Fascicoli 1/2014
Indice
Dottrina
Antonio Ruggeri – Noterelle in tema di affido di minori a coppie di omosessuali – 5
Sandro Amorosino – Il Piano Nazionale Anticorruzione come atto di indirizzo e coordinamento amministrativo – 21
Mario R. Spasiano – Alcune riflessioni sul sistema universitario – 33
Roberto di Maria – La legge regionale siciliana di istituzione dei “liberi Consorzi comunali”: brevi note critiche sul processo di riforma dell’ordinamento degli Enti locali (e di governo territoriale) della Regione siciliana – 43
Lucia Corso – Populismo: un vocabolo ed (almeno) cinque accezioni – 67
Pierangelo Grimaudo – Il sistema integrato dei servizi sociali tra livelli essenziali, ruolo delle Autonomie, principio di sussidiarietà orizzontale e logiche di costo – 95
Paolo Tanda – Gli Organismi Indipendenti di Valutazione nelle Pubbliche Amministrazioni: disciplina ed aspetti critici – 117
Francesco Follieri – “Conflitti” e “collisioni” tra norme: tre domande al prof. Robert Alexy – 157
Giurisprudenza
Bruno Di Giacomo Russo – Regioni e concorso pubblico – 171
Abstracts
SHORT REFLECTIONS ON CUSTODY OF MINORS TO SAME-SEX COUPLES
by Antonio Ruggeri
The paper analyses as, according to a literal interpretation of the relevant legislation, to the homosexuals couplet should not be given the possibility to have in custody minors. Such conclusion should be reconsidered in the light of the principle of the prevailing interest of the minor involved, according to which the notion of family could subject to a reassessment, at least with reference to the issues of custody of minors. If the rule which admits the custody of minors only for the married couples should be unchanged, it could be sometimes wiser to admit different solutions. One of them could be the possibility to admit the custody of a minor for an homosexual couple in the hypothesis in which one or both partners would have a consolidate relationship with the child. In any case should be a new legislation which expressly provides this possibility.
THE ANTI-CORRUPTION NATIONAL PLAN AS ACT OF ADMINISTRATIVE DIRECTIVE AND COORDINATION
by Sandro Amorosino
The Anti-Corruption National Plan (PNA), approved in 2013, is an important instrument for the implementation of the Italian law against corruption, approved in 2012. This paper takes into exam its nature and role to conclude it is an act of administrative directive and coordination – defined “act of directive” – and highlights its deficiencies and limits of effectiveness.
SOME REFLECTIONSON THE ACADEMIC SYSTEM
by Mario R. Spasiano
This paper takes as its starting point the analysis of the main reasons behind the decline which affected the Italian academic system over the last 30 years. Several endemic factors led to register serious decrease of the importance of the university role in the society, also in consideration of the general disaffection of the public opinion. The author points out how, in this context, recent legislative reforms do not appear suitable to generate substantial changes to overcome the current situation of academic crisis. After focusing on several aspects of the legislation (public funds assignment system; budget rules; academic recruitment procedures; research and teaching evaluation criteria) the paper highlights the risk of a further decrease of the social and cultural role of Universities: Italian legislation does not define a new and competitive academic project for the future, but, rather, aims to limiting public spending and subject Universities activity to heavier (…) processes of evaluation and control.
THE SICILIAN LAW REGARDING THE CREATION OF THE “LIBERI CONSORZI COMUNALI”: A SHORT CRITIC ON THE PROCESS OF REFORM OF THE SICILIAN LOCAL BODIES OF GOVERNMENT (AND OF THE LOCAL GOVERNMENT AS WELL)
by Roberto Di Maria
The Sicilian Parliament has recently approved a text named «Istituzione dei liberi Consorszi comunali e delle Città metropolitane». Coming after other two laws, regarding the same subject matter – that is modifying, or else abolishing the intermediate level of government: the “Province” – such text takes place, on one side, among the legislative measures bound to pursuit the rationalization of public expenses and, on the other side, aims to improve the responsabilità of the Institutions on guaranteeing both civil rights and public services. This Sicilian legislative initiative – or better, the whole process of institutional reform – is the occasion, then, to analyze both the financial topics connected to the “spending review” and the more general questions, regarding the revision of the Italian multilevel system of government. Finally, it may be assumed a synthesis on role and functions of the “Province”, and on the opportunity of their abolishment as well.
POPULISM: ONE WORD AND (AT LEAST) FIVE MEANINGS
by Lucia Corso
The essay aims at proposing five meanings of the term populism and at identifying underlying assumptions common to all. By signaling the difference between the US and the European approaches to the concept of populism, it will be advanced the claim that the predominance of the negative meanings, typical of the European tradition, has its roots in a deep distrusts in ordinary people’s moral and political wisdom.
THE EVOLUTION OF THE SOCIAL SERVICES INTEGRATED SYSTEM BETWEEN “ESSENTIAL LEVELS”, TERRITORIAL AUTONOMIES, HORIZONTAL SUBSIDIARITY, AND COSTS
by Pierangelo Grimaudo
This paper deals with the evolutionary paths of the Italian Model of Social Services since the entry into force of the Republican Constitution until the recent reforms of 2000 (l. 328/2000) and 2002 (l. 289/2002). The Author criticizes the mechanisms of control and of public expenditure because they have lowered the levels of protection of all fundamental rights somewhat linked to social policies.
INDIPENDENT ORGANIZATIONS FOR THE EVALUATION IN THE PUBLIC SECTOR: DISCIPLINE AND CRITICAL ASPECTS
by Paolo Tanda
This paper investigates the synergy between the Independent Organizations for the Evaluation (Organismi Indipendenti di Valutazione – OIV, the so-colled supervisor people), the National Anti-corruption Authority for the evaluation and transparency of the Public Administrations, (Autorità Nazionale Anticorruzione per la valutazione e la trasparenza delle Amministrazioni Pubbliche – ANAC), the management system and the staff (executives and clerical). The last one is subjected to the monitoring and the supporting and not to a real control, which is peculiar to the systems and not to the people. This synergy is provided for by the complex system of measurement and evaluation of the performance introduced by the Legislative Decree n° 150/2009. It is pointed out how the legislator moved from the external auditing of the State Audit Court they moved to the financial auditing and to the operational auditing to come to the current performance internal auditing. Then it has been analyzed the competences – of the utmost importance for the complex system under examination – given to the Independent Organization for the Evaluation and to the connected uses related to how to determine the Public Administrations concerned with the organization of the OIV and with their real independence. Finally, the paper examines closely the system of rules provided for in the Legislative Decree n° 150/2009 as to the appointment of the members of the Independent Organizations for the Evaluation, as it is one of the most important aspects through which the decree of reform wants to guarantee the basic nature of independence of the OIV.
“CONFLICTS” AND “COLLISIONS” AMONG NORMS: THREE (PROVOCATIVE) QUESTIONS TO PROF. ROBERT ALEXY
di Francesco Follieri
The Autor discusses Alexy’s distinction between rules and principles and his theory about how collisions among principles and conflicts among rules are (or ought to be) solved by judges. The analysis is conducted in the light of two examples of rules defeasibility. The paper shows that the judge balances by proportionality test even when rules collide with other rules or with principles. And, at least in the case of rules defeasibility and teleological interpretation, judges decide by rules taking into account underlying values and interests: in these cases rules “become” Optimierungsgebote. So three questions artise: 1) Is conflict among rules just a matter of validity? 2) How can you distinguish conflicts between rules and collisions between principles? 3) Can you still distinguish rules and principles just because the latter are Optimierungsgebote?