INDICE
DOTTRINA

Simone Pajno – Aspetti problematici delle norme di attuazione degli statuti speciali – 377
Cristiano Celone – L’ampio potere di regolazione dell’Autorità indipendente dei trasporti nel settore ferroviario – 411
Alessandro Cioffi – Il conflitto d’interessi negli appalti pubblici. A proposito dell’art. 42 del Codice – 457
Raffaele Picaro – Notazioni di ermeneutica contrattuale evocate dalla digitalizzazione dei processi costruttivi – 469
Vanessa Manzetti – La spending review immobiliare e la compensazione giudiziale. Riflessioni a margine dell’orientamento assunto dalla Corte dei conti – 513
Caterina Ventimiglia – Organizzazione e diritto alla salute, alla prova della regionalizzazione e dell’aziendalizzazione dei servizi sanitari – 533
Clara Napolitano – Il Social Impact Bond: uno strumento innovativo alla ricerca del suo diritto – 563
Giacomo Delledonne – Riforme elettorali e partiti politici europei – 593
Alessandro Di Martino – Le concessioni nel Codice dei contratti pubblici: profili di apertura al mercato e novità in tema di esecuzione del contratto – 617

Abstract
Problematic Aspects of the “Implementation Rules” of the Special Regional Statutes
by Simone Pajno

The aim of the essay is to deal with some problematic aspects of the “implementation rules” of the Special Regional Statutes, namely the noninvolvement of the Parliament in their approval procedure despite the primary level of this source of law in the hierarchy of norms. The special feature of the approval procedure of these rules is due to the deference towards the principle of territorial autonomy: as it is well known, the decision of the Council of Ministers must be based on the opinion of a State-Region joint committee. The essay holds that it is necessary to identify the role of the joint committee in the specific regional system considered, whereas, as far as the approval procedure of the implementation rules is concerned, the practice of legislation and constitutional case-law seems to underestimate the differences between the special regional statutes. Secondly, the essay criticizes the broad use of the “implementation rules” to regulate any issue concerning the Special Regions, even if outside the scope of the Statute, because the exception to the principle of the parliamentary source of the primary rules can be constitutionally justified only when the “implementation rule” considered is grounded in the special Statute. Finally, the essay suggests to reform the approval procedure of the “implementation rules” in order to assign the final decision to the Parliament, even though this decision will be based on the opinion of the joint committee. The wide regulatory power of the Independent Transport Authority on the railway sector by Cristiano Celone The National Independent Authority for Transport, imposed by European Law and established in Italy in 2013, is characterized by using wide powers of control, regulation and sanction, which cover all transport sectors. Regulatory competences seem in particular to interfere, in some areas, with the functions, also of political direction, of the State, Regional and Local Government, as well as the competences of the other administrative independent bodies such as the National Antitrust Authority or National Anti-Corruption Authority. This requires the provision of forms of coordination and cooperation beetwen those authorities, waiting for a clear actio finium regundorum by the national legislator, in order to avoid risks of conflicts between the activities of the various authorities or the adoption of contradictory or misaligned decisions and measures on the same issues. The paper will give a general outline of this type of independent regulation and the several public interests assigned to the Transport Authority, and, in particular, it will focus the attention on many regulatory competences of the Transport Authority on the railway sector, recently extended by the legislative decree n. 139/2018, as well as the content of the several measures adopted by the Transport Authority for the railway market, considered in the light of European
policy of market liberalization, establishing a single European railway area and promoting a safe, efficient, multimodal and sustainable trans-European transport network.

Public procurement and conflict of interest
by Alessandro Cioffi

Italian administrative Code for public Procurements sets new rules on conflict of interests. The aim is to protect competion, according to Eu principles, under the art 42. It provides to avoid any interest, as personal interest, economic interest or financial interest, that may influence the final goal. So the whole system involves the idea of what might be the position of public Administration relating to such kind of interests. Should it be considered out of any contact or not? The big deal is in determining final values and kinds of conflict. So real conflict or potential conflict, and several values, as competion or public interest, can play a big role in definition of the rule of law.

Contractual hermeneutics and information modeling in building and infrastructure industry
by Raffaele Picaro

Obligatoriness, even though gradual, of Building Information Modeling (BIM), imposed by law d.m. n. 560/2017, marks a radical change in the public tender calls context, with consequences within the construction industry chain, looking towards – also on the basis of an acquired international experience – the introduction of effectiveness and guarantee elements so far not observed in such a productive branch, as well as field testing of new job organization models deriving from qualifying technologies, with due regard to public demand, from which renovated occasions of economic facts awareness on behalf of juridical science will no doubt derive.

