Abstracts

EUROPEAN INTEGRATION AND SOVEREIGNTY FROM A CLASSIC PROBLEM TO THE JUDGEMENT OF THE GERMAN CONSTITUTIONAL COURT OF 12.09.2012

by Dian Schefold

The article discusses, based on the history of sovereignty , the application of this principle on the European Union, with a focus on the development introduced by the Monetary Union. Under this aspect the German constitutional jurisprudence is presented and discussed, from the judgments on the Maastricht and on the Lisbon-Treaty until the last judgments on the financial aids to member States in crisis, finally the judgment on the European Stability Mechanism of 12 September 2012. The article argues in favour of a development of democracy on European level.

THE “OPERATIOIN ADMINISTRATIF” (ADMINISTRATIVE OPERATION) FROM THE PERSPECTIVE OF THE RESULT:

IN THE PROCEEDING AND THE TRIAL

by Loredana Giani

The paper aims to reconstruct the relevance that the concept of the administrative operation can have in the (administrative) proceeding and in the (administrative) trial from the perspective of their effectiveness. After a brief reference to the French and Italian theories that have identified the concept of “administrative operation”, differentiating it from the administrative proceeding, some decisions of the Constitutional Court have been analyzed in order to demonstrate not only that it (the administrative operation) is essential for the effectiveness of administrative action, but also for the joint exercise of different public powers for a common (public) interest. In the second part, attention has been focused on the rules contained in the Code of the Administrative Trial in order to verify in which terms the concept of administrative operation finds its recognition (additional grounds of appeal; lis pendens; related actions; territorial and functional competence).

SCOTLAND ACT, 1998: DEVOLUTION AND ITS IMPACT ON SCOTTISH PRIVATE LAW

by Mario Serio

The essay is aimed at briefly describing the ways in which the relationship between English law and Scottish law has been regulated over the centuries since the Act of Union, 1707 saw the light. In particular, an historical outline of the often re-adfirmed autonomy of Scottish law is here given, with regard to its firm upholding by Scottish Courts in famous cases. The inquiry that is at the heart of the present analysis touches upon the consequences that the passing of the Scotland Act 1998 by the Parliament of Westminster may have had on such autonomy. So, the question is whether or not this law has acted in a way to reinforce, rather than weaken, the idea that Scottish private law continues to be the fundamental body of principles and rules that governs what amounts to an interindividual relationship. An in-depth exploration, conducted in accordance with the main output of the thought of Dicey, of both the few judicial decisions and the wider doctrinal contributions that have developed since the Scotland Act was approved at the end of last millennium leads to the reasoned conclusion that the autonomy has been left intact and this Statute has even propelled the notion that Scottish private law, and its underlying principles, is the prime legal source as regards the field of all relationships falling into Gaius’s traditional partition.

PROCESSES OF MODERNIZATION AND DEVOLUTION FOR THE FRENCH SEA-PORTS

by Roberta Lombardi

This project focuses on the important process of reorganization, which has affected the French port system, through the n. 660/2008 and n. 809/2004 laws. The former has redrawn the governance of the eight “greatest sea ports” (GSP) to increase their competitiveness in comparison to the order European sea ports; this law includes, among other issues, the privatization of the port services and personnel. The latter has resulted in a true process of devolution, as it established that the ownership and management of the ex commercial ports of national importance (PNI) are passed to the local authorities (e.g. departments and regions).

SIMPLIFICATION AND DISTRIBUTION OF LEGISLATIVE POWERS

by Stefano Salvatore Scoca

This paper tends to test the compatibility of administrative simplification with the division of legislative powers based on the criterion of the matter as indicated in the current Title V of the Constitution. It addresses the issue by detecting as many institutes that are part of the so-called administrative simplification, in fact, relate to matters which pertain to the regional legislative authority. In particular, we considered the SCIA, simplification tool, which repeats the pattern of the conflict of legislative powers. In essence, the paper aims to highlight the need for a reform of article 117 of the Constitution, reform seems to have started with the constitutional bill recently approved by the Council of Ministers, which, however, is unsatisfactory.

THE ROLE OF THE PRINCIPLES IN THE FIELD OF PUBLIC CONTRACTS

by Salvatore Dettori

The paper analyzes the principles in the field of public procurement. It examines the nature and role of the principles, the balance between them, the solution of conflict. The author defends the thesis that there can be no conflict between rules and principles, but only between principles and shows how judges decide the conflict in the decisions on cases.

THE PRODUCTION OF RENEWABLE ENERGY IN PORT AREAS, PARTCULARY WITH REGARD TO WAVE ENERGY

by Sara Forasassi

The paper examines legal institute about renewable wave energy production in a port. Today, this source of energy is studies a lot, but there are some problems in regard to building costs of this system, necessary for collect sea energy. However, in Italy, some prototype are just built in a port. The employment of this energy source in a port, is crucial from a sustainable development point of view.

L'articolo Nuove Autonomie 2-2012 proviene da Nuove Autonomie.

39

INDICE
DOTTRINA

Loredana Giani – Destinazione e fruibilità dei beni (di interesse pubblico). Spunti per una
rivisitazione della dinamica regolativa – 163
Fiorenzo Liguori – La lunga strada storta: dalle autorizzazioni amministrative alla nuova s.c.i.a. – 185
Aristide Police – La cooperazione pubblico-privato nel governo dell’economia e l’instabilità
delle decisioni pubbliche – 223
Darío Gabriel Ciminelli – El rol de la auditoría administrativa en el litigio de interés público – 239
Angela Cassia Costaldello e Luis Alberto Hungaro – L’adeguamento dei Municipi in Brasile alle esigenze della Politica
Nazionale dei Rifiuti Solidi (PNRS): le sfide e le possibili soluzioni – 249
Francisco Garcia-Garrido – La intervención de actores privados en el desarrollo de actividades
reguladoras: la evolución del Derecho Administrativo en el espacio – 269
Sara Forasassi – Gli strumenti finanziari derivati in mano pubblica. Parte II – 289

