Indice
Dottrina

Filippo Salvia – Ancora sulla riemersione del Medioevo e sull’organizzazione mafiosa: incontri, scontri, trattative e nuove allocazioni del potere reale – 201
Silvia Tuccillo – Coordinate per uno studio sul carattere doveroso della funzione amministrativa – 233
Fortunato Gambardella – Contratti pubblici e politiche di liberalizzazione: il contratto di disponibilità – 273
Enrico Zampetti – La disciplina dell’autorizzazione paesaggistica tra esigenze di semplificazione e garanzie costituzionali – 316
Valeria Aveta – Brevi note sull’Abilitazione Scientifica Nazionale al vaglio del giudice amministrativo – 337
Andrea Milone – Sulla legittimità dell’Amministrazione statale a chiedere la trasposizione del ricorso straordinario al Capo dello Stato – 351

Giurisprudenza

Gaetano Armao – La nomina dei consulenti e degli esperti da parte del Sindaco e gli abusi in atti d’ufficio – 367

Abstracts

ON THE REEMERGENCE OF THE MIDDLE AGES AND ON THE MAFIA SYSTEM: ENCOUNTERS, CONFLICTS, NEGOTIATIONS AND NEW ALLOCATIONS OF THE REAL POWER

by Filippo Salvia

In the medieval system lacks the State. The “public” is pulverized from a myriad of different entities in their jurisdictions (Prince, the feud, the guilds, etc..), each of which exercises functions now carried out by public. The actual functioning of a system so fragmented is not the “law” – as is the case of modern jurisdictions – but the “contract”. The mafia organization is the product of a metamorphosis of feudal institutions: a legal organization pre-modern, but with a strong ability to adapt to new situations and to enter into a relationship with the “institutions” and real powers in the territory, according to the logic of agreements of the Middle Ages. In the era we live the processes of globalization in progress and the strengthening of the system of internal autonomy, have produced a “pluralism” much more akin to that of the pre-state systems than to those of the ‘800 and the first half of ‘900. The new archipelagos of power, made by the Committees of business, from P2 and similar can be explained in this sort of “State” without a center.

AN ANALYSIS ABOUT THE DUE EXERCISE OF ADMINISTRATIVE FUNCTIONS

by Silvia Tuccillo

This paper analyzes the concept of duty in administrative law and highlights how the accountability of administration is based on the public duties fulfillment. Fundamental is to define differences with the concept of obligation, because administrative powers are considered necessary just when the law affirm they are compulsory, but not either everywhere dispositions express the necessity to exercise power without indicate a sanction. The first doctrine that tried to study the principle of duty has concentrated its attention on the problem of “silence” with the aim of discovering the way to oblige administration to exercise its functions. The duty to give an answer to the citizen is the first sign of the due nature of administrative power. Later studies demonstrate that every time an interest need satisfaction through public power the observance of the administrative proceeding is compulsory. In this contest the guarantee of participation becomes fundamental even if some cases the Courts are considering participation not always necessary. Finding ontology of the principle of duty is essential to affirm administrative accountability. Statement of reason for administrative acts and conservative remedies are the best ways to guarantee a duty exercise of public function.

PUBLIC PROCUREMENT AND POLICY OF LIBERALIZATION: THE CONTRACT OF AVAILABILITY

by Fortunato Gambardella

In the last years, the lawmaker develops processes of liberalization not only in construction and trade but also in the public procurement market to get a greater opening to the competition. The recent normative provisions want to achieve an engagement of the private operators that exceeds the traditional model of realization of public works, through the most advanced instruments that draw the resources of the private operators for the ownership of the areas and for the means to achieve them. In this field fits the contract of availability (art. 44, d.l. n. 1/2014), it represents a contractual deed through which is given the task to a private operator to build and manage a work of private ownership to make available to the public administration upon payment of a periodic rent.

