From Regulatory Autonomy to Decriminalization: Historical Evolution, Legal Framework, and Reform Perspectives of the Local Administrative Sanctioning Power
Abstract: The local administrative sanctioning power, an expression of the municipalities’ regulatory autonomy, has ancient origins but a discontinuous history. From its recognition in Royal Decree No. 383/1934 to its subsequent decriminalization, the sanctioning function has undergone a gradual weakening until the reorganization introduced by the Consolidated Law on Local Authorities (TUEL) and the reform of Title V of the Italian Constitution. This article examines the normative and jurisprudential evolution of the sanctioning power of local authorities, highlighting the critical issues arising from regulatory fragmentation and proposing a reform aimed at strengthening its effectiveness. Finally, it underscores the need for inter-institutional coordination and for the modernization of local police regulations as tools for prevention and urban security.
Keywords: #LocalAdministrativeSanctioningPower #RegulatoryAutonomy #LocalAuthorities #Municipalities #TUEL #TitleV #LocalPolice #UrbanSecurity #AdministrativeLaw #Decriminalization #Subsidiarity #MunicipalRegulations #MayorsOrdinances #PublicLaw #InstitutionalCoordination #ValerioSepiesti #EthicaSocietas #EthicaSocietasJournal #ScientificJournal #HumanSciences #SocialSciences #EthicaSocietasUPLI
1. Historical Background
The administrative sanctioning power of local authorities has been recognized since the Consolidated Law on Provinces and Municipalities (Royal Decree No. 383/1934), as a natural expression of their regulatory autonomy, granting municipalities the authority to impose sanctions for violations of their own regulations.
Although formally recognized since post-unification Italy, local prohibitions have historically encountered significant obstacles. The 1889 Penal Code subsumed them under the general framework of misdemeanours, while the 1967 reform included them among administrative offenses, marking the first step toward decriminalisation.
This process gradually weakened the effectiveness of local regulations, which came to be perceived as obsolete and of limited utility—remnants of an outdated administrative model. Initially, local prohibitions were deemed inconsistent with the principle of separation of powers and were therefore transformed into misdemeanours. When the need arose to reform the discipline of minor offenses, decriminalisation first targeted local prohibitions without exploring how this shift could revitalise municipal sanctioning authority.
While administrative offenses were considered more “flexible” in their application, they did not compensate for the loss of deterrence resulting from the possibility of extinguishing proceedings through the payment of a modest fine. Consequently, local sanctioning powers entered a prolonged phase of decline, leaving several areas of public conduct without effective protection.
A clear indication of this trend emerged during the drafting of the Consolidated Law on Local Authorities (TUEL, 2000), which initially failed to address local offenses—a gap corrected only three years later.
2. Legal Framework
For decades, the legal regime governing local authorities remained anchored to outdated provisions [1], largely inadequate in light of the constitutional principles of local autonomy. Law No. 142/1990, which for the first time in the republican era reformed local government, nonetheless retained Article 106 of Royal Decree No. 383/1934.
The subsequent repeal of the 1934 decree through Article 274 of the TUEL, and the resulting elimination of Article 106 (which provided for sanctions against violations of municipal regulations), created a concerning legal vacuum. The Council of State, in its Opinion No. 885/2001, confirmed that the existing framework was insufficient to grant sanctioning powers to local authorities absent a specific statutory basis, invoking the constitutional reservation of law enshrined in Article 23 of the Italian Constitution.
A legislative correction, prompted by the National Association of Italian Municipalities (ANCI), introduced Article 7-bis into the TUEL, thereby restoring the previous system. The subsequent reform of Title V of the Constitution reaffirmed that “Municipalities, Provinces and Metropolitan Cities have regulatory power concerning the organisation and exercise of the functions assigned to them” (Article 117). Together with Article 4 of Law No. 131/2003 (the La Loggia Law), this provision explicitly recognised the power of local authorities to regulate their administrative functions through secondary normative acts.
The constitutionalisation of local regulatory power and the consequent restoration of sanctioning authority shaped the current system, assigning municipal regulations—within their areas of competence—a status functionally equivalent to primary legislation. This also expanded the ordinance powers of mayors, particularly after Decree-Law No. 92/2008 (“Urgent Measures on Public Security”), which authorised them to adopt normative acts of indefinite duration for the prevention and elimination of serious threats to urban safety. The Constitutional Court, however, promptly intervened [2] to restrict such powers to cases of genuine contingency and urgency.
