INDICE
DOTTRINA

Massimiano Sciascia – La mutevolezza del concetto di potere e la clausola generale sulla giurisdizione amministrativa nel codice del processo amministrativo – 405
Raffaele Picaro – La partecipazione delle Università ad enti di diritto privato nella prospettiva della Terza Missione – 411
Carlos Botassi – Atto amministrativo illegittimo e responsabilità dello Stato – 433
Marco Angelone – Diritto privato «regolatorio», conformazione dell’autonomia negoziale e controllo sulle discipline eteronome dettate dalle authorities – 441
Viviana Molaschi – La democratizzazione delle decisioni science and technology based. Riflessioni sul dibattito pubblico – 463
Giuliano Taglianetti – Effettività dei servizi pubblici e tutela dei diritti fondamentali nella prospettiva europea – 483
Anna Del Prete – Criticità e prospettive per la disciplina del diritto di accesso generalizzato – 531
Alessandro Di Martino – Il dibattito pubblico per la realizzazione delle grandi infrastrutture: quale ruolo per la partecipazione democratica? – 551
Domenico Marrello – Profili di giurisdizione oggettiva nel processo amministrativo spagnolo – 507
Alberto Zito – La tutela atipica nel proceso amministrativo tra principio di effettività, principio di equità e principio di proporzionalità: saggio di metagiurisprudenza – 567
Salvatore Dettori – La funzione di salvaguardia del responsabile del servizio finanziario degli enti locali nella teoria dell’organizzazione amministrativa: profili ricostruttivi – 583

Abstract

The fickleness of the concept of power and the general clause on the administrative competence in the Code of the Administrative Proceedings

by Massimiano Sciascia

The waving nature of the concept of power drives to outline such an evolving line to the point to seek for new keystones in the dialogical structure, at intervals conflictual, between the exertion of the power and the subjective situations conflicting with it. If power is any kind of energy able to move the legal positions of subjects of the system, balancing between authority and freedom, the utmost expression of the time of authority is the adoption of administrative measures which take care of the public interest. It follows that the connection with the power is the distinguishing mark of the administrative competence according to par. 7 a.p.c. and also the knowledge of the rights is in the general clause related to the connection with the exertion or the non-exertion of the power.

The participation of Universities and private law legal Entities in the perspective of the Third Mission

La partecipazione delle Università ad enti di diritto privato nella prospettiva della Terza Missione

by Raffaele Picaro

Considered on the whole as the complex of activities through which Universities and Research Authorities directly relate to society, the Third Mission presents the question of the limits of private right legal instruments. This theme is scanned by current law trends, recently merged into the T.U.S.P., destined to the rationalization of the constellation of public participation Bodies. Against the background we may easily outline the fear that the establishment of the activities of the Third Mission may compromise the original function of public University which, as an intermediate social entity, represents altogether a guarantee of pluralism and of tutelage of the person, with the correlative individualism implementation, but also the protection of the freedom that our Constitution is to ensure to science and education

Unlawful Administrative Acts and State’s Liability

by Carlos Botassi

This paper describes the means by which Argentina’s law provides compensations for damages caused by unlawful administrative decisions. It focuses on the need for recourse to administrative and judicial actions aimed to the annulment of the act as a condition to claim damages caused by its adoption. Due to its short limitation period, validity claim ends up depriving compensation remedies of any practical utility, and exposes the principles of the rule of law to a serious threat.

«Regulatory» private law, conformation of the negotiating autonomy and control over the heteronomous rules issued by independent authorities

by Marco Angelone

The «regulatory» private law issued by independent authorities is studded with heteronomous rules that pervasively affect all the expressions of the negotiating autonomy, coming more and more often to influence even the organizational structure of the enterprises. The phenomenon of conformation under consideration also finds a very strong impulse in the activity of the European Supervisory Authorities and, more generally, in the expansion of «soft law» and «moral suasion» actions carried out by (national and supranational) regulatory bodies. Hence the need to identify a barrier to the «independent» regulation of the markets, which calls the interpreter to derive from the entire legal system the parameters on which to base the control over the correct use of the regulatory powers and over the outcomes of the conformation involving the negotiation autonomy, while ensuring the right to a full and effective judicial review.

