Fascicolo 2/2019


Acquista i 3 fascicoli in versione cartacea su Editoriale Scientifica


Laura Lorello – Sistema dei partiti, legislazione elettorale e disciplina dei gruppi parlamentari: è possibile governare la frammentazione politica in Italia? -145
Francesco Manganaro – L’eguaglianza di genere nelle pubbliche amministrazioni e nelle Università – 179
Anna Romeo – Statuto siciliano e specialità: tradizione e futuro dell’autonomia regionale – 197
Alberto Zito – La politica pubblica dei trasporti tra libertà di movimento ed interessi sociali ed economici: profili concettuali e sistematici – 215
Ornella Spataro – Autorità amministrative indipendenti e istituzioni politiche: questioni problematiche – 227
Marco Ragusa – Responsabilità degli amministratori di società pubbliche e giurisdizione contabile. Brevi notazioni critiche – 267
Alessio Rauti –
L’accesso alla cittadinanza come strumento di integrazione – 287
Dario Capotorto – I “super poteri” dell’ANAC: contraddizioni e paradossi delle misure di prevenzione anticorruzione sulle imprese “sospette” – 323


Mario Palma – Competenze legislative statali e regionali nella determinazione della disciplina del procedimento amministrativo: il caso della Conferenza di servizi. (Commento a Corte costituzionale 25 gennaio 2019 n. 9) – 379
Vincenzo Desantis –
Recensione al volume di Pasquale Pantalone, Autorità indipendenti e matrici della legalità, Napoli, Editoriale scientifica, 2018 – 401

Fragmented party system in Italy: nightmare or advantage for democracy?
by Laura Lorello

In building the newly-established democracy, the Authors of the Italian Constitution attributed a fundamental role to political parties. Therefore, the Italian political system comprises numerous political parties, often small in size, which have to coalesce to form a government majority. The resulting fragmented party system in Italy is generally considered a negative characteristic. Historically, it has been very difficult to reduce the number of political parties. Many attempts were made to modify the electoral system, from proportional representation to majority rule during the last thirty years. More recently, further attempts have been made to introduce more restrictive rules to form a parliamentary group in the Senate (one of the two Houses of Parliament). However, it can be said that the fact of having many parties is advantageous to the contemporary Italian and global contexts in preserving democracy from attrition, degeneration and self- destruction.

Gender equality in public administrations and universities
by Francesco Manganaro

The work analyses the slow evolution of the discipline on gender balance in political and management bodies of public administrations, detecting progress and persistent weaknesses noting its progress and persistent gaps. In particular, the effects of this discipline are examined in universities and research centres.

Sicilian statute and regional specialty: tradition and future of regional autonomy
by Anna Romeo

In the context of a reflection on the continuing relevance of special autonomies, the work examines the value to be given to the Statute of the Sicily Region, as a region with special autonomy, and in particular, the continuing relevance of its Statute, especially in light of the draft revision of the same. In this draft, a different logic would seem to emerge than the original Statute of 1946, and in particular, a logic no longer characterized by a self-referential dimension but inspired by the affirmation of a democracy open to the participation of citizens, individuals and associates, as well as local authorities present in the territory. In order to outline the terms of an effective responsibility for political and administrative power towards the community of reference, the work calls for a reflection on the regional powers and prerogatives to be directed towards the best guarantee and protection, at a given historical moment, of the constitutionally relevant interests of citizens. The suggested direction is that of a rethinking of the guarantees contained in the Statutes of Regions with special autonomy that takes into account the need to achieve a delicate balance between divergent interests: protection of special autonomy and, together, national unity, on the one hand; legal certainty and effectiveness of guaranteeing autonomistic needs on the other.

Public transport policy between freedom of movement and social and economic interests: conceptual and systematic profiles
by Alberto Zito

The essay aims to analyze the interests present in public transport policy and the correct method of taking decisions. In this policy, which today is defined in particular at European level, there are many interests. The most relevant is the person’s interest in mobility that constitutes a fundamental freedom recognized in the Italian and European legal system. Starting from this premise, the essay analyzes the decision-making process in the field of public transport policy, showing the importance of the participation of all stakeholders.

