Fascicoli 2-3/2011

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Abstracts

THE RIGHT TO A HEALTHY ENVIRONMENT IN COLOMBIA

by Gloria Amparo Rodríguez

This paper describes the progressive recognition of the right to a healthy environment in Colombian legal system, one of the more advanced models of environmental guardianship in Latin America. The 1991 Colombian Constitution not only contains several regulations foreseeing environment protection, but it also consecrates the individual right to the environment and it foresees the duty of the State to guarantee the participation of the people to decisions able to engrave on the environment. The environmental legislation has introduced different mechanisms allowing people to take part to administrative proceedings on environmental matter (law n. 99 of the 1993) and it also has regulated different tools for jurisdictional guardianship of the individual right to the environment, as popular actions to defend collective interests, among which the interest to a healthy environment (law n. 472 of the 1998). Nevertheless, the article underlines how, although Colombian system is highly sophisticate, there are still many operational problems that compromise the real application of this normative of environmental protection.

ABOUT THE CONSTITUTIONAL TRIAL LENGTH

by Giovanni Pitruzzella

The subdued contribution regards the timing of the constitutional trial, as another expression of its peculiarity: in particular, aside of relative quickness of it – in comparison with the ordinary ones – the Author underlines the primary topic of the proper protection of the (fundamental) rights, usually implied in all the different types of Constitutional Jurisdiction. Along such topic, in the contribution emerges indeed the unique role of the Court, whose sentences overlap both the political and the judicial competence, and it is for such reason, then, that the Court’s «authority» cannot depend on its quickness in resolving cases but – more properly – on its capability of pursuing and issuing sentences, the more shared as possible by all the Judges themselves. The length of the Constitutional trial – and its procedural terms, prescriptions, decadences – is, therefore, another profile of the absolutely sui generis nature of the Constitutional Jurisdiction.

PRINCIPLE OF NON-REGRESSION, NATURAL PROTECTED AREAS, DECLASSIFICATION

by Fernando López Ramón

Exposition on the development of the legal system of declassification of protected natural areas under Spanish law according to the principle of non regression, considering: a) historical links with economic interests, b) conservationist interpretations derived from the 1978 Constitution, c) international and European system of declassification, in particular the case-law related to the network Natura 2000, d) impulse given by some regional experiences, e) the constitutional and administrative case-law, and f) the assumption of the principle of non-regression in this area by the basic legislation of 2007.

THE SCIENTIFIC CONTRIBUTION OF FABIO MERUSI ON THE ITALIAN SYSTEM OF JUDICIAL REVIEW OF ADMINISTRATIVE ACTS AND DECISIONS

by Alberto Zito

Fabio Merusi is one of the most prominent scholar of administrative law in Italy. The essay examines the works of Fabio Merusi on the Italian system of judicial review of administrative acts. According to Fabio Merusi this system was not able in the past to guarantee the effective protection of citizens against administrative decisions. The essay also examines the reform proposals advanced by Fabio Merusi.

ABOUT THE LEGAL-CONSTITUTIONAL BASES OF THE OBLIGATION TO ADOPT PROVISIONS

by Antonio Colavecchio

The paper examines the legal-constitutional bases of the obligation, on the part of Public Administrations, to finalize their own procedures with an explicit provision (the so-called clare loqui). Such obligation stems from art. 2 of law no. 241/1990. The analysis is carried out by pinning down the contribution of each constitutional and general principle of our administrative framework (as integrated by the EU Law) to the legal basis of the obligation to adopt provisions, as well as to the definition of its content and scope. In particular, the paper points out the contribution of the fundamental principles of the administrative action, such as “impartially”, “good administration”, “transparency”, “legitimate expectation”, in establishing – at constitutional level – the clare loqui obligation, as well as their contribution to make it effective. From this latter point of view, the paper highlights the evolution that, mainly thanks to recent reforms in administrative procedures, has marked the system of protection for citizens in case the Public Administration does not fulfill the obligation to adopt provisions. Such evolution, in the picture of the synergy between legislation and case-law, also in the light of the contribution of the scholars, strengthens the perspective of the citizen claiming an “administrative response” in good time as a real subjective right and, from the European Law point of view, as a fundamental right of the person.

