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Link per scaricare la rivista: Munus-2-2019.pdf
Abstract fascicolo 2/2019
Abstract The so-called Third Sector has gradually taken on significant importance as an area of administrative action. In particular, through the Third Sector Code (d.lgs. 117/2017), the public administration has been provided with a set of new tools to encourage the activities of the Third Sector actors. Among the others measures enshrined in the Third Sector Code, the ones consisting in economic benefits represent a valuable means of promoting and supporting the activities carried on by the Third Sector actors. In this perspective, this article aims at identifying a general pattern for some of the measures of economic benefits foreseen by the Code, namely those consisting in the provision of monetary measures and the concession of goods. The analysis shows that the new tools provided by the Code must inevitably be read in the light of the general principles and, therefore, they can be exploited according to a legal framework that enjoys a certain degree of flexibility.
Abstract The essay moves from the proposal to frame the relations between the public administration and the third sector according to a model of “organizational isomorphism” that can be identified in the legislative decree 3 July 2017, n. 117, containing the Third Sector Code. In this regard, it has been highlighted how this reconstruction allows, on the one hand, to verify the possibility of transposing the activities of general interest, listed in art. 5 of said Code, in a digital version, in line with the e-government model and, on the other hand, to trace the specific advertising obligations and the obligations related to the Single National Register of Third Sector Entities to the more general discipline of the global circulation of data. Once the terms within which, at present, it is possible to talk about a digital Third Sector on the regulatory level have been clarified, it has been investigated whether and to what extent the use of technology can act as an autonomous “form” for the most recent events of the principle of horizontal subsidiarity, having particular regard to civic media, as forms of interaction on the web, conceived as techniques for developing the social capital of the participants. With respect to these participatory practices, efforts have also been made to elaborate a version, albeit embryonic, of their legal status, which is relevant at the jurisdictional level, as well as on the substantive one. Finally, a summary was made in systematic terms, through a dogmatic category, that of common/relational goods, useful for framing the forms of civic empowerment examined.
Abstract The article focuses on the accreditation of public and private social services providers, conceived as an organizational solution capable of providing various advantages in the delivery of social services. Following a preliminary distinction between accreditation and other – more traditional – methods employed by public administrations for the delivery of social services, the article first analyzes the introduction of such organizational solution in this specific field. Given the shared nature of the legislative competence with regard to this subject, the analysis proceeds with an inquiry into the different models of accreditation that emerge from regional legislations. Two main types of accreditation characterize the current “integrated system of social services”: the open – or liberalized – accreditation, and the closed accreditation. Although both types of accreditation undoubtedly offer advantages in terms of cooperation between public authorities and private actors, higher quality and freedom in the choice of the service provider, the article shows how the second type presents some critical issues. These problematic aspects, that emerge in light of the interaction of this system with some Eu law principles applicable – although with a certain degree of flexibility – to the delivery of social services, suggest a more informed application and regulation of this legal institution.
Abstract In recent years the regulation of social services has undergone major reforms by the Public Procurement Code (d.lgs. no. 50/2016) and by the Third Sector Code (d.lgs. no. 117/2017). This led to a new debate around the possibility of reconciling the rules and principles of public procurements with the characteristics underlying social services within each Member State. Trying to overcome a dichotomous approach to the issue, this article attempts to identify some margins of flexibility and adaptability of public procurement rules that allow to take into consideration the peculiarities of the social service “market”. The analysis shows that the Public Procurement Code provides great flexibility for contracting authorities as for the choice of contracting procedures and award criteria, and leaves room for reserving contracts to non-profit organizations.
Abstract This article focuses on the relations between Public Entities and no profit organizations, with reference to the planning and to the management of public services of general interest. In particular, the paper examines the nature of the legal tools provided in the Code of the Third Sector and the exceptions to the public contracts regulation.
Abstract The essay aims at analyzing the scope of application of art. 55 of the so called “Third Sector Code” in order to highlight the “collaborative approach” enshrined into the establishment of the “co-planning procedure” within the Code. The analysis highlights the potential of the co-planning procedure with regard to services and activities of general (economic) interest organized and carried out at the local level. In particular, the objective is to analyze and demarcate the doubts raised regarding the final results of the co-planning procedure whenever it is aimed at the conclusion of a partnership agreement between the public administration and third sector organizations, as pointed out by the opinion of the Council of State issued on 20 August 2018, n. 2052.
Abstract This paper aims at examining the role of Third Sector actors, also in the light of recent reforms, within the planning functions. Starting from the analysis of the Act No 328/2000 and the regional laws which ruled the subject following changes of the Title V. Cost., the involvement of Third Sector actors in the drafting of the plans and in the implementation and preparation of the network of interventions are taken into account. Special attention is given to the innovations introduced by the Third Sector Code particularly with regard to non-profit organizations which, in accordance with the horizontal subsidiarity principle and in synergy with local authorities, have a key role to play in the identification of needs and in the arrangement of a interventions system that provides the most appropriate responses.