Abstracts

Destination and usability of assets (of public interest). Ideas for a review of the regulatory dynamics
by Loredana Giani

The essay deals with the theme of assets, and in particular of public assets by following the evolutionary trajectory of civil and public law which, on various occasions, have highlighted the failure of the “proprietary regime” as the keystone around which to formulate the rules intended to guarantee the collective interest. From this perspective it also offers a critical interpretation of the category of the public asset which, precisely because of the absence of a specific discipline, does not lend itself to replacing the traditional categories, also highlighting that the superimposition of different conceptual categories (commons, public assets, landscape assets) lends itself to interpretations that are likely to lead to conflict with the very ubi consistam of the initial category. From this point of view the functional profile of the asset has, or better should have, a central importance, but it struggles to emerge as a fundamental moment characterising the legal regime, regardless of its proprietary regime, ensuring the right balance between the general interest of the community and the imperatives of protecting fundamental individual rights.

The long crooked way: from administrative authorizations to the new report of certified beginning of activity.
by Fiorenzo Liguori

The paper examines the evolution of authorizations aimed at legitimizing private activities, and the trend to replace permissive measures adopted by public administration with options inspired by liberalization and priority of ex post control. Among the several meanings of liberalization processes, the model laid down by art. 19, Law. N. 241/1990 will be analyzed as paradigm of simplification with ‘liberalizing effects’. The tool, represented by a prior communication to the public administration to be fulfilled in order to allow the beginning of private activities, will be assessed with regard to the following subjects: the legal nature of the notification; the judicial protection of third parties; the different functions allocated to the public authority. The paper undelines that the model at issue still shows remarkable contradictions, due to continuous changes in legislation – even the one occurred in 2016 within the scope of the so called Madia Reform – that make complex its use, in particular by distorting the essential features of the different legal instruments involved in the matter, such as administrative self-defence, sanctioning powers and judicial review on the public obligation to provide.

Administrative review and self-annulment of public Administration decisions: a new Italian reform to increase reliability and good faith in Public-Private Partnerships
by Aristide Police

The focus of the essay is on the new legislative reform of the administrative procedure and in particular of the rovisions regarding the administrative review, revision and self-annulment of the decisions of the same public Administrations. The uncertainty arising in the public-private partnerships due to the administrative review of the decisions of public Bodies whose implementation has already been started is a very significant problem that the entire Italian Economy is facing. The essay therefore investigates the main aim of the new reform that is to introduce a very clear and limited time limit for the administrative review and revision of previous acts of public Authorities, in order to restore the principle of good faith in public-private relationships and the reliability of the Italian Public Sector as a whole.

The role of accountability offices in Public Law Litigation
by Dario Gabriel Ciminelli

Due to the diverse entity of duties that nowadays are attributed to official agencies in such areas like environmental, urban infrastructure, and regulation topics, decisions that those offices perform -or the lack of them- may drift into litigation in public law. Courts therefore have to decide on challenging cases in the pursuit of justice, with diverse interests at stake and complex procedural structures to work on. Accountability Offices should provide assistance to the judiciary by providing information and statistical data. These agencies are aimed to provide information on everything related to revenues, expenditures and the use of public funds, making recommendations to improve the efficiency of public spending; so they should contribute with their knowledge in order to achieve better rulings. We propose this thesis for the Argentinian administrative and constitutional body, but it should be applicable in other countries

The adequacy of the Brazilians Municipalities to the National Solid Waste Policy: challenges and possible solutions
by Angela Cassia Costaldello and Luis Alberto Hungaro

The article analyzes the National Solid Waste Policy in Brazil, established by Law No. 12.305/2010, that set guidelines for actions aimed to promote environmentally adequate treatment and disposal of solid waste. It is specifically attentive to the appropriateness of municipalities to this national policy, identifies the main management tools and allows the mitigation of the remaining solid management for the corresponding environmental problems. The implementation of these national rules, by municipalities, presents some challenges, such as: lack of public resources for the creation of adequate infrastructure for the management of solid waste; unavailability of staff for public service management of urban cleaning. In this scenario, the authors examine the solutions indicated by PNRS, namely the public consortia and forms of public-private partnership between Federation entities.

The interference of private bodies in the development of regulatory action: evolution of administrative law in space
by Francisco Garcia-Garrido

Nowadays public authorities do not live alone, but they live together with new bodies that flow into a global area, in a space where different values and emerging interests overlap. The recent dynamics of global change have generated a number of effects on the traditional idea of State; they have contributed to the fragmentation of the national legal systems and to the multiplication of the “bodies” with public, private or mixed nature –both at national and international or global level– that are far from the sole or manifest State control. This paper first of all explores the creation by this kind of bodies of rules and own recommendations. Second, the importance of private participation and of the interests of private bodies to intervene in the regulatory chain will be examined. The new forms of cooperation between the indicated private bodies and the public authorities forces us to ask ourselves how this new form of administration respects the fulfilment of the specific procedural rules, laid down in the domestic Administrative Law, and how it ensures transparency and participation by private parties in the rule-making process.

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.

L'articolo Nuove Autonomie 2-2016 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.

