Abstract fascicolo 1/2019
Abstract The principle of rotation must guide the contracting authorities during the consultation phase with the different economic operators which have to be consulted and invited to submit their tenders. The rotation is based on the need to prevent the strengthening of the outgoing successful bidder’s advantage position, especially in the markets where the number of economic operators is restricted. Therefore, it is essential to avoid the award of a public procurement contract without competition, which may also hamper the entrance of micro, small and mediumsized enterprises in the market and to encourage the distribution of opportunities to take part to a tendering procedure between the economic operators concerned. For these reasons, the invitation both of the outgoing successful tenderer and the economic operator which has merely been invited on the previous public tender is exceptional and must be justified.
alfonso maria cecere
Abstract In a legal context which does not prosecute gambling because of the benefits that these activities bring to government revenues, many municipalities in their areas of competence have adopted gambling prevention regimes to ensure and preserve the personality, dignity, health of the individual citizen and, at the same time, the harmony and welfare of their community. Against these acts, the sector operators have brought to court a judicial dispute from which has involved the decision of the Italian Constitutional Court. The judicial interpretation given in this case-law has set the boundaries within which municipal measures are legitimate to limit the freedom of economic initiative in the gaming and betting sector. It was thus highlighted the close link between the measures adopted at the municipal level to combat and prevent ludopathy and the protection of those people who are particularly exposed to gambling addiction and related disorders. By virtue of this link, which gives a strong social merit to municipal measures, the administrative court seems to be better prepared in its union with the public administration because the exercise of public power ensures the protection of a weak person, namely the person exposed to the risk of becoming a pathological gambler.
Abstract The Legislative Decree No. 60 of 2017, implementing the Law No. 107 of 2015 also known in Italy as the «Good School Reform», aims at providing nursery school to secondary school pupils and students with an artistic education combining knowledge of Italian cultural heritage with direct contact experiences regarding the ways of artistic expression. An ambition that also includes the financing of some measures to support the humanistic knowledge and the practice of arts, described in the Arts’ Three-Year Plan, adopted by the Council of Ministers’ Presidential Decree of 30 December 2017. This contribution, given the pluralistic model around which the Italian school system has developed, aims to verify whether such a model, which requires school autonomy, is shaped in the dialectic with other territorial components. It finds suitable implementation guarantees in the mechanisms provided by the related legislative and governmental interventions in the field of cultural promotion and development of creativity.
Abstract The paper addresses the issue of public funding for the film and audiovisual industry in Italy. The purpose of the work is to identify, considering the recent reforms, the features of government intervention in these areas in order to understand how both the cultural and the economic component are supported in this distinctive sector, and the potential effectiveness of public subsidies as recently redesigned by legislators. To this end, the analysis is divided into four parts. The first provides an historic overview of the main public tools adopted, in the last century, for supporting private economic activities. The second offers a brief history of public financing for the film industry. The third consists of a detailed discussion of the recent reform in the public aid mechanisms for the movie and audiovisual industry. The conclusions provide answers to the research questions, seeking above all to understand whether it is now possible to go beyond mere economic efficiency in pursuit of a mature cultural policy in the film and audiovisual sector. The conclusions highlight how the film and audiovisual industries continue to be distinctive precisely because of their scope, including in terms of culture, and also underscores how recent reforms in the Italian law may open the way to a good balance between market demands and promotion of culture.
Abstract The paper analyses the relationship between the silence-assent mechanism and the sensitive interests, in particular the environmental ones. The subject is relevant due to a legislative contrast. As a matter of fact, the art. 20, par. 1, l. no. 241 of 1990 (as it was reformed in 2005) excludes the application of the silence-assent mechanism in case of sensitive interests. On the contrary, art. 13, par. 1, l. no. 394 of 1991, allows its application in the proceedings concerning protected areas and parks. The Council of State had different opinions on the relationship between these two rules, causing contrasting case law. The Plenary Assembly clarifies its opinion in the judgement no. 17 of 2016, arguing that art. 13, par. 1, l. no. 394 of 1991, has been remaining in force because of its speciality. Consequently, the Plenary Assembly allows the application of the silence-assent mechanism in environmental proceedings inside the protected areas. Nevertheless, this judgement is in contrast with the opinion of the Council of State no. 1640 of 2016 about the art. 17-bis, l. no. 241 of 1990, which allows the silence-assent mechanism between public bodies also in case of environmental interests. The administrative court states that art. 17-bis is legitimate subject to the condition that this rule does not apply to private subjects if sensitive public interests are involved in the administrative proceeding. The conflict between the two decisions is patent and it causes significant interpretative problems and imbalances, which are analysed in the paper. Furthermore, the Administrative Tribunal of Lazio has recently forbidden the application of the silence-assent mechanism in a protected area, adopting a different opinion from the judgement given by the Plenary Assembly.
