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.

INDICE
DOTTRINA

Ines D’argenio – El acceso a la justicia administrativa por “retardaciòn” – 5
Guido Corso – Le regioni a statuto speciale nel progetto di riforma costituzionale – 35
Salvatore Raimondi – La disciplina urbanistica nella regione siciliana, tra normativa regionale e normativa statale – 53
Mario R. Spasiano – Riflessioni in tema di trasparenza anche alla luce del diritto di accesso civico – 63
Felice Blando – Fine dell’atto politico? – 81
Flavio Guella – 9ariazioni della pressione fiscale da parte dello stato e conservazione del gettito tributario destinato agli enti territoriali. Le tutele per l’autonomia avverso aumenti del prelievo riservati al centro o riduzioni delle imposte non compensate – 97
Abiano Di Prima – Le trattative per le Intese con le Confessioni religiose, tra politica e diritto (osservazioni a margine dell’ordinanza n. 40 del 2015 della Corte costituzionale) – 131
JOsep Ramon Fuentes I Gasó Y Marina Rodríguez Beas – La incidencia de la reforma del régime local en la organización territorial de Cataluña – 155

GIURISPRUDENZA

Michele Russo – Dal valore di un illecito alla legalità come valore. Nuovi approdi giurisprudenziali in tema di occupazione acquisitiva – 187

Abstracts

L’ACCESSO ALLA TUTELA AVVERSO IL SILENZIO DELLA PUBBLICA AMMINISTRAZIONE

di Ines D’Argenio

Il silenzio amministrativo costituisce un fattore patologico, di negazione della stessa ragion d’essere dell’amministrazione. Il cittadino non può restare in balia del mancato esercizio del potere amministrativo. In questa prospettiva, lo scritto analizza l’evoluzione del silenzio nell’ambito della disciplina normativa in Argentina e l’esigenza di un’adeguata considerazione delle conseguenze che esso è in grado di generare.

CONSTITUTIONAL REFORM AND REGIONS WITH A SPECIAL STATUTE

by Guido Corso

The paper describes the history of the five regions with a special statute, born more than two decades before the ordinary regions, explaining the reasons of a continuous reduction of their prerogative. The main argument is the following. By opposing the claims of regions (ordinary and special) towards the State, the Constitutional Court has emphasized the State exclusive competences, delimiting the scope of the legislative matters reserved to the special regions by their own statutes. This trend is stressed by the project of constitutional reform which parliament is now discussing.

URBAN LAW IN SICILY BETWEEN NATIONAL AND REGIONAL LEGISLATION

by Salvatore Raimondi

The author, after having recalled the scope of the exclusive competence of the Sicilian Region on urban planning legislation, enshrined in article 14 of the Regional Statute, describes the limitations of that competence introduced by the case law of the Constitutional Court. Sicily has never made a comprehensive use of its competence, but it issued several laws, two of which are particularly significant: the regional law 71 of 1978 and the regional law 37 of 1985. The first operates a static reference to the State Law 10 of 1977, while the second set a dynamic reference to the State Law 47 of 1985. Therefore it is not easy to understand which provisions of the Consolidation Bill 380 of 2001 apply in Sicily. It would be desirable a reorganization of the Sicilian legislation on the subject.

CONSIDERATIONS ON TRANSPARENCY PRINCIPLE EVEN IN LIGHT OF THE CIVIC RIGHT TO ACCESS

by Mario R. Spasiano

Transparency principle has long since been considered a general criterion of the administration activity, but its rationale and implementation do not appear univocal. The traditional view finds its expression in the citizen’s right of access ex l.n. 241/1990, from the one hand, and in the duty of publicity which falls on public authorities, on the other hand. Both aspects aim at empowering citizens to understand public decision procedures, even in order to participate, and find clear limits in fundamental rights, such as the right of privacy. Meanwhile, the recent introduction of the Civic right of access seems to present a different (although compatible) concept of transparency, intended as a complete accessibility to the information concerning administration organization and activity, viewing in the transparency an instrument not of awareness and participation, but of citizens diffuse control.

IS THE “ATTO POLITICO” AT ITS END?

by Felice Blando

The institution of “atto politico” is well known – with different meanings – in several contemporary juridical system. The best notion of “atto politico” is as follows:“an act justified by the necessity of preserving the very existence of the State”. The Italian legislator, also after the passing of the Constitution, has remained loyal to the idea of excluding the area of “atti politici” adopted by the Government from the judicial scrutiny. The “Consiglio di Stato”, instead, has widened its check over the so called “atti politici”. This essay aims at proving that the crisis of the “atto politico” notion is due both to the present weakness and crisis of the politics itself and to a new inevitable tendency of the Italian juridical system. Its objective is to show that only a new approach which returns the politics the constitutional importance it deserves can give back the “atto politico” its traditional dignity.