Fascicoli 1/2011

Pdf

INDICE

Editoriale di Francesco Teresi – 3

DOTTRINA

INÉS A. D’ARGENIO – La justicia administrativa en Argentina – 7
GUIDO CORSO – Pubblico e privato nelle politiche sanitarie – 17
ANTONIO RUGGERI – Unità-indivisibilità dell’ordinamento, autonomia regionale, tutela dei diritti fondamentali – 25
MARIO R. SPASIANO – Derechos fundamentales y justicia administrativa – 51
IVAN DEL GIUDICE – L’AGCM e la tutela del consumatore: i profili funzionali a protezione di posizioni giuridiche deboli” alla luce dei nuovi poteri attribuiti dai decreti legislativi nn. 145/2007 e 146/2007 – 61

GIURISPRUDENZA

ALFONSO CELOTTO – L’inutile parametro dell’art. 138 Cost. – 83
GIUSEPPE VERDE – Il conflitto di attribuzione fra enti non risolve i dubbi di legittimità costituzionale della legge regionale siciliana in tema di incarichi dirigenziali. Considerazioni a margine della sentenza della Corte costituzionale n. 156 del 2011 – 89

RASSEGNE

Rassegna della giurisprudenza del Consiglio di Stato. Speciale in tema di accordi tra amministrazioni e privati di SALVATORE DETTORI – 99
Rassegna della giurisprudenza dei Tribunali amministrativi regionali. Speciale in tema di accordi tra Pubblica amministrazione e privati di SARA FORASASSI – 111
Rassegna della giurisprudenza del Consiglio di Giustizia amministrativa per la Regione Sicilia (1 gennaio-30 aprile 2011)
di PAOLA SAVONA – 125

OSSERVATORIO ARS – 141

Abstracts

ADMINISTRATIVE JUSTICE IN ARGENTINA

By Inés A. D’Argenio

The purpose of the article is to outline the reasons why at the national level in Argentina, no procedural code was enacted to govern the judicial process in administrative matters. The analysis of the Constitution, of its precedents, and the characteristics of Argentina’s institutional system, is done by means of comparison whit the dual jurisdiction system of the European continental law and its principles of the contentious administrative jurisdiction. The institution of a system of judicial jurisdiction unique in Argentina, strange to the contentious administrative jurisdiction regime and the consequent absence of a statutory procedural code for the contentious administrative process, has enabled the development of public law litigation in the context of knowledge and causes decision referred to Article 116 of the Argentinean Constitution. In the context of this new litigation, the administrative act is no longer understood as the core of the administrative system, and it is prioritized the presence of other claims, being of extreme importance among them the sentence to the effective exercise of administrative function omitted by the public administration.

PUBLIC AND PRIVATE IN HEALTH CARE POLICIES

by Guido Corso

The paper analyzes the role of the private sector in the Italian health care system. According to art. 32 of the Constitution, the Republic safeguards health as a fundamental right of the individual and as a collective interest, and guarantees free medical care to the indigent. The provision, which entitles only the poor to free medical care, assumes the existence of a market in health care delivery, where the consumer-patient can choose between public and private operators. In 1978 a National Health System (Servizio Sanitario Nazionale, SSN) was established and it replaced the old one based on insurance. The reform created an universal system, in which every citizen has the right to be provided with health care services, regardless of the income. The statute allowed private providers to operate within the SSN given that they were compliant with a set of requirements and subscribed an agreement with the SSN. The role of private sector in health care delivery, limited and essentially subsidiary in the system created in 1978, has been increased by the reform approved in 1992 and 1993. The citizen is in principle free to choose a service provider, public or private. The law set the requirements necessary for the inclusion in the SSN (accreditamento), which are the same for public and private hospitals. The SSN bears the costs of the healthcare services. Due to budget constraints, the principle of patient’s free choice has never come entirely into effect. There is no “conventional” market in healthcare service, but a mixed system, in which the “buyers”, different form the “consumers”, choose on behalf of the patients/consumers the services to buy between the ones offered by competing operators.

UNITY-INDIVISIBILITY OF THE LEGAL SYSTEM, REGIONAL AUTONOMY AND THE PROTECTION OF FUNDAMENTAL RIGHTS

by Antonio Ruggeri

The purpose of this paper is to point out that, due to its nature, the regional autonomy aims at offering a service to the community and mostly to the individual’s fundamental rights through the implementation of the constitutional provisions that recognize them. The Statutes, as to organization and the laws, as to the subjects falling into the regional sphere of competence, provide such an implementation. Finally, this contribution addresses the major shortcomings brought to light by the practical experience, which shows that the autonomy has failed, to provide the protection of fundamental rights required by the Constitution.

FUNDAMENTAL RIGHTS AND ADMINISTRATIVE COURT

by Mario R. Spasiano

The article takes as its starting point the view that in the modern legal systems there is recognition of a growing range of fundamental rights, especially by the jurisdictional power. The author points out that in this context it is necessary to avoid that the multitude of values, not always adequately substantiated, doesn’t allowed the real protection of traditional and universally recognized fundamental rights. Therefore, legislative power must set in positive rules the absolute values of each legal order, not allowing the jurisprudence to carry out a dangerous supplementary role. Then the paper provides an in-depth description of the evolution of the relationship between fundamental rights and administrative court. For a long time to this judge wasn’t recognized possibility to protect fundamental rights, essentially because the exercise of public power was considered incompatible with the same existence of a fundamental right. Only from 2007, Constitutional Court before and Consiglio di Stato and Cassazione after, began to affirm that if a fundamental right is prejudiced by public activity, it should be recognized by the administrative court jurisdiction. Finally, author intends to verify if administrative court has the adequate instruments to effectively and efficiently protect fundamental rights, concluding that – following the passage of the new Administrative Trial Code (d.lgs. n. 104/2010) – this judge now has a set of investigation tools, able to guarantee a real and full protection, also in tricky field as that of fundamental rights.

“A.G.C.M. AND THE CONSUMER PROTECTION: THE PROTECTION OF WEAK RIGHTS IN NEW LEGAL INSTRUMENTS

PROVIDED FOR D.LGS. NN. 145/07 AND 146/07”

by Ivan Del Giudice

The present study concerns the competences assigned to the AGCM to protection of the consumer, intended as category and not as individual, recognizing in those powers the lines of the public function executed to guarantee, also within the competitive market, the weak subjective positions in the comparison with the economic operators. It analyzes then the relationship of such function with that practiced by the judge.

L'articolo Nuove Autonomie 1-2011 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.