THE LANDSCAPE AUTHORIZATION REGULATION BETWEEN SEMPLIFICATION NEEDS AND CONSTITUCIONAL GUARANTEES

by Enrico Zampetti

The article is focused on the actual regulation foreseen in the landscape authorization field, in order to assess how – and to which extent – said regulation complies with the protection granted by the Constitution in favour of the environment-landscape. In particular, the analysis focuses on the provisions of said regulation that let the Proceeding Administration decide on regards to the request of authorization, even in the absence of the landscape compatibility evaluation – which competes to the Authority (Soprintendenza) – when said Authority has not issued the requested advice within the due deadline. Although the above indicated provisions are unquestionably explained by the need to simplify, as much as possible, the actual proceeding, said provisions are not in full compliance with the constitutional regulation that – particularly the proceedings characterized by a certain degree of complexity – such as the ones pertaining to environmental-landscapes issues – should always involve a clear and exhaustive evaluation of the protected right by the technically qualified and competent Authority.

BRIEF NOTES ON ENABLING THE NATIONAL SCIENTIFIC SCRUTINY OF THE ADMINISTRATIVE JUDGE

by Valeria Aveta

The academic recruitment system has been amended by law n. 240/2010 (called Gelimini reform), through the introduction of the National Academic Qualification procedure. The results of the first application of the new system have allowed the judge to rule – by now only in interlocutory proceedings – about some problems concerning the procedure and the evaluation committees role. In particular, doubts have been raised about the legitimacy of preliminary procedures, about the parameters binding nature and about unequal treatment of candidates. The present work aims to examine – in the light of the main judicial decisions – the most relevant critical issues that characterize the current discipline, mainly related to the selective procedures uncertain nature, in tension between mere ratifications and actual competitions, as well as to the degree of discretion which has to be recognized on the evaluation committees.

THE LEGITIMATION TO ASK THE TRANSPOSITION OF THE EXTRAORDINARY APPEAL TO PRESIDENT OF THE REPUBLIC BY THE STATE ADMINISTRATION

by Andrea Milone

The legitimation to ask the transposition of the extraordinary appeal to President of the Republic also by the State Administration (as defendant) is a profile recently widely discussed both in doctrine and in jurisprudence. In accordance with the article 10 of D.P.R. n. 1199/1971, as is well known, the counterparties can object to decide the dispute in the extraordinary branch and ask the transposition in judicial branch. This option, following the judjement 29 july 1982, n. 148 of Constitutional Court, has been extended also to non-government administrations as defendants; subsequently, as a result of several reforms – introduced by law n. 69/2009, which provided that the Council of State advice is binding, by the article 48 of the Administrative procedure code and by case-law – the former reasons behind the exclusion of the opposition to the discussion of the appeal in the extraordinary branch also by the State Administration seems failed.

THE APPOINTMENT OF EXPERTS AND CONSULTANTS BY THE MAYOR AND THE ABUSE OF DISCRETION

by Gaetano Armao

This work, by commenting the judgement n. 340/2013, given by the criminal division of the Court of Trapani, is focused of analyzing – with an original and new perspective – administrative jurisdiction of the Mayor in appointing “experts” in the Sicilian Regional System of local autonomy (art. 14 of Sicilian Regional law n. 7/1992 and integrations) and the influence/application of disposition on the paragraphs 6 and 6 bis of art. 7 of Legislative Decree n. 165/2001 and integrations, focusing on difference between the charges of expert and consultant. In this way, the Sicilian system of local autonomies, by giving to the Mayor specific charges, in addition to the ones given by the law and by the Statue to the City Council, to the Municipal Government, to the Devolution Organs, to the Secretary and to the executives, assigns to the Mayor the faculty of appointing experts in specific fields, regardless to the pre-existence of a special Administrative and Bureaucracy structure, other than the one which is provided for the appointment of consultants, the whose, if aren’t numerically restricted, are fully ruled by National law in the field of Public employment (also in Sicily). In this sense, the interpretation of the art. 14 of the Sicilian Regional Law n. 7/1992 and integrations, allows to consider the appointment if an expert, by the Mayor, as a special prerogative of his functions, characterized by a link of trust between the public administrator and the appointed professional, but still under the terms and conditions provided by the foresaid law which is, in any case, different from the common power of appointing simple consultants.

