Rivista giuridica dei servizi pubblici 1/2023

Rivista giuridica dei servizi pubblici 1/2023



Autore rivista AA.VV.
ISSN 2240-4732
Prezzo rivista Italia € 100,00
Prezzo singola rivista (Italia)€ 30,00
Prezzo rivista estero€ 280,00
Link per acquistare la rivista: Editoriale Scientifica

Indice  Munus 1-2023


Editoriale

Marco Dugato, I golden powers tra espansione ed atipicità

Saggi

Università, Sistema Scolastico e Riforme del Pnrr

Salvatore Milazzo, Il dimensionamento della rete scolastica nelle riforme Pnrr

Abstract
School network planning is a recurring theme in state legislation and constitutional jurisprudence in recent years. A conflicting approach between the State and the regions seems to continue, even after the approval of l. no. 147/2022, implementing one of the reforms of the Italian Nrrp. The essay provides a normative and historical excursus of the issue, trying to identify a constitutionally oriented reading of the new provisions, also subjecting them to the test of the obligations and constraints descending from the Nrrp.

Caterina Ventimiglia, Sistemi universitari, diritto all’istruzione superiore e soggetti vulnerabili: tra influenze sovranazionali e politiche del Pnrr 

Abstract
The contribution explores the evolutionary dynamics of the right to study in the context of the university system and higher education, in relation to the broad category of vulnerabilities. It wants to offer a particular perspective from which to investigate the innovative processes promoted by the Nrrp and measure its implementation in terms of guarantees and tools to support individuals and territories with conditions of disadvantage and fragility. The analysis allows us to highlight, in the domestic legal system, the beginning of an unprecedented phase of recognition and protection of the social dimension of higher education, which points out the trends and results of progress developed in the supranational dimension. This approach consolidats the perspective that education is not just a public policy, but also a field characterized by irreducible guarantees and a basic level of social and economic objectives. In fact, it was conceived as preeminent and as a projection of an irreducible public duty, being essential for the development of the individual and the community

Diritti e Servizi nella Prospettiva della Differenziazione Regionale

Daniele D’Alessandro, Intese, differenziazione (paritaria per dissociazione?) e bilanciamento dei diritti

Abstract
This paper examines the draft law proposed by the Italian government about asymmetry clauses’ implementation, governed by art. 116. 3 Cost. It reflects about its opportunities, isolating two main issues: the possible constitutional limits of the attribution of legislative functions and the legislative technique adopted. The aim is to explore the possible evolution of Italian regionalism in terms of federalism by dissociation, also expressing some contents for the parliamentary debate. With respect to the possible definition of asymmetry clause agreements, the equal position of the State and the region in the negotiation is brought back within the framework of a common constitutional legitimacy. The issues concerning the modification of those agreements, due to the need to resolve possible overlapping of competeces, are also addressed, as well as those relating to the allocation of competences. The latter is relevant for balancing fundamental rights, by introducing criteria for the legislative competences’ selection, that should be linked not only to the justification of power, but also to the function that it must serve.

Claudia Tubertini, Il servizio pubblico sanitario: la differenziazione possibile, praticata, rivendicata

Abstract
The essay examines the legal and the existing degree of differentiation between regional health systems in Italy and provides some reflections about the prospects opened by the restart of the implementation path of art. 116, paragraph 3 of the Constitution, given by the recent draft law proposed by the Government. The conditions and limits for the implementation of this procedure in the health sector are examined from a unitary point of view, trying to address the requests for greater regional autonomy in favor of the whole national system.

Articoli

Chiara A. d’Alessandro, A proposito dei diritti culturali: studio comparato di una categoria complessa

Abstract
The aim of this paper is to analyze the boundaries of the complex category “cultural rights”. The study begins by reconstructing the development of the topic in the international field. Infact, in this context, a greater awareness of the category has gradually matured. At the same time, a comparative legal analysis is carried out to verify whether and how the issue has been incorporated in European constitutional texts, and beyond.