Spending review, public real estate and “judicialcompensation”. Reflections About the assumptions of italian Court of Auditors
by Vanessa Manzetti

The research work starting from the arguments carried out by the Regional Control Section for Piemonte of the Court of Auditors regarding the relationship between policies of public real estate spending review and “judicial compensation” (opinion No. 125 of 2018) is aimed at presenting some reflections on how the advisory function of the Court of Auditors may be of help to the good performance of the administrative action as introduced by the constitutional reform of 2012, which introduced budget balance and sustainability of public debt (articles 81, 97, 117, 119). On a methodological level the paper will start a reflection on the ratio underlying the measures of public real estate spending review, to then proceed to a re-reading of the spending review policies in the new constitutional context, considering that these, having any way reflected on the budget of the institution, must be placed within the constitutional reform of 2012. Finally, this will lead to investigate the role assumed by the Court of Auditors in the performance of its functions (consultative, control and jurisdiction) as a “natural interpreter” of the dynamism of public accounting.

Organization and right to health, to the test of regionalization and corporatization of health systems
by Caterina Ventimiglia

The contribution proposes an analysis of the effectiveness of the right to health, deepening the evolution of “regionalization” and “privatization of a stateowned company” of the National Health Service, in comparison with the marked regional differences (gaps) in the provision of Essential Levels of Assistance. The author researches the profile of the organization and of the financing of health services which take on a peculiar complexity in the health sector, in which there is the most complex experience of decentralization and also the introduction of fiscal federalism through the application of the requirement and the standard cost. For the purposes of overcoming health inequalities, the analysis proposes the territoryalization of the standard cost through the introduction of the socioeconomic deprivation index and considers fundamental the development of the health care company by enhancing the organizational autonomy and the introduction of an uniform system of internal controls on health services, including the detection of the quality perceived by the user, adequate to support the improvement of services and the uniform fulfillment of Essential Levels of Assistance.

Social Impact Bond: an innovative tool searching for its own law
by Clara Napolitano

The Social Impact Bond is a new financial instrument that shall be used for social purposes by public Administration. It is already present in other legal orders – such as the UK and USA, among the others – and it has been successful in saving public money in the field of social services. This kind of contract is atypical and not well-known in Italy, so the question we try to answer is how to import it without contrast with the Code of public contracts. The hypothesis carried out is that the Social Impact Bond could be an atypical form of public-private partnership (PPP), even if it presents characteristics that aren’t – at this time – perfectly super imposable to those foreseen for the PPPs. Therefore, two paths can be followed in order to sustain the compatibility of the Social Impact Bonds with the PPPs: large interpretation of the norms or intervention of the legislator.

Reform of the electoral law and European political parties
by Giacomo Delle donne

This essay aims to analyse how electoral system for European elections, and the discussion about their constitutional significance and reform, have contributed to shaping the legal status of the European political parties. The relationship between electoral laws, party systems and political party regulation is a locus classicus of constitutional law. In this respect, the peculiar character of the composite constitutional system of the European Union, in which supranational and national legal materials coexist, shows that the development of the European political parties and its autonomisation from national party systems is still an ongoing process.

Concessions in Public Procurement Code. Market opening aspects and novelties with regard to contract execution by Alessandro Di Martino

The purpose of this work is to examine concessions in the new Public Procurement Code, analysing, on the one hand, market opening aspects, and on the other hand, the novelties regarding contract execution. This analysis stems from a preliminary and fundamental observation, regarding the new understanding of concessions within the administrative system. Nowadays, we speak of “concessioni-contratto”, concluded with a partner, which allow to overcome the traditional idea of concessions as unilateral measures (expanding the legal sphere of individuals) by the public administration. After having analysed the specific features of concessions and procurement contracts, the focus then shifts on other elements from which it is possible to deduce, on the one hand, the wide margin of discretion of contracting authorities during the procedure for the awarding of concessions; on the other hand, the analysis focuses (above all) on two legal arrangements applicable to concessions, whose aim is to open up the awarding of works and services concessions to competition: the “avvalimento” (reliance on the capacity of other entities) and the application (established in case-law) of the rotating principle are instrumental to a further market opening to small and medium enterprises. Finally, this work analyses art. 177 of Public Procurement Code, which deals with the contacting out to third-party contractors by the concessionaires, by highlighting the main novelties which are to be welcomed, by focusing on its implementation issues, and, if practicable, by recommending a de jure condendo perspective.

L'articolo Nuove Autonomie 3-2018 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.