Independent administrative authorities and political institutions: problematic issues.
by Ornella Spataro

The independent Authorities represent a model of regulation that is foreign to the Italian legal tradition, and, for this reason, their legal positioning has aroused, and continues to arouse, doubts and uncertainties, re-proposing fundamental questions that appear to be anything but dormant. Furthermore, the dynamics connected to the functioning of the independent Authorities have shown a remarkable evolutionary capacity, so their role has undergone important changes, taking on different characteristics with respect to the functioning of the form of government, and involving new arrangements in relations with the organs of legislation, as well as with the organs of the jurisdiction. Functional autonomy, neutrality and independence, in fact, do not mean absolute separation from the circuit of the political direction, with which the decisions of the Authorities necessarily interface: the decisions of the Authorities, although adopted outside the logic of the political party, combine to form the legal system, not only with the production of acts attributable to “soft law”, but also through a concrete participation in the determination of the political-regulatory direction in the individual sectors of reference. The independent Authorities exercise heterogeneous competences, some typically administrative, some integrate decision-making functions, while, in other cases, their competences result in the production of juridical norms. This determines that they, by subtracting significant shares of activity from the political as well as from the jurisdictional bodies, are included in the decision-making powers in which the state apparatus is articulated, of which they constitute an indefectible structural side by material constitution . The independent Authorities occupy portions of statehood, no longer included in the traditional parliamentary model. At the base of the phenomenon we can identify the insufficiency of the classic system of separation of powers to resolve new questions, in which the high technicality intersects the problems of fundamental rights, projected against the background of economic and juridical scenarios animated by strongly evolutionary logics. This testifies that the state order, as it has evolved according to the schemes of representative democracy, has lost his completeness in the face of the evolution of the markets and the fundamental rights; hence the need to trace new organizational methods that go beyond the traditional cycles of political direction and responsibility: the structure of the material constitution has by now incorporated a type of regulation that representative democracy, not having the right tools to guaran-266 Ornella Spataro tee the proper functioning of complex sectional orders, cannot express. In this perspective, the legitimacy of the Authorities, based on the canons of procedural democracy that inform their functions, could be traced with reference to different constitutional formulas, responding to the schemes of participatory or deliberative democracy, which found alternative democratic models to the one built on political representation Parole chiave: autorità indipendenti; costituzione economica; legittimazione democratic.

The liability of publicly-owned companies’ directors under the jurisdiction of the Corte dei conti. Some
critical brief remarks.
by Marco Ragusa

The art. 12 of d.lgs. n. 175/2016 transposes the conclusions reached by the Italian Corte di cassazione on the liability of publicly-owned companies’ directors (and about and the consequential division between ordinary courts and the Corte dei conti jurisdiction). The paper retraces the fundamental stages of the jurisprudential path that led to this result and highlights some of its contradictory aspects.

Access to citizenship as a means of integration.
by Alessio Rauti

The paper aims to analyze the relationship between the integration needs of foreigners and the legislative choices on the criteria of citizenship acquisition and loss. In particular, we highlight the critical issues tied to the concepts of ontological citizenship and market citizenship: the first – which still supports entirely the Law on Italian citizenship – relies on questionable presumption of blood citizen supplied with civic virtues; instead, the second one is beginning to appear in European Countries and it’s not less dangerous because of his potentially discriminatory power and the lack of a “genuine link” between the citizen and the political community. Arguing the postulate that the legislative power is not completely free in the choice of the criteria for the acquisition and the loss of citizenship, a reconstruction is proposed in terms of constitutional policy, starting from the development of personalistic principle.

The “super powers” of the ANAC (National Anti-Corruption Authority): contradictions and paradoxes of anti-corruption prevention measures on “suspicious” companies.
by Dario Capotorto

The essay examines the controversial issue of extraordinary measures for the management, support and monitoring of companies that are successful tenderers of public contracts for the construction of public works, services or supplies of suspected illicit origin, introduced by article 32, of legislative decree 24 June 2014, n° 90 (i.e. anti-corruption decree, converted with amendments to the law of 11 August 2014, n° 114). After a detailed analysis of these measures, also in the light of the case-law and the practice established in the first five years of application, the author highlights the interpretative issues and difficulties of application, focusing in particular on the paradoxes and inconsistencies produced by this new legislation. In particular, it should be noted that the effect of conservation of public procurement contracts in progress – assured by the new management tools – produces serious prejudices regarding the correct functioning of competitive mechanisms, as well as significant coordination problems with other laws.

State and regional legislative powers in determining the administrative procedure: the case of the Services Conference (Conferenza di servizi). (Note to Constitutional Court no. 9 of January 25, 2019).
by Mario Palma

With the sentence no. 9 of January 25, 2019, the Constitutional Court deemed that the regional regulation set forth under the law of the Lombardy Region n. 36/2017, governing the procedure for the approval of the environmental impact assessment through a service conference, breached the exclusive legislative competence of the State with regard to the essential service levels – pursuant to art. 117 second paragraph, letter m) of the Constitution. The qualification as essential service levels pursuant to art. 117 paragraph 2, letter m) of the Constitution – of the State rules governing the administrative proceedings significantly affects regional competences. The decision of the Constitutional Court n. 9/2019 examined in detail the regional regulations and the exceptions set by the latter to State regulation, highlighting the nature of interposed norms of specific provisions among those regulating the services conference under law n. 241/1990. State provisions are included in those setting essential levels of services, not on the basis of their scope of application but in light of the adequacy of these rules to guarantee uniform protection of significant interests.