Animal protection in the One Health paradigm. Regionalism and competences.
The One Health paradigm can be seen as an interpretative criterion of our constitutional order: reading Articles 9, 32, 117 and 118 of the Constitution together, the need for a balancing exercise is evident, in keeping with the irreducible complexity of the interaction between the three dimensions.
The link with the religious dimension and with worship is emblematic: recent case law of the European Court of Human Rights has sacrificed the fundamental right to freedom of religion in the name of animal welfare (the judgment on ritual slaughter). For animals, their presence in the Constitution is recent: only in 2022 were they expressly taken into account.
The continuing absence of a dedicated subject-matter entry in Article 117 of the Constitution is just one of the main reasons that have prevented animal legislation from developing in an organic and systematic way.
Regional competences before the reform of Title V
Under the original wording of Article 117 of the Constitution, the Regions appear to have been involved, in the exercise of their legislative and also administrative powers, in certain specific matters falling mainly within concurrent competence, for example agriculture, hunting and inland fishing.
Before 2001, however, the regional system in practice faced two main obstacles. The first issue, which we might call a “systemic” one, was the relationship between fundamental principles and detailed legislation, since in no matter would it be conceivable for individual principles to encompass all the subjects included in a single legislative field.
In practice, framework laws contained countless principles, making it difficult to build organic and systematic legislation. Numerous regional laws touching on animals fall within this context, sometimes affecting agriculture, sometimes hunting.
The second issue concerned the interpretation of the matters, above all agriculture and hunting, namely the impossibility of deriving a complete definition of these matters from the text of the Constitution.
Legal scholarship identified the so-called historical-normative criterion as the preferable approach to interpreting the matters: starting from the premise that legislative acts presuppose one another, it would allow the definition of a matter to be derived from pre-existing legislation and even from sources ranking below the Constitution.
This criterion, supplemented by the possibility of drawing on extra-legal elements, would allow these legal concepts to be interpreted in an evolving way. The field of animals, and of wild animals in particular, is today a clear expression of this evolution.
In practice, this evolution of concepts rested on two factors: first, technical and scientific progress, which is fundamental when dealing with naturalistic concepts; second, changes in the underlying sociological context or, in the words of the Constitutional Court, “the spirit of social conscience”. Here too, animals are no exception: consider the animal rights and environmental movements that have played a part in this process.
The reform of Title V and cross-cutting matters
Clearly, none of these issues appears to have been settled even by the reform of Title V. On the contrary, the reform of Title V of Part Two of the Constitution, with the reversal of the allocation clause and the introduction of so-called “cross-cutting” matters, is said to have made the division of competences even more unworkable and inadequate. It is precisely the interference of these matters — which under the reformed Title V become residual matters of the Regions — that on numerous occasions is said to have emptied regional powers of content, encouraging a
tendency towards centralisation.
Agriculture, for instance, is an emblematic case of the role of the Regions, a role whose roots go back to the decrees transferring administrative functions in the 1970s.
The Regions were responsible for building and running facilities for activities linked to agricultural and livestock products, for plant health protection, for diagnostic services for communicable animal diseases and zoonoses, and even for artificial insemination. As early as the 1970s a first core of protection was taking shape, because these specific subjects also included aspects linked to the protection of animal health.
Hunting, on the other hand, followed a different path. Public law scholars have asked whether an autonomous residual matter of “hunting” still exists today, because constitutional case law, with the arrival of the protection of wildlife, has often brought this matter under the protection of the environment, first as a primary constitutionally protected value, in effect emptying regional legislative power of content.
One Health: between policy and matter
The integral, holistic and multidimensional method that characterises the One Health model seems better suited to the notion of “policy” than to that of “matter”, which belongs to the Italian regional tradition. Precisely because it can be configured as a policy rather than a matter, the One Health model would end up intersecting numerous matters, sometimes assigned to the exclusive legislative competence of the State, at other times to concurrent State–Region competence or to the residual competence of the Regions. This means that the question would not arise solely in terms of governance or of the lack of adequate tools for
institutional coordination, but would go to the heart of the regional structure laid down by the Constitution.
Conclusions can be drawn, for example, from Decree-Law no. 36 of 2022, converted into Law no. 79 of 2022, by which the national legislature established the National System for Health Prevention from Environmental and Climate Risks (SNPS).
This system was set up to perform numerous functions: among them, the prevention, control and treatment of acute and chronic diseases associated with environmental and climate risks, as well as zoonoses.
Although regional participation is guaranteed, the main problem is not so much participation as the fact that it is unclear which competence the State exercised in adopting these rules.
It could be argued that the State exercised its power to draw competences upwards under the subsidiarity principle (“attrazione in sussidiarietà”) in the field of health protection, or that the rules were adopted to implement specific European obligations linked to the National Recovery and Resilience Plan (PNRR).
In the light of these experiences, a doubt therefore arises: that the One Health model, too, may be used as a further “passe-partout” for the State, in order to centralise competences in matters that interfere with one another, in particular the protection of the environment.
The risk, in the author’s view, is that this model ends up being used expansively, affecting the balance of the system of competences laid down by the Constitution.
