Rivista giuridica dei servizi pubblici 2/2023

Rivista giuridica dei servizi pubblici 2/2023



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 2-2023


Editoriale

Aldo Sandulli, Le nuove coordinate dell’intervento pubblico in economia

Saggi

La Nuova Disciplina dei Servizi Pubblici Locali

Angelo Lalli, In house: un istituto ancora controverso in ambito nazionale

Abstract
The paper examines the institution of the in-house providing following the adoption of two recent legislative interventions. The analysis highlights the partial differences in the regulation of the in-house in the two legal disciplines. The paper begins with the presentation of the in-house in European law, illustrating the most recent evolution of national legislation and jurisprudence. It then focuses on the new rules contained, on the one hand, in the recent legislation on local public services and, on the other hand, in the Public Contracts Code adopted in 2023. In conclusion, it reflects on the different declinations of the principle of competition and the limits on administrative discretion and the consequent judicial review

Gabriele Torelli, Regole a tutela dell’utenza nei servizi pubblici locali

Abstract
The study examines the main provisions of Legislative Decree no. 201/2022 (Reorganisation of the discipline of local public services of economic importance) aimed at protecting users. The essay starts with an analysis of the rules on the separation between regulation and management, which aim to avoid monopolies and favour competition, and ends with a presentation of the rules on service contracts and service charters. The opinion on the Legislative decree is generally positive, although some problems remain. The latter mainly concern the need to promote the autonomous income of the service operator through the payment of tariffs by the users and, at the
same time, the need to reduce public subsidies as much as possible.

Simone Torricelli, Il contratto di servizio nella nuova disciplina dei servizi  pubblici locali

Abstract
The paper aims at providing an analytical review of the service contract, as regulated, in more comprehensive and articulated terms than in the past, by the Legislative Decree No. 201 of December 23, 2022. More specifically, the contribution focuses on the function of the service contract, highlighting how it changes due to the different context in which the contract is inserted (in-house or outsourcing). The paper then analyzes some of the most relevant legal profiles, including the necessary content of the service contract, its legal nature (between public and private dimensions) and the regulation of its flaws. What is ultimately drawn from the study conducted here is that just as Art. 24, Legislative Decree No. 201/2022, is a provision in which converge all the other provisions of the “reorganization discipline of local public services of economic importance”, in the same way the service contract now presents itself as the unifying and coordinating element of the entire Legislative Decree No. 201/2022

Articoli

Enrico Carloni, Cambiamenti di prospettiva. Riforma del whistleblowing e trasformazioni dell’anticorruzione

Abstract 
The paper reflects on the Italian regulation of whistleblowing in the light of the recent reform resulting from Legislative Decree no. 24 of 2023, transposing European Directive 1937/2019. The new legislation, which marks the strengthening of the legal instrument (which reaches an organic discipline with an increasingly broad scope), nevertheless modifies its fundamental characteristics. The reform intends this mechanism as a manifestation of the individual’s freedom of expression, recognizes it in both the public and private spheres, and places it to protect compliance with European legislation. In the essay, these changes are read in the anti-corruption system built in Italy starting from law no. 190 of 2012, of which the protection of the whistleblower was until now a qualifying component. The study of the new discipline therefore becomes an opportunity to reflect on some transformations that affect the anti-corruption system in Italy.

Fiorenzo Liguori, Dalla discrezionalità tecnica insindacabile alle valutazioni tecniche sostituibili. Indagine sul sindacato giurisdizionale sugli atti delle autorità indipendenti

Abstract
The contribution examines the issue of technical discretion in administrative law, focusing in particular on the review of legitimacy. The essay reflects on the reserved power of assessment and considers the administrative judge’s review of the assessment of independent authorities assessments and its influence on the debate on technical discretion. The article then goes on to examine the re-modelling of the protection model in the light of the principle of effectiveness and outlines some perspectives on the use of the review of greater reliability.

Francesco Liguori, Efficacia diretta e primato europeo: condizioni, effetti e limiti di operatività nel settore delle concessioni demaniali marittime

Abstract
The well-known incompatibility between the Italian legislation on the renewal of public concessions and Article 12 of the so called Bolkestein Directive leads us to examine the application of the principle of EU primacy and the doctrine of direct effects. In this regard, the present study will attempt to highlight the fact that the remedies provided by EU law in the event of a normative conflict between EU directives and domestic law depend on the nature of the dispute, the parties involved and, consequently, the limits of the applicability of the doctrine of direct effects. The crucial point seems to lie in the legal qualification of the prejudice suffered by the former concessionaire. On the one hand, if the prejudice resulting from the disapplication of the domestic legislation can be qualified as a mere negative effect, the Member State authorities would be entitled to disapply national law. If, on the other hand, such prejudice can be seen as an additional obligation imposed on the third party, the remedies of the State liability for breach of EU law, or infringement procedure, should be preferred, on the understanding that the only definitive solution is the abrogating intervention of the Italian legislature.

Camilla Ramotti, Il ruolo dell’Oms nella governance della salute alla prova delle emergenze sanitarie: un’occasione persa?

Abstract
Health law has gone through various stages and has assumed, over time, an ultra-state dimension. In the process of globalisation of health law, a key role has been played by the World Health Organisation (Who). This paper focuses on the topic of global health governance through the study of this peculiar international organisation from the point of view of its structure, the instruments it uses and the ways in which it is financed. Particular attention is paid to the role played by the Who in dealing with health emergencies, including, most recently, that arising from the Covid-19 pandemic. The resulting picture highlights a substantial inadequacy of the Who in its capacity to coordinate states.

Federico Valentini, La sanità digitale tra regolazione, organizzazione amministrativa e azione terapeutica

Abstract
Since the Lisbon Treaty, the health matter has been the subject of an increasing number of acts, interventions and directives of the European Union, with a “Health in all” policies approach, found in various articles of the TFEU. After the pandemic, one of the crucial points of European and internal regulation is the digital innovation of the health systems of each EU country, in order to guarantee data interoperability, make access to medical care more equitable and reduce costs. Important tools are the electronic health record, telemedicine and digital therapies. However, the introduction of technology risks infringing on certain social rights and freedoms. Protecting these
rights requires a profound reorganization of healthcare facilities, which must be able to integrate technology and make it available to the population for healthcare based on guarantees of treatment efficacy, data security, fair access and cost sustainability. In this way, it is possible to put an end to the current fragility and weaknesses of health systems and to guarantee “good administration”, understood as the right of every citizen as set out in Article 41 of the EU Charter of fundamental rights.

Elisa Valeriani, La risposta digitale al conflitto tra tutela e valorizzazione del patrimonio culturale: il caso dei non fungible tokens

Abstract
The phenomenon of non-fungible tokens (NFTs) lies between the protection of cultural heritage and its valorization, which certainly represents an important opportunity to exploit the economic intangible of the cultural asset through the use of its image. Indeed, the possibility of making the image rare and appropriate allows its commercial value to be significantly increased. In this way, public institutions can capitalize on the intangible value of the cultural goods they are entrusted with. The legal tools to carry out these initiatives are already provided by the Code: art. 108 of the Code stipulates that the consignee institution must charge a fee to the private party for the “right to reproduce”. However, although the revenues generated by the commercialization of NFTs of unique or limited edition cultural objects can be significant and contribute to the financial and economic balance of museum institutions in terms of financial autonomy, many questions remain open about the creation of a “parallel market” of digitized images of publicly owned works

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