INDICE
DOTTRINA

Giuseppe Martinico – “Scelte sovrane”. Alcune riflessioni problematiche sulla sentenza Wightman – 5
Costanza Margiotta – (Dis)ordine sovrano: Brexit e la sentenza Wightman – 19
Matteo Monti – Il federalismo belga in tempi di transizione e la Carta per le Fiandre: verso – nuove forme di asimmetria? – 33
Angela Costaldello, João Pedro Ruppert Krubniki – Gestão pública e direito administrativo: um necessário diálogo em prol do planejamento – 49
Susanna Quadri – Profili internazionali della lotta alla corruzione, con particolare riferimento al settore dei servizi: il ruolo determinante del Soft Law – 75
Fabrizio Fracchia, Pasquale Pantalone – Nomofilachia, uniforme applicazione del diritto e funzioni della Corte conti – 95
Antonio Ignazio Arena – La tutela dell’ambiente nella Costituzione italiana – 113

Abstract
“Sovereign Choices”. Some Critical Remarks on the Wightman Judgment of the Court of Justice
by Giuseppe Martinico

On 10 December 2018 the CJEU delivered the Wightman judgment where, among other things, it recognized the revocability of the notification ex Art. 50 TEU, confirming, this way, more or less what Advocate General Campos Sánchez-Bordona had suggested in his Opinion. This piece is divided into two parts. In the first part of the article I shall comment upon the idea of legal integration presented by the CJEU in this judgment and in so doing I shall represent the EU as a complex legal system. In the second part of the article, I shall offer a critical view of the legal reasoning of the Court.

Sovereign (dis)order: Brexit and the Wightman ruling
by Costanza Margiotta

This article offers a reading of the recent Wightman case ruling of the Court of Justice of the European Union on the revocation of a notification of an intention to withdraw from the EU under Article 50 TEU. The relevant aspects of this opinion show the ambiguity of the European Court on Brexit: on the one hand, the consecration of the sovereignty of the Member State, and on the other, the statement of EU as an ever closer Union. Both principles have, in the opinion of the author, the same aim: the safeguard of European Union. The Court with Wightman gives the first interpretation of art. 50 TEU on withdraw and, giving a constitutional interpretation of European Law, offers the opportunity to look again at the relation between secession and constitutional law. Giving to UK the right of revocation of the will of exit from EU, the Court offers also the opportunity to analyse the relation between secession and democracy and between
democracy and majoritarianism.

The Belgian Federalism in Times of Transition and the Charter for Flanders: Toward New Forms of Asymmetry?
by Matteo Monti

The aim of this paper is to analyse the new forms of asymmetry which theenacting of the Charter For Flanders in the Belgian scenario could lead to. The Belgian federalism is already considered as one of the most asymmetric federalism in the world. The Charter for Flanders could be the herald of two new forms of asymmetry: the asymmetry in ubnational constitutions and the asymmetry in fundamental rights. The paper shall analyse these types of asymmetry in federal systems and in the Belgian scenario in particular and then consider the problem sand the possible evolution of the Charter for Flanders. In doing so, Section II shall study the asymmetry in subnational constitutions, while Section III shall focus on the asymmetry in fundamental rights. Finally, Section IV shall explore the possible evolution of the harter for Flanders and its possible impact on theBelgian federalism, taking into consideration the political space of action for itsenacting and the consequences this could cause. From this point of view, it has tobe remembered that even though the Charter of Flanders currently cannot beconsidered as a fully fledged constitution – given the lack of power of the subnational units – it could represent the next step of the evolution of the Belgian federalism.

Public management and administrative law: a necessary dialogue for planning
by Angela Cassia Costaldello e João Pedro Ruppert Krubniki

The present article aims to analyze the historical formation of the administrative management models set in Brazil and to acknowledge the legal principles of the current managerial model, in order to elaborate contributions on its suitability to the contemporary Public Administration, instigating the formulation of instruments that allow this suitability, especially the planning. It is put at stake the suitability of the current managerial model to the Public Administration, throughout the analysis of political influences that undermine the public management models in the country’s history. Assuming that the correct exercise of the administrative function is linked to the faithful execution of its legal precepts, the bureaucratic maturation of management models is sough in order to dispel it from political and electoral interests. Thus, the current scenario of the country, where the institutional solidity is being questioned, poses a great importance to contextualize the present article, given that Brazil has been experiencing successive discontinuity of governmental programs, demonstrating the political liabilities to which the Public Administration is subordinated.

