International Journal of Tourism, Travel and Hospitality Law 2. The internal regulatory framework before law 190/2023 Until 2001, the year of the constitutional reform, tourism fell under the jurisdiction of concurrent legislative authority between the State and Regions, with regional administrative competence. The system in place until 2001 facilitated the legislative relationship between the State and Regions since their establishment4, allowing the State, through framework laws, to provide guidance for regional efforts. The longstanding reference for state regulation was the framework law on tourism, Law No. 217/19835. With the aim of organizing the tourism sector, which was previously governed by regional laws without the necessary guidance from the state, this law provided a useful general framework. Article 11 of Law 217/1983 identified a list of tourist professions (some already existing in regional laws, others introduced anew), delegating to the Regions the task of determining the requirements for carrying out the specified professional roles and "any other profession related to tourism." Based on this provision, the Regions introduced and regulated additional professional roles beyond those outlined in the state law. Article 11 of Law 217/83 defined a guide as someone who, by profession, accompanies individuals or groups to visits and works of art, museums, galleries, archaeological sites, providing explanations about historical, artistic, monumental, landscape, and natural attractions. As the constitutional distribution of competencies was relatively clear until then, there were no particular disciplinary difficulties, except regarding coordination with emerging European Union regulations. Starting from 2001, despite article 117 of the Constitution granted full legislative competence to the Regions for all matters, including tourism, not explicitly listed in paragraphs 2 and 3, and which are exclusively or concurrently state matters. But, considering the cross-cutting nature of tourism regulation that pertains to both public and private law (solely under state jurisdiction), numerous issues have been submitted to the Constitutional Court for violations of the competence distribution outlined in the amended article 117. Like tourism in general, the field of tourist professions has not been able to escape this confusion either. First of all, in fact, it was necessary to clarify whether the object of the regulation was "tourism" or "professions", since the prevalence of one or the other would have significantly changed the outcome regarding competencies. The Constitutional Court addressed this issue in judgment 222 of 2008, regarding the constitutionality of article 10, paragraph 4, of Legislative Decree 7/2007 (Law 40/2007) 6, which was later repealed by the tourism Code. The Court ruled that regardless of the sector in which a particular profession operates, the determination of the fundamental principles of its discipline always falls within the competence of the State, exercising its concurrent powers under Article 117, third paragraph of the Constitution7. The Court further established that the challenged provision was consistent with the principles outlined in Legislative Decree of February 2, 2006, n. 308, which delineates the respective roles of the State and Regions regarding the regulation of a professional activity. These principles affirm that regional legislative authority is exercised over the professions identified and defined by state law. In a subsequent ruling, n. 271 of 2009, the Court further affirmed that in matters of 4 The institution of Regions was established with the delegated decrees of 1972 and with the Presidential Decree no. 616/1977. See, F. Gabriele, Regionalism between crisis and constitutional reforms (Il regionalismo tra crisi e riforme costituzionali), in Rivista AIC, n. 4/2014. 5 Framework law on tourism of 17 March 1983, n. 217. 6 Legislative Decree 31 January 2007, n. 7, Urgent measures for the protection of consumers, the promotion of competition, the development of economic activities. 7 The court states "that, regardless of the sector in which a specific profession operates, the determination of the fundamental principles of its discipline always falls within the competence of the State, exercising its concurrent powers, pursuant to Article 117, third paragraph, of the Constitution". The attribution of the matter of "professions" to the concurrent competence of the State, provided for by the aforementioned constitutional provision, is independent of the sector in which the professional activity is carried out and corresponds to the need for uniform regulations on a national level that are coherent also with the principles of community law. In the case in question, the contested provision regulates aspects that are specific to the exercise of a specific professional activity, the impact of which in the tourism field is irrelevant for the purposes of the division of responsibilities outlined by the art. 117 of the Constitution". 8 Legislative decree 2 February 2006, n. 30, Recognition of the fundamental principles regarding professions, pursuant to article 1 of law 5 June 2003, n. 131.
RkJQdWJsaXNoZXIy MTE4NzM5Nw==