Fascicoli 1/2013
INDICE
Dottrina
Antonio Ruggeri – Verso una revisione della forma costituzionale dello Stato – 5
Mario R. Spasiano – Conflitto di interessi ed esercizio delle professioni – 45
Alessandro Morelli – Le diverse configurazioni dell’autonomia nei due ambiti funzionali dell’istruzione e della sanità – 63
Stefano Agosta – La responsabilità per danno ambientale nell’ordito di competenze tra Protezione civile e poteri prefettizi – 89
Marco Calabrò – La disciplina dei porti in Italia: caratteri, criticità e prospettive – 99
Matteo Pati – Alcune considerazioni sulla c.d. riserva di legge costituzionale in materia di immunità delle alte cariche dello Stato – 131
Valentina Prudente – In tema di partecipazione degli stranieri all’amministrazione locale – 149
Abstracts
TOWARDS A CONSTITUTIONAL REVIEW OF THE CONSTITUTIONAL FORM OF STATE
by Antonio Ruggeri
The paper analyzes the reasons and the targets of a possible constitutional amendment in the present political moment in Italy and the procedural alternatives this review might follow (art. 18 Cost. or a different procedure). For what concerns Tit. V, Part II of the Constitution every abstract division of normative powers between State and Regions taking with the proposal of restrain regional “concurring” legislative power is not good, as well as the proposal of a double catalogue of matters of regional legislative powers both “concurring” or “full” (also called “residual”) legislative power. The governmental constitutional amendment proposal seems highly problematic for what concerns the idea of regional autonomy and its artificial distinction in special and ordinary autonomy (it would have been better to define a plural and flexible with a “specialità diffusa”). It is necessary to correct the idea of autonomy, not as a power, but as a service to the community, in the supranational context, in which the Region can be an active subject, and at the state level, with a regional branch of Parliament and a new model of constitutional amendment procedure and a different structure of constitutional review of legislation when there are Regions and State which act in front of the Constitutional Court.
CONFLICT OF INTEREST AND PRACTICE OF PROFESSIONS
by Mario R. Spasiano
The aim of this article is, first of all, to give a correct and systematic legal framework to the not univocal conception of conflict of interest, underlining the several peculiarities connected to the different legal contexts (civil, public, criminal) where it can appear. In the light of the exam of legislation and judgments, arises that, in the civil context, the conflict of interest often emerges only in the presence of a real prejudice caused to another interest; while, on the contrary, in the public context is possible to find also conflict of interest hypotheses relevant in terms of mere potentiality. Once outlined the main systematic profiles, the author analyses the most interesting cases of conflict of interest emerging during the practice of professions, in particular the medical one. In this context, the current legislation is fragmentary and often does not allow the distinction between real or potential hypotheses of conflict of interest; so, the author affirms that there is a strong need of a more detailed regulation, also through the enhancement of the codes of conduct stated by each professional association, designated also to monitor the practice of professions liberty and fairness.
THE DIFFERENT CONFIGURATIONS OF AUTONOMY IN THE TWO FUNCTIONAL DOMAINS OF EDUCATION AND HEALTH
by Alessandro Morelli
The paper examines the constitutional principle of autonomy, with specific reference to education and health matters. Within the paper it is used the distinction between exclusive, non-exclusive and inclusive goods in order to distinguish between different ways for independent bodies to provide services. From such standpoint, the services related to education seem to be more inclusive than those related to the field of the health. However, according to the paper, the Constitution provides that each provider of services related to social rights must achieve the highest degree of inclusion as possible in the relevant historical context.
PREFECTURAL POWERS AND CIVIL PROTECTION IN THE FIELD OF ENVIRONMENTAL DAMAGE
by Stefano Agosta
On the issue of liability and compensation for environmental damage, the work begins with a sort of “flashback” to delineate limits and poker of the competent authority to the establishment of such damage in Italian system. The Legislative Decree no. 152/2006 sets up the central axis Government Minister for the Environment/Prefect: in particular, the Prefect largely gets involved with establishment and resulting amount of environmental damage because the usually functions as deputy commissioner for the emergency, according to the provisions of Law no. 225/1992. Anyway, some gray areas appear to go on respect to full compliance of the Constitution (in particular, for example, into governance, center-periphery relationships and legal sources system, above all): they go in spite of the recent restrictive of Prefect’s necessary and urgent power reform of Civil Protection (in this way, Decree Law no. 59/2012 approved, with amendments, by Law no. 100/2012).
THE ITALIAN PORT LEGISLATION: FEATURES, CRITICAL ASPECTS, AND PROSPECTS
by Marco Calabrò
The current Italian national port legislation (l.n. 84/1994) appears by now, from several perspectives, unsuitable to a modern idea of port, as “passage” of economic trades, element of a wider logistic chain. This article – even through the exam of an interesting draft bill recently presented to the Parliament – intends to underline the main critical aspects of the mentioned legislation (concerning, for example, the unclear role of the Port Authorities, the complexity of the port planning model, the lack of a sufficient logistic system, etc.), pointing out possible legal solutions able to increase competitiveness and effectiveness of Italian harbours, which to this day shows a relevant deficit compared to the North Europe and Mediterranean ports.
THE ISSUE OF THE RESERVE OF CONSTITUTIONAL LAW ON THE IMMUNITY OF THE “HIGH CHARGES” OF THE STATE
by Matteo Pati
The present paper aims to illustrate – in its essential points – the vexata quaestio concerning the existence in the constitutional Text of constraints for the ordinary legislator to extend the derogations from the ordinary law in favor of the supreme political organs of the State. Starting from a rational positioning of the constitutional prerogatives within the system of the Charter, the latest regulatory actions will be commented in the light of the case law and the prevailing doctrinal positions, in order to propose a constitutionally-oriented reading of the “protective” mechanisms provided by the republican Constitution. This purpose will be reached by taking into account the different constitutional values and principles involved, trying to provide a balance between them, that may conform to the democratic structure of our constitutional order and identifying, consequently, the extent of the limits imposed on their vision.
LOCAL GOVERNMENT AND POLITICAL PARTICIPATION OF STRANGERS COMING FROM NON-EU COUNTRIES
by Valentina Prudente
The cultural and social integration of strangers in the life of the community in which they live, is brought to the exercise of democratic rights granted to citizens residents. In the Italian system is still an open question about the attribution of voting rights to immigrants from non-EU countries, but at the same time new forms of participation have emerged at the local level. This paper examines the current state of our legislation and some case studies about experienced participation at the level of local government.