Public Law notes for the general exam - Bocconi bemacc, Appunti di Diritto Pubblico

Scarica Public Law notes for the general exam - Bocconi bemacc e più Appunti in PDF di Diritto Pubblico solo su Docsity! Public Law The state Today when we think about it we are talking about the modern state, a creation of the modern period. What about the law? 1. Law as a right = subjective understanding 2. Law as law, under the constitution which is objective, the set of rules, the legal system these first two meanings are related if we think about the right of vote (1st) exists only because it is provided by a set of rules (2nd) 3. Law as subject matter, as matter of study —> which considers provisions and interpretations, makes the distinction between public law and private. The public one will consider the provision and the interpretation, the sign by the legislator which is the main actor here. Then we study the interpretation of those articles, who is the interpreter? The judge. 1948 Italian constitution was written, but what’s important is also the interpretation and that’s the reason why we can still applied today, we extend the meaning that’s why is important to have a constant interpretation of the law which is the job of the judges. • Subjective understanding —> rights (right to vote —> claim) • Objective understanding —> law (constitution —> set of rules/legal system, example made bf) • We are all part of a legal order which can be the state, family, a religious community where there are rules, functions, sanctions, traditions. • ‘Law’ has a meaning that is connected to the western legal tradition where we are used to have everything written while on other parts of the world there is the oral tradition where the rules are followed because ‘it has always been like this’, they don’t need to have something written, they just know they do not have to do that. In the western society the law = state law so what the state approves and this can be problematic because different legal orders can have some effects and count more than the state law itself. What happens if the state law is against the religious law (wearing an helmet on motorcycle but you cannot if you have a tourbant), this is the legal pluralism. • Subject matter of study —> subject (public law —> encompasses the study of provisions, the signs given by the legislator, interpretation so the meanings given by the judges and them the doctrinal comments given by the legal scholars). Modern state: “particular historic form of organization of political power, that exercises the monopoly of legitimate force within a determinate territory” linked to the theoretical structure of Hobbes ‘The Leviathan’ where he talked about structure of power and religion. In this book he said that there is a social pact, the people gave the power to the sovereign, but he had to do the best to make people respect the law and maintain the state legal order and the personal freedom, is a do ut des, a quid pro quo. But starting from the absolute state, the citizens started to have a more pronounced awareness and to contest the power saying that also the power should have some limits —> no more ‘absolute state = no limits’. This is the point of constitutionalism so the story of the theorization of the limitation of the power within its legal limits. A new phase of constitution arrived after WW2 where the power got crazy so new limits where needed. Rule of law: identifies the political systems where such limits are actually complied with (i.e., States where the law guarantees the existence of «checks and balances» established beforehand, aimed at limiting the political power) 1 di 28 Legal system: a social group following given rules, that is steady over time and allocates tasks and rights through prescriptive statements understood as binding Constitutive elements of the modern state 1. People: is the first element, the personal one since is the single state that determines the condition of being citizen (acquisition of citizenship by birth …) 2. Territory: is the environment where the state jurisdiction is exercised based on extension so the territorial sea, depth so the continental platform and the height which is the overhead air space. 3. Sovereignty: expresses a quality of power even if it is still a concept sometimes vague because it is abstract. We find the absolute state - exercised without limits by the king, then the liberal state - sovereignty finds limits and is not one person vested of power, but the state. 1. Internal sovereignty is the political power within a determined territory not allowing another power above it. 2. External sovereignty, the state acts independently and doesn’t accept any interference from the outside. First modern state conventionally with the peace of Westphalia 1648 Forms of state (FoS) Given by the interactions/relationships among actors of the state, organized through models by legal scholars, the goal is to features common to different legal contexts. Taxonomies are useful to understand contemporary scenarios. FoS explains the relationship between rulers/governors and ruled/governed so who detains the power and who is subject to it. The primary goal of a liberal state here is to guarantee individual autonomy (minimum state intervention). Form of government (Fog) are for example the US presidentialists, here we are inside the institutions, relation between the bodies such as parliament