Italian Constitutional Court gives way to Free Software friendly laws
| Author | Carlo Piana |
| Position | Lawyer, Array, Milan, Italy. |
| Pages | 61-65 |
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Across1 Europe, several policy initiatives to implement rules that favour the adoption of Free Software and Open Standards in competitive tenders to public administration have been proposed or implemented. Many reasons have been posited to support such the favouring of such solutions, not least the evidence that proprietary software - through various mechanisms - is unjustly given preferential treatment in many tenders.2
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Italy is no exception. The main national law that rules on software procurement of the Public Administration3 is agnostic, and does not go farther than to say that a Public Administration shall always choose between various options - one of which is procuring "open source" software - and that the choice should be made according to a technical and commercial comparison.4 In the national law one cannot find guidance as to how to evaluate the characteristics of the competing offers. This means that any public administration can decide by following the general principles of public procurement.
The Piedmont law was intended to take advantage of the limited but decisive role regional laws have in skewing the situation one way or the other. However, the national government objected to this approach, and the Constitutional Court found that it is constitutionally permissible for a regional law to try to alter the rules of the game of public procurement in order to favour one type of software offer over another, provided that certain conditions are met.
Italy is a federal state. Article 117 of the Italian Constitution defines the legislative powers of the State and those of the regions. There are matters that are reserved to the State, others that are within the powers of the regions, and others upon which the two have concurrent powers. The latter arrangement - under which the present case comes - often causes complex litigation.
Regional laws cannot rule on general private law or on competition rules: these matters are reserved to the State. Regional laws are also not binding to the smaller territorial entities (mainly provinces and communities) within the region, which are entirely independent. But regions have the power to legislate on their own internal rules and of those entities that depend on them. This includes the power to establish, by law, more detailed rules of procurement within the boundaries of the national law. Some regions have decided to legislate on "software pluralism", "open standards" and even "free and open source software" in software procurement. Piedmont is one of them, with possibly the most far reaching provisions. A brief summary of the relevant provisions included in the Piedmont law follows.
The Piedmont law provides that the Region uses software applications of which the source code is available to it and which it can freely modify to adapt them to its needs.5 In addition - except for the software already in use, in the procurement of software the Region shall give preferential treatment to Free Software6 as well as to software whose source code is accessible.7 Finally, if the Region decides to use proprietary software, it shall justify the reasons for such a choice.8
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The Piedmont law also favours the use of "open source" software in some of its data protection provisions.9 Moreover, it provides that for publicly accessible documents, the Region should use "open source" software and "open formats", with a duty to explain any choice to select "closed formats". In such cases, it must also provide an open format version of the document, which shall be as faithful as possible a copy of the closed format document.10
All these provisions were challenged by the National Government before the Constitutional Court.11
Normally, constitutional cases are brought when the application of an allegedly unconstitutional law becomes relevant in a judicial case ("referral procedures"). However, because the Government represents the central state, it has the right to appeal to the Constitutional Court12 by raising a "conflict of powers" issue. And so it did in this case.
The grounds for challenge between central state and regions are very frequently the fact that, by enacting laws that are in theory within the jurisdiction of National Government, the regions either fell outside the boundaries of their powers in certain provisions, or because by certain other provisions they indirectly violated principles that are fundamental in national law. Both issues were raised in the present case.
The arguments of the National Government concentrated on several specific provisions of the Piedmont law, but some also raised issues with the general approach of the law. Two grounds for annulment were alleged, based on the fact that certain provisions of the law directly fell outside the legislative power of the region, because the provisions regulated certain aspects of copyright law. Copyright law is clearly something reserved to the central state and therefore the law seemed to be doomed. The Court agreed and these provisions were struck out.
Different treatment was reserved to what interests us most here: the favouring of FOSS in public procurement.
The main issue of the case was not on such dubious provisions which clearly ought to be havePage 64been drafted more carefully: these provisions arguably fell outside the core objectives of the law. The real question was "can a regional government say 'We are going to value any tender that complies fully with open standards and provides the freedoms of Free Software more highly than those that do not'?"
The answer was "yes."
On this point, the Government alleged that the contested provisions conflict with the national laws on competition. The rules of procurement directly touch on competition issues: this is why the European Union has power to legislate on public procurement, and why many cases are pending against national laws that allegedly conflict with the EU Treaty. Scaling down to the Italian internal market, a similar situation is found. By fixing certain criteria that alter competition in the market, the Region could in theory risk breaching national rules.
The argument of the National Government was that the regional law was against the rules of competition as laid down by the jurisprudence of the European Court of Justice and implemented by the Code of Public Contracts. It can be inferred from the proceedings that the National Government believed that the Region must remain neutral vis-a-vis the different technologies that can compete for a procurement tender.13 Naming a certain technology against all others is clearly prohibited, and by extension, giving preferential treatment to certain technologies (including or "on the basis of their licensing regime) should also be prohibited .
