Indice
Dottrina

Antonio Ruggeri – Noterelle in tema di affido di minori a coppie di omosessuali – 5
Sandro Amorosino – Il Piano Nazionale Anticorruzione come atto di indirizzo e coordinamento amministrativo – 21
Mario R. Spasiano – Alcune riflessioni sul sistema universitario – 33
Roberto di Maria – La legge regionale siciliana di istituzione dei “liberi Consorzi comunali”: brevi note critiche sul processo di riforma dell’ordinamento degli Enti locali (e di governo territoriale) della Regione siciliana – 43
Lucia Corso – Populismo: un vocabolo ed (almeno) cinque accezioni – 67
Pierangelo Grimaudo – Il sistema integrato dei servizi sociali tra livelli essenziali, ruolo delle Autonomie, principio di sussidiarietà orizzontale e logiche di costo – 95
Paolo Tanda – Gli Organismi Indipendenti di Valutazione nelle Pubbliche Amministrazioni: disciplina ed aspetti critici – 117
Francesco Follieri – “Conflitti” e “collisioni” tra norme: tre domande al prof. Robert Alexy – 157

Giurisprudenza

Bruno Di Giacomo Russo – Regioni e concorso pubblico – 171

Abstracts

SHORT REFLECTIONS ON CUSTODY OF MINORS TO SAME-SEX COUPLES

by Antonio Ruggeri

The paper analyses as, according to a literal interpretation of the relevant legislation, to the homosexuals couplet should not be given the possibility to have in custody minors. Such conclusion should be reconsidered in the light of the principle of the prevailing interest of the minor involved, according to which the notion of family could subject to a reassessment, at least with reference to the issues of custody of minors. If the rule which admits the custody of minors only for the married couples should be unchanged, it could be sometimes wiser to admit different solutions. One of them could be the possibility to admit the custody of a minor for an homosexual couple in the hypothesis in which one or both partners would have a consolidate relationship with the child. In any case should be a new legislation which expressly provides this possibility.

THE ANTI-CORRUPTION NATIONAL PLAN  AS ACT OF ADMINISTRATIVE DIRECTIVE AND COORDINATION

by Sandro Amorosino

The Anti-Corruption National Plan (PNA), approved in 2013, is an important instrument for the implementation of the Italian law against corruption, approved in 2012. This paper takes into exam its nature and role to conclude it is an act of administrative directive and coordination – defined “act of directive” – and highlights its deficiencies and limits of effectiveness.

SOME REFLECTIONSON THE ACADEMIC SYSTEM

by Mario R. Spasiano

This paper takes as its starting point the analysis of the main reasons behind the decline which affected the Italian academic system over the last 30 years. Several endemic factors led to register serious decrease of the importance of the university role in the society, also in consideration of the general disaffection of the public opinion. The author points out how, in this context, recent legislative reforms do not appear suitable to generate substantial changes to overcome the current situation of academic crisis. After focusing on several aspects of the legislation (public funds assignment system; budget rules; academic recruitment procedures; research and teaching evaluation criteria) the paper highlights the risk of a further decrease of the social and cultural role of Universities: Italian legislation does not define a new and competitive academic project for the future, but, rather, aims to limiting public spending and subject Universities activity to heavier (…) processes of evaluation and control.

THE SICILIAN LAW REGARDING THE CREATION OF THE “LIBERI CONSORZI COMUNALI”: A SHORT CRITIC ON THE PROCESS OF REFORM OF THE SICILIAN LOCAL BODIES OF GOVERNMENT (AND OF THE LOCAL GOVERNMENT AS WELL)

by Roberto Di Maria

The Sicilian Parliament has recently approved a text named «Istituzione dei liberi Consorszi comunali e delle Città metropolitane». Coming after other two laws, regarding the same subject matter – that is modifying, or else abolishing the intermediate level of government: the “Province” – such text takes place, on one side, among the legislative measures bound to pursuit the rationalization of public expenses and, on the other side, aims to improve the responsabilità of the Institutions on guaranteeing both civil rights and public services. This Sicilian legislative initiative – or better, the whole process of institutional reform – is the occasion, then, to analyze both the financial topics connected to the “spending review” and the more general questions, regarding the revision of the Italian multilevel system of government. Finally, it may be assumed a synthesis on role and functions of the “Province”, and on the opportunity of their abolishment as well.

POPULISM: ONE WORD AND (AT LEAST) FIVE MEANINGS

by Lucia Corso

The essay aims at proposing five meanings of the term populism and at identifying underlying assumptions common to all. By signaling the difference between the US and the European approaches to the concept of populism, it will be advanced the claim that the predominance of the negative meanings, typical of the European tradition, has its roots in a deep distrusts in ordinary people’s moral and political wisdom.

THE EVOLUTION OF THE SOCIAL SERVICES INTEGRATED SYSTEM BETWEEN “ESSENTIAL LEVELS”, TERRITORIAL AUTONOMIES, HORIZONTAL SUBSIDIARITY, AND COSTS

by Pierangelo Grimaudo

This paper deals with the evolutionary paths of the Italian Model of Social Services since the entry into force of the Republican Constitution until the recent reforms of 2000 (l. 328/2000) and 2002 (l. 289/2002). The Author criticizes the mechanisms of control and of public expenditure because they have lowered the levels of protection of all fundamental rights somewhat linked to social policies.

INDIPENDENT ORGANIZATIONS FOR THE EVALUATION IN THE PUBLIC SECTOR: DISCIPLINE AND CRITICAL ASPECTS

by Paolo Tanda

This paper investigates the synergy between the Independent Organizations for the Evaluation (Organismi Indipendenti di Valutazione – OIV, the so-colled supervisor people), the National Anti-corruption Authority for the evaluation and transparency of the Public Administrations, (Autorità Nazionale Anticorruzione per la valutazione e la trasparenza delle Amministrazioni Pubbliche – ANAC), the management system and the staff (executives and clerical). The last one is subjected to the monitoring and the supporting and not to a real control, which is peculiar to the systems and not to the people. This synergy is provided for by the complex system of measurement and evaluation of the performance introduced by the Legislative Decree n° 150/2009. It is pointed out how the legislator moved from the external auditing of the State Audit Court they moved to the financial auditing and to the operational auditing to come to the current performance internal auditing. Then it has been analyzed the competences – of the utmost importance for the complex system under examination – given to the Independent Organization for the Evaluation and to the connected uses related to how to determine the Public Administrations concerned with the organization of the OIV and with their real independence. Finally, the paper examines closely the system of rules provided for in the Legislative Decree n° 150/2009 as to the appointment of the members of the Independent Organizations for the Evaluation, as it is one of the most important aspects through which the decree of reform wants to guarantee the basic nature of independence of the OIV.

“CONFLICTS” AND “COLLISIONS” AMONG NORMS: THREE (PROVOCATIVE) QUESTIONS TO PROF. ROBERT ALEXY

di Francesco Follieri

The Autor discusses Alexy’s distinction between rules and principles and his theory about how collisions among principles and conflicts among rules are (or ought to be) solved by judges. The analysis is conducted in the light of two examples of rules defeasibility. The paper shows that the judge balances by proportionality test even when rules collide with other rules or with principles. And, at least in the case of rules defeasibility and teleological interpretation, judges decide by rules taking into account underlying values and interests: in these cases rules “become” Optimierungsgebote. So three questions artise: 1) Is conflict among rules just a matter of validity? 2) How can you distinguish conflicts between rules and collisions between principles? 3) Can you still distinguish rules and principles just because the latter are Optimierungsgebote?

L'articolo Nuove Autonomie 1-2014 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.