not only a matter of the very serious economic damage suffered by the various public or private institutions in the field of cultural heritage, but also of socially relevant issues.

On the ideal and values level, I fully agree with you, and I fully share your remarks on the close connection between health and culture, on the very serious damage that the draconian decision to close cultural services (not only museums, but theater, opera, concert halls, cinemas, etc. etc.) is producing on public health (physical and mental), the highly questionable nature of these measures, and (arguably) their substantial futility (or at any rate immeasurably less utility than the very serious collateral damage it all entails). That said, these are legitimate political, if you will, “politics of law” remarks, with which you and I agree. They have not been shared by the government and Parliament, which have taken different measures. Are they unconstitutional? Let us first clarify that (again) the problem is not the contrast between the DPCM and Law 182/2015. The DPCM, I repeat, is based on a law that authorized it (or rather, on a decree law, or a series of subsequent decree laws, later converted into law). It is this law, not the DPCM as such, that derogates (in itself quite legitimately), in the name of emergency, from that of 2015. One could, at the limit, argue that, in assessing the means-to-end relationship, this law, insofar as it authorizes such draconian measures of restricting the enjoyment of cultural property, would be unconstitutional as “unreasonable,” excessively sacrificing an essential constitutional good (expressly protected in Art. 9) such as culture, in the name of protecting another essential good (health), without adequate proof of whether that sacrifice is reasonably functional to achieve the objective. You understand better than I do that these are discourses that are the result of very subjective and “mutually refutable” assessments (which preconceive a “clash” between opposing theses of opposing “technicians” and virologists, on which each claims to legitimize his or her opinion), for that reason not easily opposable to a judge. Because then, in legal terms, it would be necessary to convince a judge to raise the question of constitutionality (for unreasonableness) of the legislation of legislative rank that legitimizes the government to take those kinds of measures. And then hope that the court would accept that prospect (which is far from a given). Different, however, is the plan for the battle of ideas and the cultural campaign. Here each of us can legitimately offer his or her contribution (I am doing so, for example, in my own small way, to strongly advocate the need for a return as soon as possible, without ifs and buts, to face-to-face teaching in both schools and universities). We are not talking about museums as such. We are talking about the health emergency. The question is: Is the closure of museums a necessary “sacrifice” to protect health? Is it conversely an unnecessary sacrifice? Or is it even a counterproductive sacrifice? I fear that these are assessments that escape judicial review, and would hardly lend themselves to court intervention.

"We are not talking about museums as such."Here’s the heart of the matter: it will be crucial, then, that the recognition of the museum, as a place that is also capable of improving the psycho-physical well-being of individuals, which has already occurred in the medical field, be incorporated into the expected, new definition shared by Icom members from allcountries and, therefore, incorporated into our national legislation, so that they are no longer "assessments that escape judicial review." And, let’s say it proudly, it isthe Italian proposal to update the definition that among the purposes of a museum introduces precisely the promotion of "community well-being. "

Warning: the translation into English of the original Italian article was created using automatic tools. We undertake to review all articles, but we do not guarantee the total absence of inaccuracies in the translation due to the program. You can find the original by clicking on the ITA button. If you find any mistake,please contact us.