FROM THE STATE REGIONS COOPERATION TO THE PROTECTION OF THE FUNDAMENTAL RIGHTS (AND BACK):

THE CLOSING CIRCLE IN THE SICILIAN REGIONAL EXPERIENCE

by Stefano Agosta

In a very innovative way compared to a “guaranteed” one, the opposite pattern of “cooperative” Regionalism is inspired by a radically different intuition for which the center and the suburbs – precisely with a spirit of fair cooperation – must contribute each other to the exercise of their constitutional functions. From this particular point of view, the Sicilian regional experience represents undoubtedly a real “constitutional forge” ante litteram, being able to distinguish itself in a useful way between an “organic” cooperation and a “procedural” one: in particular, the first one concerns the special prevision of the possible invitation of the Sicilian Region President to take part in Council of Ministers deliberations; the second one, instead, is related to a sort of increasing “scale”, ranging from the mere commitment of information and communication among the several governments levels until the highest “step” represented by the State-Sicily Region agreement. So the “circle” between loyal cooperation and protection of the fundamental rights closes itself whenever the State operates to “unify” regional functions ex art. 117, par. 2, lett. m, Const. (for example, in educational field or public housing development, etc.): that is a cooperation with Sicily, which is equally opened to the whole possible span of existence of State L.E.P. (in particular at the beginning, during and at the end of their emanation). Jurisprudence has the hard task to define – with an acceptable degree of security and stability – the judgment’s standards to use, time after time, for the evaluation of the effective proportionally (sic, reasonableness) of the statal and regional joint action, in view of the highest value in field, that is the super-constitutional one of human dignity.

FORECASTING AND RISK MANAGEMENT IN AREAS OF HIGH HYDRAULIC HAZARD

by Mariaconcetta D’Arienzo

In a field characterized by innate uncertainty and limited rationality, where the need for prudential and preventive dealing collides with the freedom of private initiative, the “co-decision” allows to remove or reduce many of the practical difficulties of implementation plans, providing a meditated assessment of the involved interests and fair balance between the needs of planning and the environmental conservation

SOME NOTES ABOUT RISIKOVERWALTUNG

by Paola Savona

This paper analyses the role played by the precautionary principle (Vorsorgeprinzip) in German constitutional and administrative law. Referring to the principle, several statutes allow public administration to act in order to prevent or reduce risks, i. e. situations in which formal probabilities cannot be assigned to the outcomes due to lack of empirical data or theoretical basis (uncertainty). In such cases, the Administration (s.c. Risikoverwaltung) is endowed with a discretionary power, much broader then the power to counteract a dangers, legal concept commonly referred to a situation in which, if not prevented from taking its course, can be expected, with a sufficient degree of probability, a damage to public or private goods. To balance this power, law creates institutions and procedures, which aim to generate new knowledge and, in the meantime, to guarantee legal certainty.

L'articolo Nuove Autonomie 2-3-2011 proviene da Nuove Autonomie.

INDICE
DOTTRINA

Salvatore Raimondi – Opportunità e contraddizioni dell’autonomia siciliana – 209
Stefano Agosta – Il recente riordino delle autonomie locali siciliane alla prova dei fatti: fra nodi ancora da sciogliere ed un’auspicabile inversione del metodo riformatore per il futuro – 219
Bruno Di Giacomo Russo – La legge n. 56/2014 e i diversi tipi di provincia – 233
Daniela Belvedere – La tutela precauzionale dell’ambiente e il ruolo della giurisprudenza nel riconoscimento del rischio da fattori inquinanti – 259
Simona Polimeni – Un imprevedibile circuito virtuoso: disciplina sull’immigration regime ed esigenze di sviluppo locale (Notarella a margine della L. reg. calabrese n. 18/2009) – 271

Abstracts

The Special Autonomy of the Sicilian Region: Opportunities and Contradictions

of Salvatore Raimondi

In 1946 the Sicilian Statute was an authentic masterpiece, however today it looks more like a piece of legal archeology. The paper, in particular, illustrates the emptying of the regional legislative competences. Agriculture is, since a long time, regulated by the European Union. Industry is an emptied competence because the industrial policy requires funds that are nowadays unavailable; moreover the companies tend to move to countries where labor costs are lower. Trade falls within the scope of competition, and it is therefore subtracted from the regional competence. The legislative powers have also been reduced by the case law of the Constitutional Court. Furthermore the author stigmatize the mentality of regional public officials, whose main concern, when dealing with instances of economic operators, is to avoid responsibility. The constitutional reform under discussion in Parliament envisages an obligation to adapt the Statute to the new structure. The author states that the special autonomy should be preserved because it provides advantages in tax matters.

Local Sicilian self-government reform in action: open questions and reformer method coming reversal

of Stefano Agosta

Most important matters set by Sicilian law (no. 8/2014 and 15/2015) after Sicilian Districts cancellation are five: so, in particular, government’s levels, lands borders, administrative functions, provincial workers, provincial tax and outgoings different distribution. A first and short examination shows that new Sicilian law does not satisfy Sicilian citizenship suffered request of regional administration modernization, spending review and economic resources rationalization. So a best legal rule specially make a method inversion to shorten distance between local needs and their satisfaction.

