Modernity and importance of «usi civici» in Italy

1. In Italian law, the expression «usi civici» – which does not have an exact equivalent in English [1] – is employed in several normative texts (see, e.g., Law No 1766 of 1927) and is multifaceted (A. Germanò) as it indicates a plurality of long-standing «phenomena of common ownership and management of assets by an organized community and its members» (Constitutional Court No 103 of 2017). More specifically, this expression refers to rights in rem or dominical rights, the object of which are «productive assets (pastures, woods, agricultural land, bodies of water, etc.) belonging to a community of inhabitants and hence to the relative representative body (municipalities, hamlets of municipalities, agrarian associations of various kinds)» - productive assets that, «in the previous economic structure of rural communities, were used to satisfy the primary needs of these communities» (V. Cerulli Irelli 50).

The aim of this post is to highlight how, despite the fact that «usi civici» are forms of common property the origins of which can be found in the very distant past (generally dating back to the Middle Ages), in Italy they have shown, and continue to show, extraordinary vitality, as can be demonstrated from the numerous legislative interventions, the attention given to the matter by scholars, and the case law of the Court of Cassation and the Constitutional Court. Although there is no comprehensive data on the size of the assets subject to common rights, it is certainly an area of considerable importance. Recent research, for example, shows that in 2010 «2,233 municipalities and instrumental organisations managed an agricultural area of more than 600,000 hectares allocated to usi civici [i.e., of common ownership], largely represented by pastures» (6th Italian General Census of Agriculture 19). [2] This is a figure that, moreover, does not include forests (which are very substantial) and only minimally takes into account areas with horticultural and arable land use (M. Greco).

2. Since the end of the 18th century, in deference to individualistic ideologies (P. Grossi), in Italy (as in many other countries) the «usi civici» have been the subject of legislation aimed either at abolishing or severely limiting their reach (see e.g., F. Marinelli 44-71 and previously G. Raffaglio 90-133) the results of which, however, have in many cases been rather ineffective (e.g., on South of Italy, see A. Salandra 261-283). Without going back over the legislation on this subject after the unification of Italy, it must, nevertheless, be remembered how at the end of the 19th century a different sensitivity towards common rights emerged in academia and in political sectors (P. Grossi Part II) and that, under fascism, with Law No 1766 of 1927, a national regulation was adopted that governed this complex field for almost one hundred years (see, e.g., V. Cerulli Irelli Part II; F. Martinelli).

The 1927 Law regulates, in a uniform manner across the whole of Italy, two types of rights in favour of communities of inhabitants: rights of use over privately-owned land (jura in re aliena) and ownership of land (c.d. jura in re propria). For the former («usi civici» in the strict sense) liquidation was envisaged. On the other hand, woods and pastures subject to jura in re propria were to be managed according to forestry legislation, while agricultural lands were to be subdivided into quotas and assigned as emphyteusis to families belonging to the community (see, e.g., A. Lorizio).

In fact, the 1927 Act did not regulate property in re propria as the object of common rights (U. Petronio 624 ff.; V. Cerulli Irelli 327 ff.) this outcome is essentially due to case law. On the basis of the 1927 law as interpreted by the courts, common property has the following characteristics.

A) The community of inhabitants – encompassing the plurality of its members unified by the fact that they live together as a political community – can be the holder of common property, whose faculties (e.g., the use of forests and pastures) are exercised by the individuals (the cives), in their own interest (i.e., uti singuli). However, the community must always be represented by a legal body under public law (e.g., the municipality or other organisations). This determines the distribution of the powers and faculties inherent in the common right between the representative body (which sometimes has management powers) and the members of the group. However, the fact that the representative body is a legal person does not change the common nature of the right: e.g., if the representative body is the municipality, it has to manage the common assets separately from the municipal assets (see, e.g., V. Cerulli Irelli 302-342).

B) Assets in common property are, subject to few exceptions, inalienable, must retain their intended use (agriculture, forestry or pasture), and are not subject to usucaption (V. Cerulli Irelli 379-412).

C) The representative body and each member of the community – uti singulus (i.e., in its own interest), but also uti civis (i.e., as a member of the group) – have the legal standing to seek protection of the common right and to have private acts that violate legal provisions on «usi civici» declared null and void. In addition, any member of the community can appeal to the administrative court against measures taken by the representative body that are detrimental to the common right and its exercise. The judicial actions by the individual are autonomous from that of the representative body and cannot be regarded as forms of popular action. [3]

D) The disputes concerning the existence, nature and extent of «usi civici» are decided in the first instance by a special court («Commissario liquidatore degli usi civici»: Arts. 27-32 Law No 1766 of 1929) (F. Marinelli ch. VI) which, according to Article 29(1) of the 1927 Law, can initiate, even ex officio, court proceedings to protect common property: while the Court of Cassation has expressed strong doubts about the compatibility of this provision with the Constitution (plenary session, judgments No 858 and No 859 of 1994; plenary session, judgment No 2131 of 1994; section II, order No 14903 of 2013), to date, the Constitutional Court, on various grounds, has not yet declared it unconstitutional (judgment No 46 of 1995 and order No 21 of 2014).

