INDICE
DOTTRINA

Gaetano Armao – Enti pubblici economici, società ad evidenza pubblica e privatizzazioni nell’ordinamento della Regione siciliana – 253
Flavio Guella – La disciplina sugli appalti e le competenze dell’autonomia speciale, dai lavori ai contratti pubblici – 279
Tomás Hutchison – El acto administrativo informático – 309
Marco Mazzamuto – A proposito di un recente libro di Franco Gaetano Scoca sul brigantaggio postunitario – 321
Natalia Mortier – La acción de lesividad en el nuevo orden jurídico – 331
Hadrian Simonetti – La disciplina dei contratti pubblici: le esperienze nazionale e siciliana a confronto – 343

GIURISPRUDENZA

Alessandro Berrettini – Osservazioni su «conflitto di interessi» nel procedimento amministrativo alla luce di una recente pronuncia del Consiglio di Stato – 357
Antonio Liguori – L’acquisizione al patrimonio comunale nei confronti degli eredi estranei all’abuso – 375
Marco Pedersoli – Le garanzie di pubblicità nella gestione telematica delle gare d’appalto – 387

Abstract

Regional holding bodies, Regional owned-companies and privatization in Sicily

by Gaetano Armao

This essay reconstructs the framework within which the main region-owned enterprises of Sicily region are articulated, as well as the wide range of forms of direct intervention adopted in the economy. After a brief reconstruction of regulatory provisions on the subject, the approach that characterizes this study is empirical, and it focuses on the recognition of the phenomenon in its various facets. The events involving the state-owned enterprises of the Sicilian region represent a paradigmatic example of the high level of interference that the public authority exercises in the sicilian economy. In the light of the serious underdevelopment that characterized the region, autonomist institutions have quickly given up regulating in favour of an ever more effective and articulate presence in the market through state-owned enterprises. The intervention in the Sicily´s economy through the traditional form of regional separate bodies was supported by other forms of interference on market dynamics which were created to encourage regional development but have increased the detachment of the sicilian economic system from the national and community levels. Meanwhile, the increase of the regional expenditure was not associated with the development of enterprises’ competitiveness. This situation caused that, the more the European Union members States set political ties and the Italian legal system introduced key reforms in terms of protection of competition, privatization, and regulation of markets; the more the Sicilian economy increased the level of welfare assistance. A divergence that has compound the economic backwardness of Sicily, for instance contributing to its industrial desertification. With specific regard to state-owned enterprises must be considered that in Sicily, more than in the rest of the country, a kind of benchmarking in negative has worked. Municipal, provincial, regional economic bodies and public banks have become more similar to the p.a. than to private competitors. The change in the economic paradigm related to the establishment of the single European market has just affected minimally the regional economy. The organizational form of the public economic entity, which has led Sicily to be the first of the “Entrepreneurial regions”, was found to be inadequate over time. The bureaucracy constituted, together with some wrong choices in terms of business initiatives, the main cause of failure in the region and a long period of lack of regional holdings, still in progress. It will only quit as a result of the ten years winding-up of economic entities. Since the beginning of the year 2000 with the start of the process of disposal of regional investments, the second season in the region takes shape. On one hand, this phase is characterized for the creation of a series of limited mixed companies, with private investors chosen through a public tender process. On the other, a container company is constituted in order to perform services on behalf of the administration. This new expansion of the Region has resulted in substantial effects on the regional budget, forcing the region to participate in the rescheduling of loans. The complex and comprehensive path of subsidiaries’ reorganization in the sicilian region is based on the interventions from the regulation of 2010 until the last decree of 2016. The reorganization of subsidiaries in the region aimed at reducing the strategic residual subsidiaries. The system of regional holdings of Sicily subject to a substantial reform in the governance structure, seems to look at the compliance with the evolution of the European legislation and the principles of competition, subsidiarity horizontally and spending review, with a view to reducing the regional public sphere. In this context, the essay analyzes the set of reforms made at the State level (d.l.gs. 19 agosto 2016, n. 175 ( “Testo unico in materia di societa’ a partecipazione pubblica”) in matters concerning the system of regional companies.

Regulation of public procurement and competences of special autonomies, from the public works to the public contracts

by Flavio Guella

The paper analyzes competences and experiences of the Italian special regions involved in the regulation of public procurement. Starting from the regulations approved by some special autonomies after the 2014 directives and the new national code of public procurement of 2016, the analysis moves to the evolution of the Constitutional court’s case law in this field. In particular, the special statutes’ set of competences on public works, together with the limit of the private law, is compared to the use of competition and civil legal system as “transversal” categories codified by the constitutional reform of 2001.