Law N. 56/2014 and the different types of province

of Bruno Di Giacomo Russo

Law n. 56/2014, first of all defines the Province as a Body that plays the roles of a vast area and, secondly, introduces a functional and legislative differentiation between the Province and the adjoining mountain Province. These differenciations are justified by the different features of the territory where they rise up and the different needs they have to fulfill. What is new about Law “Delrio” is the specific mountain  regime of Provinces adjoining with foreign countries, in order to create a system of governance of the mountain. With Judgement n. 50/2015 the Constitutional Court rejects the various matters of constitutionality relating to law n. 56/2014. The Constitutional Court states that the second level model is not illegitimate in itself, thus it needs the support of its jurisprudence. 63  L’intento è quello di ovviare alla proliferazione di Enti, con ambito di area vasta, anche se non coincidenti di norma con territori provinciali e con funzioni di area vasta e in quanto tali astrattamente riconducibili all’Ente allora direttamente rappresentativo, costituzionalmente chiamato ad accogliere, e destinato a ricevere, quelle funzioni, come ad esempio avviene negli ambiti dei servizi dei rifiuti o delle acque.

La legge n. 56/2014 e i diversi tipi di Provincia 257

The role of the Provinces, however, needs to be contextualized within the constitutional framework, considering the intent of modifying it. In judgement n. 50/2015, the Judge of the Constitutional Court reminds that the approval of a draft law for the abolition of Provinces is currently taking place. The aim is to abolish Provinces and deliberately delete any reference to the provincial Body from the Constitution, concluding that Law 56/2014 will serve as a temporary measure in anticipation of the final abolition of the Body. The abolition from the Constitution of any reference to the Province is not to be considered its  very abolition. The fact that the bill refers to the abolition of Provinces is not itself a sufficient element to state that the deconstitutionalisation will mean an institution ban by the Legislator. Provinces will survive their own removal, while losing their representative nature and becoming fully available for the regional Legislator, in terms of functions, organization and territorial linkage.

The precautionary protection of the environment and the role of jurisprudence in recognition of the risk from polluting factors

of Daniela Belvedere

The growing interest on environmental protection finds a symptomatic index in the precautionary principle. The use of this principle, justified by scientific uncertainty concerning the causal link, put in evidence the peculiarities of the relationship between science and law. Such relationship affects not only on the level of legislative choices, but also to work on the application of the jurisprudence. In the first direction, the central issue is the evaluation of the translation in normative terms of the precautionary principle,while in the second, are relevant the reasonableness control of the precautionary choices and the possible use direct In particular, the analysis of administrative jurisprudence allows identification of the mode of implementation of environmental protection through a broad interpretation of the precautionary principle and to assess the obligation resulting from this principle, in an attempt to avoid the latter being used to justify measures inhibitor of a particular business or a particular evolutionary process.

L'articolo Nuove Autonomie 2-2015 proviene da Nuove Autonomie.

INDICE
Dottrina

Antonio Ruggeri – Verso una revisione della forma costituzionale dello Stato – 5
Mario R. Spasiano – Conflitto di interessi ed esercizio delle professioni – 45
Alessandro Morelli – Le diverse configurazioni dell’autonomia nei due ambiti funzionali dell’istruzione e della sanità – 63
Stefano Agosta – La responsabilità per danno ambientale nell’ordito di competenze tra Protezione civile e poteri prefettizi – 89
Marco Calabrò – La disciplina dei porti in Italia: caratteri, criticità e prospettive – 99
Matteo Pati – Alcune considerazioni sulla c.d. riserva di legge costituzionale in materia di immunità delle alte cariche dello Stato – 131
Valentina Prudente – In tema di partecipazione degli stranieri all’amministrazione locale – 149

Abstracts

TOWARDS A CONSTITUTIONAL REVIEW OF THE CONSTITUTIONAL FORM OF STATE

by Antonio Ruggeri

The paper analyzes the reasons and the targets of a possible constitutional amendment in the present political moment in Italy and the procedural alternatives this review might follow (art. 18 Cost. or a different procedure). For what concerns Tit. V, Part II of the Constitution every abstract division of normative powers between State and Regions taking with the proposal of restrain regional “concurring” legislative power is not good, as well as the proposal of a double catalogue of matters of regional legislative powers both “concurring” or “full” (also called “residual”) legislative power. The governmental constitutional amendment proposal seems highly problematic for what concerns the idea of regional autonomy and its artificial distinction in special and ordinary autonomy (it would have been better to define a plural and flexible with a “specialità diffusa”). It is necessary to correct the idea of autonomy, not as a power, but as a service to the community, in the supranational context, in which the Region can be an active subject, and at the state level, with a regional branch of Parliament and a new model of constitutional amendment procedure and a different structure of constitutional review of legislation when there are Regions and State which act in front of the Constitutional Court.