INDICE
DOTTRINA

Raffaele Bifulco – Il rilievo costituzionale della legge n. 241 del 1990 – 289
Maria Immordino – L’attribuzione alla cognizione dell’Alta Corte di Giustizia sportiva dei diritti indisponibili: verso una rivitalizzazione dell’ordinamento sportivo? – 299
Antonio Colavecchio – La nuova disciplina dei termini procedimentali tra innovazioni evolutive e occasioni mancate – 315
Roberta Lombardi – Sistema dei controlli: questioni vecchie e nuove – 341
Paola Lombardi – Le funzioni amministrative di governo del territorio nel nuovo assetto costituzionale – 357
Tommaso Pensabene Lionti  – Trattato di Lisbona e diritti fondamentali: nuove prospettive con riferimento alla Carta di Nizza ed al rapporto tra Unione Europea e CEDU – 381
Manuela Salvago – La sospensione cautelare delle leggi nel giudizio in via principale – 415

GIURISPRUDENZA

SENTENZA BUNDESVERFASSUNGSGERICHT [BVG] – BVERFG, 2 BVE 2/08, 2 BVE 5/08, 2 BVR 1010/08, 2 BVR 1022/08, 2 BVR 1259/08, 2 BVR 182/09 del 30 giugno 2009 sulla ratifica del Trattato di Lisbona da parte della Germania con nota di Agata Anna Genna, Un’ipotesi di lettura per il LissabonUrteil: i giudici di Karlsruhe ed il processo di integrazione democratica dell’Unione europea – 449

Cristina Giaon – Dal giudice amministrativo indicazioni contrastanti sulla natura degli uffici legali degli enti pubblici – 477

RASSEGNE

Rassegna della giurisprudenza del Consiglio di Giustizia amministrativa per la Regione Sicilia di Paola Savona – 489
Rassegna della recente giurisprudenza del Consiglio di Stato Speciale in tema di urgenza nei contratti pubblici di Salvatore Dettori – 501
Rassegna della giurisprudenza dei Tribunali amministrativi regionali Speciale in tema di “urgenza negli appalti” di Sara Forasassi – 513

OSSERVATORIO PARLAMENTARE REGIONALE – 527

Mario Di Piazza – Osservazioni in tema di annullamento integrale, in sede giurisdizionale, delle operazioni elettorali per il rinnovo dell’assemblea regionale siciliana – 577

Abstract

THE JURISDICTION OF THE “ALTA CORTE DI GIUSTIZIA SPORTIVA” OVER FUNDAMENTAL RIGHTS: TOWARDS A REVITALIZATION OF THE SPORTS LEGAL SYSTEM?
by Maria Immordino

The interest toward the “sport justice” – in the framework of the relationships between sport law and state law – has been recently reawaken thanks to the institution, by the CONI, of the “High court of sport Justice”. The creation of the Court – whose competences extend to the defence of fundamental rights – had been solicited by the legislator in order to adequate the sport justice system to the constitutional principle of the “giusto processo”. The composition of the court is strongly characterized by the independence and impartiality of his members.

THE NEW REGULATION OVER TIME LIMITS OF ADMINISTRATIVE PROCEDURES. INNOVATIVE CHANGES AND MISSED OPPORTUNITIES
by Antonio Colavecchio

Law no. 69/2009 is the most recent goal achieved in the process of protecting and enhancing the value of the “time” factor in the Public Administration. On this matter, it is of essential importance the control over the time limits of administrative procedures, about which art. 7 of Law no. 69/2009 gives a significant contribution, by completely rewriting art. 2 of Law no. 241/1990. In particular, the new 2009 law re-establishes in 30 days the “ordinary” time limit for finalizing administrative procedures, if not otherwise stated. Along with this re-establishment, a completely new element appears: a precise limit is set to the discretion usually allowed to each Public Administration in establishing the time limits for finalizing their respective procedures. The present paragraph 3 of art. 2 Law no. 241/1990 states, in principle, that, even for procedures which are independently ruled by the various Public Administrations and the Local Authorities, time limits cannot in any way exceed 90 days. The 2009 Law has by the way once again “given up” outlining the “procedural” consequences of not complying with the time limits of administrative procedures (to date, the non-compliance with time limits does not make the administrative provision unlawful. However, the 2009 Law has clearly set some of the effects stemming from the delay of the Public Administration in finalizing the procedure, by connecting two kinds of “sanctions” to the non-compliance with time limits. Such “sanctions” occur both inside and outside the Public Administration involved (respectively, with reference to the head of unit liability and to the refund for the so-called damage due to delay). These “sanctions” for the useless flowing of time will therefore allow jurisprudence to carry out a revirement of the trend which has so far prevailed and which, as it is common knowledge, denies both the loss of administrative power in case of non-compliance with the time limits, and the unlawfulness of the administrative provision tardily adopted.

SYSTEM OF CHECKS: NEW AND OLD ISSUES
by Roberta Lombardi

The article stems from the observation of the substantial failure of internal efficiency checks regulated by d.lgs. n. 286/1999, almost never implemented in the public administration, to try and evaluate the effects of the recent reform on new public management (as instituted by d.lgs. n. 150/2009) might produce on the aforementioned forms efficiency monitoring. In particolar the attention of the author is focussed on the criteria for the evaluation of management, setting the impact of the norms that redraw the efficiency monitoring system against the background of the unresolved issue of the relationship between poltics and public administration.

ADMINISTRATIVE FUNCTIONS AND GROUND GOVERNMENT IN THE NEW CONSTITUTIONAL ORDER
by Paola Lombardi

In Italy, administrative functions have received a new account by the constitutional reform of 2001. The new distinction among “fundamental”, “conferred”, “proper” and “assigned” functions, under article 118, requires an examination of the meaning of these expressions. It’s also interesting to see how this distinction is applied in the context of the ground government, even in the light of indications from European law. It’s a matter that is affected, more than the others, by the difficulties owed to the delays (existing in Italy) in the implementation of the constitutional reform at the administrative level.