CHANGES IN THE TAX BURDEN PROVIDED BY THE STATE AND CONSERVATION OF THE TAX REVENUE ALLOCATED TO LOCAL AUTHORITIES

SAFEGUARDS FOR THE TERRITORIAL AUTONOMIES AGAINST THE LEVY INCREASES RESERVED TO THE CENTRAL STATE OR AGAINST NOT–COMPENSATED TAX REDUCTIONS

by Flavio Guella

The article analyzes how the sovereign decisions on taxation can imply consequences to the regional and local government expenditure capacity, and which kind of protection for the quantity of local resources the legal system can provide for. The existence of a principle of proportional correlation between territorial resources and territorial competences in the Italian Constitution, so as in many other national systems and in the international standards, is translated in a principle of “compensation” of the national tax reductions, if such reduction affects the local expenditure (so that the changes in the tax burden provided by the State have to be harmonized with the conservation of the level of revenue allocated to local authorities). Such a safeguard for the territorial fiscal autonomy can be both realized against a levy increase reserved to the central State so as against a not–compensated tax reduction; in particular, even if sometimes the national legislator already provides with general clauses that compensate the reduction of regional and local taxes with new resources, in other cases – on the contrary – the quantity of resources is not preserved by the Parliament itself and the judicial review is not able to adequately settle such situations. The analysis of the case law, indeed, shows the existence of a restrictive approach in the constitutional adjudication of the decisions concerning the allocation of resources, founded on a overestimation of the burden of proof at the regional level and on a reductive use of the proportionality test.

THE NEGOTIATIONS FOR THE AGREEMENTS (INTESE) WITH THE RELIGIOUS CONFESSIONS, BETWEEEN POLITICS AND LAW (MARGINAL REMARKS ON CONSTITUTIONAL COURT, ORDER N. 40/2015)

by Fabiano Di Prima

Among the jurists is found the idea that the current “fibrillations” between politics and justice are similar to those that have characterised the Italian landscape of the 90’s, since they – yesterday like today – are generated by the same system’s thorny problems, and, signally, by the crisis of politics, that has a negative influence on the quality (irrationality) and quantity (excessive or insufficient) of the law produced by the Legislator. Appears paradigmatic in this latter sense the “clash” Executive vs Judiciary recently recorded in the field of the negotiations State/Churches in view of the Agreements (Intese), culminating in a “conflict of allocation of powers” (raised by the Government towards the Cassazione) declared admissible by the Consulta with the order n. 40/2015. The essay highlights the crucial incidence that the absence of key legal lines plays on the origins of the conflict upstream, which has led, on the one hand, to the affirmation of a governance praxis in the area with all the signs of the full freedom of decision-making of the Executive; and, on the other hand, to the occurrence – over time – of a jurisprudence unwilling to the domination of this praxis and ready to use the figure of the constitutional legality in lieu of the legal one, spotting a governance area jurisdictionally reviewable, for the protection of the collective religious interests protected by the Charta. In analysing the main points of the conflictual matter, the essay cultivates the hypothesis that – paradoxi-cally – the exact sentence (of the Consiglio di Stato) that has originated such matter, contained a considered solution likely to partially satisfy, but with tolerable sacrifices, the two opposing instances in question, configuring under the applicants groups, rather than a right to the opening of negotiations (that overflows the negotiating sphere), a right to a full investigation (that remains outside the actual negotiations).

L’INCIDENZA DELLA RIFORMA DEL REGIME LOCALE SULL’ORGANIZZAZIONE TERRITORIALE DELLA CATALOGNA

di Josep Ramon Fuentes i Gasó y Marina Rodríguez Beas

Questo testo, dopo aver presentato una descrizione sommaria del sistema istituzionale di organizzazione territoriale della Catalogna fissato dallo Statuto del 2006, analizza l’ impatto della riforma del governo locale spagnolo gestito dalla Legge 27/2013, di razionalizzazione e sostenibilità dell’Administrazione locale. Questa riforma è un altro tentativo, ma in sommo grado, di ricentralizzazione da parte dello Stato; precisamente in un momento in cui la transizione statale della Catalogna è discussa, in una Spagna in una profonda crisi politica e istituzionale

FROM THE VALUE OF A TORT TO LEGALITY AS A VALUE. NEW JURISPRUDENTIAL APPROACHES DEALING WITH “ACQUISITIVE OCCUPATION”

by Michele Russo

This article has been inspired by the will to research and analyse the administrative profiles and peculiarities of the Italian jurisprudential institute of “acquisitive occupation”, first introduced in our judicial system by the Supreme Court judgement n. 1464/1983. Starting with the analysis of the institute’s historical evolution, the article follows focusing on the compatibility between Constitution and the principles whose it is based on. The key question of the EDU Convention’s influence on our internal judicial system is deeply discussed, since it has been the cause of years of Supreme Court conflicting judgements. The Supreme Court judgement n. 735/2015 writes the final chapter of the story: the unlawfulness of the expropriation proceeding and the irreversible transformation of the private area doesn’t let the Administration gain its property, even in presence of a public utility declaration. The private citizen can ask for restitution in addition to the compensatory damages for the area’s utility loss. Final considerations deserve recognition to the value of the forward–looking Supreme Court’s work on the arduous research of a rightful balance between public and individual interests.

L'articolo Nuove Autonomie 1-2015 proviene da Nuove Autonomie.