The democratization of science and technology-based decisions. Reflections on the public debate

by Viviana Molaschi

This article analyzes the new frontiers of public participation in the field of major works, contextualizing this issue in the complex and increasingly conflictual relationship between scientific and technological evolution and democracy. After outlining the emerging role of “deliberative arenas” as instruments for granting public discussion on science and technology-based public decisions, it examines the recent introduction into the Italian legal system of the public debate, aimed at democratizing siting procedures of large-scale projects and preventing “proximity conflicts”. The paper compares it with the French débat public, underlining some differences: in particular, the Italian legislator has made some regulatory choices that weaken the role of public participation in the decision-making process, which is still characterized by a technocratic vision.

The effectiveness of public services and the protection of fundamental rights in the european perspective

by Giuliano Taglianetti

The essay analyses the close relationship existing between the theme of effectiveness of public services and that of protection of the basic rights. Effectiveness is an essential characteristic of public services in function of concrete realization of constitutional projects of solidarity and of substantial equality. At the same time, it represents the essential presupposition to realize the reality of the rights of freedom. The consciousness of the close bond between public services and basic rights is very present in the European right. In this system, the perspective of the effectiveness of public services, in function of social and territorial cohesion of the Union and, so, of the protection of basic rights, has assumed a main role. In the European vision, the general interest in distributing public utilities able to satisfy the basic needs of citizens can’t be reached only through the application of competitive rules, but it imposes the recognition and the increase of the decision-making autonomy of the member States and of the local authorities. The last, in fact, in virtue of the principle of subsidiarity, sanctioned by the Treaty on the European Union, are intended as the first guarantors of the basic rights and the allocation of public utilities able to satisfy these rights. The autonomy recognized in favour of the local authorities in the acceptance of the public utilities doesn’t mean, however, an absolute and unconditional liberty, an end in itself, but it is “functional” to the attainment of real aims that the same local authorities, as interpreters of needs of collectivities that organize themselves in them, think necessary to assure. Consequently, the aim to assure the effectiveness of the public utilities is, at the same time, the justification of the autonomy recognized to the local authorities in this sector, but also the limit of their action.

Critics and perspectives on the generalised access to administrative documents

Criticità e prospettive per la disciplina del diritto di accesso generalizzato

by Anna Del Prete

 The legislator focus on the “access to administrative documents” has grown in recent years. The legislative decree n. 33/2013 introduced new requirements for web based publications of documents, and informations as well as new form of civic access to administrative documents, inspired to the transparency principles. However the Italian rules for publications differ from the American FOIA: it is not possible to configure an unconditional obligation for publication of all data held by public authorities, but only for those documents contemplated in the law. Moreover, this access is not granted autonomously, but only after the non-fulfilment of a public administration. This essay concerns the introduction into the Italian system of a new instrument of administrative transparency: the so called “generalised access to administrative documents”. The d.lgs. n. 97/2016 acts to overcome two limits of civil access. As a matter of fact, with the generalised access, everyone can access the data and documents held by the public administrations in addition to the public once. Nevertheless, this decree introduces others limits on top of the article 5 bis, which according to the State Council, are more rigorous than those of article 24, law n. 241/1990. The A.N.A.C. has been asked to intervene so to decrease the contrasts, but it bounded itself to list the various limitations, distinguishing among absolute and relative exceptions. Many critics can be raised regarding this new access policy: the excessive number of instances, the high discretionality of public administrations, the difficult balance between transparency and privacy. On the specific issue we are awaiting the Constitutional Court pronunciation, whose importance is even more evident given the entry in power of the European regulation on the personal data protection ( reg. n. 679/2016)

The public debate on large infrastructures: which role for democratic participation?

by Alessandro Di Martino

The attention of the legislator to the role of democratic participation in strategic infrastructures has been confirmed by the introduction of public debate into the public contracts Code. In this framework, we inquired whether the introduction of this institute overcame the gaps arising from the legislators’ choice to operate in an inconsistent way on the participation of local communities for the realization of huge activities. After the analysis of complex administrative decisions characteristics and the necessity to ensure an effective level of participatory safeguards, we focused on citizens’ participation in the field of environmental and urban planning. Pursuant to the recent reform of the environmental code (introduced by Legislative Decree n. 104/2017), in fact, democratic participation has not been effectively guaranteed, leading the administration to think about whether or not to involve the citizens. The study concerns the analysis of public debate, both with reference to the article 22 of the public contracts Code, and to the draft decree – not yet into force – that must dictate the procedural rules on the use of the institute. While on the one hand public debate would seem to mark a turning point with reference to the effectiveness of democratic participation, since the activation of the procedure still allows to have a “zero option”, on the other hand several limits deriving from the legislation still de jure condendo  have been highlighted. The decree draft reveals problematic issues regarding the independence and the neutral nature of the subjective categories that will govern the public consultation process. Referring to citizens participation, instead, it would seem not fully guaranteed for two reasons: firstly, public debate activation restored the administration’s discretionality, which will only have to reach very high standards in technical and economic. A further perplexity regards the guarantee of participation, since the forecast of the consultation outcome will be discussed at the conference of services, being this conference a board of administrations to which only certain categories of people in different qualifications can participate.