LISBON TREATY AND FUNDAMENTAL RIGHTS: NEW PERSPECTIVES REFERRING TO THE CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION AND THE RELATIONSHIP BETWEEN EUROPEAN UNION AND EUROPEAN CONVENTION ON HUMAN RIGHTS
by Tommaso Pensabene Lionti

The author analyses some important aspects of the impact that the Lisbon Treaty can have in the system of the community tutelage of fundamental rights. In particular the author deals with the central core of those provisions of the law which concern the complicated theme relating to the juridical value of the Charter of Fundamental Rights of the European Union and the relationship between European Union and European Convention for the Protection of Human Rights and fundamental Freedoms. The n. 1 article of Lisbon Treaty gives the Charter of Fundamental Rights EU the same juridical value of the treaties. So the author wants to clarify the impasse that this article will determine on the role taken by the Court of justice to protect the fundamental juridical situations. Nevertheless if from one side there is the possibility of an enlargement of protection (recognition of civil and political rights and economical, social and cultural ones), on the other side, some ambiguities appear (as for example, among the light and shade effects of the Treaty, the right of opting out given to some States members). Concerning the new n. 6 article TEU, the author analyses the relationship between the Court of justice and the European Court of Human Rights, highlighting that there are the conditions that give the two Courts the chance to act with synergy; even if some difficulties persist in order to harmonize the two systems of tutelage

PRECAUTIONARY SUSPENSION IN THE JUDICIAL REVIEW OF LEGISLATION
by Manuela Salvago

The aim of this essay deals with the power to order precautionary suspension in the judicial review of legislation. This power was introduced by legge n. 131 del 2003. It presents some interesting problematic aspects, which will be carefully considered. First of all, the essay studies the problem of the most appropriate legal source to regulate the precautionary suspension power. Secondly, it focuses on the object and on the preconditions for the exercise of this power, comparing them with the preconditions of the traditional precautionary protection: fumus boni iuris and periculum in mora. Finally, it examines the Constitutional Court’s ways of exercising this power and its effects.

L'articolo Nuove Autonomie 2-2010 proviene da Nuove Autonomie.

Indice
Dottrina

LUIS FEDERICO ARIAS – La justicia argentina frente a la transformación social – 595
FRANCISCO BALAGUER CALLEJÓN – El Estado Autonómico en el contexto de la integración europea. Un comentario a la STC 31/2010, de 28 dejunio – 615
MARIA DE BENEDETTO – Qualche appunto sui rapporti tra morale, economia e diritto in una prospettiva giuspubblicistica – 649
ORNELLA SPATARO – La disciplina sulle energie rinnovabili nella dinamica delle fonti del diritto. La legislazione regionale nella morsa della sussidiarietà? – 697
MARIA TERESA DENARO – Soggetti deboli, soggetti indeboliti e diritti fondamentali: spunti e riflessioni – 727

Giurisprudenza

SENTENZA 18 ottobre 2010 n. 299 – Pres. Amirante – Red. Tesauro – Pres. Cons. Ministri – Regione Puglia con nota di ANTONELLA SCIORTINO, «Volevamo braccia, sono arrivati uomini». Note a margine della sentenza della Corte costituzionale n. 299 del 2010 – 763
GUIDO CORSO – L’ordinamento della giustizia amministrativa in Sicilia – 771
MARIA IMMORDINO – Qualche riflessione sul C.G.A. a margine del libro di Salvatore Raimondi – 775
ANTONIO SAITTA – Riflessioni sul libro di Salvatore Raimondi – 783
FABIO SAITTA – Divagazioni sul sistema di giustizia amministrativa siciliano e sul giusto processo (rileggendo un recente libro di Salvatore Raimondi) – 787

Rassegne

Rassegna della giurisprudenza del Consiglio di Stato Speciale in tema di danno da ritardo di SALVATORE DETTORI – 797
assegna della recente giurisprudenza del Consiglio di Giustizia amministrativa per la Regione Sicilia (settembre-dicembre 2010) di PAOLA SAVONA – 811
Rassegna della giurisprudenza dei Tribunali amministrativi regionali Speciale in tema di danno da ritardo di SARA FORASASSI – 823

Osservatorio Parlamentare Regionale – 837

SALVATORE DI GREGORIO – Il contenzioso costituzionale sui criteri di riparto tra Stato e Regione del gettito dei tributi erariali – 853

Abstract

LA JUSTICIA ARGENTINA FRENTE A LA TRANSFORMACIÓN SOCIAL
by Luis Federico Arias

El presente trabajo presenta un análisis acerca de los cambios verificados en las decisiones del Poder Judicial argentino frente a la transformación social de ese país en las últimas décadas. En particular, se destacan los avances jurisprudenciales de la Corte Suprema de Justicia de la Nación, en la protección de los derechos fundamentales y el abandono de ciertos rigorismos formales, por parte de ese Tribunal, para favorecer el acceso a la justicia de los sectores más vulnerables. Antecedentes del Dr. Luis Federico Arias:
• Abogado y Especialista en Derecho Administrativo, egresado de la Universidad
Nacional de La Plata, donde también cursó sus estudios de Doctorado.
• Ejerció como asesor en diversos ámbitos de la Administración Nacional, Provincial
y Municipal.
• Actualmente es Juez en lo Contencioso Administrativo del Departamento Judicial
La Plata y Vicepresidente de la Asociación Bonaerense de Derecho Administrativo.
• Se desempeña como docente en cursos y carreras de post-grado de derecho
constitucional y sociología de la Facultad de Derecho de la Universidad de La Plata.
• Es autor de diversas publicaciones, y ha brindado diversas conferencias en Argentina y en el exterior.

