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.

INDICE

Editoriale di Giuseppe Verde – 3

DOTTRINA

Francesco Astone – Il recepimento della direttiva ricorsi: profili problematici delle scelte operate dal legislatore nazionale – 7
Marcello Cecchetti – Le riforme costituzionali del 1999-2001 sulla forma di stato dieci anni dopo – 35
Alfonso Celotto – Convenzione europea dei diritti dell’uomo “e”/“o” Carta di Nizza – 45
Mario Serio – Riorganizzazione del Sistema di Giustizia Sportiva e funzione nomofilattica delle Corti Federali di ultima istanza – 57
Mario R. Spasiano – Linee evolutive del rapporto politica-amministrazione tra esigenze di continuità e tentazioni di contiguità – 71
Maria Cristina Cavallaro – La responsabilità dell’amministrazione per omessa vigilanza sull’attività urbanistico edilizia – 93
Gregorio De Vinci – Procedimenti comunitari e amministrazioni nazionali operanti in funzione comunitaria – 115
Giuseppe Martinico – Dalla nozione alle tipologie: appunti sul diritto delle fonti nell’ordinamento dell’Unione Europea – 141
Antonio Leo Tarasco – Amministrazione di qualità e controlli efficaci: un’endiadi possibile nella nuova “azione per l’efficienza”? – 167

GIURISPRUDENZA

CORTE COSTITUZIONALE – Sentenza 16 luglio 2009, n. 236 con nota di Laura Lorello, Ancora un tassello per la valenza costituzionale del principio della tutela del legittimo affidamento? – 203
CORTE COSTITUZIONALE – Sentenza 14 gennaio 2010, n. 4 con nota di Antonella Sciortino, La corte ha detto sì alla referenza di genere. Brevi riflessioni sulla rappresentanza politica di genere – 209

OSSERVATORIO PARLAMENTARE ARS – 219

RASSEGNE

Rassegna delle decisioni del Consiglio di Stato – Speciale in tema di efficacia del provvedimento amministrativo limitativo della sfera giuridica dei privati di Salvatore Dettori – 249
Rassegna della giurisprudenza del Consiglio di Giustizia amministrativa Di Paola Savona – 263
Rassegna della giurisprudenza dei Tribunali amministrativi regionali Speciale in tema di efficacia del provvedimento limitativo della sfera giuridica dei privati di Sara Forasassi – 275

Abstract

THE IMPLEMENTATION OF THE EU “RECOURS” DIRECTIVE: PROBLEMATIC PROFILES OF CHOISES BY THE NATIONAL LEGISLATOR
by Francesco Astone

The market of public contracts has become perhaps the most important in Europe: a market where conflicting interests are measured uninterruptedly not only in substantive terms but also in terms of legal protection. The innovations of Directive no. 66/2007, and the legislative decree implementing the EU directive, seems to be able to revise the terms of legal protection in public procurement.

THE CONSTITUTIONAL REFORMS ON THE FORM OF STATE OF 1999-2001 AFTER A DECADE. Sketching out an introduction for a debate to trace out a balance of these ten years
by Marcello Cecchetti

