Fascicoli 2/2014
Indice
Dottrina
Filippo Salvia – Ancora sulla riemersione del Medioevo e sull’organizzazione mafiosa: incontri, scontri, trattative e nuove allocazioni del potere reale – 201
Silvia Tuccillo – Coordinate per uno studio sul carattere doveroso della funzione amministrativa – 233
Fortunato Gambardella – Contratti pubblici e politiche di liberalizzazione: il contratto di disponibilità – 273
Enrico Zampetti – La disciplina dell’autorizzazione paesaggistica tra esigenze di semplificazione e garanzie costituzionali – 316
Valeria Aveta – Brevi note sull’Abilitazione Scientifica Nazionale al vaglio del giudice amministrativo – 337
Andrea Milone – Sulla legittimità dell’Amministrazione statale a chiedere la trasposizione del ricorso straordinario al Capo dello Stato – 351
Giurisprudenza
Gaetano Armao – La nomina dei consulenti e degli esperti da parte del Sindaco e gli abusi in atti d’ufficio – 367
Abstracts
ON THE REEMERGENCE OF THE MIDDLE AGES AND ON THE MAFIA SYSTEM: ENCOUNTERS, CONFLICTS, NEGOTIATIONS AND NEW ALLOCATIONS OF THE REAL POWER
by Filippo Salvia
In the medieval system lacks the State. The “public” is pulverized from a myriad of different entities in their jurisdictions (Prince, the feud, the guilds, etc..), each of which exercises functions now carried out by public. The actual functioning of a system so fragmented is not the “law” – as is the case of modern jurisdictions – but the “contract”. The mafia organization is the product of a metamorphosis of feudal institutions: a legal organization pre-modern, but with a strong ability to adapt to new situations and to enter into a relationship with the “institutions” and real powers in the territory, according to the logic of agreements of the Middle Ages. In the era we live the processes of globalization in progress and the strengthening of the system of internal autonomy, have produced a “pluralism” much more akin to that of the pre-state systems than to those of the ‘800 and the first half of ‘900. The new archipelagos of power, made by the Committees of business, from P2 and similar can be explained in this sort of “State” without a center.
AN ANALYSIS ABOUT THE DUE EXERCISE OF ADMINISTRATIVE FUNCTIONS
by Silvia Tuccillo
This paper analyzes the concept of duty in administrative law and highlights how the accountability of administration is based on the public duties fulfillment. Fundamental is to define differences with the concept of obligation, because administrative powers are considered necessary just when the law affirm they are compulsory, but not either everywhere dispositions express the necessity to exercise power without indicate a sanction. The first doctrine that tried to study the principle of duty has concentrated its attention on the problem of “silence” with the aim of discovering the way to oblige administration to exercise its functions. The duty to give an answer to the citizen is the first sign of the due nature of administrative power. Later studies demonstrate that every time an interest need satisfaction through public power the observance of the administrative proceeding is compulsory. In this contest the guarantee of participation becomes fundamental even if some cases the Courts are considering participation not always necessary. Finding ontology of the principle of duty is essential to affirm administrative accountability. Statement of reason for administrative acts and conservative remedies are the best ways to guarantee a duty exercise of public function.
PUBLIC PROCUREMENT AND POLICY OF LIBERALIZATION: THE CONTRACT OF AVAILABILITY
by Fortunato Gambardella
In the last years, the lawmaker develops processes of liberalization not only in construction and trade but also in the public procurement market to get a greater opening to the competition. The recent normative provisions want to achieve an engagement of the private operators that exceeds the traditional model of realization of public works, through the most advanced instruments that draw the resources of the private operators for the ownership of the areas and for the means to achieve them. In this field fits the contract of availability (art. 44, d.l. n. 1/2014), it represents a contractual deed through which is given the task to a private operator to build and manage a work of private ownership to make available to the public administration upon payment of a periodic rent.
