Fascicoli 1/2010
INDICE
Editoriale di Giuseppe Verde – 3
DOTTRINA
Francesco Astone – Il recepimento della direttiva ricorsi: profili problematici delle scelte operate dal legislatore nazionale – 7
Marcello Cecchetti – Le riforme costituzionali del 1999-2001 sulla forma di stato dieci anni dopo – 35
Alfonso Celotto – Convenzione europea dei diritti dell’uomo “e”/“o” Carta di Nizza – 45
Mario Serio – Riorganizzazione del Sistema di Giustizia Sportiva e funzione nomofilattica delle Corti Federali di ultima istanza – 57
Mario R. Spasiano – Linee evolutive del rapporto politica-amministrazione tra esigenze di continuità e tentazioni di contiguità – 71
Maria Cristina Cavallaro – La responsabilità dell’amministrazione per omessa vigilanza sull’attività urbanistico edilizia – 93
Gregorio De Vinci – Procedimenti comunitari e amministrazioni nazionali operanti in funzione comunitaria – 115
Giuseppe Martinico – Dalla nozione alle tipologie: appunti sul diritto delle fonti nell’ordinamento dell’Unione Europea – 141
Antonio Leo Tarasco – Amministrazione di qualità e controlli efficaci: un’endiadi possibile nella nuova “azione per l’efficienza”? – 167
GIURISPRUDENZA
CORTE COSTITUZIONALE – Sentenza 16 luglio 2009, n. 236 con nota di Laura Lorello, Ancora un tassello per la valenza costituzionale del principio della tutela del legittimo affidamento? – 203
CORTE COSTITUZIONALE – Sentenza 14 gennaio 2010, n. 4 con nota di Antonella Sciortino, La corte ha detto sì alla referenza di genere. Brevi riflessioni sulla rappresentanza politica di genere – 209
OSSERVATORIO PARLAMENTARE ARS – 219
RASSEGNE
Rassegna delle decisioni del Consiglio di Stato – Speciale in tema di efficacia del provvedimento amministrativo limitativo della sfera giuridica dei privati di Salvatore Dettori – 249
Rassegna della giurisprudenza del Consiglio di Giustizia amministrativa Di Paola Savona – 263
Rassegna della giurisprudenza dei Tribunali amministrativi regionali Speciale in tema di efficacia del provvedimento limitativo della sfera giuridica dei privati di Sara Forasassi – 275
Abstract
THE IMPLEMENTATION OF THE EU “RECOURS” DIRECTIVE: PROBLEMATIC PROFILES OF CHOISES BY THE NATIONAL LEGISLATOR
by Francesco Astone
The market of public contracts has become perhaps the most important in Europe: a market where conflicting interests are measured uninterruptedly not only in substantive terms but also in terms of legal protection. The innovations of Directive no. 66/2007, and the legislative decree implementing the EU directive, seems to be able to revise the terms of legal protection in public procurement.
THE CONSTITUTIONAL REFORMS ON THE FORM OF STATE OF 1999-2001 AFTER A DECADE. Sketching out an introduction for a debate to trace out a balance of these ten years
by Marcello Cecchetti
The “federalizing” process of the Italian form of State (l. cost. n. 1/1999, l. cost. n. 2/2001 e l. cost. n. 3/2001) moves from the debates of 1997 Joint Parliamentary Committee headed by MP D’Alema. The reforming process of the Italian Constitution is characterized by two main 44 Marcello Cecchetti coordinates: empowering citizens in determining the political process inside representative institutions (the direct election of Regional President and the reshaping of the institutional Regional architecture); shortening the distance between citizens and “public powers” (a major role had to be given to local administrations n organizing and performing public functions – a sort of development of the cd. Bassanini reforms, known also as “administrative federalism without changing the Constitution”). The federalizing process aimed at: stabilizing regional governments; widening the politicaladministrative role of local administrations (realizing an authentic institutional pluralism); enhancing the democratic standards through the tools of subsidiarity; reducing State functions and administrative intervention; reducing, simplifying and rationalizing State administration. None of these macro-objectives has been reached. The Italian Constitution is being implemented as no change has been occurred since 1947. The national interest clause is no more a part of our Constitutional framework but everyone (the legislators, the public administration and the courts, also the Constitutional Court) is acting like it still is. The central role for National Laws is no more part of the Italian Constitution but the implementation of the constitutional reforms has determined a framework of relations between the National and Regional Laws that is very similar to the former one (see for example the cases of “cross-sectional” legislative fields; of the “subsidiary” legislative power; of the strict interpretation given to the “leftover” legislative power of the Regions). The State is still enacting legislation as there is a sort of regional legislative power of “implementation” of national laws (and the Constitutional Court has still not directly faced this question, allowing this asset). The asset of secondary normative power, formally build around a strict division of fields (art. 117.6 Cost.), is persistently reversed conferring to administrative bodies of the State public functions of normative kind, using the clause that the acts adopted in the exercise of these functions “have no secondary normative nature”. The State power of “direct and coordinate” is rising and rising again. The limit of the “harmony with the Constitution” posed on regional statutory autonomy by the Constitutional Court; the position of Local Administrations; the presence of old instruments of inter-institutional coordination (the “System of the Conferences”, still disciplined by d.lgs. n. 281/1997); the lack of financial autonomy of Local and Regional Administrations, are all expressions of a “living Constitution” that is very close to the one that was into force until 1999.