The Court disagreed. Here is how it very clearly argues:
"The choice is not an exclusive one, but just preferential and requires a comparative evaluation, as is confirmed by the reference to the possibility to use proprietary formats [...] under the condition that in such case the Region shall provide motives of its choice [...].
Finally, it must be once more reminded that the concepts of free software14 and software with inspectable code are not notions concerning a given technology, brand or product, instead they express a legal characteristic. At the end of the day, what discriminates between free and proprietary software is the different legal arrangement of interest (licence) upon which the right of using the program is based; and the choice concerning the adoption of one or the other contractual regime belongs to the will of the user.
It follows that the damage to competition feared by the counsel of the State with regard to the law in question, is not envisaged. "
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This is one of the few decisions that tackle directly the possibility of issuing regulations that establish more favourable conditions for FOSS and open standards-abiding software. Proprietary software vendors tend to claim that these rules unfairly discriminate against hypothetically more viable technology and introduce unlawful bias. The Italian Court conversely applies a very reasonable rationale: the authorities, and a regional law, may indeed establish rules to assess not only the technical and economical merit of the offers, but also the legal rights that are conferred, and provide greater value to FOSS type licensing. It is a straightforward proposition that can appreciated only when software is considered more than "a product". The licensing conditions of a software product are - as the Court said - a non technical characteristic, not unlike the price or the level of support offered. Nothing prevents a proprietary vendor from choosing a more liberal license or to confer more rights if so weighs favourably. If this is prevented by the upstream licensing conditions, the case is identical for Free Software developers, who also are constrained by the requirement of the upstream suppliers and again it is a matter of choice.
This is the first time in Italy when a regional law that clearly favours Free or Open Source Software is under the scrutiny of a court, and a quite influential one. The decision has been read in many different ways, because it declares certain provisions unconstitutional and certain other valid. But in my reading, the most subtle argument - that based on competition - is the most relevant one, because impacts where the regional laws have more chances to influence the games of procurement. The fact that the arguments have been so clearly rejected by the Constitutional Courts is likely to influence the interpretation of lower courts, including the administrative ones that will decide on the implementation of the general rules laid down by the regional laws. The same reasoning as that of the Italian Constitutional Court seems to be applicable in other parts of Europe where similar policy decisions to favour Free Software exist and where similar objections on non-neutrality grounds are raised.
Carlo Piana is an Italian IT lawyer based in Milan as well as a Free Software and digital liberties advocate. Since 2004 he provides consulting to the FSFE and assists the same in battles for competition and open standards. He has represented FSFE and the Samba Team in the antitrust European litigation for obtaining the full interoperability information of the Windows networking interfaces. He is a member of the Editorial Committee of this Review and a strong believer in Free Software and Digital Human Rights.
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[1] Decision no. 122 of 22/03/2010 http://www.cortecostituzionale.it/giurisprudenza/pronunce/scheda ultimo deposito.asp? comando=let&sez=ultimodep&nodec=122&annodec=2010&trmd=&trmm=
[2] As discussed in Rishab Gosh et al, Guidelines on Public Procurement of Open Source Software, http://www.osor.eu/idabc-studies/OSS-procurement-guideline%20-final.pdf Section B. 1 (pag. 46, see locally for more references).
[3] The "Digital Public Administration Code" ("Codice dell'Amministrazione Digitate"), Dlgs no. 82/ 2005, Art. 68
[4] So clearly stated by TAR (Regional administrative court) Lazio, Decision no. 428 of 23/01/2007 http://www.giustizia-amministrativa.it/DocumentiGA/Roma/Sezione%203B/2006/200603838/Provvedimenti/RM 200700428 SE.DOC Assoli v. Ministero del Lavoro
[5] Art. 6.1
[6] The Law uses the words "Software Libero"
[7] Art. 6.2
[8] Art. 6.4
[9] Art. 5 The law actually uses the Italian wording "sorgente aperto", which is a literal translation of "open source".
[10] Art. 4
[11] The relevant part of the decision is section 6, which deals with the constitutional challenge of most of these three articles.
[12] The Constitutional Court is made of 15 judges who stay in charge for 9 years. 5 are nominated by the highest courts, 5 are nominated by the President of the Republic and 5 by the Parliament with a majority of 2/3 of members of the two branches. Ordinary judges, even the Supreme Court, has no power not to apply an unconstitutional law, but they must refer the case to Constitutional Court in case they find than a constitutional issue is not manifestly irrelevant. The Court has over the years (since 1953 when its powers were defined by the first constitutional law) undertook a very important role in the legislative process, sometimes filling in gaps in the legislation and sometimes even creating "new" law by extending the existing ones to unforeseeable fields.
[13] The actual pleadings are not available at the time of writing, but inferences can be drawn from the motives to reject them.
[14] The Court here uses the exact Italian translation of the expression "Free Software", that is "software libero", and not "gratis" or "gratuito" (free as in "free beer").