Silvia Mirate, Il sistema di autorizzazione per gli impianti viticoli alla luce della nuova Pac 2023-2027 

Abstract
The article deals with the regulation system of vineyard plants, as provided by the EU Cmo regulation No. 1308/2013 (amended by the Eu regulation No. 2117/2021) for the new Cap 2023-2027. In particular, the article will focus on the evolution of the control and management system of wine production in European law. It describes the current system of authorisations for vine plantings, underlining the need of striking a balance between the private economic initiative and the public intervention in the sector. Reference will also be made to the Italian experience, with specific regard to Law 12 December 2016, no. 238, the Italian wine law, which currently represents the main and unitary source of legislation in the sector, and the relative decrees of implementation of the planting vineyards system.

Laura Muzi, Gli investimenti per il potenziamento delle infrastrutture idriche e le inefficienze nella gestione dei fondi del Pnrr.

Abstract
Water infrastructures in Italy urge a deep modernization, also due to the uneven distribution of rainfall caused by climate changes. A recent law decree adopted to tackle drought consequences entails the institution of a Special commissioner and ministerial control room implying the attribution of extensive powers to the Ministry of infrastructures. The latter is already in charge of a significant amount of fundings for water infrastructures in the framework of the National Recovery and Resilience Plan. In the meantime, however, the Court of Auditors approved a resolution in the exercise of a concurrent scrutiny on this item of expenditure, shedding light on some inefficiencies in the selection, planning and monitoring processes related to the funded projects. Therefore, the Ministry was urged to take measures to amend them, where still possible, and was invited to pay more attention in the exercise of its ordinary competences instead to call for more special commissioners and new procedural simplifications.

Opinioni

Aldo Sandulli, Agli Italiani piace la trasparenza amministrativa?

Abstract
Starting from the book by Enrico Carloni, Il paradigma trasparenza, the Author examines some profiles related to the relationship between citizens and public power and administrative transparency. According to the Author, for various reasons, including contextual and organizational ones, it is still necessary to work on the quality of transparency. The transparency paradigm represents a legal goal of civilization, to be protected and defended, but still to be maintained and relaunched.
Abstract
The Italian Council of State, in the judgment no. 8773/2022, expresses its opinion on the consequences of both the missing references to Minimum Environmental Criteria in the call for tender at stake and of their non-compliance in the following tender documents. To better understand this decision, it can be useful: at first, to understand what the Minimum Environmental Criteria are; secondly, to examine the evolutionary process that led to their inclusion in the call for tender; and, finally, to focus on their nature.

Maurizia De Bellis, Crisi energetica e transizione ecologica: le risposte europee tra convergenza e conflitto

Abstract
While European responses to the pandemic crisis (notably, the Next Generation EU (NGEU)) have moved in the direction of full convergence with the strategy of the ecological transition strategy as identified in the European Green Deal (EGD), the responses to the energy crisis, while moving from the perspective of preserving this convergence, are likely to conflict with this strategy in some respects. The article analyses, on the one hand, the interventions of the REPowerEU plan in line with the objectives of decarbonisation (such as measures aimed at energy efficiency and at accelerating the development of renewable energies), and, on the other hand, the amendments made to Regulation 2021/241, establishing the Recovery and Resilience Facility (Recovery and resilient facility (RRF)).The decision to use the RRF as a key tool for the investments planned in the RePowerEU communication, through the inclusion of specific RePowerEU chapters within the national recovery and resilience plans, strengthens the role of the NGEU as the preferred instrument for EU’s financial intervention. At the same time, the derogation from the principle of ‘do no significant harm’ for the construction of gas and oil infrastructures and facilities risks undermining the ability of the EU to effectively achieve the binding goal of climate neutrality in 2050 set by European climate law, due to the potential lock-in effects of such investments.

Commenti
Marianna Mazzarella, Verso una maggiore sostenibilità degli appalti pubblici: il ruolo dei criteri ambientali minimi (commento a Cons. Stato, Sez. III, 14 ottobre 2022, n. 8773)

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