3. Sanctioning Powers as an Expression of Local Autonomy
The local sanctioning power is an ancient and original authority, deeply rooted in Italy’s medieval political and administrative tradition and inherently connected to the municipalities’ regulatory autonomy. Its evolution has mirrored the fortunes of local government itself, oscillating between autonomy and centralisation.
Law No. 2248/1865, inspired by a centralising logic, did not enhance local autonomy but nonetheless preserved the sanctioning powers of municipalities. In contrast with the English model of self-government, where state functions are limited to coordination, the Italian model traditionally framed local administration as an executor of central directives.
Already by Royal Decree No. 297/1911, certain autonomous functions were recognised for local authorities—a concept now codified in Article 13 of the TUEL, which assigns municipalities direct responsibility for functions concerning the local population and territory in areas such as personal and community services, land-use planning, and economic development.
Consequently, local authorities exercise sanctioning powers in several areas: urban and rural policing, traffic regulation, commercial and market oversight, building control, and public, veterinary, and mortuary health—consistent with the principles of subsidiarity, differentiation, and adequacy.
4. Sanctioning Powers and the Principle of Subsidiarity
Before the constitutional reforms, the Bassanini Laws had already delegated numerous state functions to Regions, Provinces, and Municipalities. Among these were administrative police functions (Article 163, Legislative Decree No. 112/1998), including licensing powers formerly held by the Questore or Prefect—for instance, the sale of sharp instruments, the operation of business agencies, the management of guesthouses, or the authorisation of public events and explosives handling.
Provinces, by contrast, received more limited functions, such as recognising private security guards for hunting and fishing surveillance and authorising motor races on provincial roads.
5. Challenges in the Exercise of Local Sanctioning Powers
Since the early years of the unified State, violations of municipal regulations have been punished through the so-called police penalties [3]. These measures, while not qualifying as criminal penalties, were designed to prevent conduct deemed unlawful yet not serious enough to constitute crimes. Thus, the municipal sanctioning power historically aimed at prevention rather than repression.
Over time, the need to distinguish crimes from lesser violations led to the legislative process of decriminalisation—the conversion of certain criminal offenses into administrative ones, shifting the focus from punishment to prevention and deterrence.
Throughout the 20th century, local authorities’ inhibitory powers—particularly in the protection of public assets and community welfare—grew in importance. Municipalities could act swiftly to halt or reverse the effects of unlawful acts, especially within their territories, through measures including:
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Restorative powers: allowing mayors to order the restoration of the status quo ante at the violator’s expense (Article 106 of the old Consolidated Law);
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Demolition orders: authorising the removal of unlawful constructions, one of the most effective deterrents in local governance.
However, decriminalisation and the subsequent concentration of administrative offenses within state control paradoxically weakened local enforcement. The inconsistent application of municipal sanctions led to widespread desuetude and heterogeneity across local jurisdictions, undermining both deterrence and regulatory coherence.
6. Conclusions and Reform Perspectives
A legislative revision appears necessary to enhance the coherence and effectiveness of local sanctioning powers within an integrated system of administrative sanctions—aimed not only at preventing crimes but also at addressing socially harmful conduct contributing to urban insecurity.
Municipal regulations, in particular, require substantive updating to reflect evolving social and territorial dynamics. Urbanisation and the depopulation of rural areas have rendered many traditional rural provisions obsolete, while urban rules often fail to address contemporary needs.
Equally urgent is the creation of inter-institutional coordination mechanisms—among municipalities, provinces, metropolitan cities, regions, and the State—in line with Article 118 of the Constitution. Public consultation procedures could represent a best practice for the adoption of local regulatory acts, enhancing legitimacy, transparency, and compliance.
Urban regeneration and environmental care should also be considered preventive instruments of social cohesion, reducing crime risk in the medium and long term. Regional coordination in local policing, information-sharing among local entities, and the involvement of Prefectures and civil society actors could further strengthen this networked model of urban security.
Finally, local police regulations should be revitalised and standardised through mandatory content requirements for each field of competence. In light of recent jurisprudence on mayoral powers, it would be appropriate to reaffirm mayors’ authority to issue ordinances under Article 50 of the TUEL—limited to regulatory matters—beyond situations of necessity and urgency tied to their role as state officers.
NOTES
[1] Royal Decree No. 383/1934, Consolidated Law on the Organisation of Municipal and Provincial Authorities.
[2] Constitutional Court, Judgment No. 196 of 8 July 2009.
[3] Royal Decree No. 6509/1889, Provisions for the Implementation of the Penal Code for the Kingdom of Italy, Article 20 (1) and (3).
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