THE AUTONOMOUS STATE IN THE CONTEXT OF EUROPEAN INTEGRATION. A COMMENTARY ON THE DECISION 31/2010 OF THE SPANISH CONSTITUTIONAL COURT
by Francisco Balaguer Calleión

This paper analyzes the decision 31/2010 of the Spanish Constitutional Court, on the New Statute of Catalonia. Up to now, the almost unanimous assessment is that the Court has deactivated the fundamental lines of the Statute. This assessment is perhaps connected to the projection of some general principles established by the Court, which are clearly regressive not only for Catalonia but for the whole concept of the Autonomous State, to other parts of the decision. But those general declarations do not necessarily affect the more specific about the different parts of the Statute if we consider that the Court had the opportunity to declare their unconstitutionality but did not, thus validating the statutory options. From that perspective, this paper intends to offer an interpretation of the decision in relation with many of those problematic questions (competences, statutory rights, etc.) which show that the court validates the statutory options. Notwithstanding, some of the doctrinal lines have not only generated important political problems, but they also prove that the Court maintains an outdated notion of the Spanish State which does not take into account the constitutional reality of today. On the other hand, the arguable idea the Court establishes about the relationship between the Statute and the Constitution expresses distrust for the growth of the constitutional density of the Autonomous Communities, generating unnecessary conflicts between the text of the 1978 Constitution and the current constitutional context of the Autonomous State integrated in Europe.

NI ANGE, NI BÊTE. SOME NOTES ON THE RELATIONSHIP BETWEEN MORAL, ECONOMY AND LAW (FROM A PUBLIC LAW POINT OF VIEW)
by Maria De Benedetto

Since its inception economy has been considered a part of moral philosophy. What has happened? Why has the main problem of the market become a moral one? The paper analyses the development of the relationship between moral, economy and law, adopting a public law point of view and dividing the question into three sections. The first question concerns the moral of the merchant (and also the moral-politicalinstitutional framework of social market economy, as described by Roepke, that requests a minimun amount of honesty in business). The second question relates to the moral of the consumer (and also the ambiguity of the institutional approach to this question). The third deals with the moral of the regulator (referring to ethic codes and facing the problems of creative compliance and regulation failures).
The conclusion is that law (and more specifically public law) has to act properly as mediator between economy and moral, never forgetting the relevance of its enforcement and never aiming to replace moral.

RENEWABLE ENERGIES AND REGIONAL LEGISLATION BETWEEN SUBSIDIARITY AND LOYAL COOPERATION
by Ornella Spataro

The Constitutional Court has had occasion to deal with some recent decisions of legislative apportionment in the energy field between State and Regions. In particular, the judgments on a number of regional laws governing the production of energy from renewable sources, have revealed a series of critical issues that underlies it, as the dynamics
of the sources, the materials interferences between different areas of competence, the role of subsidiarity and loyal cooperation in the matter, and, more generally, the relationship State-Regions in the exercise of legislative shared power. Finally, the adoption of national guidelines, far from clarifying these issues, seems to further confirm the doubts about some aspects of the dynamics of the current sources of law.

AN INSIGHT INTO VULNERABLE AND REDUCED RIGHTS INDIVIDUALS AND THEIR FUNDAMENTAL RIGHT
by Maria Teresa Denaro

The article examines the condition of basic rights and vulnerable and reduced rights individuals in National and International Court systems. Having described the two subject categories, the article then analyses the status of their basic rights and the safeguard of their unassailable core, issue that also emerges from the indications provided by national law and European Court oh human rights.

L'articolo Nuove Autonomie 3-2010 proviene da Nuove Autonomie.

INDICE
DOTTRINA

FABIO MERUSI – Le modalità ordinarie di gestione dei servizi pubblici locali – 307

INES D’ARGENIO – La ideología estatal del interes general en el derecho administrativo – 319

ALFREDO CONTIERI – MARIA IMMORDINO – Corte dei conti ed enti locali: controllo sulla gestione e vigilanza – 369

ROBERTA LOMBARDI – La candidatura dei paesaggi vitivinicoli del basso Piemonte a “territorio patrimonio dell’Umanità”: brevi note a margine della tutela dei paesaggi rurali – 389

SIMONE PAJNO – Il fallimento dell’esperienza della specialità siciliana e le condizioni della sua prosecuzione – 399

ALDO SCHIAVELLO – La “svolta convenzionalista” del positivismo giuridico contemporaneo: una breve ricostruzione critica – 415

SALVATORE DI GREGORIO – Il fondo di solidarietà nazionale dal 1947 ad oggi. Aspetti finanziari e giuridici – 435

ANNA SVEVA MANCUSO – Alcune considerazioni sulle intese stipulate il 4 aprile 2007 in attuazione dell’art. 8.3 della Costituzione e sulla loro mancata approvazione – 461

MARCO EVOLA – La Carta blu UE: una versione aggiornata della politi ca del migrante Gastarbaiter – 491

PAOLO GARRAFFA – “Gli ‘stewards’ degli stadi, nuovi addetti alla sicurezza e all’ordine pubblico: pubblici ufficiali, incaricati di pubblico servizio, o soggetti esercenti un servizio di pubblica necessità?” – 517

AGATA ANNA GENNA -Il ricongiungimento familiare tra disciplina dei flussi migratori e tutela del diritto all’unità familiare: alcune riflessioni sui profili problematici e sulle prospettive alla luce della giurisprudenza comunitaria e costituzionale – 539

SANTI DELIA – In house e servizi pubblici locali: breve storia della capitolazione di un modello – 571

GIURISPRUDENZA

CONSIGLIO DI GIUSTIZIA AMMINISTRATIVA PER LA REGIONE SICILIANA – Sez. Giur. Decisione 30 marzo 2009, n. 219 con nota di SALVATORE RAIMONDI, Una sorprendente decisione del C.G.A. in materia di orari della segreteria e termini di deposito delle memorie, composizione del collegio giudicante nei giudizi per revocazione, e assorbimento di eccezioni processuali – 593