Abstract This article aims at analysing several legal and theoretical aspects related to different social and technological innovation phenomena falling under the conceptual umbrella of the so-called sharing economy. The result of the analysis offers regulators and public law scholars of innovation, in particular those with a local or urban dimension, a key to guide the interpretation of public policy and regulations that would allow innovation to grow and regulators to govern risks produced by it. In particular, after a general overview on the role and meaning of the sharing economy, this study focuses on the impact of new technologies and new platforms in the urban mobility sector. Particular attention is paid to the regulation of on demand mobility services, a sector subject to a dense regulatory texture laid out by legislators, independent authorities, national and EU case law. The analysis of this regulatory framework sheds light on a methodological principle, the urban legal experimentalism, which according to the research hypothesis developed in this study may become a guiding principle to interpret and govern disruptive social, digital, technological innovation phenomena public decision-makers will have to cope with in the future.
Abstract The Public Procurement Code (d.lgs. n. 50/2016) and the Code for NonProfit Organisations (d.lgs. n. 117/2017) have been approved by the Government within a period of about a year. Nevertheless, there are many problems of coordination between the two Codes, which regulate in different ways the award of social services to Non-profit (voluntary) organisation. On the one hand, in accordance with the principle of competition and with the European Directive 24/2014, the Decree 50/2016 provides for public procurements procedures (although simplified). On the other hand, the Decree n. 117/2017 allows public administration to enter into agreements with voluntary organisation following a more informal tender procedure. This includes solidarity aims and the gratuity of the activity, in accordance with the Italian constitutional principles of solidarity and to most recent decisions of the Court of Justice of the European Union. The essay examines the two sets of regulations in the light of the evolution of the Italian and European law and case law, outlining the problems arising from their interpretation and application. The study shows how both competition and solidarity principles are deeply rooted into European Treaties and Directives and how the principle of solidarity is embedded into the regulation of many economic activities. However, the balance between the two principles in European Law is still uncertain and often ambiguous. This uncertainty produces important consequences also on the distinction between services of economic or not economic interest, which thus becomes less useful to define the realm of application of public procurement law.
Abstract The work deals with the legal nature of Anas and its private-public nature. Anas is a joint-stock company, but it is included in the list of public administrations annually prepared by Istat because it covers less than 50 percent of its costs through its own revenues. To get out from the perimeter of the public administration, Anas has been merged with Ferrovie dello Stato (Fs), which is a commercial entreprise. However, the merger is not fully completed. The article highlights that Anas should have market revenues to become a public entreprise. In order to achieve that, Anas should be put in competition with other operators by eliminating the difference between toll roads and free roads.
Abstract In the light of the developments recently occurred about Italian Regions pursuing greater autonomy (according to art. 116,3 of the Constitution) the paper deals with the main issues that affect the implementation of the so-called “regionalismo differenziato” (differentiated regionalism), both from the procedural and the substantial point of view, with special attention to the relationship with the principle of equality guaranteed by the Constitution.
Abstract The article aims at analyzing the withdrawal of the public procurement contract (art. no. 109 of the legislative decree no. 50/2016) in order to understand whether, and to what extent, the contracting authority must provide a statement of reasons for its choice to break the contractual relationship. The main idea is that the inclusion of the withdrawal of the contract under the traditional scheme of private law (withdrawal ad nutum) could jeopardize the first but provisory outcome reached through the selection phase: in other words, it could compromise the goals that the Directive 2014/24/ UE proposes to reach through the public administration and its public procurement activity. Since the judicial control through the abuse of law is unsuitable to guarantee a proper control over the act and over its functionality to the public interest, the proposal is to consider the whole activity of the public administration (even the contractual one) under the same and unique “public charter”, which requires a steady practice of procedural schemes and implies a persistent functionality. Given the “uniqueness” of the contractual framework, some concluding remarks are provided in order to revise the actual distribution of jurisdiction.
Abstract This paper examines the relations between urban planning and health programming. First off, after a brief introduction of the relevant conceptual elements, the analysis focuses on the structural and functional features of the relationship as it appears in the current regulatory framework. Building on such framework, I propose final considerations about the prospects provided by the elaborations on the theme of urban health.
Abstract The UK has taken a very different path in the organisation of its railway system from that taken by other European countries, or indeed by the European Union. Under the Railways Act 1993 the rail industry was fragmented into a large number of different companies linked by contract. The infrastructure was owned and managed by Railtrack, a wholly privatised company, which collapsed in 2002 and was replaced by Network Rail. The latter was taken back into full public ownership in 2014 and it has now devolved most of its operations to regions and routes. Network Rail is regulated by the Office of Rail and Road, which undertakes extremely detailed examinations of its efficiency every five years, determining the amount of funds it requires. Passenger services are provided by companies holding 15 franchises based on routes and geographical areas; there is very little competition by ‘open access’ operators. The franchises are issued by the government’s Department for Transport through a mixture of competitive tendering and direct awards, and specify the services required in great detail. The system has experienced very serious problems of fragmentation and lack of coordination (for example in drafting timetables), and of a failure to transfer risk from government to the franchise holders. It has not succeeded in reducing costs to public funds, and customer service is patchy. The whole system is now under review, though what will replace it is uncertain.