and governments refers to the manner through which state functions are distributed among constitutional bodies. FoS have lived a progressive transformation, evolution that we find in society and institutions, we found a diachronic taxonomy (feudal society - absolute state - liberal state - democratic state) and the synchronic taxonomy (unitary state - decentralized state). • Feudal society was made of different private agreements (between lord, vassal and so on) this fragmentation brings a dispersion of power —> wars , this fragmentations creates a non fluid market (also given by the absence of borders). This created an exigence of having a centralized power so from he feudal system — > modern state, from personal army —> state army, from private law —> public law. • Absolute state where the concentration of power is in one’s hand only, no political boundaries (= king in control of everything) he is the legislative power itself ‘from divine inspiration’, then he has also the executive power and the juridical one because all the judges are appointed by the king. There are no limits also in the economic field because the king can use the money of the taxes as he wants without being controlled by any other institution —> people started to say ‘no more leviathan’, no more absolute power and the king was being challenged. • Liberal state where the main goal is to guarantee individual rights and freedoms, the parliament started to represent a proper institution less dependent from the king who started to be marginalized. Here we find the first constitutions such as the Statuto Albertino in Italy , the first separation of powers ‘law above the state’, the principle of legality is an example of more freedom, it says that any limitation of individual freedom must be based on a prior authorization by law. In this period the legal particularism is left behind through codification of law in civil codes offering privates rules that are general (applicable to anyone), abstract (applicable repeatedly over time), and certain (with foreseeable effects, also 2 di 28 - The house of representatives that are elected by the people and the members elected for each state are proportional to its population and the term lasts 2 years. - Senate where the member states are represented so its the most powerful. The term for a senator lasts 6 years. Here we find the same representation for each state (doesn’t matter the population) In the midterm elections a lot of these seats are to win, this is important for the senate and for the president so its like a ‘test’ for him because they are every 2 years. The us president has to find the majority for each law he wants to pass. The US Presidential executive is the result of 200 years of political-constitutional rules and customs and part of the balance is given by the existence of political parties that are weak and undisciplined —> Congressmen are flexible and willing to carry out political negotiations (political bargaining; lobbying) and "sell" their vote to the President. French semi-presidential executive The government must keep the confidence of the parliament, is different from the Italian case because here the government doesn’t need both approval to enter in its office. The president is has a 5 years term and a very relevant power, he appoints the PM (like the president of the republic in Italy). The president here has also the power to dissolve the national assembly and is important because he can use it to ‘convince’ them to do something. He can also file a petition for the preliminary scrutiny …, an ex ante control (in Italy is just ex post, the Corte costituzionale cannot do anything before the law has been approved). Key features: • 1st confidence between president and parliament; the president cannot be removed by the parliament and that’s because in France is elected by the people, but it must appoint the PM • 2nd confidence between the government and the parliament; like the parliamentary system. 2 scenarios • Party of the president wins —> president has the majority so he choses the PM he likes (like Macron) • Party of the president looses —> president is free to choose the president of the council he likes, but without a clear majority the PM is not strong —> the name of the PM should be negotiated with the parliament because it doesn’t make sense that the president appoints someone that won’t be totally approved so won’t be able to exercise his all power —> president here is more like a referee. This was the case until the constitutional reform of 2000 and the solution here was to make the presidential election and the parliamentary one in the same period because if the election of power is one year and the one of the parliament is 3 years later the president will have lost likability —> if we have a 2 month distance the ideas of the electors won’t change drastically —> more probable to have scenario a instead of b. Italian form of government In Italy we had a form of liberal state with the statute Albertini and the king Carlo Alberto in 1848, then with the constitution in 1947. So 5 di 28 until 1948 we had the constitutional monarchy (kingdom of Italy 1861-1948), after that we finally reached the parliamentary form of government (1948 - present). A country can modify some aspects, the ‘rules of the game’ and to do so they modify the constitution. The decisions that have been made in the Italian constitution. In