L'articolo Nuove Autonomie 2-2014 proviene da Nuove Autonomie.

INDICE
DOTTRINA

Guido Corso – Straniero, cittadino, uomo. Immigrazione ed immigra ti nella giurisprudenza costituzionale – 377
Enzo Maria Marenghi – Affidamento di servizi pubblici senza gara tra interesse comune e cooperazione – 395
Giovanni Pitruzzella – Farmaci e antitrust – 411
Filippo Salvia – Sulla nozione di urbanistica e su alcuni suoi corollari – 425
Maria Alessandra Sandulli – L’istituto del silenzio assenso tra semplificazione e incertezza – 435
Antonella Sciortino – Il ruolo dei Parlamenti nazionali di fronte alla nuova governance economica europea – 445
Lucia Corso – Perché le neuroscienze attirano i giuristi e cosa invece i giuristi potrebbero insegnare ai neuro-scienziati.
Qualche osservazione preliminare – 469

GIURISPRUDENZA

Fabio Saitta – Sulle circolari amministrative e sul loro trattamento processuale – 487
Maurizio Gemelli – L’indipendenza dell’avvocato tra tutela costituzionale e dimensione sovranazionale – 503

Abstracts

ALIEN, CITIZEN, MAN – IMMIGRATION AND IMMIGRANTS – IN THE CONSTITUTIONAL COURT’S DECISIONS

by Guido Corso

The articles discusses the legal conditions of regular and illegal aliens in Italy. After analyzing the actual size of State sovereignty in the context of immigration policies and the distribution of powers among central and regional governments, the article focuses on the most sensitive constitutional issues referring aliens, such as criminal procedure guarantees, social rights, right to family reunion. The author then concludes suggesting some additional burdens on policy makers resulting from constitutional principles which apply to both regular and irregular aliens.

AWARD OF PUBLIC SERVICES WITHOUT COMPETITION BETWEEN COMMON INTEREST AND CO-OPERATION

by Enzo Maria Marenghi

Basics and the norm of European law legitimate the direct commitment of public service. The waiver works as a function of the common interest of public authorities’s system, according to principles of cooperation and adequacy.

MEDICINES AND ANTITRUST

by Giovanni Pitruzzella

Preliminarily, this article examines the most important elements of competition in the pharmaceutical industry. It focuses on the particular structure of the demand of medicines – in which doctors, patients, and the national health systems interact -, and the two forms of competition we observe in this industry. As to the latter, on the one hand, there is the competition between originator companies based on research and development and the marketing of new products (the so-called dynamic competition). On the other hand, the competition between originators and generic companies arising once the patent of the blockbuster has expired and the latter can enter the market with their equivalent products at a lower price (the so-called price or static competition). Then, the article provides an overview of the recent activity of the European Commission in the sector, mainly focusing on the 2009 Sectorial Inquiry and the AstraZeneca case, whose decision has recently been confirmed by the EU Court of Justice. Finally, the enforcement activity of the Italian Competition Authority is analyzed. In particular, the article describes the recently closed “ratiopharm/Pfizer” case. The investigation concerned an exclusionary conduct by Pfizer Health A.B., Pfizer Italia S.r.l., and Pfizer Inc. in relation to an illegitimate extension of patent duration in order to delay generic entry. In the case, the behavior of Pfizer consisted in the submission to the European Patent Office in 2002 and to the Italian Patent Office (UIBM) in 2009 of objectively misleading representations so as to lead those offices to grant it a divisional patent and a SPC to which Pfizer was not entitled. Such a behavior had the effect of extending the intellectual protection of Pfizer blockbuster – xalatan – in Italy, delaying the entry into the Italian market of its generic version. In the final section, another investigation opened by the ICA is examined. It relates to thealleged agreement involving Hoffmann-La Roche Ltd, Novartis AG, Genentech Inc., Roche S.p.A., and Novartis Farma S.p.A. aimed at excluding in Italy the ophthalmic use of Avastin, marketed byRoche, in order to advantage the sales of Lucentis, marketed by Novartis. According to several scientific studies Avastin and Lucentis are equivalent: however, Lucentis is far more expensive than Avastin. As Roche did not require an “onlabel” registration of Avastin for ophthalmic use, only Lucentis is currently reimbursed by the Italian healthcare system: as a consequence, the claimants argue that the damages of the alleged carte may amount to several hundreds of EUR millions per year. If established, the cartel could constitute an infringement of Article 101 of the Treaty of the Functioning of the European Union, which cartels and restrictive business practices.

