Fascicoli 2-3/2011

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Abstracts

THE RIGHT TO A HEALTHY ENVIRONMENT IN COLOMBIA

by Gloria Amparo Rodríguez

This paper describes the progressive recognition of the right to a healthy environment in Colombian legal system, one of the more advanced models of environmental guardianship in Latin America. The 1991 Colombian Constitution not only contains several regulations foreseeing environment protection, but it also consecrates the individual right to the environment and it foresees the duty of the State to guarantee the participation of the people to decisions able to engrave on the environment. The environmental legislation has introduced different mechanisms allowing people to take part to administrative proceedings on environmental matter (law n. 99 of the 1993) and it also has regulated different tools for jurisdictional guardianship of the individual right to the environment, as popular actions to defend collective interests, among which the interest to a healthy environment (law n. 472 of the 1998). Nevertheless, the article underlines how, although Colombian system is highly sophisticate, there are still many operational problems that compromise the real application of this normative of environmental protection.

ABOUT THE CONSTITUTIONAL TRIAL LENGTH

by Giovanni Pitruzzella

The subdued contribution regards the timing of the constitutional trial, as another expression of its peculiarity: in particular, aside of relative quickness of it – in comparison with the ordinary ones – the Author underlines the primary topic of the proper protection of the (fundamental) rights, usually implied in all the different types of Constitutional Jurisdiction. Along such topic, in the contribution emerges indeed the unique role of the Court, whose sentences overlap both the political and the judicial competence, and it is for such reason, then, that the Court’s «authority» cannot depend on its quickness in resolving cases but – more properly – on its capability of pursuing and issuing sentences, the more shared as possible by all the Judges themselves. The length of the Constitutional trial – and its procedural terms, prescriptions, decadences – is, therefore, another profile of the absolutely sui generis nature of the Constitutional Jurisdiction.

PRINCIPLE OF NON-REGRESSION, NATURAL PROTECTED AREAS, DECLASSIFICATION

by Fernando López Ramón

Exposition on the development of the legal system of declassification of protected natural areas under Spanish law according to the principle of non regression, considering: a) historical links with economic interests, b) conservationist interpretations derived from the 1978 Constitution, c) international and European system of declassification, in particular the case-law related to the network Natura 2000, d) impulse given by some regional experiences, e) the constitutional and administrative case-law, and f) the assumption of the principle of non-regression in this area by the basic legislation of 2007.

THE SCIENTIFIC CONTRIBUTION OF FABIO MERUSI ON THE ITALIAN SYSTEM OF JUDICIAL REVIEW OF ADMINISTRATIVE ACTS AND DECISIONS

by Alberto Zito

Fabio Merusi is one of the most prominent scholar of administrative law in Italy. The essay examines the works of Fabio Merusi on the Italian system of judicial review of administrative acts. According to Fabio Merusi this system was not able in the past to guarantee the effective protection of citizens against administrative decisions. The essay also examines the reform proposals advanced by Fabio Merusi.

ABOUT THE LEGAL-CONSTITUTIONAL BASES OF THE OBLIGATION TO ADOPT PROVISIONS

by Antonio Colavecchio

The paper examines the legal-constitutional bases of the obligation, on the part of Public Administrations, to finalize their own procedures with an explicit provision (the so-called clare loqui). Such obligation stems from art. 2 of law no. 241/1990. The analysis is carried out by pinning down the contribution of each constitutional and general principle of our administrative framework (as integrated by the EU Law) to the legal basis of the obligation to adopt provisions, as well as to the definition of its content and scope. In particular, the paper points out the contribution of the fundamental principles of the administrative action, such as “impartially”, “good administration”, “transparency”, “legitimate expectation”, in establishing – at constitutional level – the clare loqui obligation, as well as their contribution to make it effective. From this latter point of view, the paper highlights the evolution that, mainly thanks to recent reforms in administrative procedures, has marked the system of protection for citizens in case the Public Administration does not fulfill the obligation to adopt provisions. Such evolution, in the picture of the synergy between legislation and case-law, also in the light of the contribution of the scholars, strengthens the perspective of the citizen claiming an “administrative response” in good time as a real subjective right and, from the European Law point of view, as a fundamental right of the person.

FROM THE STATE REGIONS COOPERATION TO THE PROTECTION OF THE FUNDAMENTAL RIGHTS (AND BACK):

THE CLOSING CIRCLE IN THE SICILIAN REGIONAL EXPERIENCE

by Stefano Agosta

In a very innovative way compared to a “guaranteed” one, the opposite pattern of “cooperative” Regionalism is inspired by a radically different intuition for which the center and the suburbs – precisely with a spirit of fair cooperation – must contribute each other to the exercise of their constitutional functions. From this particular point of view, the Sicilian regional experience represents undoubtedly a real “constitutional forge” ante litteram, being able to distinguish itself in a useful way between an “organic” cooperation and a “procedural” one: in particular, the first one concerns the special prevision of the possible invitation of the Sicilian Region President to take part in Council of Ministers deliberations; the second one, instead, is related to a sort of increasing “scale”, ranging from the mere commitment of information and communication among the several governments levels until the highest “step” represented by the State-Sicily Region agreement. So the “circle” between loyal cooperation and protection of the fundamental rights closes itself whenever the State operates to “unify” regional functions ex art. 117, par. 2, lett. m, Const. (for example, in educational field or public housing development, etc.): that is a cooperation with Sicily, which is equally opened to the whole possible span of existence of State L.E.P. (in particular at the beginning, during and at the end of their emanation). Jurisprudence has the hard task to define – with an acceptable degree of security and stability – the judgment’s standards to use, time after time, for the evaluation of the effective proportionally (sic, reasonableness) of the statal and regional joint action, in view of the highest value in field, that is the super-constitutional one of human dignity.

FORECASTING AND RISK MANAGEMENT IN AREAS OF HIGH HYDRAULIC HAZARD

by Mariaconcetta D’Arienzo

In a field characterized by innate uncertainty and limited rationality, where the need for prudential and preventive dealing collides with the freedom of private initiative, the “co-decision” allows to remove or reduce many of the practical difficulties of implementation plans, providing a meditated assessment of the involved interests and fair balance between the needs of planning and the environmental conservation

SOME NOTES ABOUT RISIKOVERWALTUNG

by Paola Savona

This paper analyses the role played by the precautionary principle (Vorsorgeprinzip) in German constitutional and administrative law. Referring to the principle, several statutes allow public administration to act in order to prevent or reduce risks, i. e. situations in which formal probabilities cannot be assigned to the outcomes due to lack of empirical data or theoretical basis (uncertainty). In such cases, the Administration (s.c. Risikoverwaltung) is endowed with a discretionary power, much broader then the power to counteract a dangers, legal concept commonly referred to a situation in which, if not prevented from taking its course, can be expected, with a sufficient degree of probability, a damage to public or private goods. To balance this power, law creates institutions and procedures, which aim to generate new knowledge and, in the meantime, to guarantee legal certainty.

L'articolo Nuove Autonomie 2-3-2011 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.