the Italian history we can find also ‘black pages’ such as the fascism, but we shouldn’t forget them, we should actually built on them. June 2 1946 —> first universal suffrage elections, 25 million people voted (89% of those eligible to vote), on the ballot we had: • Institutional referendum = monarchy vs republic • Constituent assembly = the decision was about a new constitution, if people wanted it. This assembly was made of over 100 members that had as main aim to write down the constitution. • Was made of more than 500 representatives elected by the people and many of them fought clandestinely against the regime (21 women). It had some typical tasks of the parliament, but one main role waste draft the constitution, elect the provisional head of state, approve international treaties and laws on constitutional matters, control the government. The constitution was approved by 90% of the voters and after 18 months of negotiations came into force. The text long (diversity of interests resulted in adding up things, not selecting) and heterogeneous within which the diverse influences can be recognized. Unlike the statute Albertini of a hundred years earlier which was shorter, granted by the king. The Italian constitution —> Parties and form of government —> The transformation of the political system have a profound influence on those of the form of government. On the Italian case, we can recognize three phases of republican political power: - 1st phase 1948 - 1993 • A multi-party political system with two distinct poles pf aggregation, we find the marxist left and the catholics right so a very divided society and this is the typical condition of the parliamentary form of government. But which is the electoral system? With a proportional system where the territory is divided into constituencies (Toscana1, Toscana2) and the main point is the allocation of seats, so for example Toscana1 has 20 seats available, Toscana1 50% of voters are of party A —> party A will have 10 seats and … • In this system we don’t have one winner only, because there is a proportion and this is a pro, but on the other hand its more 6 di 28 difficult to reach and maintain a majority because most of the time coalitions are needed and usually with coalitions parties that unify ask ‘favors’ in exchange. • This is often the reason why the proportional system is used in ‘young countries’ that want to bring different ideas of different political components of the country into the parliament. - 2nd phase 1993 - 2011 • This is also called the second republic since the first one failed, this was born the year after the biggest political scandal ‘Tangentopoli’ where many politicians were discovered to be corrupted by the mafia, here the traditional Italian political system collapsed, but this happened also because of an international motive - the end of the cold war. Berlusconi won, electoral law changed because through a referendum in 1993 people asked for it and this new electoral law (Mattarellum, written by Mattarella) was predominantly majoritarian mixed system: • Here just golden medal —> just 1 winner —> just 1 seat allocated (party A 50% and party B 30% —> just 1 seat to party A). With this system the positive aspects: the coalitions are defined before the elections, is clearer for the elector, when he votes he already know how the coalitions are made so who the PM is going to be. The bad side of this is the strong simplification of the political parties, the small parties will have to join a coalition before, is the only way, it doesn’t make sense to try because its a risk. —> big coalitions: centre left and centre right (Prodi vs Berlusconi). - 3rd stage 2011 - present • Electoral vote changed again, the two traditional alignments centre left and centre right had strong internal conflicts and the elections of 2013 are the interruption of the experience of biporalism with the emergence of a third force movement 5 Stelle … riguardo sat part … • 2023 elections marked the return of a stable government majority with the right The European Union legal order Classified forms of organization of power through dichotomous models with state (unitary, composed state) vs international (eg united nations). —> the united nations cannot do anything concrete, they can condemn, but they do not have any police or something. There is a distinction also in how the decisions are made, unanimity is the only rule to take decision. 7 di 28 - Tax • Provincial tax commission • Regional tax commission (for the appeal) When the constitution talks about the jurisdictions makes reference to the individual rights, in fact art. 24 const. = right of defense has an active side where anyone may act to protect their rights under civil and administrative law, and the passive side so the fact that at every stage of the trial, the individual has the guarantee that his rights will be protected. The corollaries are the due process that we find in Art. 111Const. = to guarantee that my rights are protected, i need a proper trial; and the motivation and possibility of appeal so if I believe the verdict is not right I can have another trial with different judges and the motivation so the understandment of why did the judge decided something. Guarantees of the person —> art. 111 const. Principles of the due (right) process: Adversary principle = possibility for a person to demonstrate that the accusation is wrong, so