Abstract
Il contributo intende ragionare sull’attitudine del principio del risultato a condizionare le scelte discrezionali dell’amministrazione rispetto all’esercizio di una serie di facoltà che il testo normativo riconosce alla pubblica amministrazione nella procedura di dialogo competitivo. Tali scelte, nel quadro di un’attività contrattuale orientata al risultato dell’affidamento, appaiono condizionate dal livello di complessità dell’appalto come conseguenza del grado di incompleta definizione del relativo oggetto. In questa prospettiva, alcune scelte dell’amministrazione dovranno intendersi come doverose nei casi in cui sia minimo, in avvio di gara, il grado di definizione dell’oggetto dell’appalto.

The principle of results as a priority criterion for the exercise of discretion in the competitive dialogue procedure

The paper intends to reason on the aptitude of the principle of the result to condition the discretionary choices of the administration with respect to the exercise of a series of faculties that the regulatory text recognizes to the public administration in the competitive dialogue procedure. Such choices, in the framework of a contractual activity oriented to the result of the assignment, appear to be conditioned by the level of complexity of the contract as a consequence of the degree of incomplete definition of the related object. In this perspective, some choices of the administration will have to be considered as obligatory in cases in which, at the start of the tender, the degree of definition of the contract object is minimal

L'articolo Il principio del risultato come criterio prioritario per l’esercizio del potere discrezionale nella procedura di dialogo competitivo proviene da Nuove Autonomie.

INDICE
DOTTRINA

Alfredo Contieri – Il riesame del provvedimento amministrativo dopo la legge n. 124/2015 – 331
Alberto Zito – La nuova disciplina degli acquisti centralizzati ad oggetto “informatico”, introdotta dalla legge di stabilità per il 2016: dalla ricognizione dei problemi ad un primo inquadramento sistematico – 341
Nicola Gullo – La contratación pública social y verde en Italia – 353
Ornella Spataro – La revisione costituzionale tra processi riformatori e crisi della rappresentanza politica. Spunti di riflessione – 371
Annalaura Giannelli – Il nuovo codice dei contratti pubblici: cronaca di una rivoluzione (solo) annunciata – 391
Roberto Leonardi – La natura giuridica dell’imballaggio terziario rotto: rifiuto o sottoprodotto? – 419
Fortunato Gambardella – Il vincolo indiretto di inedificabilità assoluta nella tutela dei beni culturali, tra proporzionalità e indennizzo – 437
Viviana Molaschi – La tutela della salute nelle periferie: problemi e prospettive di intervento – 455
Paola Savona – Access to public records and proactive disclosure of information in Italy: an overview – 485

Abstract

The review of administrative action, after the Law 124/2015
by Alfredo Contieri

Following the recent Law n. 124/2015, the Italian public authorities may annul, only within eighteen months, the unlawful administrative measures that enable private activities or give economic advantages. This time limit sacrifices the rule of law and in general the public interest but strengthens the Community principle of trust and of legal certainty also in order to encourage foreign investments in Italy.

The new rules governing purchasing by public administrations of IT services
by Alberto Zito

Law 208 of 28 december 2015 introduced new rules governing purchases of IT services. On the basis of said rules public administrations and their companies are obliged to purchase said services using public central purchasing bodies. The article examines new rules in order to enable correct application by public bodies.

Social and environmental aspects of public procurement in Italy
by Nicola Gullo

This paper examines how the European Union policy induced the Italian legislator to integrate social and environmental considerations into public procurement practices. The new code of public procurement, giving application of the 2014 EU directives, introduce two fundamental instruments. First, the legislative provisions allow contracting authorities to exclude from contract award procedures any supplier or contractor who was found guilty of breaching rules of environmental protection or social objectives promotion. Second, the code allows, under certain conditions, to include social and environmental protection objectives among the criteria for the selection of candidates.