Aspects of objective jurisdiction in the Spanish administrative procedural system

by Domenico Marrello

The recent reforms of the Spanish System of Administrative Justice has been made great progress towards the overcoming of the traditional objective nature of its jurisdiction. Despite the quickly reform process in renewing the system in a strong subjective and individual perspective and the doctrine endorsement, the current implementation of Jurisdicción Contencioso-administrativa seems to be suffering of some ancient practical aspects of the previously system.

The atypical protection in the administrative judicial process between the principle of effectiveness, principle of fairness and proportionality principle: meta-jurisprudence essay

by Alberto Zito

The essay deals with the application of the principles of effectiveness, equity and proportionality in the decisions of the administrative judge. To this end, the work examines some innovative decisions taken by Regional Administrative Tribunals and by the Council of State, in which the judge has used the aforementioned principles in order to guarantee effective protection for the applicant. The study also highlights the impact these decisions can have on the main concepts of administrative system.

The safeguard function carried out by the head of the financial service of the local authorities within the theory of the administrative organization: reconstructive issues of the topic

by Salvatore Dettori

The essay analyses the function attributed to the head of the financial service of local authorities concerning the safeguarding of the balance of local finance. First of all, the work shows that the aforementioned function aims to protect a general public interest of constitutional and European significance. In light of this, the essay deals with the aforementioned topic in the perspective of the administrative organization and the public office. The study reveals the possibility that the exercise of the aforementioned function includes the power of the public official to take legal action against the economic and financial planning of the local administration.

L'articolo Nuove Autonomie 3-2017 proviene da Nuove Autonomie.

INDICE
DOTTRINA

Alfredo Contieri – Il riesame del provvedimento amministrativo dopo la legge n. 124/2015 – 331
Alberto Zito – La nuova disciplina degli acquisti centralizzati ad oggetto “informatico”, introdotta dalla legge di stabilità per il 2016: dalla ricognizione dei problemi ad un primo inquadramento sistematico – 341
Nicola Gullo – La contratación pública social y verde en Italia – 353
Ornella Spataro – La revisione costituzionale tra processi riformatori e crisi della rappresentanza politica. Spunti di riflessione – 371
Annalaura Giannelli – Il nuovo codice dei contratti pubblici: cronaca di una rivoluzione (solo) annunciata – 391
Roberto Leonardi – La natura giuridica dell’imballaggio terziario rotto: rifiuto o sottoprodotto? – 419
Fortunato Gambardella – Il vincolo indiretto di inedificabilità assoluta nella tutela dei beni culturali, tra proporzionalità e indennizzo – 437
Viviana Molaschi – La tutela della salute nelle periferie: problemi e prospettive di intervento – 455
Paola Savona – Access to public records and proactive disclosure of information in Italy: an overview – 485

Abstract

The review of administrative action, after the Law 124/2015
by Alfredo Contieri

Following the recent Law n. 124/2015, the Italian public authorities may annul, only within eighteen months, the unlawful administrative measures that enable private activities or give economic advantages. This time limit sacrifices the rule of law and in general the public interest but strengthens the Community principle of trust and of legal certainty also in order to encourage foreign investments in Italy.

The new rules governing purchasing by public administrations of IT services
by Alberto Zito

Law 208 of 28 december 2015 introduced new rules governing purchases of IT services. On the basis of said rules public administrations and their companies are obliged to purchase said services using public central purchasing bodies. The article examines new rules in order to enable correct application by public bodies.

