Fascicoli 1/2016



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


Alessandra Bifani Sconocchia – Il diritto fondamentale all’istruzione degli studenti disabili e i confini della
giurisdizione amministrativa esclusiva – 139


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.