URBAN PLANNING AND HIS COROLLARIES

by Filippo Salvia

Urban Planning is different from other related disciplines – which also have as their object the use and control of parts of the land – because it’s called to best meet all the interests in the land taken as a whole, in order to promote the orderly development of settlements and communities. But City Planning, which concerns the entire municipal land,, affects an organized territory, where are embedded many interests, which also have solid legal guarantees and a constitutional basis. For this reason, there is a need to engage in City Planning different public and private stakeholders. The legislation appears to provide, on this point, several solutions: participation in the process planners, through observations and oppositions; planning contracted; planning by paracontractual procedures typical of coordination between administrations.

THE MECHANISM OF THE CONSENT BY SILENCE BETWEEN SIMPLIFICATION AND UNCERTAINTY

by Maria Alessandra Sandulli

The paper calls into question the real usefulness of the mechanism of the consent by silence and its conformity to the simplification objectives imposed by the European Union, in the light of the uncertainty that characterises its regulatory framework and the case law on the consequences on the possible verification of the lack of the conditions to be met for the request to be accepted. The A. wanders about the real advantages of the mechanism, also in relation to the fact that an increased protection is guaranteed in relation to the more classical silence “inadempimento” of the public administration.

THE ROLE OF NATIONAL PARLIAMENTS IN FRONT OF THE NEW EU ECONOMIC GOVERNANCE

by Antonello Sciortino

This paper addresses the issues of the role of National Parliaments in decision-making regarding to public finance and fiscal policy within the framework of the new European economic governance instruments. Although these tools seem to leave few influence to National Parliaments, many other tools can be enhanced or introduced in order not to marginalise the role of Parliament and not to exclude it from the control of Government decisions concerning EU economic governance (such as enhancement of the Parliament monitoring function of public finance trend control and the elaboration of possible remedies in case of deviation from the expected parameters).

WHY LAWYERS ARE ATTRACTED TO NEUROSCIENCES AND WHAT COULD LAWYERS TEACH TO NEUROSCIENTISTS.

SOME PRELIMINARY OBSERVATIONS

by Lucia Corso

The essay discusses the more and more intense interest among lawyers for topics related to neuroscience and advances some explanations for such an interest. In particular, three main reasons are prospected which are captured under the labels of expectation of certainty, control desire and genuine curiosity for the human being. The essay then advances the claim that although those interests may be authentic, in some cases they are ill-directed. Lawyers may have also something to explain to neuroscientists.

THE INDEPENDENCE OF THE LAWYER BETWEEN CONSTITUTIONAL PROTECTION AND SUPERNATIONAL DIMENSION

by Maurizio Gemelli

The paper, after having briefly run over the most significant steps on the independence of the lawyer, starts to examine the profiles of constitutional protection of the right of defence in the Italian system and then it deals with the supernational front, particularlu concerning the effectivity of the legal aid, analysed through the magnifying glass of the sentences of the European Court of Human Rights. The treatment then recalls and develops, also given examples of paradigmatic events, the themes of the social function of the lawyer and its related coordinates, also within the limits of the law of the European Union. It also pays a more detailed attention of the lawyers on the undelayable need of new cultural horizons, preliminary to the birth of a new social responsibility.

L'articolo Nuove Autonomie 3-2012 proviene da Nuove Autonomie.