CONFLICT OF INTEREST AND PRACTICE OF PROFESSIONS

by Mario R. Spasiano

The aim of this article is, first of all, to give a correct and systematic legal framework to the not univocal conception of conflict of interest, underlining the several peculiarities connected to the different legal contexts (civil, public, criminal) where it can appear. In the light of the exam of legislation and judgments, arises that, in the civil context, the conflict of interest often emerges only in the presence of a real prejudice caused to another interest; while, on the contrary, in the public context is possible to find also conflict of interest hypotheses relevant in terms of mere potentiality. Once outlined the main systematic profiles, the author analyses the most interesting cases of conflict of interest emerging during the practice of professions, in particular the medical one. In this context, the current legislation is fragmentary and often does not allow the distinction between real or potential hypotheses of conflict of interest; so, the author affirms that there is a strong need of a more detailed regulation, also through the enhancement of the codes of conduct stated by each professional association, designated also to monitor the practice of professions liberty and fairness.

THE DIFFERENT CONFIGURATIONS OF AUTONOMY IN THE TWO FUNCTIONAL DOMAINS OF EDUCATION AND HEALTH

by Alessandro Morelli

The paper examines the constitutional principle of autonomy, with specific reference to education and health matters. Within the paper it is used the distinction between exclusive, non-exclusive and inclusive goods in order to distinguish between different ways for independent bodies to provide services. From such standpoint, the services related to education seem to be more inclusive than those related to the field of the health. However, according to the paper, the Constitution provides that each provider of services related to social rights must achieve the highest degree of inclusion as possible in the relevant historical context.

PREFECTURAL POWERS AND CIVIL PROTECTION IN THE FIELD OF ENVIRONMENTAL DAMAGE

by Stefano Agosta

On the issue of liability and compensation for environmental damage, the work begins with a sort of “flashback” to delineate limits and poker of the competent authority to the establishment of such damage in Italian system. The Legislative Decree no. 152/2006 sets up the central axis Government Minister for the Environment/Prefect: in particular, the Prefect largely gets involved with establishment and resulting amount of environmental damage because the usually functions as deputy commissioner for the emergency, according to the provisions of Law no. 225/1992. Anyway, some gray areas appear to go on respect to full compliance of the Constitution (in particular, for example, into governance, center-periphery relationships and legal sources system, above all): they go in spite of the recent restrictive of Prefect’s necessary and urgent power reform of Civil Protection (in this way, Decree Law no. 59/2012 approved, with amendments, by Law no. 100/2012).

THE ITALIAN PORT LEGISLATION: FEATURES, CRITICAL ASPECTS, AND PROSPECTS

by Marco Calabrò

The current Italian national port legislation (l.n. 84/1994) appears by now, from several perspectives, unsuitable to a modern idea of port, as “passage” of economic trades, element of a wider logistic chain. This article – even through the exam of an interesting draft bill recently presented to the Parliament – intends to underline the main critical aspects of the mentioned legislation (concerning, for example, the unclear role of the Port Authorities, the complexity of the port planning model, the lack of a sufficient logistic system, etc.), pointing out possible legal solutions able to increase competitiveness and effectiveness of Italian harbours, which to this day shows a relevant deficit compared to the North Europe and Mediterranean ports.

THE ISSUE OF THE RESERVE OF CONSTITUTIONAL LAW ON THE IMMUNITY OF THE “HIGH CHARGES” OF THE STATE

by Matteo Pati

The present paper aims to illustrate – in its essential points – the vexata quaestio concerning the existence in the constitutional Text of constraints for the ordinary legislator to extend the derogations from the ordinary law in favor of the supreme political organs of the State. Starting from a rational positioning of the constitutional prerogatives within the system of the Charter, the latest regulatory actions will be commented in the light of the case law and the prevailing doctrinal positions, in order to propose a constitutionally-oriented reading of the “protective” mechanisms provided by the republican Constitution. This purpose will be reached by taking into account the different constitutional values and principles involved, trying to provide a balance between them, that may conform to the democratic structure of our constitutional order and identifying, consequently, the extent of the limits imposed on their vision.

LOCAL GOVERNMENT AND POLITICAL PARTICIPATION OF STRANGERS COMING FROM NON-EU COUNTRIES

by Valentina Prudente

The cultural and social integration of strangers in the life of the community in which they live, is brought to the exercise of democratic rights granted to citizens residents. In the Italian system is still an open question about the attribution of voting rights to immigrants from non-EU countries, but at the same time new forms of participation have emerged at the local level. This paper examines the current state of our legislation and some case studies about experienced participation at the level of local government.

L'articolo Nuove Autonomie 1-2013 proviene da Nuove Autonomie.