Which are the reasons for the failure of the federalizing process? Are the objectives of the process? Are the tools designed to reach them? Are the legislative and political interpretation of the implementation of the reform? The main problem is certainly the lack of authentic political will to realize the reform. The Constitution was abandoned to the Constitutional Court. The Court has been called to solve the conflicts between the State and the Regions, often without no other landmarks than the political will of opposition. What can be the route for the future? It is of the outmost importance a reflection on the implementing tools which have to be set up. An important step would be the implementation of financial autonomy. But art. 119 Cost. and its implementation cannot by itself lead to the realization of the form of State (federal or regional) designed with the reforms of 1999-2001. It is necessary a political and cultural will to understand the potentials and the targets of those reforms. Otherwise the federalizing process remains a mere utopia.
EUROPEAN CONVENTION OF HUMAN RIGHTS “AND”/”OR” THE CHARTER OF NICE
by Alfonso Celotto
The relationship between the Charter of Nice and the European Convention of Human Rights may be approached either from a national or an international perspective. The present paper will approach this matter from an international perspective, examining the relationship between and contrasts within the two Conventions, without analyzing their impacts on the national law. The choice of the conjunction – ‘and’ or ‘or’ – is an important issue, since it has implications for how one reads the interrelationship between the two Conventions. In the former case, we can consider the Conventions having a parallel course, while in the latter it would be divergent. Although there are several arguments on behalf of both interpretations, parallel or divergent, if we look at the issue more deeply it has to be concluded that at the present stage the two Conventions have taken a parallel path. Nevertheless, this is a provisional conclusion, rebus sic stantibus, being the community and the conventional process continuously in evolution.
THE NEW FRAMEWORK OF ITALIAN SYSTEM OF SPORT JUSTICE
by Mario Serio
This essay purports to explore the new framework which characterizes the most influential legal institutions operating within Italian sport system following the Italian Olympic Committee’s recent resolution to set up two novel bodies regulating disputes between Federations and members (Alta Corte e Tribunale arbitrale per lo sport). The research aims at establishing a satisfactory dividing line between Courts functioning inside Federations and the new organisms instituted by the Olympic Committee, underlining the fundamental, leading role that the former still play in the determination and interpretation of the rules applicable to the relationship between Federations and their members. On the other hand, it is pointed out that the Alta Corte’s set of powers consists mainly of the drafting of a coherent body of rules applicable in all the interstices of sports relationship.
THE EVOLUTION OF THE RELATIONSHIP BETWEEN POLITICS AND ADMINISTRATION, BETWEEN NEEDS OF CONTINUITY AND TEMPTATIONS OF CONTIGUITY
by Mario R. Spasiano
This paper takes as its starting point the analysis of the evolution of the relationship between politics and administrative activity in Italy: since Cavour’s model – which recognized to the Minister (political organ) also the role of chief of administration – through the seventies reforms with the public management institution, until the present situation where we have a separation (at least on the face of it) between direction duty (politics) and management duty (administration). The author points out how, in this context, the conviction that administrative efficiency requires the establishment of a strong trust relationship between political organs and management has emerged, with the consequence that – in absence of objective criteria – the management valuation is only based on the trust principle, in fact unquestionable. The paper draws attention to the typical characteristics of political and administrative activities, from which the obsolescence of the traditional model founded on the complete separation between the two functions
results: hence, the author concludes proposing a dialogic relationship, based on continuity, between politics and administration, paying attention not to convert it in contiguity. To this end the trust principle, which characterizes the relationship between political organs and management, has to be considered an element objectively valuable, even in judicial terms. In the end, the work analyses the most relevant novelties resulting from the recent public administration reform (d.lgs. n. 150/2009), focusing on the positive and negative aspects about politics and administration relationship.
