Fascicoli 2/2016




Loredana Giani – Destinazione e fruibilità dei beni (di interesse pubblico). Spunti per una
rivisitazione della dinamica regolativa – 163
Fiorenzo Liguori – La lunga strada storta: dalle autorizzazioni amministrative alla nuova s.c.i.a. – 185
Aristide Police – La cooperazione pubblico-privato nel governo dell’economia e l’instabilità
delle decisioni pubbliche – 223
Darío Gabriel Ciminelli – El rol de la auditoría administrativa en el litigio de interés público – 239
Angela Cassia Costaldello e Luis Alberto Hungaro – L’adeguamento dei Municipi in Brasile alle esigenze della Politica
Nazionale dei Rifiuti Solidi (PNRS): le sfide e le possibili soluzioni – 249
Francisco Garcia-Garrido – La intervención de actores privados en el desarrollo de actividades
reguladoras: la evolución del Derecho Administrativo en el espacio – 269
Sara Forasassi – Gli strumenti finanziari derivati in mano pubblica. Parte II – 289


Destination and usability of assets (of public interest). Ideas for a review of the regulatory dynamics
by Loredana Giani

The essay deals with the theme of assets, and in particular of public assets by following the evolutionary trajectory of civil and public law which, on various occasions, have highlighted the failure of the “proprietary regime” as the keystone around which to formulate the rules intended to guarantee the collective interest. From this perspective it also offers a critical interpretation of the category of the public asset which, precisely because of the absence of a specific discipline, does not lend itself to replacing the traditional categories, also highlighting that the superimposition of different conceptual categories (commons, public assets, landscape assets) lends itself to interpretations that are likely to lead to conflict with the very ubi consistam of the initial category. From this point of view the functional profile of the asset has, or better should have, a central importance, but it struggles to emerge as a fundamental moment characterising the legal regime, regardless of its proprietary regime, ensuring the right balance between the general interest of the community and the imperatives of protecting fundamental individual rights.

The long crooked way: from administrative authorizations to the new report of certified beginning of activity.
by Fiorenzo Liguori

The paper examines the evolution of authorizations aimed at legitimizing private activities, and the trend to replace permissive measures adopted by public administration with options inspired by liberalization and priority of ex post control. Among the several meanings of liberalization processes, the model laid down by art. 19, Law. N. 241/1990 will be analyzed as paradigm of simplification with ‘liberalizing effects’. The tool, represented by a prior communication to the public administration to be fulfilled in order to allow the beginning of private activities, will be assessed with regard to the following subjects: the legal nature of the notification; the judicial protection of third parties; the different functions allocated to the public authority. The paper undelines that the model at issue still shows remarkable contradictions, due to continuous changes in legislation – even the one occurred in 2016 within the scope of the so called Madia Reform – that make complex its use, in particular by distorting the essential features of the different legal instruments involved in the matter, such as administrative self-defence, sanctioning powers and judicial review on the public obligation to provide.

Administrative review and self-annulment of public Administration decisions: a new Italian reform to increase reliability and good faith in Public-Private Partnerships
by Aristide Police

The focus of the essay is on the new legislative reform of the administrative procedure and in particular of the rovisions regarding the administrative review, revision and self-annulment of the decisions of the same public Administrations. The uncertainty arising in the public-private partnerships due to the administrative review of the decisions of public Bodies whose implementation has already been started is a very significant problem that the entire Italian Economy is facing. The essay therefore investigates the main aim of the new reform that is to introduce a very clear and limited time limit for the administrative review and revision of previous acts of public Authorities, in order to restore the principle of good faith in public-private relationships and the reliability of the Italian Public Sector as a whole.

The role of accountability offices in Public Law Litigation
by Dario Gabriel Ciminelli

Due to the diverse entity of duties that nowadays are attributed to official agencies in such areas like environmental, urban infrastructure, and regulation topics, decisions that those offices perform -or the lack of them- may drift into litigation in public law. Courts therefore have to decide on challenging cases in the pursuit of justice, with diverse interests at stake and complex procedural structures to work on. Accountability Offices should provide assistance to the judiciary by providing information and statistical data. These agencies are aimed to provide information on everything related to revenues, expenditures and the use of public funds, making recommendations to improve the efficiency of public spending; so they should contribute with their knowledge in order to achieve better rulings. We propose this thesis for the Argentinian administrative and constitutional body, but it should be applicable in other countries

The adequacy of the Brazilians Municipalities to the National Solid Waste Policy: challenges and possible solutions
by Angela Cassia Costaldello and Luis Alberto Hungaro

The article analyzes the National Solid Waste Policy in Brazil, established by Law No. 12.305/2010, that set guidelines for actions aimed to promote environmentally adequate treatment and disposal of solid waste. It is specifically attentive to the appropriateness of municipalities to this national policy, identifies the main management tools and allows the mitigation of the remaining solid management for the corresponding environmental problems. The implementation of these national rules, by municipalities, presents some challenges, such as: lack of public resources for the creation of adequate infrastructure for the management of solid waste; unavailability of staff for public service management of urban cleaning. In this scenario, the authors examine the solutions indicated by PNRS, namely the public consortia and forms of public-private partnership between Federation entities.

The interference of private bodies in the development of regulatory action: evolution of administrative law in space
by Francisco Garcia-Garrido

Nowadays public authorities do not live alone, but they live together with new bodies that flow into a global area, in a space where different values and emerging interests overlap. The recent dynamics of global change have generated a number of effects on the traditional idea of State; they have contributed to the fragmentation of the national legal systems and to the multiplication of the “bodies” with public, private or mixed nature –both at national and international or global level– that are far from the sole or manifest State control. This paper first of all explores the creation by this kind of bodies of rules and own recommendations. Second, the importance of private participation and of the interests of private bodies to intervene in the regulatory chain will be examined. The new forms of cooperation between the indicated private bodies and the public authorities forces us to ask ourselves how this new form of administration respects the fulfilment of the specific procedural rules, laid down in the domestic Administrative Law, and how it ensures transparency and participation by private parties in the rule-making process.

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.