C.G.A. REGIONE SICILIA 07.10.2008 n. 842con nota di IVANA VASSALLO, L’art. 43 del T.U. sull’espropriazione:
un tentativo di interpretazione costituzionalmente orientata – 605

AMMINISTRAZIONE LOCALE

GIANCARLO MINALDI – La riforma amministrativa dei governi locali: “grande trasformazione” o gattopardesco maquillage? – 621
STEFANO VILLAMENA – Le ordinanze di «ordinaria amministrazione» del Sindaco – 637

OSSERVATORIO PARLAMENTARE REGIONALE – 677

SALVATORE DI GREGORIO – La competenza della Regione siciliana nella disciplina dei tributi erariali – 745

RASSEGNE

Rassegna della giurisprudenza del Consiglio di Stato
Speciale in tema di responsabilità civile della Pubblica amministrazione: l’elemento soggettivo
di SALVATORE DETTORI – 767

Rassegna della giurisprudenza del Consiglio di Giustizia amministrativa per la Regione Sicilia
di PAOLA SAVONA – 785

Rassegna della giurisprudenza dei Tribunali amministrativi regionali
Speciale in tema di responsabilità civile della Pubblica amministrazione: l’elemento soggettivo
di SARA FORASASSI – 797

Abstract

THE NOMINATION OF THE VINYARD LANDSCAPE OF SOUTHWESTERN PIEMONTE AS “TERRITORY OF WORLD HERITAGE”: SHORT NOTES ON THE PROTECTION OF RURAL LANDSCAPE
by Roberta Lombardi

The nomination from UNESCO of the Piemonte vinyards landscape as “territory of world heritage”, is the starting point of this article. From there, the article moves to more general considerations on the notion of “landscape” and the juridic implications of its protection, with particular focus on the issue of the defense and development of rurallandscape.

THE FAILURE OF SPECIAL REGIONALISM
by Simone Pajno

The aim of this essay is to briefly deal with the role of the category of regions usually called “Regioni Speciali”. In section 2 I study the reasons at the ground of “special regionalism”. Section 3 describes the most important features of the “real life” of the Regioni speciali, and of Regione siciliana in particular. This kind of Regions never enjoyed the special treatment one could infer from the constitutional text. Section 4 will hold the importance of fiscal federalism. In section 5 I attempt to offer a comprehensive reading of the shape that l. cost. 3/2001 gave to the Italian system. The main idea is that the constitutional reform determined the fall of the State’s superiority. The key-words I use to explain this point of view are “pluralismo istituzionale paritario” (that can be translated as “equal institutional pluralism”) and “sussidiarietà” (subsidiarity). Of course, subsidiarity is a well-known concept in political and legal studies. The thesis I try to draw is that in this context the role of the “statute speciali” is significantly different from before. They now have to offer the tools to make the democracy in “Regioni speciali” more profound. They have not to be used to build boundaries between the general legal order and the regional one.

CONTEMPORARY LEGAL POSITIVISM’S “CONVENTIONALIST TURN”: A CRITICAL OUTLINE
by Aldo Schiavello

The target of this paper is to analyze legal positivism’s conventionalist turn with regard to the topic of legal obligation and legal normativity. The conclusions aims to shed light on some deep limits of this kind of legal positivism. In short, conventionalism has two options, both of them unsatisfying. The first one – chosen, among others, by Herbert Hart – proposes a “weak” version of conventionalism; this strategy is losing in so far as does not allow to distinguish legal obligation from moral obligation. The second option – sketched out by authors like Chaim Gans and Gerald Postema – supports a “strong” version of conventionalism which offers a coherent model of legal obligation but at cost of misrepresenting the law.

THE NATIONAL SOLIDARITY FOUND: FISCAL AND LEGAL ASPECTS
by Salvatore Di Gregorio

The contribution that the State, yearly, is obliged to pay to the Sicilian region, as National Solidarity, disciplined by the article 38 of the Sicilian Statute is finalized to balance the difference of income between the Sicily and the national average.The essay outlines a synthesis, about more of 60 years of application of the institute of the “National Solidarity”, in Sicilian Region, examining financial and juridical aspects.Under the financial profile, are dealt the aspects related to the different levels of assigned resources and to the typology of the activated interventions. Under the juridical profile, are dealt the application aspects in relationship to the sentences of the Constitutional Court, but, above all, the possible developments of the institute with the achievement of the fiscal federalism in Italy.The essay specifically draws a general picture of the national normative that, subsequently, have disciplined the assignments of the funds to Sicily, as National Solidarity, from 1952 up to the 2007 financial law; it also examines the aspects of the State power to set limits to the use of the funds. A particular chapter is dedicated to the methods of employment of the resources, of which are analyzed the priorities, the criterions and the sectors of action. It is also, specifically, analyzed, the jurisprudence of the constitutional Court on the matter and the useful remarks, in subject, from the “Brancasi Commission” on the financial contentious between the State and the Sicilian Region. The analysis examines, besides, the relationship between the application of the article 38 of the Sicilian Statute and the reform of the title V of the Italian Constitution, comparing the constitutional discipline (particularly the article 119) and the statutory discipline. Finally the work dedicates a specific reflections to the connections between the sicilian institute of National Solidarity
and the theme on fiscal incentives and the public aids, in E.U.

SOME CONSIDERATIONS REGARDING THE AGREEMENTS STIPULATED ON 4 APRIL 2007 CARRIED OUT BY ART.8.3 OF THE CONSTITUTION AND ABOUT THEIR NON-APPROVAL
by Anna Sveva Mancuso

A radical change of the composition of the population from a religious point of view emerged in the last twenty years of the twentieth century in Italy together with the late unsettled realization of the instrument of agreements with the non-catholic denominations provided by art. 8.3 of the Constitution. We must reflect about continuing to go along with the path traced by the constituents or find other solutions to answer the even more insistent requests made by the large number of religious groups in the country, which are still subject to the obsolete provisions of 1929-1930. The agreements stipulated by Prodi’s Government on April 2007 and their failure made evident by the fact that after two years, six of these are still waiting to be presented to Parliament by the Government for approval, show what it is that went wrong and what should be done to modernize the relations between the State and the religious minorities respecting the principles of equal freedom, present in the 3° subsection of art.8 Cost., which should be the main rule of Italian ecclesiastic law.