PUBLIC ADMINISTRATION’S LIABILITY FOR FAILING BUILDING CONTROL
by Maria Cristina Cavallaro
This paper analyzes the liability in which may incur Public Administration that fails to carry out building control. According to case law, public administration may be liable in respect of damages suffered by a landowner neighbor to a land where it was illegally built, but not for the damages caused to the other people or to the community. In this last case, we suggest that the authority, which failed to control, may be considered responsible for environmental damages.
COMMUNITY PROCEDURES AND NATIONAL ADMINISTRATIONS ENGAGED COMMUNITY TASKS
by Gregorio De Vinci
In the original setting of the Treaties the EU, policy-making has been entrusted, mostly, governments, according to a model based on direct\indirectly execution, that, following the gradual expansion of areas of competence of the Union and the enlargement process, no longer accurately represents the multiple forms of the administrative power. The terminology currently used to describe the administrative procedures is highly diverse: multi-level governance, networks of governments, regulatory process, are all expressions that have a common reference to a polycentric system, not monistic, not hierarchically ordered, which assume greater importance, now the EU institutions, national governments now, according to the interactions that in turn trigger between them. The result is a patchwork of relations between EU and national administrations, which are realized through connections and composite variables, based on the c.d. sector by sector approach, which takes into account, from time to time, the Community’s purposes.
At EU level we must therefore define an administration that operates according to a variety of organizational types and procedural, in which next to the Community institutions ‘traditional’ are growing in importance other devices, such as committees of comitology, European agencies, the independent authorities and private entities that contribute to administrative functions. On the domestic side, however, the increasing complexity of Community influence the organizational structure of national administrations, going to also affect the territorialization of European policies, caused by the processes of decentralization under way in Member States. Then, becomes essential to describe how they operate the national administrations involved in administrative proceedings falling within the Community and in what models is the transition between the administrations of Member States and EU in the sequences of procedure in the pursuit of its own Community. In a context of synthesis, are relevant, first, the topic of European administrative procedure and, then, existing connections and related figures in composition between national and EU, which derive different types of decision making.
FROM THE NOTION TO THE TYPOLOGIES: SHORT REMARKS ON THE LAW OF THE LEGAL SOURCES IN THE EUROPEAN UNION LEGAL ORDER
by Giuseppe Martinico
This paper aims at giving a brief overview of the legal sources system in the European Union. After investigating the different meanings of the tricky formula “sources of law”, the author moves to the analysis of the classic legal instruments of the EC law. Finally, the last part of the work is focused on the changes introduced in this field by the Reform Treaty
THE “EXTERNAL AUDIT” AUTHORITIES, DIFFERENT FROM THE NATIONAL AUDIT COURT (CORTE DEI CONTI), THAT CONTROL PUBLIC ADMINISTRATION’S ACTIVITIES
by Antonio Leo Tarasco
This study analyses the “external audit” authorities, different from the National Audit Court (Corte dei Conti), that control Public Administration’s activities. The objective is to measure the effectiveness of the current external control system, considering both its political and legal effects (the latter concerning either improvements to the administrative system, or legal sanctions). The research aims to monitor and measure the results of the control procedures in place. The author specifically examines powers and duties of the Public Service Inspectorate (Ispettorato per la funzione pubblica), of the Anti-corruption and Transparency Department (Servizio anticorruzione e trasparenza), as well as of the suppressed Central Tax Inspectors Department (Se.c.i.t.), by comparing them to the inspection powers of the income tax officers. This analysis concludes that there is a need to further investigate how the current external control bodies can be combined into a single administrative authority that monitors Public Administration’s management. The National Audit Court should maintain its own control on such authority, thus representing the primary guarantor of the proper functioning of both internal controls and external control systems on the Public Administration.