The informatic administrative act

by Tomás Hutchinson

Starting from the notion and elements of administrative act, the author poses the question of the possible adaptation of the “traditional” categories and rules to the modern concept of informatic administrative act. This effort represents a challenge for scholars, in order to understand whether the nature of administrative law may become a special attitude to transformation and adaptation

About a recent book by Franco Gaetano Scoca on post-unitarian brigandage

by Marco Mazzamuto

The paper deals with the causes of brigandage in the early years of Italian unification and the Government reaction by discussing the recent opinion expressed by Franco Gaetano Scoca. The paper also touches on the relationship between “modernity” and Southern societies.

The acción de lesividad in the new legal order

by Natalia Mortier

The paper is focused on the exam of the accion de lesividad in the Argentinian legal system. The analysis starts from the description of the legislative evolution and takes into account the main results in case law and in the doctrine. In this perspective, the relationship between the accion de lesividad and the possible nullity or invalidity of administrative measures is also carefully taken into account.

The regulation of public procurement: a comparison of experiences in Sicily and the rest of Italy

by Hadrian Simonetti

The paper examines the way in which European Directives on public procurement procedures are been implemented in our national and regional experiences, with particular reference to the region of Sicily where the Special Statute recognises a particular competence in this field and where appeals against the decisions of the Regional Administrative Court are brought before the Council of Administrative Justice for the Region of Sicily.

Observations on «conflict of interests» in the administrative procedure in the light of a recent ruling by the State Council

by Alessandro Berrettini

The conflict of interest in the administrative procedure, ex art. 6bis l. n. 241/1990, is one of the most important anticorruption measures introduced by l. n. 190/2012 in the Italian legal system. The purpose of this article is to understand the role of that legal framework, highlighting its lights and shadows, through the analysis of a recent ruling by the Council of State. This analysis will be based on the interpretative difficulties, encountered by first and second instance judges in the application of art. 6bis to the specific case, in order to recognize the innovative scope of the conflict of interest and the strength of the relations between art. 51 c.p.c. and the art. 6bis.

The private property’s acquisition by municipal power towards heirs unrelated to the infringement of local building regulations

by Antonio Liguori

The author investigates a ruling pertaining to the municipal acquisition of private property in case of illegal buildings when the owner, distinct from the builder, was ignorant of both the illegality of the structure and the existence of a demolition order. The seizure of the property was consequent to the unfulfillment of a demolition order of which the present owner was unaware, as he inherited the property on which the structure stands. This paper questions the coherence of the ruling, arguing that the nature of the sanction is not merely restorative but punitive, hence an investigation of the subjective element of the private party is needed, especially in borderline cases in which the incoherence of the legal framework is due to the inefficiency of the public administration.

The openness guarantees in electronic tendering procedures.

by Marco Pedersoli

The paper concerns the relationship between openness and new technologies in the tendering procedures. In particular it deepens the Italian Council of State decision number 4990 dated 2016, in which the Supreme Administrative Court rules that is not necessary to disclosure the offers in an open public session every time the procedure is managed by an electronic system. Indeed, according to the Court, the software assures the same transparency and openness as the public opening of the sealed envelopes, in addition to an easier participation to the procedure for tenderers far from the contracting authority.

L'articolo Nuove Autonomie 2-2017 proviene da Nuove Autonomie.

INDICE
DOTTRINA

Ines D’argenio – El acceso a la justicia administrativa por “retardaciòn” – 5
Guido Corso – Le regioni a statuto speciale nel progetto di riforma costituzionale – 35
Salvatore Raimondi – La disciplina urbanistica nella regione siciliana, tra normativa regionale e normativa statale – 53
Mario R. Spasiano – Riflessioni in tema di trasparenza anche alla luce del diritto di accesso civico – 63
Felice Blando – Fine dell’atto politico? – 81
Flavio Guella – 9ariazioni della pressione fiscale da parte dello stato e conservazione del gettito tributario destinato agli enti territoriali. Le tutele per l’autonomia avverso aumenti del prelievo riservati al centro o riduzioni delle imposte non compensate – 97
Abiano Di Prima – Le trattative per le Intese con le Confessioni religiose, tra politica e diritto (osservazioni a margine dell’ordinanza n. 40 del 2015 della Corte costituzionale) – 131
JOsep Ramon Fuentes I Gasó Y Marina Rodríguez Beas – La incidencia de la reforma del régime local en la organización territorial de Cataluña – 155