Social and environmental aspects of public procurement in Italy
by Nicola Gullo

This paper examines how the European Union policy induced the Italian legislator to integrate social and environmental considerations into public procurement practices. The new code of public procurement, giving application of the 2014 EU directives, introduce two fundamental instruments. First, the legislative provisions allow contracting authorities to exclude from contract award procedures any supplier or contractor who was found guilty of breaching rules of environmental protection or social objectives promotion. Second, the code allows, under certain conditions, to include social and environmental protection objectives among the criteria for the selection of candidates.

Reflections upon the constitutional review between reform processes and crisis of political representation
by Ornella Spataro

The law of constitutional amendment for which we will vote on December 4 puts citizens before large uncertainties. On the one hand it is presented as a response to unpostponable demands for reform, on the other involves some of the fundamental italian institutions, operating controversial choices on the level of constitutional law. The constitutional reform provides the transformation of equal bicameralism, with consequential changes to the legislative process, the review of relations between State and Regions, the reform of the participating institutions, the abolition of Provinces and CNEL, with system effects that have major repercussions on the overall dynamics of the form of government. The present comment puts in evidence the lights and shadows of the constitutional reform, in order to verify if there is the possibility of identifying a relationship of congruence between the political aims that are invoked to justify it, and the legal instruments that in view of the abovementioned objectives are prepared.

The new Italian public procurement Code: chronicle of a revolution only announced
by Annalaura Giannelli

The paper examines the contents of the new Italian public procurement Code. The analysis aims to verify which are the objectives of the recent reform and whether these objectives have been pursued by the new rules. From this point of view the Code is affected by many contradictions, which must be overcome by the scientific literature doctrine and by jurisprudence.

The legal nature of the broken tertiary packaging: waste or byproduct ?
by Roberto Leonardi

The essay concerns packaging management and especially broken packages. Pending the transposition of the european directive adopted in 2008, broken packages were considered by jurisprudence as waste with the consequent application of the penalty rules in terms of waste management unauthorized. Legislation development, together with the immediate application of the waste directive adopted in 2008, by article 117, 1 Cost., allowed to consider broken but reusable packages as byproducts, with the application of the related discipline provided by Environment Code of 2006.

The indirect restriction of a total construction ban in the protection of cultural assets, including proportionality and compensation
by Fortunato Gambardella

Article 45 of the Code of Cultural Heritage and Landscape regulates the institution of the so-called “indirect restriction” that describes the faculty of the public administration to adopt measures necessary to protect the architectural and environmental context into which cultural assets fall. These measures may also impose, at the expense of the citizens, absolute prohibitions on buildability in privately-owned areas and, in such instances, the law does not recognise any compensation to private individuals. The study evaluates the possibility of overcoming this jurisprudential direction in consideration of the particular importance that the law acknowledges, by way of motivating such restrictive measures, of the proportional nature of the administrative decision and in light of recent reflections on compensation as a rule for the activities of the administration which entail a sacrifice for the private individual.

Health Protection on the Periphery: Problems and Intervention Perspectives
by Viviana Molaschi

The paper tackles the issue of health protection in peripheries. First, it clarifies the notion of periphery, which no longer has only a spatial dimension as a suburb, and introduces the concept of social peripheries, defined as “extensive” and “widespread” by F. Martinelli, which is the context of this research. Then, after analysing the Constitutional and legal framework of health guarantees, it investigates the health situation in peripheries, looking into the reasons why it is worse there and why there are more criticalities and health protection gaps. The study focuses on the following: the effect of financial conditioning factors and the consequences of the economic crisis and of the related service cuts; the issue of the territorial distribution of health and social-health services; the importance of social policies (and of other policies) in guaranteeing the right to health; the role of municipalities in health protection. The analysis aims at identifying instruments that can contribute to improving the health situation of people residing in peripheries. It considers international and European trends that highlight what municipalities can do in order to grant health protection within the Health in All Policies strategy, which has fostered the creation of Healthy Cities Networks.

Access to public records and proactive disclosure of information in Italy: an overview
by Paola Savona

The paper analyses the rules related to the right of access to public documents laid down in Law No. 241/1990 on administrative procedure, and the interpretation given to them by case law. It then presents the Italian FOIA enacted in 2016 and the system of proactive disclosure of public sector information. It concludes that, notwithstanding the salutary introduction in the Italian legal system of a general right to know, the norms on transparency still need to be improved in order to clarify the statutory framework and to find a better balance between public interest in disclosure of information and personal data protection.

L'articolo Nuove Autonomie 3-2016 proviene da Nuove Autonomie.