Abstract The recent Italian reform on the Third sector subjects plants them in a new public law framework. Among the most important principles, the law mentions the principle of horizontal subsidiarity, which – according to the author – gives rise to the new principle of collaboration. All the tools, consequently, are characterized by the possibility of awarding advantages to others without getting correspondent returns. Therefore, these tools must be distinguished from the ones provided for in the code of public contracts, given that the latter deals with economic relations. Art. 55, 56, and 57, of the code of Third sector should be considered as representative of this different approach, although a recent arguable decision of Council of State undermines this interpretation.
Abstract With the Legislative Decree No. 117 of 3 July 2017 (Third-Sector Code), the legislator intended to organize in a coherent and comprehensive way an area previously divided into many sectors. Before the Code there were, in fact, many laws concerning the different subjects (social cooperatives, social enterprise, volunteering, social promotion associations, foundations, etc…), the different activities related to varied sectors (social services, health, handicap, drug addiction, culture, education, free time …), and the field of tax and incentives (the legislative decree on non-profit organizations). All further divided between state and regional regulations. Has the Code managed to achieve this extremely difficult goal? Have the principles of subsidiarity, autonomy of civil society and freedom of association been respected? What are the organizational principles that actually characterize the reform? This essay tries to answer these questions. It will therefore start with an introduction of the reform to then explain the bodies and institutional subjects that mark the new structure (Italy Social Foundation, various types of control bodies, single register of the third sector, voluntary service centres …). Lastly, after making some considerations about the activities, contracts and goods pertaining to the third sector, some reconstructive ideas will be provided.
Abstract In the light of an empirical data represented by the low usage rate of the restricted procedures within the public procurements field, the article analyzes the legal arrangements, the critical aspects and the strengths that are the most relevant in order to revamp the procedures concerned. In particular, in the view of the greater customization of the public procurement procedures, the reduction of the number of candidates (the so-called “forcella”), provided by the art. 91, d.lgs. 18th April 2016, no. 50, is analyzed as a faculty capable of enhancing the flexibility and the responsibility of the public body’s contractual choices.
Abstract This article focuses on the notion of “public control” and “company under public control” in the legislative decree no. 175/2016, “Testo Unico in materia di società a partecipazione pubblica” (TUSP). The exam of the plans of extraordinary revision ex art. 24 TUSP brought to the attention of the “Sezioni Regionali di Controllo (Regional Control Sections)” of the “Corte dei Conti (Italian Court of Auditors)” gave a number of heterogeneous and contrasting outcomes. The necessity to coordinate the notion of “public control” and “company under public control”, emerged in the “Rapporto sugli esiti della revisione straordinaria delle partecipazioni pubbliche (Report on the outcomes of the extraordinary revision of public shares)”, produced by the Economic and Finance Minister, where has been underlined that the lack of implementation and the delays under the profile of the TUSP application, are partly imputable to difficulties and a lack of sufficient clarity in the qualification of the above mentioned notions. The analysis of the case law, of legal scholarship, and of the decisions of other authorities as the “Struttura di monitoraggio (Monitoring Body)” of the Economic and Financial Minister and of the Anti-Corruption Authority (Anac), that contributed to the current debate, are fundamental to clarify the tendencies not only in the interpretation in the notion of “public control” and “company under public control”, but also under the more practical profile, with reference to the framework of economic and financial sustainability of public finances, and of the effectivity of the implementation of the norms of the reform introduced by the TUSP, provided that half of the provisions of “Testo Unico” are exclusively dealing with “companies under public control”.
Abstract The author’s inquiry is focused on the difficult relationship between the constitutional principle of universities’ autonomy and the legislation instituting a body for a centralized review of the university teachers’ activities, as perceived through the lens of scholars. The research examines both the misunderstandings that have affected such relationship and the attempts of surmounting the aforementioned difficulties, with the aim of drawing a picture of what is really at stake in the current controversies on the issue.
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Abstract The article deals with the concept of City as a complex legal system, where plurality and distinction coexist due to daily flow of people that, for many reasons, come and go. Material and immaterial services offered by the City promote periodic and dynamic relationship between the territory of the City and people: the City becomes a hub as well as a network of networks and, consequently, it represents a place where rights may be exercised. In the City individual and collective rights coexist and each community organizes itself for satisfying individual’s needs and, for this reason, it becomes a legal order. Finally, plurality and distinction in the City bring out the idea of City as a plurality of legal order, joined by the limit of reduction to units.