THE LANDSCAPE AUTHORIZATION REGULATION BETWEEN SEMPLIFICATION NEEDS AND CONSTITUCIONAL GUARANTEES
by Enrico Zampetti
The article is focused on the actual regulation foreseen in the landscape authorization field, in order to assess how – and to which extent – said regulation complies with the protection granted by the Constitution in favour of the environment-landscape. In particular, the analysis focuses on the provisions of said regulation that let the Proceeding Administration decide on regards to the request of authorization, even in the absence of the landscape compatibility evaluation – which competes to the Authority (Soprintendenza) – when said Authority has not issued the requested advice within the due deadline. Although the above indicated provisions are unquestionably explained by the need to simplify, as much as possible, the actual proceeding, said provisions are not in full compliance with the constitutional regulation that – particularly the proceedings characterized by a certain degree of complexity – such as the ones pertaining to environmental-landscapes issues – should always involve a clear and exhaustive evaluation of the protected right by the technically qualified and competent Authority.
BRIEF NOTES ON ENABLING THE NATIONAL SCIENTIFIC SCRUTINY OF THE ADMINISTRATIVE JUDGE
by Valeria Aveta
The academic recruitment system has been amended by law n. 240/2010 (called Gelimini reform), through the introduction of the National Academic Qualification procedure. The results of the first application of the new system have allowed the judge to rule – by now only in interlocutory proceedings – about some problems concerning the procedure and the evaluation committees role. In particular, doubts have been raised about the legitimacy of preliminary procedures, about the parameters binding nature and about unequal treatment of candidates. The present work aims to examine – in the light of the main judicial decisions – the most relevant critical issues that characterize the current discipline, mainly related to the selective procedures uncertain nature, in tension between mere ratifications and actual competitions, as well as to the degree of discretion which has to be recognized on the evaluation committees.
THE LEGITIMATION TO ASK THE TRANSPOSITION OF THE EXTRAORDINARY APPEAL TO PRESIDENT OF THE REPUBLIC BY THE STATE ADMINISTRATION
by Andrea Milone
The legitimation to ask the transposition of the extraordinary appeal to President of the Republic also by the State Administration (as defendant) is a profile recently widely discussed both in doctrine and in jurisprudence. In accordance with the article 10 of D.P.R. n. 1199/1971, as is well known, the counterparties can object to decide the dispute in the extraordinary branch and ask the transposition in judicial branch. This option, following the judjement 29 july 1982, n. 148 of Constitutional Court, has been extended also to non-government administrations as defendants; subsequently, as a result of several reforms – introduced by law n. 69/2009, which provided that the Council of State advice is binding, by the article 48 of the Administrative procedure code and by case-law – the former reasons behind the exclusion of the opposition to the discussion of the appeal in the extraordinary branch also by the State Administration seems failed.
THE APPOINTMENT OF EXPERTS AND CONSULTANTS BY THE MAYOR AND THE ABUSE OF DISCRETION
by Gaetano Armao
This work, by commenting the judgement n. 340/2013, given by the criminal division of the Court of Trapani, is focused of analyzing – with an original and new perspective – administrative jurisdiction of the Mayor in appointing “experts” in the Sicilian Regional System of local autonomy (art. 14 of Sicilian Regional law n. 7/1992 and integrations) and the influence/application of disposition on the paragraphs 6 and 6 bis of art. 7 of Legislative Decree n. 165/2001 and integrations, focusing on difference between the charges of expert and consultant. In this way, the Sicilian system of local autonomies, by giving to the Mayor specific charges, in addition to the ones given by the law and by the Statue to the City Council, to the Municipal Government, to the Devolution Organs, to the Secretary and to the executives, assigns to the Mayor the faculty of appointing experts in specific fields, regardless to the pre-existence of a special Administrative and Bureaucracy structure, other than the one which is provided for the appointment of consultants, the whose, if aren’t numerically restricted, are fully ruled by National law in the field of Public employment (also in Sicily). In this sense, the interpretation of the art. 14 of the Sicilian Regional Law n. 7/1992 and integrations, allows to consider the appointment if an expert, by the Mayor, as a special prerogative of his functions, characterized by a link of trust between the public administrator and the appointed professional, but still under the terms and conditions provided by the foresaid law which is, in any case, different from the common power of appointing simple consultants.