The “federalizing” process of the Italian form of State (l. cost. n. 1/1999, l. cost. n. 2/2001 e l. cost. n. 3/2001) moves from the debates of 1997 Joint Parliamentary Committee headed by MP D’Alema. The reforming process of the Italian Constitution is characterized by two main 44 Marcello Cecchetti coordinates: empowering citizens in determining the political process inside representative institutions (the direct election of Regional President and the reshaping of the institutional Regional architecture); shortening the distance between citizens and “public powers” (a major role had to be given to local administrations n organizing and performing public functions – a sort of development of the cd. Bassanini reforms, known also as “administrative federalism without changing the Constitution”). The federalizing process aimed at: stabilizing regional governments; widening the politicaladministrative role of local administrations (realizing an authentic institutional pluralism); enhancing the democratic standards through the tools of subsidiarity; reducing State functions and administrative intervention; reducing, simplifying and rationalizing State administration. None of these macro-objectives has been reached. The Italian Constitution is being implemented as no change has been occurred since 1947. The national interest clause is no more a part of our Constitutional framework but everyone (the legislators, the public administration and the courts, also the Constitutional Court) is acting like it still is. The central role for National Laws is no more part of the Italian Constitution but the implementation of the constitutional reforms has determined a framework of relations between the National and Regional Laws that is very similar to the former one (see for example the cases of “cross-sectional” legislative fields; of the “subsidiary” legislative power; of the strict interpretation given to the “leftover” legislative power of the Regions). The State is still enacting legislation as there is a sort of regional legislative power of “implementation” of national laws (and the Constitutional Court has still not directly faced this question, allowing this asset). The asset of secondary normative power, formally build around a strict division of fields (art. 117.6 Cost.), is persistently reversed conferring to administrative bodies of the State public functions of normative kind, using the clause that the acts adopted in the exercise of these functions “have no secondary normative nature”. The State power of “direct and coordinate” is rising and rising again. The limit of the “harmony with the Constitution” posed on regional statutory autonomy by the Constitutional Court; the position of Local Administrations; the presence of old instruments of inter-institutional coordination (the “System of the Conferences”, still disciplined by d.lgs. n. 281/1997); the lack of financial autonomy of Local and Regional Administrations, are all expressions of a “living Constitution” that is very close to the one that was into force until 1999.
Which are the reasons for the failure of the federalizing process? Are the objectives of the process? Are the tools designed to reach them? Are the legislative and political interpretation of the implementation of the reform? The main problem is certainly the lack of authentic political will to realize the reform. The Constitution was abandoned to the Constitutional Court. The Court has been called to solve the conflicts between the State and the Regions, often without no other landmarks than the political will of opposition. What can be the route for the future? It is of the outmost importance a reflection on the implementing tools which have to be set up. An important step would be the implementation of financial autonomy. But art. 119 Cost. and its implementation cannot by itself lead to the realization of the form of State (federal or regional) designed with the reforms of 1999-2001. It is necessary a political and cultural will to understand the potentials and the targets of those reforms. Otherwise the federalizing process remains a mere utopia.

EUROPEAN CONVENTION OF HUMAN RIGHTS “AND”/”OR” THE CHARTER OF NICE
by Alfonso Celotto

The relationship between the Charter of Nice and the European Convention of Human Rights may be approached either from a national or an international perspective. The present paper will approach this matter from an international perspective, examining the relationship between and contrasts within the two Conventions, without analyzing their impacts on the national law. The choice of the conjunction – ‘and’ or ‘or’ – is an important issue, since it has implications for how one reads the interrelationship between the two Conventions. In the former case, we can consider the Conventions having a parallel course, while in the latter it would be divergent. Although there are several arguments on behalf of both interpretations, parallel or divergent, if we look at the issue more deeply it has to be concluded that at the present stage the two Conventions have taken a parallel path. Nevertheless, this is a provisional conclusion, rebus sic stantibus, being the community and the conventional process continuously in evolution.

THE NEW FRAMEWORK OF ITALIAN SYSTEM OF SPORT JUSTICE
by Mario Serio

This essay purports to explore the new framework which characterizes the most influential legal institutions operating within Italian sport system following the Italian Olympic Committee’s recent resolution to set up two novel bodies regulating disputes between Federations and members (Alta Corte e Tribunale arbitrale per lo sport). The research aims at establishing a satisfactory dividing line between Courts functioning inside Federations and the new organisms instituted by the Olympic Committee, underlining the fundamental, leading role that the former still play in the determination and interpretation of the rules applicable to the relationship between Federations and their members. On the other hand, it is pointed out that the Alta Corte’s set of powers consists mainly of the drafting of a coherent body of rules applicable in all the interstices of sports relationship.

THE EVOLUTION OF THE RELATIONSHIP BETWEEN POLITICS AND ADMINISTRATION, BETWEEN NEEDS OF CONTINUITY AND TEMPTATIONS OF CONTIGUITY
by Mario R. Spasiano

This paper takes as its starting point the analysis of the evolution of the relationship between politics and administrative activity in Italy: since Cavour’s model – which recognized to the Minister (political organ) also the role of chief of administration – through the seventies reforms with the public management institution, until the present situation where we have a separation (at least on the face of it) between direction duty (politics) and management duty (administration). The author points out how, in this context, the conviction that administrative efficiency requires the establishment of a strong trust relationship between political organs and management has emerged, with the consequence that – in absence of objective criteria – the management valuation is only based on the trust principle, in fact unquestionable. The paper draws attention to the typical characteristics of political and administrative activities, from which the obsolescence of the traditional model founded on the complete separation between the two functions
results: hence, the author concludes proposing a dialogic relationship, based on continuity, between politics and administration, paying attention not to convert it in contiguity. To this end the trust principle, which characterizes the relationship between political organs and management, has to be considered an element objectively valuable, even in judicial terms. In the end, the work analyses the most relevant novelties resulting from the recent public administration reform (d.lgs. n. 150/2009), focusing on the positive and negative aspects about politics and administration relationship.