GIURISPRUDENZA

Michele Russo – Dal valore di un illecito alla legalità come valore. Nuovi approdi giurisprudenziali in tema di occupazione acquisitiva – 187

Abstracts

L’ACCESSO ALLA TUTELA AVVERSO IL SILENZIO DELLA PUBBLICA AMMINISTRAZIONE

di Ines D’Argenio

Il silenzio amministrativo costituisce un fattore patologico, di negazione della stessa ragion d’essere dell’amministrazione. Il cittadino non può restare in balia del mancato esercizio del potere amministrativo. In questa prospettiva, lo scritto analizza l’evoluzione del silenzio nell’ambito della disciplina normativa in Argentina e l’esigenza di un’adeguata considerazione delle conseguenze che esso è in grado di generare.

CONSTITUTIONAL REFORM AND REGIONS WITH A SPECIAL STATUTE

by Guido Corso

The paper describes the history of the five regions with a special statute, born more than two decades before the ordinary regions, explaining the reasons of a continuous reduction of their prerogative. The main argument is the following. By opposing the claims of regions (ordinary and special) towards the State, the Constitutional Court has emphasized the State exclusive competences, delimiting the scope of the legislative matters reserved to the special regions by their own statutes. This trend is stressed by the project of constitutional reform which parliament is now discussing.

URBAN LAW IN SICILY BETWEEN NATIONAL AND REGIONAL LEGISLATION

by Salvatore Raimondi

The author, after having recalled the scope of the exclusive competence of the Sicilian Region on urban planning legislation, enshrined in article 14 of the Regional Statute, describes the limitations of that competence introduced by the case law of the Constitutional Court. Sicily has never made a comprehensive use of its competence, but it issued several laws, two of which are particularly significant: the regional law 71 of 1978 and the regional law 37 of 1985. The first operates a static reference to the State Law 10 of 1977, while the second set a dynamic reference to the State Law 47 of 1985. Therefore it is not easy to understand which provisions of the Consolidation Bill 380 of 2001 apply in Sicily. It would be desirable a reorganization of the Sicilian legislation on the subject.

CONSIDERATIONS ON TRANSPARENCY PRINCIPLE EVEN IN LIGHT OF THE CIVIC RIGHT TO ACCESS

by Mario R. Spasiano

Transparency principle has long since been considered a general criterion of the administration activity, but its rationale and implementation do not appear univocal. The traditional view finds its expression in the citizen’s right of access ex l.n. 241/1990, from the one hand, and in the duty of publicity which falls on public authorities, on the other hand. Both aspects aim at empowering citizens to understand public decision procedures, even in order to participate, and find clear limits in fundamental rights, such as the right of privacy. Meanwhile, the recent introduction of the Civic right of access seems to present a different (although compatible) concept of transparency, intended as a complete accessibility to the information concerning administration organization and activity, viewing in the transparency an instrument not of awareness and participation, but of citizens diffuse control.

IS THE “ATTO POLITICO” AT ITS END?

by Felice Blando

The institution of “atto politico” is well known – with different meanings – in several contemporary juridical system. The best notion of “atto politico” is as follows:“an act justified by the necessity of preserving the very existence of the State”. The Italian legislator, also after the passing of the Constitution, has remained loyal to the idea of excluding the area of “atti politici” adopted by the Government from the judicial scrutiny. The “Consiglio di Stato”, instead, has widened its check over the so called “atti politici”. This essay aims at proving that the crisis of the “atto politico” notion is due both to the present weakness and crisis of the politics itself and to a new inevitable tendency of the Italian juridical system. Its objective is to show that only a new approach which returns the politics the constitutional importance it deserves can give back the “atto politico” its traditional dignity.

CHANGES IN THE TAX BURDEN PROVIDED BY THE STATE AND CONSERVATION OF THE TAX REVENUE ALLOCATED TO LOCAL AUTHORITIES

SAFEGUARDS FOR THE TERRITORIAL AUTONOMIES AGAINST THE LEVY INCREASES RESERVED TO THE CENTRAL STATE OR AGAINST NOT–COMPENSATED TAX REDUCTIONS

by Flavio Guella

The article analyzes how the sovereign decisions on taxation can imply consequences to the regional and local government expenditure capacity, and which kind of protection for the quantity of local resources the legal system can provide for. The existence of a principle of proportional correlation between territorial resources and territorial competences in the Italian Constitution, so as in many other national systems and in the international standards, is translated in a principle of “compensation” of the national tax reductions, if such reduction affects the local expenditure (so that the changes in the tax burden provided by the State have to be harmonized with the conservation of the level of revenue allocated to local authorities). Such a safeguard for the territorial fiscal autonomy can be both realized against a levy increase reserved to the central State so as against a not–compensated tax reduction; in particular, even if sometimes the national legislator already provides with general clauses that compensate the reduction of regional and local taxes with new resources, in other cases – on the contrary – the quantity of resources is not preserved by the Parliament itself and the judicial review is not able to adequately settle such situations. The analysis of the case law, indeed, shows the existence of a restrictive approach in the constitutional adjudication of the decisions concerning the allocation of resources, founded on a overestimation of the burden of proof at the regional level and on a reductive use of the proportionality test.