International profiles of the fight against corruption, with particular reference to the service sector: the determining role of Soft Law
by Susanna Quadri

Since the 70s of the last century, the globalization of organized crime caused by the opening of the markets has boosted the phenomenon of international corruption. Its diffusion in the developing countries hinders the free competition of Western companies and inhibits economic progress and the democratization of the aforementioned countries. This applies above all to services (in particular energy, as evidenced by various proceedings in progress) and, in general, to the procurement and public contracting sectors. These circumstances have pushed the international community to the adoption of enforcement tools against corruption at the international level, previously exclusively of domestic law. After briefly reviewing the international legal instruments to fight international corruption, the paper will focus on the objectives of the same, mainly oriented to restore the trust between companies and institutions, including through the Soft Law instrument.

Nomofilachia, Uniform Application of Law and Functions of the Court of Auditors
by Fabrizio Fracchia e Pasquale Pantalone

The essay deals with the uniform interpretation of national legislation given to the Court of Auditors and it shows the specificities of this within this jurisdictional complex. It seems particularly relevant the specific characteristic that it involves not only the exercise of the jurisdictional function, but also the control and consultive functions performed by such a special judge.

The Envirnomental Protection in the Italian Constitution
by Antonio Ignazio Arena

This essay concerns the environmental protection in the Italian Constitution. Still today environmental problems are often neglected at the institutional level and the awareness of the link between democracy and “protection of nature” is not full. The main environmental problems have a global dimension, but this can not mean the absence of individual states’ responsibility. The environmental policies and the principle of substantive equality are strictly connected: the greater the inequality, the lower the protection of the environment

L'articolo Nuove Autonomie 1-2019 proviene da Nuove Autonomie.

39

INDICE
DOTTRINA

Loredana Giani – Destinazione e fruibilità dei beni (di interesse pubblico). Spunti per una
rivisitazione della dinamica regolativa – 163
Fiorenzo Liguori – La lunga strada storta: dalle autorizzazioni amministrative alla nuova s.c.i.a. – 185
Aristide Police – La cooperazione pubblico-privato nel governo dell’economia e l’instabilità
delle decisioni pubbliche – 223
Darío Gabriel Ciminelli – El rol de la auditoría administrativa en el litigio de interés público – 239
Angela Cassia Costaldello e Luis Alberto Hungaro – L’adeguamento dei Municipi in Brasile alle esigenze della Politica
Nazionale dei Rifiuti Solidi (PNRS): le sfide e le possibili soluzioni – 249
Francisco Garcia-Garrido – La intervención de actores privados en el desarrollo de actividades
reguladoras: la evolución del Derecho Administrativo en el espacio – 269
Sara Forasassi – Gli strumenti finanziari derivati in mano pubblica. Parte II – 289

Abstracts

Destination and usability of assets (of public interest). Ideas for a review of the regulatory dynamics
by Loredana Giani

The essay deals with the theme of assets, and in particular of public assets by following the evolutionary trajectory of civil and public law which, on various occasions, have highlighted the failure of the “proprietary regime” as the keystone around which to formulate the rules intended to guarantee the collective interest. From this perspective it also offers a critical interpretation of the category of the public asset which, precisely because of the absence of a specific discipline, does not lend itself to replacing the traditional categories, also highlighting that the superimposition of different conceptual categories (commons, public assets, landscape assets) lends itself to interpretations that are likely to lead to conflict with the very ubi consistam of the initial category. From this point of view the functional profile of the asset has, or better should have, a central importance, but it struggles to emerge as a fundamental moment characterising the legal regime, regardless of its proprietary regime, ensuring the right balance between the general interest of the community and the imperatives of protecting fundamental individual rights.

The long crooked way: from administrative authorizations to the new report of certified beginning of activity.
by Fiorenzo Liguori

The paper examines the evolution of authorizations aimed at legitimizing private activities, and the trend to replace permissive measures adopted by public administration with options inspired by liberalization and priority of ex post control. Among the several meanings of liberalization processes, the model laid down by art. 19, Law. N. 241/1990 will be analyzed as paradigm of simplification with ‘liberalizing effects’. The tool, represented by a prior communication to the public administration to be fulfilled in order to allow the beginning of private activities, will be assessed with regard to the following subjects: the legal nature of the notification; the judicial protection of third parties; the different functions allocated to the public authority. The paper undelines that the model at issue still shows remarkable contradictions, due to continuous changes in legislation – even the one occurred in 2016 within the scope of the so called Madia Reform – that make complex its use, in particular by distorting the essential features of the different legal instruments involved in the matter, such as administrative self-defence, sanctioning powers and judicial review on the public obligation to provide.