the right to debate inside a process, to defend himself Judge third and impartial = guarantee that the judge is not inside the process in any way and has no interest in it, this is connected to art. 25.1 (natural judge, I will be trialed where I committed the crime, related to the natural court so I will be trialed in a court that is natural, not special for me, totally impartial, like the judge) and 102 (the legal court cannot provide other special judges for my case so everything is totally impartial and under const principles) Reasonable duration of the process is linked to the European convention of human rights, a treaty according to which a process would follow a reasonable duration so a condemn can be made by European HR if the process lasts too long, unreasonably. Other guarantees of the person is the principle of legality in criminal matter so - The one of the offense (if a court is legally designated to handle a case, that case must stay with that court until it's resolved) - The penalty (the punishment may be inflicted by virtue of a law in force at the time when the offence was committed) - The one of security measures (No restriction may be placed on a person's liberty save for as provided by law) Article 27 is related to the criminal liability which is personal and the presumption of innocence until final sentence has been passed and the judgment is final when the appeal is rejected or not asked for. Art 111: obligation of motivation, is the guarantee seen above and there is also the possibility of recourse to the supreme court of cassation, which is the last step of the ordinary jurisdiction of the process, its role is to control the correct interpretation of the law. 10 di 28 Constitutional principles: judiciary is autonomous and independent power this means that: - Autonomous = guarantee in favor of the entire judicial order, in respect to each individual judge. This has some corollaries • The magistrate/judge is subject only to the law which is the only thing that binds it so not bonded by any other power - The judges are different only for different functions - The public prosecutor has the obligation to institute criminal procedures - The High Council of the Judiciary oversees judges' employment, assignments, transfers, promotions, and disciplinary actions per Judiciary regulations • Judges can't be removed, dismissed, suspended, or reassigned except by a High Council of the Judiciary decision, consent this is a guarantee after fascism where the executive power interfered • Access by public competition, judges are appointed by competitive exams - Independent = independent from any other power of the state so independence of the judges from outside and from other judiciary powers. The independence is guaranteed by the high council of the judiciary. Composition: • Ex officio members who are the president of the republic, first press, and general prosecutor of court cassation • Elective component: - High council go the judiciary made by judges, magistrates - 2/3 elected by ordinary magistrates - 1/3 elected by the parliament Responsibility of the magistrate, distinction between disciplinary responsibility which is defined as the breach of obligations towards the state by virtue of the service relationship —> I make a disciplinary violation, I will have to respond to this action to the high council of the judiciary (consiglio superiore della magistratura). The other branch is the civil responsibility that deals with damage caused to parts or other persons for errors in the exercise of their own functions (judge that makes a mistake) and they are judged by other ordinary judges or it can be made a direct action toward the state since the judges are representatives of the state itself so the citizen has the guarantee not only from the people, but from the state itself. Functions of the high council of judiciary: 1. To propose to the parliament in matter of services related to justice 2. Advisory on the bills related to juridical order 3. To deliberate about everything it pertains to the status of ordinary judges from the first step so from their recruitment (they recruit, appoint, dismiss and disciplinary functions which is the only way 11 di 28 they have to take action against judges and at the end this decision will have to be approved by the plenary session ) !!! Sources of law The source of law is what can differentiate two legal systems. In the western legal system there are sources of law that are made by parliament or there that are not related to other aspects of society while with rules of traditional law, the laws are related to the religion, the culture of the country so for example in islamic countries. Source of law —> production of the law, we have sources as acts or as facts (customs, behavior repeated over time by the parliament or just a community of people, traditions, habits, conventions), every act that the legal system defines as suitable for law is a source of law. • Sources on production of law, tells us how to make a law, a regulation • Sources on law production, here we have the actual production of laws • Sources of production produce the norm we must respect, produce objective law • Sources on production on how the sources are made with • Identification of the system • Determine the criteria for the vigor of sources • Identifies the criteria for interpretation • Sources of cognition are the official places