THE EU BLUE CARD: AN UPDATED POLICY OF THE MIGRANT GUEST-WORKER
by Marco Evola

The Council adopted the Directive 2009/50 on the conditions of entry and residence of third-country highly skilled workers on the 25th May 2009. The Directive’s main purpose is setting up a procedure capable of responding promptly to fluctuating demands for migrant labour in the labour market. The achievement of this aim entails an high degree of harmonization in order to reduce the differences between national systems of recruitment and enhance the European internal market attractiveness as a whole, but the Directive does not achieve its goal because of the room left to States’ discretionary power and the way workers’ rights have been shaped. In fact the Directive is intended to control migration rather than to lure highly skilled workers, so that EU Blue Card holders represent a new figure of the migrant guest-workers.

“STEWARDS OF THE STADIUM, NEW EMPLOYEES TO SECURITY AND PUBLIC ORDER: THE PUBLIC OFFICIAL, PUBLIC SERVICE OR RESPONSIBLE FOR CONDUCTING A SERVICE OF PUBLIC NEED?”
by Paolo Garraffa

The paper is concerned to analyze, even critically, the discipline on the “stewards” of the stadiums. Starting with a brief historical reconstruction of the legislation on safety of sandblasting sports (which has since been recognized the need to resort to figures of this kind), it proceeds to reconstruct the stages on the evolution that has seen legislation introduced this figure into Italian. In the absence of their precise legal classification in the Italian law system, it tries to give an answer on that issue.

THE FAMILY REUNION BETWEEN MIGRATORY FLOWS AND PROTECTION OF FAMILY UNITY RIGHT
by Agata Anna Genna

This paper deals with the concept of right to family reunion, deriving from the case law of European Court of Justice and Italian Constitutional Court. First of all the relationship between the right to family reunion and migrants’ rights is analyzed. Then the right to family reunion is considered as it flows from EC Directive 2003/86/CE and, consequently, from the execution norms adopted by Italian Parliament. Afterwards the influence of EC law on the national legislation on family rights is examined. The conclusion is about the importance of guaranteing the free circulation of “family loves” bearing in mind the importance of the European integration and considering, on the other hand, the public order requirements.

IN HOUSE AND LOCAL COMMUNITY SERVICE: BRIEF STORY OF A MODEL CAPITOLATION
by Santi Delia

The Author briefly goes over the story of community service model management and the normative and jurisprudencial arrangements followed from the beginning of 1900: from Giolitti Law of 1903, to regulations scheme of wich at President of Republic Decree on the 26th of February 2009 provided by 23 bis article of decree n. 112/08, passed, with alteration, by the 6th of August 2008 n. 113 Law. The heart of the analysis is the dichotomy, always admitted by community and national jurisprudencial, between the choice of civil service for community service autoproduction and their outsourcing through the appeal of the market. The legislative evolution analysis showes as the present set-up, defined with the introduction of the 23 bis article of decree n. 112/08, brings to a drastic reduction of the effective choice possibility of Civil Service among the several management models admitted till now, forcing to choose for the so-called outsourching: the implementation of 23 bis article, in consideration of corroboration gained by local authority involved to accede to in house on Guarantor Authority of Competion and Market side, showes a real unworkability of the chose of services autoproduction on civil law side.

L'articolo Nuove Autonomie 2-3 2009 proviene da Nuove Autonomie.

INDICE

Editoriale di Giuseppe Verde – 3

DOTTRINA

PAOLO DELL’ANNO – Le trasformazioni del diritto ambientale – 7
GUIDO CORSO – MARIA CRISTINA CAVALLARO – Il sindacato giurisdizionale della Corte dei Conti sull’atto amministrativo – 17
ANTONIO RUGGERI – Composizione delle norme in sistema e ruolo dei giudici a garanzia dei diritti fondamentali e nella costruzione di un ordinamento “intercostituzionale” – 29
FABIO SAITTA – Dalla Filippica di Einaudi alla riforma Gelmini: il punto dopo mezzo secolo di discussioni sul valore legale dei titoli di studio – 59
MARIO SPASIANO – Riflessioni sparse in tema di semplificazione amministrativa – 75
MARCO CALABRÒ – La presunta natura giuridica ibrida del ricorso straordinario al Capo dello Stato: tra amministrazione e giurisdizione – 87
TULLIO FENUCCI – Il federalismo negli USA e in Germania: due modelli a confronto – 105
ANNA LAZZARO – Strumenti e sedi della collaborazione tra enti. Una di sciplina da definire– 133

GIURISPRUDENZA

CORTE COSTITUZIONALE sentenza 15-23 dicembre 2008, n. 438 con nota di ELISA CAVASINO – 165
CORTE COSTITUZIONALE sentenza 4-8 maggio 2009, n. 149 con nota di GIOVANNI SCALA – 177
CONSIGLIO DI GIUSTIZIA AMMINISTRATIVA PER LA REGIONE SICILIA sentenza 9 dicembre 2008, n. 1005 con nota di SIMONA BALZANO – 187

OSSERVATORIO PARLAMENTARE REGIONALE – 201

RASSEGNE

Rassegna della giurisprudenza del Consiglio di Stato di SALVATORE DETTORI – 241
Rassegna della giurisprudenza del Consiglio di giustizia amministrativa per la regione Sicilia di CRISTIANO CELONE e LAURA TRIZZINO – 255
Rassegna della giurisprudenza dei Tribunali amministrativi regionali di SARA FORASASSI – 263

L'articolo Nuove Autonomie 1-2009 proviene da Nuove Autonomie.