THE NEGOTIATIONS FOR THE AGREEMENTS (INTESE) WITH THE RELIGIOUS CONFESSIONS, BETWEEEN POLITICS AND LAW (MARGINAL REMARKS ON CONSTITUTIONAL COURT, ORDER N. 40/2015)

by Fabiano Di Prima

Among the jurists is found the idea that the current “fibrillations” between politics and justice are similar to those that have characterised the Italian landscape of the 90’s, since they – yesterday like today – are generated by the same system’s thorny problems, and, signally, by the crisis of politics, that has a negative influence on the quality (irrationality) and quantity (excessive or insufficient) of the law produced by the Legislator. Appears paradigmatic in this latter sense the “clash” Executive vs Judiciary recently recorded in the field of the negotiations State/Churches in view of the Agreements (Intese), culminating in a “conflict of allocation of powers” (raised by the Government towards the Cassazione) declared admissible by the Consulta with the order n. 40/2015. The essay highlights the crucial incidence that the absence of key legal lines plays on the origins of the conflict upstream, which has led, on the one hand, to the affirmation of a governance praxis in the area with all the signs of the full freedom of decision-making of the Executive; and, on the other hand, to the occurrence – over time – of a jurisprudence unwilling to the domination of this praxis and ready to use the figure of the constitutional legality in lieu of the legal one, spotting a governance area jurisdictionally reviewable, for the protection of the collective religious interests protected by the Charta. In analysing the main points of the conflictual matter, the essay cultivates the hypothesis that – paradoxi-cally – the exact sentence (of the Consiglio di Stato) that has originated such matter, contained a considered solution likely to partially satisfy, but with tolerable sacrifices, the two opposing instances in question, configuring under the applicants groups, rather than a right to the opening of negotiations (that overflows the negotiating sphere), a right to a full investigation (that remains outside the actual negotiations).

L’INCIDENZA DELLA RIFORMA DEL REGIME LOCALE SULL’ORGANIZZAZIONE TERRITORIALE DELLA CATALOGNA

di Josep Ramon Fuentes i Gasó y Marina Rodríguez Beas

Questo testo, dopo aver presentato una descrizione sommaria del sistema istituzionale di organizzazione territoriale della Catalogna fissato dallo Statuto del 2006, analizza l’ impatto della riforma del governo locale spagnolo gestito dalla Legge 27/2013, di razionalizzazione e sostenibilità dell’Administrazione locale. Questa riforma è un altro tentativo, ma in sommo grado, di ricentralizzazione da parte dello Stato; precisamente in un momento in cui la transizione statale della Catalogna è discussa, in una Spagna in una profonda crisi politica e istituzionale

FROM THE VALUE OF A TORT TO LEGALITY AS A VALUE. NEW JURISPRUDENTIAL APPROACHES DEALING WITH “ACQUISITIVE OCCUPATION”

by Michele Russo

This article has been inspired by the will to research and analyse the administrative profiles and peculiarities of the Italian jurisprudential institute of “acquisitive occupation”, first introduced in our judicial system by the Supreme Court judgement n. 1464/1983. Starting with the analysis of the institute’s historical evolution, the article follows focusing on the compatibility between Constitution and the principles whose it is based on. The key question of the EDU Convention’s influence on our internal judicial system is deeply discussed, since it has been the cause of years of Supreme Court conflicting judgements. The Supreme Court judgement n. 735/2015 writes the final chapter of the story: the unlawfulness of the expropriation proceeding and the irreversible transformation of the private area doesn’t let the Administration gain its property, even in presence of a public utility declaration. The private citizen can ask for restitution in addition to the compensatory damages for the area’s utility loss. Final considerations deserve recognition to the value of the forward–looking Supreme Court’s work on the arduous research of a rightful balance between public and individual interests.

L'articolo Nuove Autonomie 1-2015 proviene da Nuove Autonomie.