where we have a cognition of the source of regulation so the official Gazzetta for example. The source as acts exists if enacted by whom has power to do so — > if the gov issues a law, this doesn’t exist because the gov doesn’t have power to do so, only the parliament. Then a norm is valid if is in accordance with the rule of recognition and the rules hierarchal above. Lastly its effective if capable of producing juridical effects so at the end of its process, when published in the official journal. The source system in Italy —> Constitution at the top and at the same level the amendments of the constitution—> then we have in the state side the primary sources (under the constitution) law, legislative decree and the law decree, under this level there is the secondary source of state = regulation. On the other side similar path, we have as primary source of regions the regional law (in Italy we have a regional state where the regions 12 di 28 The modern perception of constitution as a source is reached in the liberal state • 18th century revolutionary constitution like USA 1787, France 1791 • Napoleonic constitutions like France 1802 • Liberal constitution like Spain 1837 Idea of constitutionalism —> idea of referring to a source of law superior to any other. Constitution as a source —> cycles of constitutionalism • Democratic constitution like Weimar • Social-democratic constitution like Italy 1948 • Constitution of decolonization like Nigeria 1962 • Post soviet constitution Before the constitution there is the constituent power and after the constitution all the powers must respect the constitution We can characterize the constitution based on its characters, can be: • Long: A constitution that is detailed and includes provisions (ex. welfare state) often encompassing not just fundamental rights but also second and third generation rights, such as economic, social, and cultural rights. • Brief: A constitution that is succinct, providing the essential framework and principles of governance without extensive detail, allowing for broad interpretation. • Formal: This characteristic refers to the content and legal formality of the constitution. It is recognized as the supreme law and its formal nature is a result of its content being entrenched and legally binding. • Substantial: A constitution that has a significant impact on the actual functioning of the state. Its interpretation and application by government entities, political parties, and constitutional courts shape how the constitution exists in reality. • As a budget: The constitution can have fixed provisions similar to budget allocations, requiring specific budgetary measures to be in place for its implementation. • As a program: The constitution may require legislative action to fulfill its programmatic provisions, thereby functioning as a guideline for government policy and legislative agenda. • Rigid: A constitution that can only be amended through a special procedure, which is more difficult than the regular legislative process, ensuring stability and continuity. • Flexible: A constitution that can be amended with the same procedures as regular legislation, allowing for easier modification in response to changing societal needs and values. This type of constitution, often found in liberal states, does not require a special procedure for amendments Efficacy of constitutional norms: when the Italian constitution was enacted (1946) and entered in force in (1948) 15 di 28 Indirect efficacy —> needs the intervention of the legislator to become effective: Direct efficacy —> all legal operators can enact the constitution if possible, are complete enough to serve as rules for specific cases Constitutional rigidity, 2 pillars that guarantee the rigidity: 1. Amendment constitution says that the italian constitution is rigid so we need specific amendments to change it and these amendments must respects some characteristics —> the amendment laws of constitution amend the text of the constitution directly. Preceding: a law to be enacted has to be approved by the 2 chambers (same for constitutional law), we need a double vote and a period of at least 3 month must elapse, this because laws must be thought well, in particular the first voting requires a simple majority while the second requires an absolute majority (50% +1 of the composition of the chamber). Since we are dealing with constitutional amendments there is another way, with a referendum that doesn’t need a structural quorum, but 500000 people or 5 regions or 1/5 of the members of each chamber. • Abrogative referendum you ask the people if they want to cancel a law • Constitutional referendum you ask the people if they want to enact a law 2. Control of the constitutional court, this is an organ in charge ti defend the rigidity of the constitution The constitutional law rules that supplement the constitution, enact norms supplement to the constitution for example the constitutional court Constitutional amendments There are some limits to the amendments, first we find the express limit which is the republican form of state (in Italy) and no amendment can change that, Italy is a democratic republic in which the sovereignty belongs to the people. - Rules on the democratic structure of the system - Rules on the regional form of state - Rules on the rights of people The law Sources on the legislative process is regulated firstly by article 70 and following, then by the parliamentary rules which can be both an implementation of rules of the constitution or supplement of rules of the constitution. 