3. The regime of «usi civici» since World War II has evolved in several ways.

First, the legislator took note of the overly unifying nature of the 1927 Law and gradually recognized that in a number of situations (e.g., in the Alpine arc) the communities holding common rights were not made up of all citizens, but only of the descendants of the original ancient inhabitants of the place (so-called closed communities). As a result, the legal framework of the organizational forms of the representative bodies of these communities was modified (this complex issue cannot be addressed here: see, e.g., V. Cerulli Irelli 333-345; A. Germanò; E. Romagnoli).

Second, on the basis of the Constitution, legislative and administrative competencies regarding «usi civici» were transferred to the Regions (Art. 66 Decree of the President of the Republic No 616 of 1977). However, the state legislator subsequently established that «usi civici» are subject to landscape protection regulations (Art. 142(1)(e) Legislative Decree No 42 of 2004 and previously Art. 1 Law 8 August 1985, No 431) - i.e., a matter of state legislative competence (Art. 117(2)(s) Constitution). This has allowed the Constitutional Court to severely limit the activities of the Regions in this area. For the Constitutional Court «the overlap between landscape and environmental protection is reflected in a specific unitary interest of the national community in the conservation of usi civici, insofar as and to the extent that they contribute to determining the shape of the territory over which they are exercised, understood as a product of “an integration between man and the natural environment”» (judgment No 46 of 1995). Recently, moreover, the Constitutional Court has affirmed that the legal regime of usi civici belongs to the matter of exclusive state legislative competence «civil law» (Art. 117(2)(f) Constitution: judgment No 113 of 2018). This has further restricted the regional legislative competences in this area.

Third, Law No 168 of 2017 (see, e.g., G. Di Genio; A. Germanò) brought about a profound innovation on this subject matter, overcoming definitively the unifying approach of the 1927 Law and recognizing the existence of a plurality of forms of common ownership. Law No 168 introduced the concept of «collective domain», which indicates all forms of common property that are specifically listed in Article 3(1). Article 2(1) then proclaims that the Italian Republic protects and enhances assets in common property as they are «fundamental to the life and development of local communities», represent primary tools for ensuring the conservation and enhancement of the national natural, cultural and landscape heritage, and are «stable components of the environmental system».  

Hence, it has been established that the bodies that are representatives of the communities holding common rights «have legal personality under private law and statutory autonomy» (Art. 1(2)). As a consequence, regional laws must provide for the transformation of all representative bodies of the communities with public legal personality into private entities; in the absence of the establishment of such private bodies, assets in common property are to be managed (or continue to be managed) by municipalities separately from municipal assets.

The Law also reiterated that assets in common ownership are inalienable (and no rights in rem can be established over them), indivisible, cannot be the object of usucaption, are subject to landscape protection legislation, and must maintain their intended use as agricultural land, forest and pasture in perpetuity.

Although the 2017 Law is not always clear and requires complex implementation activities, it shows that the Italian Parliament still considers common rights very important both for the country and local communities.

4. Common rights represent a conceptual scheme that contrasts with liberal individualistic property (P. Grossi). Precisely for this reason, they have been repeatedly referred to in the very heated debate in Italy on «common goods», understood as «things that express functional utilities for the exercise of fundamental rights as well as the free development of the human person» (S. Rodotà ch. IV; U. Mattei; M.R. Marella). It is not possible to go into the merits of this complex discussion here, but one fact must be pointed out: the concept of «usi civici» (often together with that of «public use») helps to highlight how certain assets (both public and private) are closely connected with the community dimension (V. Cerulli Irelli and L. De Lucia; F. Marinelli) and for this reason their collective utilization should be always guaranteed (L. De Lucia 145-159).

This clearly highlights the vitality of «usi civici» from a different perspective.

[1] For this reason, the expression has been left in Italian in the text.

[2] Data for the 7th General Census of Agriculture is currently being processed, which is likely to contain more detailed information.

[3] The point is undisputed, see, e.g., V. Cerulli Irelli, Uso pubblico, in Enciclopedia del diritto, vol. XLV, Milan, 1992, 962.

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