PUBLIC ADMINISTRATION’S LIABILITY FOR FAILING BUILDING CONTROL
by Maria Cristina Cavallaro

This paper analyzes the liability in which may incur Public Administration that fails to carry out building control. According to case law, public administration may be liable in respect of damages suffered by a landowner neighbor to a land where it was illegally built, but not for the damages caused to the other people or to the community. In this last case, we suggest that the authority, which failed to control, may be considered responsible for environmental damages.

COMMUNITY PROCEDURES AND NATIONAL ADMINISTRATIONS ENGAGED COMMUNITY TASKS
by Gregorio De Vinci

In the original setting of the Treaties the EU, policy-making has been entrusted, mostly, governments, according to a model based on direct\indirectly execution, that, following the gradual expansion of areas of competence of the Union and the enlargement process, no longer accurately represents the multiple forms of the administrative power. The terminology currently used to describe the administrative procedures is highly diverse: multi-level governance, networks of governments, regulatory process, are all expressions that have a common reference to a polycentric system, not monistic, not hierarchically ordered, which assume greater importance, now the EU institutions, national governments now, according to the interactions that in turn trigger between them. The result is a patchwork of relations between EU and national administrations, which are realized through connections and composite variables, based on the c.d. sector by sector approach, which takes into account, from time to time, the Community’s purposes.
At EU level we must therefore define an administration that operates according to a variety of organizational types and procedural, in which next to the Community institutions ‘traditional’ are growing in importance other devices, such as committees of comitology, European agencies, the independent authorities and private entities that contribute to administrative functions. On the domestic side, however, the increasing complexity of Community influence the organizational structure of national administrations, going to also affect the territorialization of European policies, caused by the processes of decentralization under way in Member States. Then, becomes essential to describe how they operate the national administrations involved in administrative proceedings falling within the Community and in what models is the transition between the administrations of Member States and EU in the sequences of procedure in the pursuit of its own Community. In a context of synthesis, are relevant, first, the topic of European administrative procedure and, then, existing connections and related figures in composition between national and EU, which derive different types of decision making.

FROM THE NOTION TO THE TYPOLOGIES: SHORT REMARKS ON THE LAW OF THE LEGAL SOURCES IN THE EUROPEAN UNION LEGAL ORDER
by Giuseppe Martinico

This paper aims at giving a brief overview of the legal sources system in the European Union. After investigating the different meanings of the tricky formula “sources of law”, the author moves to the analysis of the classic legal instruments of the EC law. Finally, the last part of the work is focused on the changes introduced in this field by the Reform Treaty

THE “EXTERNAL AUDIT” AUTHORITIES, DIFFERENT FROM THE NATIONAL AUDIT COURT (CORTE DEI CONTI), THAT CONTROL PUBLIC ADMINISTRATION’S ACTIVITIES
by Antonio Leo Tarasco

This study analyses the “external audit” authorities, different from the National Audit Court (Corte dei Conti), that control Public Administration’s activities. The objective is to measure the effectiveness of the current external control system, considering both its political and legal effects (the latter concerning either improvements to the administrative system, or legal sanctions). The research aims to monitor and measure the results of the control procedures in place. The author specifically examines powers and duties of the Public Service Inspectorate (Ispettorato per la funzione pubblica), of the Anti-corruption and Transparency Department (Servizio anticorruzione e trasparenza), as well as of the suppressed Central Tax Inspectors Department (Se.c.i.t.), by comparing them to the inspection powers of the income tax officers. This analysis concludes that there is a need to further investigate how the current external control bodies can be combined into a single administrative authority that monitors Public Administration’s management. The National Audit Court should maintain its own control on such authority, thus representing the primary guarantor of the proper functioning of both internal controls and external control systems on the Public Administration.

L'articolo Nuove Autonomie 1-2010 proviene da Nuove Autonomie.