Administrative review and self-annulment of public Administration decisions: a new Italian reform to increase reliability and good faith in Public-Private Partnerships
by Aristide Police

The focus of the essay is on the new legislative reform of the administrative procedure and in particular of the rovisions regarding the administrative review, revision and self-annulment of the decisions of the same public Administrations. The uncertainty arising in the public-private partnerships due to the administrative review of the decisions of public Bodies whose implementation has already been started is a very significant problem that the entire Italian Economy is facing. The essay therefore investigates the main aim of the new reform that is to introduce a very clear and limited time limit for the administrative review and revision of previous acts of public Authorities, in order to restore the principle of good faith in public-private relationships and the reliability of the Italian Public Sector as a whole.

The role of accountability offices in Public Law Litigation
by Dario Gabriel Ciminelli

Due to the diverse entity of duties that nowadays are attributed to official agencies in such areas like environmental, urban infrastructure, and regulation topics, decisions that those offices perform -or the lack of them- may drift into litigation in public law. Courts therefore have to decide on challenging cases in the pursuit of justice, with diverse interests at stake and complex procedural structures to work on. Accountability Offices should provide assistance to the judiciary by providing information and statistical data. These agencies are aimed to provide information on everything related to revenues, expenditures and the use of public funds, making recommendations to improve the efficiency of public spending; so they should contribute with their knowledge in order to achieve better rulings. We propose this thesis for the Argentinian administrative and constitutional body, but it should be applicable in other countries

The adequacy of the Brazilians Municipalities to the National Solid Waste Policy: challenges and possible solutions
by Angela Cassia Costaldello and Luis Alberto Hungaro

The article analyzes the National Solid Waste Policy in Brazil, established by Law No. 12.305/2010, that set guidelines for actions aimed to promote environmentally adequate treatment and disposal of solid waste. It is specifically attentive to the appropriateness of municipalities to this national policy, identifies the main management tools and allows the mitigation of the remaining solid management for the corresponding environmental problems. The implementation of these national rules, by municipalities, presents some challenges, such as: lack of public resources for the creation of adequate infrastructure for the management of solid waste; unavailability of staff for public service management of urban cleaning. In this scenario, the authors examine the solutions indicated by PNRS, namely the public consortia and forms of public-private partnership between Federation entities.

The interference of private bodies in the development of regulatory action: evolution of administrative law in space
by Francisco Garcia-Garrido

Nowadays public authorities do not live alone, but they live together with new bodies that flow into a global area, in a space where different values and emerging interests overlap. The recent dynamics of global change have generated a number of effects on the traditional idea of State; they have contributed to the fragmentation of the national legal systems and to the multiplication of the “bodies” with public, private or mixed nature –both at national and international or global level– that are far from the sole or manifest State control. This paper first of all explores the creation by this kind of bodies of rules and own recommendations. Second, the importance of private participation and of the interests of private bodies to intervene in the regulatory chain will be examined. The new forms of cooperation between the indicated private bodies and the public authorities forces us to ask ourselves how this new form of administration respects the fulfilment of the specific procedural rules, laid down in the domestic Administrative Law, and how it ensures transparency and participation by private parties in the rule-making process.

Financial derivatives and italian local bodies
by Sara Forasassi

This study is an overview of the main issues concerning the derivatives. In particular, it regards the issue of financial derivatives of the Italian local bodies. Italian local authorities have made extensive use of financial derivative instruments as part of the restructuring of its debt. In addition to the problem related to the use of the financial derivatives, it is focused the critical use of renegotiation of the same derivatives contracts, a very common practice adopted by Italian local bodies. The study shows the different types of financial derivatives and examines the legislative terms regarding those contracts imposed to the Italian public authorities. Then, it examines the issues of Italian local bodies with a specific analysis regarding the use of the self-redress power and the consequences concerning the effectiveness of financial contracts.

L'articolo Nuove Autonomie 2-2016 proviene da Nuove Autonomie.