Dico subito che sono quanto mai contrario all’iniziativa assunta dal CGARS con l’ordinanza istruttoria n. 38/2022, in vista dell’assunzione di una serie di dati sull’andamento della pandemia e di un’eventuale rimessione al giudice delle leggi. Ciò non per la qualità intrinseca dell’ordinanza, la cui pregevolezza è stata anzi da tutti rimarcata, bensì per un vizio di fondo del quale è rimasto qui vittima anche il giudice amministrativo, e cioè il difetto di una visione d’insieme della vicenda pandemica. Vaccini obbligatori? La questione della loro costituzionalità poteva certo porsi già in radice e sin dall’inizio, indipendentemente cioè da valutazioni sul recente andamento della pandemia. Ed è in questi termini che anche in questo Convegno la ripropongono i Colleghi Mangia e Zito, quando ritengono insufficiente a tal fine un’autorizzazione condizionata e mettono in campo l’incertezza degli effetti a medio o lungo termine del vaccino. Questa presunta incertezza c’è oggi, come c’era ieri.
Su questo non posso che condividere il diverso avviso dei Colleghi Corso e Ruggeri, e cioè che, alla luce dei criteri fissati dalla giurisprudenza costituzionale, sin dall’inizio della pandemia vi erano invece tutti i presupposti per prevedere un obbligo vaccinale generalizzato, con il che si va inevitabilmente a coprire anche il minus, cioè tutte le altre misure parziali o indirette di contenimento (si tratti dell’obbligo vaccinale per talune categorie o del green pass). Né pare dirimente l’obiezione dell’incertezza sugli effetti a medio o lungo termine, poiché tale incertezza, anche a volergli attribuire un intrinseco rilievo, non fa venir meno un giudizio costi/benefici favorevole al vaccino.
Se questo è vero, rimane poco comprensibile che in seconda battuta si possa inseguire passo dopo passo il (costituzionalmente) legittimo armamentario messo in campo per contenere la pandemia.
La vicenda della pandemia presenta un quadro complesso, dove entra in gioco sia, su un piano diacronico, il divenire dei fatti, sia l’articolazione soggettiva o oggettiva delle misure di contenimento. Se questo continuo calibrare può essere comprensibile nell’azione del Governo e del Legislatore, meno si comprende che esso possa dar luogo ad una pedante e reiterata valutazione di costituzionalità. A parte, come ovvio, il rispetto di certe situazioni intangibili (ad es. le categorie esentate dal vaccino), le misure di contenimento vanno considerate nel loro “insieme” e nella prospettiva temporale dell’intera parabola della pandemia, mentre appare del tutto irragionevole che ci si dedichi ad una certosina puntigliosità e nella logica del moment by moment.

L'articolo Riflettendo sull’ordinanza n. 38/2022 del CGARS, 19 febbraio 2022, Il difetto di una visione d’insieme della vicenda pandemica proviene da Nuove Autonomie.

Abstracts

THE ACTION FOR THE DECLARATION OF NULLITY OF AN ADMINISTRATIVE ACT

by Enrico Follieri

Having highlighted that in administrative law procedure, as in current procedural law, the principle of the atypical nature of the right of action is based on the need to protect subjective legal situations, it is argued that the Code of administrative law procedure has had to take into consideration (also) typical actions both because the Code governs disputes where one of the parties is an institutional power and it is therefore necessary to define the judge’s decisional powers in respect of the executive, and also because in substantive law subjective rights exist but no lawful interests. The action for the declaration of nullity of an administrative act may be brought before an ordinary judge or before and administrative law judge, except in the case of exclusive jurisdiction, and the discipline before the two judges is presented analytically, emphasizing the typical nature of the action before the administrative law judge and outlining the differentiated rules of nullity for terms of impugnment depending on the parties involved in the process. As a result, doubts of constitutionality have been raised in relation to the parameters of due process (article 111 of the Constitution), and it is argued that the other features of the nullity of an administrative act reflect the absolute nullity established in the Civil Code for contracts.

