Fascicoli 1/2011
INDICE
Editoriale di Francesco Teresi – 3
DOTTRINA
INÉS A. D’ARGENIO – La justicia administrativa en Argentina – 7
GUIDO CORSO – Pubblico e privato nelle politiche sanitarie – 17
ANTONIO RUGGERI – Unità-indivisibilità dell’ordinamento, autonomia regionale, tutela dei diritti fondamentali – 25
MARIO R. SPASIANO – Derechos fundamentales y justicia administrativa – 51
IVAN DEL GIUDICE – L’AGCM e la tutela del consumatore: i profili funzionali a protezione di posizioni giuridiche deboli” alla luce dei nuovi poteri attribuiti dai decreti legislativi nn. 145/2007 e 146/2007 – 61
GIURISPRUDENZA
ALFONSO CELOTTO – L’inutile parametro dell’art. 138 Cost. – 83
GIUSEPPE VERDE – Il conflitto di attribuzione fra enti non risolve i dubbi di legittimità costituzionale della legge regionale siciliana in tema di incarichi dirigenziali. Considerazioni a margine della sentenza della Corte costituzionale n. 156 del 2011 – 89
RASSEGNE
Rassegna della giurisprudenza del Consiglio di Stato. Speciale in tema di accordi tra amministrazioni e privati di SALVATORE DETTORI – 99
Rassegna della giurisprudenza dei Tribunali amministrativi regionali. Speciale in tema di accordi tra Pubblica amministrazione e privati di SARA FORASASSI – 111
Rassegna della giurisprudenza del Consiglio di Giustizia amministrativa per la Regione Sicilia (1 gennaio-30 aprile 2011)
di PAOLA SAVONA – 125
OSSERVATORIO ARS – 141
Abstracts
ADMINISTRATIVE JUSTICE IN ARGENTINA
By Inés A. D’Argenio
The purpose of the article is to outline the reasons why at the national level in Argentina, no procedural code was enacted to govern the judicial process in administrative matters. The analysis of the Constitution, of its precedents, and the characteristics of Argentina’s institutional system, is done by means of comparison whit the dual jurisdiction system of the European continental law and its principles of the contentious administrative jurisdiction. The institution of a system of judicial jurisdiction unique in Argentina, strange to the contentious administrative jurisdiction regime and the consequent absence of a statutory procedural code for the contentious administrative process, has enabled the development of public law litigation in the context of knowledge and causes decision referred to Article 116 of the Argentinean Constitution. In the context of this new litigation, the administrative act is no longer understood as the core of the administrative system, and it is prioritized the presence of other claims, being of extreme importance among them the sentence to the effective exercise of administrative function omitted by the public administration.
PUBLIC AND PRIVATE IN HEALTH CARE POLICIES
by Guido Corso
The paper analyzes the role of the private sector in the Italian health care system. According to art. 32 of the Constitution, the Republic safeguards health as a fundamental right of the individual and as a collective interest, and guarantees free medical care to the indigent. The provision, which entitles only the poor to free medical care, assumes the existence of a market in health care delivery, where the consumer-patient can choose between public and private operators. In 1978 a National Health System (Servizio Sanitario Nazionale, SSN) was established and it replaced the old one based on insurance. The reform created an universal system, in which every citizen has the right to be provided with health care services, regardless of the income. The statute allowed private providers to operate within the SSN given that they were compliant with a set of requirements and subscribed an agreement with the SSN. The role of private sector in health care delivery, limited and essentially subsidiary in the system created in 1978, has been increased by the reform approved in 1992 and 1993. The citizen is in principle free to choose a service provider, public or private. The law set the requirements necessary for the inclusion in the SSN (accreditamento), which are the same for public and private hospitals. The SSN bears the costs of the healthcare services. Due to budget constraints, the principle of patient’s free choice has never come entirely into effect. There is no “conventional” market in healthcare service, but a mixed system, in which the “buyers”, different form the “consumers”, choose on behalf of the patients/consumers the services to buy between the ones offered by competing operators.
UNITY-INDIVISIBILITY OF THE LEGAL SYSTEM, REGIONAL AUTONOMY AND THE PROTECTION OF FUNDAMENTAL RIGHTS
by Antonio Ruggeri
The purpose of this paper is to point out that, due to its nature, the regional autonomy aims at offering a service to the community and mostly to the individual’s fundamental rights through the implementation of the constitutional provisions that recognize them. The Statutes, as to organization and the laws, as to the subjects falling into the regional sphere of competence, provide such an implementation. Finally, this contribution addresses the major shortcomings brought to light by the practical experience, which shows that the autonomy has failed, to provide the protection of fundamental rights required by the Constitution.
FUNDAMENTAL RIGHTS AND ADMINISTRATIVE COURT
by Mario R. Spasiano
The article takes as its starting point the view that in the modern legal systems there is recognition of a growing range of fundamental rights, especially by the jurisdictional power. The author points out that in this context it is necessary to avoid that the multitude of values, not always adequately substantiated, doesn’t allowed the real protection of traditional and universally recognized fundamental rights. Therefore, legislative power must set in positive rules the absolute values of each legal order, not allowing the jurisprudence to carry out a dangerous supplementary role. Then the paper provides an in-depth description of the evolution of the relationship between fundamental rights and administrative court. For a long time to this judge wasn’t recognized possibility to protect fundamental rights, essentially because the exercise of public power was considered incompatible with the same existence of a fundamental right. Only from 2007, Constitutional Court before and Consiglio di Stato and Cassazione after, began to affirm that if a fundamental right is prejudiced by public activity, it should be recognized by the administrative court jurisdiction. Finally, author intends to verify if administrative court has the adequate instruments to effectively and efficiently protect fundamental rights, concluding that – following the passage of the new Administrative Trial Code (d.lgs. n. 104/2010) – this judge now has a set of investigation tools, able to guarantee a real and full protection, also in tricky field as that of fundamental rights.
“A.G.C.M. AND THE CONSUMER PROTECTION: THE PROTECTION OF WEAK RIGHTS IN NEW LEGAL INSTRUMENTS
PROVIDED FOR D.LGS. NN. 145/07 AND 146/07”
by Ivan Del Giudice
The present study concerns the competences assigned to the AGCM to protection of the consumer, intended as category and not as individual, recognizing in those powers the lines of the public function executed to guarantee, also within the competitive market, the weak subjective positions in the comparison with the economic operators. It analyzes then the relationship of such function with that practiced by the judge.