Reflections upon the constitutional review between reform processes and crisis of political representation
by Ornella Spataro

The law of constitutional amendment for which we will vote on December 4 puts citizens before large uncertainties. On the one hand it is presented as a response to unpostponable demands for reform, on the other involves some of the fundamental italian institutions, operating controversial choices on the level of constitutional law. The constitutional reform provides the transformation of equal bicameralism, with consequential changes to the legislative process, the review of relations between State and Regions, the reform of the participating institutions, the abolition of Provinces and CNEL, with system effects that have major repercussions on the overall dynamics of the form of government. The present comment puts in evidence the lights and shadows of the constitutional reform, in order to verify if there is the possibility of identifying a relationship of congruence between the political aims that are invoked to justify it, and the legal instruments that in view of the abovementioned objectives are prepared.

The new Italian public procurement Code: chronicle of a revolution only announced
by Annalaura Giannelli

The paper examines the contents of the new Italian public procurement Code. The analysis aims to verify which are the objectives of the recent reform and whether these objectives have been pursued by the new rules. From this point of view the Code is affected by many contradictions, which must be overcome by the scientific literature doctrine and by jurisprudence.

The legal nature of the broken tertiary packaging: waste or byproduct ?
by Roberto Leonardi

The essay concerns packaging management and especially broken packages. Pending the transposition of the european directive adopted in 2008, broken packages were considered by jurisprudence as waste with the consequent application of the penalty rules in terms of waste management unauthorized. Legislation development, together with the immediate application of the waste directive adopted in 2008, by article 117, 1 Cost., allowed to consider broken but reusable packages as byproducts, with the application of the related discipline provided by Environment Code of 2006.

The indirect restriction of a total construction ban in the protection of cultural assets, including proportionality and compensation
by Fortunato Gambardella

Article 45 of the Code of Cultural Heritage and Landscape regulates the institution of the so-called “indirect restriction” that describes the faculty of the public administration to adopt measures necessary to protect the architectural and environmental context into which cultural assets fall. These measures may also impose, at the expense of the citizens, absolute prohibitions on buildability in privately-owned areas and, in such instances, the law does not recognise any compensation to private individuals. The study evaluates the possibility of overcoming this jurisprudential direction in consideration of the particular importance that the law acknowledges, by way of motivating such restrictive measures, of the proportional nature of the administrative decision and in light of recent reflections on compensation as a rule for the activities of the administration which entail a sacrifice for the private individual.

Health Protection on the Periphery: Problems and Intervention Perspectives
by Viviana Molaschi

The paper tackles the issue of health protection in peripheries. First, it clarifies the notion of periphery, which no longer has only a spatial dimension as a suburb, and introduces the concept of social peripheries, defined as “extensive” and “widespread” by F. Martinelli, which is the context of this research. Then, after analysing the Constitutional and legal framework of health guarantees, it investigates the health situation in peripheries, looking into the reasons why it is worse there and why there are more criticalities and health protection gaps. The study focuses on the following: the effect of financial conditioning factors and the consequences of the economic crisis and of the related service cuts; the issue of the territorial distribution of health and social-health services; the importance of social policies (and of other policies) in guaranteeing the right to health; the role of municipalities in health protection. The analysis aims at identifying instruments that can contribute to improving the health situation of people residing in peripheries. It considers international and European trends that highlight what municipalities can do in order to grant health protection within the Health in All Policies strategy, which has fostered the creation of Healthy Cities Networks.

Access to public records and proactive disclosure of information in Italy: an overview
by Paola Savona

The paper analyses the rules related to the right of access to public documents laid down in Law No. 241/1990 on administrative procedure, and the interpretation given to them by case law. It then presents the Italian FOIA enacted in 2016 and the system of proactive disclosure of public sector information. It concludes that, notwithstanding the salutary introduction in the Italian legal system of a general right to know, the norms on transparency still need to be improved in order to clarify the statutory framework and to find a better balance between public interest in disclosure of information and personal data protection.

L'articolo Nuove Autonomie 3-2016 proviene da Nuove Autonomie.

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.