THE RIGHT TO MARRIAGE AND THE CONSTITUTIONAL IDEA OF “FAMILY”

by Antonio Ruggeri

The first aim of the paper is to highlight how the constitutional model of family is able to emerge not only from the text of the Italian Constitution, but also from the provisions provided by other (external) Charters of fundamental rights, like the European Charter of fundamental rights and the European Convention for the protection of human rights and fundamental freedoms. The paper goes on in the attempt to demonstrate that our Constitution is not neutral or silent with regard to the choice of a particular definition or model of family. By contrast, a careful reading of the relevant provisions of our Constitution shows how the latter endorses a specific cultural model of family confirmed by a very ancient tradition (which has been recalled by the Constitutional Court itself, in the well-known decision n. 138/2010). Tradition, the above mentioned one, not only characterized by a stable relationship between two persons of different sex, but also founded on the marriage’s institution. The paper then analyses some contradictions in the relevant case law of the European Court of human rights, in particular those decisions in which, on the one hand, the Strasbourg judges make reference to the national legislation in order to identify the characteristic of “family” and, on the other hand, recognize also to the same sex relationship the right to a “familiar and private life”. It is also criticized the recent decision n. 4184 of 2012 of the Court of Cassation (the highest judicial authority) in which the Italian judges have manipulated the case law of the European Court of human rights, by declaring that the latter would have said that the task to define the nature of family would have been left directly and exclusively to the national legislation, whereas, as it has been anticipated, the above said definition is first of all connected to the provision of Italian Constitution. Finally, the paper underlines as the above mentioned interpretative approach, shared also by a part of the scholarship, seems able, as final result, to deprive the Constitution of its prescriptive value towards the legislative power, because the latter would be the exclusive authority competent to define what should be meant by the term “family”.

DUE PROCESS IN THE LAGELY AND GLOBAL ORDER: INTRODUCTORY REMARKS ON THE STRATEGIES OF JUSTIFICATION ABOUT THE PRINCIPLE

by Alberto Zito

The paper analyzes the different meanings of the due process applied to administrative proceedings, demonstrating that the guarantee of participation is its most relevant profile. Furthermore it examines the studies in which the relevance of this principle in global decisional processes is analyzed. It proposes a reconstruction meant to demonstrate how the participative principle, as a result of the equal dignity among individuals, can constitute an element for (democratically) legitimating public decisions.

CONSTITUTIONAL ISSUES ABOUT SICILIAN PUBLIC PROCUREMENT LAW

by Marco Mazzamuto

Before of EU regulations and competition principles, it is today more and more difficult to justify a persistent role of Regions in legislative power beyond the competence of the State. In public procurement Italian Constitutional Court has progressively reduced such role for the benefit of the state legislative power, also with regard to Regions, such as Sicily, which enjoy “special” autonomy. Regions are trying to counter this trend, persisting in the approval of regional laws which differ in certain respects from the state law, often just to safeguard local interests opposing free market or just to reaffirm the importance of regional public authorities even in the absence of a genuine public interest justifying different rules.

ENVIRONMENTAL LAW IN THE BRAZILIAN LEGAL ORDER

by Raquel Dias da Silveira

This paper reflects a summary of the main aspects of environmental law and environmental protection in Brazil, based on an analysis of art. 225 of the Constitution, which incorporated the principles of the Stockholm Declaration and the Declaration of Rio de Janeiro. Analyzing the protection administrative, civil and criminal environment, the study focuses on discussions around the new Forest Code pending in Congress. The proposed new Code provides for the suspension and fines amnesty from deforestation in areas of permanent preservation of rural land for purposes of social interest (eg agriculture and livestock), through the Programme for the Environment. In addition to the Programme for the Environment, other changes in Brazilian legislation are seen as a setback for environmentalists. The controversial bill before Congress, if approved, depends, however, the presidential approval.

THE SOCIAL RIGHTS OF NON-CITIZENS: HEALTH, SOCIAL ASSISTANCE AND EDUCATION

by Giuseppe Chiara

Starting from the examination of the regulations on immigration, the essay describes the latest developments of constitutional case law with reference to the recognition of some important social rights to not citizens. Particular attention is paid to the study both of the variety of the parameters used un judging constitutional legitimacy, with significant openings to the principles of the CEDU, and to the argumentations developed starting from the text of the new Title V of the Constitution to involve the intergovernment bodies in the determination of the social policy intended for not citizens too.

