The Italian version of this article was first published by Il Sole 24 Ore
Art. 36 of Law Decree No. 76/2020 (Article 36) has introduced a new “right to innovate” (the Right to Innovate) under Italian law. This tool is aimed at speeding up the permit phase – when required – for testing innovative projects. The effectiveness of the Right to Innovate, however, should be carefully assessed both from a constitutional law perspective and a practical perspective.
How It Works
Based on Article 36, technological innovation and digitalization projects can be filed with the appropriate office of the Presidency of the Council of Ministers and shall be authorized, provided that specific requirements are met, marking a departure from conflicting pieces of legislation. The authorization is issued provided that the applicant agrees to comply with the provisions imposed by the Public Administration and accepts its close oversight of the testing phase.
Possible Constitutional Law Issues
Firstly, it is debatable whether Article 36 complies with the Italian Constitution. Indeed, this new tool results in the Public Administration being entitled to deviate from pieces of legislation passed by the Parliament: even though this possibility is only temporary, as it applies only during the testing phase for new projects and is based on a legal provision, one could ask whether that is in line with the principle of separation of powers set forth on a constitutional level. It cannot be excluded that such issue will come under the scrutiny of the Constitutional Court, which could annul Article 36.
The Scope of Article 36: Which Pieces of Legislation Can Be Waived?
The scope of Article 36 is quite narrow and the following matters fall outside of it:
– health and safety,
– environmental, cultural heritage, and landscape,
– criminal and anti-mafia laws,
– rules deriving from international treaties and EC legislation (eg data protection legislation),
– banking, finance, and insurance,
– national security, registry, electoral, and public security matters.
The Effectiveness of the Right to Innovate
At first glance, the following issues arise:
1) Article 36 does not automatically grant a right to test innovative projects: rather it allows the filing of an application (where needed), the outcome of which is uncertain. The application pursuant to Article 36 shall be approved only provided that the project is deemed valuable in terms of technological innovation, positive impact on the quality of life, and effectiveness. In light of this, the Public Administration will presumably act with a certain level of discretion in deciding whether to authorize tests;
2) The timing for issuance of the authorization is uncertain. Article 36 provides that applications shall be processed within 30 days by the Ministry of the Economic Development, but the law is silent on the deadline for issuing a final decision, which lies with the Presidency of the Council of Ministers. Moreover, the procedure (and relevant timetable) can be interrupted if the Public Administration needs additional documentation or information, or if other offices need to get involved. Steering committees (conferenze di servizi) may be needed, which can be time-consuming. Moreover, silent consent mechanisms do not apply to the case at stake;
3) The authorization pursuant to Article 36 has a one-year duration, it covers only the testing phase and can be extended only once. Once authorization has expired, previous “conflicting” pieces of legislation are once again enforceable and the government is only allowed to put forward legal proposals to overcome the impasse;
4) In any case, as clarified above, the scope of the law is quite narrow.
In order to assess the potential impact of Article 36 on the Italian innovation ecosystem, one could try to understand whether similar tools that already exist would have sped up the permit phases of innovative projects recently developed in Italy. Some real-world examples may help us understand what shape practical application will take.
The Immuni case provides a good example. Immuni is the contact tracing app developed in Italy for the purpose of limiting the spread of COVID-19. Would the Right to Innovate have sped up the permitting phase? Probably not. The most important issues related to the launch of the project were data protection issues, which, as noted, fall outside the scope of Article 36.
The Io app is another useful example. The app was developed for the purpose of facilitating contact and interaction between citizens and government bodies. In this case, too, apparently Article 36 would not have been of help, simply because the project testing phase did not require specific authorization.
Two additional cases that can be considered concern the launch of micromobility services in Italian cities and the testing of smart driverless vehicles. Both projects needed specific authorization to be launched.
In the first case, the project was about road tests of Segways, hoverboards, and scooters, the use of which was not governed by existing traffic laws. Article 36 would probably have applied in this case. It must be noted, however, that the issue was tackled by simply including an article allowing the tests (Article 1, Section 102) in the 2019 Budget Law, followed by a Decree of the Ministry of Transportation that set forth detailed technical rules. Subsequently, traffic laws were amended pursuant to the 2020 Budget Law and Law Decree No. 162/2019 (passed into Law No. 8 of February 28, 2020), providing a (permanent) regulatory framework applicable to the matter. Therefore, from a starting point where micromobility was not governed by Italian traffic laws, in a year and a half a general regulatory framework was passed. That timing is not far from the timeline provided under Article 36.
The second project regarded road tests of driverless vehicles. In this case, too, such vehicles were not covered by existing traffic laws. Similarly, testing was greenlit thanks to an article included in the 2018 Budget Law (Article 1, Section 72) and a subsequent Ministerial Decree issued on February 28, 2018. The testing phase of this project is still ongoing and therefore there is no certainty regarding its overall duration; however, given the speed with which Budget Laws are usually passed and considering that the implementing decree was approved two months later, it is reasonable to assume that the authorization procedure under Article 36 would not have led to a significantly different outcome.
Based on the above, it seems that the new tool under Article 36 will have a limited impact on the Italian innovation ecosystem. Nonetheless, practical applications are needed for a final assessment on the matter.
 Known as the “Decreto Semplificazioni” and passed into Law 120/2020.
 Under Italian law, when a term is interrupted the period already elapsed is disregarded. For example, if a 30-day term is interrupted after 20 days, once the cause for interruption is removed the applicant shall wait further 30 days to get an answer.