SOME REMARKS UPON THE LEGISLATIVE POWER IN LABOUR LAW BETWEEN STATE AND SICILIAN REGION

by Luciana De Grazia

The article investigates which consequences had the reform of Title V, second part of the Italian Constitution, on the legislative power allocation between State and Sicilian Region in labour law matter, with a particular regard to the recent development of the case law of the constitutional Court.

L'articolo Nuove Autonomie 1-2012 proviene da Nuove Autonomie.

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

Marco Mazzamuto – Esiste una nozione giuridica di periferia? – 5
Josep Ramon Fuentes i Gasó y Marina Rodríguez Beas – La protezione delle coste nell’ordinamento giuridico spagnolo – 17
Anna Romeo – Autonomia scolastica e diritti fondamentali – 55
Vittoria Berlingò – Per un nuovo rapporto tra Scuola e Territorio: Il Piano Nazionale per la prevenzione della dispersione scolastica nelle periferie – 65
Cristiano Celone – Una postilla su una delle novità introdotte dall’art. 84 del codice dei contratti pubblici (d.lgs. n. 50/2016). L’obbligo delle stazioni appaltanti di controllare anche gli attestati di qualificazione rilasciati alle imprese dalle SOA – 75
Sara Forasassi – Gli strumenti finanziari derivati in mano pubblica. Parte I – 81
Luca Griselli – Le novità in materia di S.C.I.A. in seguito al Decreto Legislativo 30 giugno 2016 n.126: luci ed ombre – 115

GIURISPRUDENZA

Alessandra Bifani Sconocchia – Il diritto fondamentale all’istruzione degli studenti disabili e i confini della
giurisdizione amministrativa esclusiva – 139

Abstracts

Abstract Is there any Legal Concept of Periphery?

by Marco Mazzamuto

The present paper aims to investigate the existence of a legal concept of periphery. In the legal system the term periphery is mainly used in the sense of degraded or disadvantaged area in comparison with the central area. The central area is increasingly considered as an abstract set of legal standards no longer necessarily linked to a territorial area, involving many legal values, from traditional urban issues to protection of environment, social exclusion or public order, and legitimizing the intervention of public authorities. Periphery is confronted today with new models for sustainable development, as is the case of smart cities.

Abstract Coastal protection in the Spanish legal system

by Josep Ramon Fuentes i Gasó y Marina Rodríguez Beas

In this paper, the A. focuses on the role of the State, the Autonomous Communities and local governments on the coastal protection. The new law of 29th May 2013, n. 2, amending the basic law of the 28th June 1988 n. 22, introduced in Spain a new definition of “terrestrial maritime domain”, with important effects on the powers of the different governments that have expertise in coastal protection. It was, in effect, necessary to ensure integrity and conservation in front of the excessive coastal exploitation and the absence of an adequate legislation. After a short introduction, the A. analyzes, first, the complexity of the competences conferred by the old law. The State has a central role in managing and planning that comes from ownership on state property. The powers of the Autonomous Authorities are defined in a generic way and without concreteness. The role of the local governments is secondary: it depends from the legislation of the Autonomies. The new law points out the possibility for the state to control local governments: the faculty to suspend acts and agreements in order to preserve state property without the need to go to court, that is called “antialgarròbico” clause. Technical recommendations of the state and state planning are the tools for the coordination of skills. In the second part the A. describes the “demanialización” of the coasts as the way for the state to protect the coast and the environment, to defend general interests. This way, the state keeps its own powers of authorization and licensing. The new law reduces the cases of public property and effectively delegates to the regulations the definitions of the criteria for the identification of terrestrial maritime zone. In closing the A. identifies the discipline of the state property and the uses regime, in particular the restrictions on the right of ownership. Although the new law has been submitted to the positive judgment of the Constitutional Court, legal uncertainties about the concept of public property remain.

School autonomy and fundamental rights

by Anna Romeo

The paper examines school autonomy with specific reference to the organizational profile that is considered in the light of the recent reform introduced with L.13 July 2015 n.107. In particular, premised a brief explanation of the school system as outlined in the Italian law, it is examined the model currently in force and its compatibility with the guidelines resulting from the Constitutional Charter, i.e. with artt.33 and 34 Cost., as rules protecting the right to education, to qualify as a fundamental right, as well as with artt. 2, 117 and 118 of the Constitution. Considering this legal basis, the paper proposes a redefinition of the division of powers between the State and Regions in the field of school autonomy, in the aim to draw a new organizational model that looks at a development of local autonomy which venues where you can better identify the needs of the communities

For a new cooperation between school and territory: National Plan for the prevention of school dropouts in the suburbs

by Vittoria Berlingò

This essay was inspired by adoption of the Ministerial Decree April 27th, 2016, n° 273, bearing the «National Plan for the prevention of school dropouts in the suburbs», to deepen, also in a supranational perspective, the reasons and the nature of the activities listed therein. The Author proposes, in particular, to be found in the so called autonomy of interaction with the context – that of school autonomy, as most recently regulated by the Law July 13th, 2015, n° 107, entitled «Reform of the national education and training system and powers in the reorganization of existing laws», highlights one of the possible types – the most suitable breeding ground for the production of social utility, as well as the benefits and advantages, result in a reciprocal synergy through special relations that are established between the various players involved in the funded activities and the users-students, the benefits and advantages that justify the ministerial funding.

A note on one of the new measures introduced by Article 84 of the Italian Public Procurements Code (Legislative decree No 50/2016). The obligation of contracting authorities to verify the qualification certificate of contractors issued by SOA

by Cristiano Celone

Article 84 of the new Italian Public Procurements Code, which (along with other provisions) sets out the qualification system for economic operators offering the execution of works for an amount equal to or over 150,000 Euro, introduces several new provisions. In addition to the widely publicised and certainly significant one attributing broad regulatory powers to ANAC (the Italian Independent Authority supervising public procurements), Article 84 imposes an obligation on contracting administrations to perform certain spot checks, in accordance with pre-agreed modalities, to verify the qualification requirements of contractors certified by SOA (Italian certification bodies established under public law). The obligation now imposed on these administrations is certainly noteworthy, particularly as it finally reconciles the conflicting views expressed by scholars on this issue to date.

Financial derivatives and italian local bodies

by Sara Forasassi

This study is an overview of the main issues concerning the derivatives. In particular, it regards the issue of financial derivatives of the Italian local bodies. Italian local authorities have made extensive use of financial derivative instruments as part of the restructuring of its debt. In addition to the problem related to the use of the financial derivatives, it is focused the critical use of renegotiation of the same derivatives contracts, a very common practice adopted by Italian local bodies. The study shows the different types of financial derivatives and examines the legislative terms regarding those contracts imposed to the Italian public authorities. Then, it examines the issues of Italian local bodies with a specific analysis regarding the use of the self-redress power and the consequences concerning the effectiveness of financial contracts.

The news on the S.C.I.A. following the Legislative Decree 126 of June 30, 2016: lights and shadows

by Luca Griselli

The aim of this essay is to analyse the last reform of the “segnalazione certificata d’inizio attività” in order to see if this new regulation is able to resolve the different problems, underlined by the doctrine and the administrative case law, regarding this theme. The first part is dedicated to the historical evolution of article 19 L. n. 241, and in particular to the different solutions made by the case law regarding the judicial protection of the third parties. In the final part of the essay we will seek an answer for the question if the new regulation can give an end to all the problematic aspects underlined in the first part.

The students with disabilities fundamental right to education and the boundaries of exclusive administrative jurisdiction

by Alessandra Bifani Sconocchia

The paper concerns the relationship between the public Administration power on the educational service and the disable student’s right to education. In particular, the Plenary Assembly of the Council of State rules about criteria for defining the administrative judge’s jurisdiction on public services. The decision is important because it underlines that the fundamental rights protection offered by the administrative judge is no less strong than the ordinary one. Further, the decision states the administrative judge’s ability to offer a full protection of these rights when they fall within his sphere of exclusive competence.

L'articolo Nuove Autonomie 1-2016 proviene da Nuove Autonomie.