16 di 28 Phases of the ‘tier legis’ : 1. Initiative: the law can be initiated by • Government - in all matters • Parliament - no in matter of budget • People - no in matter of budget • Regions • CNEL the legislative proposal can come from the government (disegno di legge, bill) or in all other cases is called DOL (draft of law, progetto di legge). The text should be drafted in articles accompanied by a relation and then we have the judgment of admissibility by the president of the chamber. The next step is to assign the DOL to the commissions, this can be done by matter so a commission is created for a certain matter and there will be experts on that matter, or by process, in fact we have 3 != processes to draft a law: • Deliberative committee —> the whole legislative process begins and ends in the commission, is not needed the approbation of the entire assembly. This committee is written about in the constitution, where it’s said that some matters are excluded from this kind of operations in the committee like electoral laws, delegation laws, laws of budget approval… in the constitution is written also that in any moment the government / 1/5 of the committee / 1/10 of the chambers can ask the passage to the assembly • Referent committee • Drafting committee —> is regulated by the chamber and by the senate: • Regulation by the chamber, the assembly may decide to defer to the committee the drafting articles (amendments, debates, discussions) while in the assembly we will have just the single article and the final text • Regulation by the senate, very simple because the drafting stage is in the commission and so is the voting article y article so in the senate we just have the final approbation of the law 2. Approval of the chambers: must be approved by both chambers (shuttle) 3. Promulgation: president of the republic must sign the law within 30 days 4. Publication: needed because we as citizens must know that this law is applied, there is a period from the publication until when the law entered into force within is ordinarily of 15 days (the parliament may modify the number of days). 17 di 28 Ordinary proceedings: a. Committee phase with the appointment of a rapporteur, a discussion on general outline, discussion art by art and amendments with possible intervention of the select committee , then adoption of a basic test and relation to the chamber (relation of majority and minority) b. the assembly we have 3 readings of the drafting, a first general discussion, then a discussion and vote on single articles and their amendments, lastly a final vote on The abrogative Referendum The referendum has a double nature, a legal framework governed by art 75 of constitution, the other meaning is that this is a mechanism of direct democracy used to repeal laws or legal acts categorized: • By matter (constitutional, legislative, political, administrative) • By execution time (suspensive, abrogative used in Italy) Functions: Acts as a source of law having the authority to annul existing laws and potentially introduce new primary legislation. Procedure: 1. Preparatory phase: can be proposed by 500000 signatures from the electorate body or by 5 regional councils through an absolute majority and can target whole laws or parts of them (total/partial abrogation) 2. Control phase: two checks must be made, the legitimacy check so verify the signatures, managed by the central referendum office in the court of cassation and the admissibility check which ensures referendums do not cover prohibited subjects like tax laws, budget laws, treaty ratifications, amnesty, and pardon 3. Constituent phase (voting): it is scheduled by the president of the republic typically on June 15th, there are two quorums required: the structural (over 50% of eligible voters must participate for it to be valid) and the functional one (majority of participating voters decides the outcome) 4. Declarative phase: the results are declared, confirming weather the law is repealed or remains. Juridical oversight - The Constitutional Court plays a critical role in interpreting the admissibility and scope of referendums, ensuring they align with constitutional boundaries and the principles of clarity and specificity in lawmaking. Sources of EU law Primary sources of law - Charter of fundamental rights of EU (CFEU) • Protects persona, civil, political economic and social rights - Treaties of EU (TEU) and on functioning of EU (TFEU) • Serve as the constitutional basis outlining EU operations institutional roles and member state relationships 20 di 28 Art 75 A general referendum may be held to repeal, in whole or in part, a law or a measure having he force of law, when so requested by five hundred thousand voters or five Regional Councils. No referendum may be held on a law regulating taxes, the budget, amnesty or pardon, or a law ratifying an international treaty. • TEU establishes the eu and TFEU deals with the operational aspects of the eu Secondary sources of law - Legislative acts • Regulations: general rules that apply uniformly, without need of national legislation • Directives: to harmonize national laws, each state decides form and methods • Decisions: addressing specific cases or general conditions, fully binding - Non - legislative acts • Legal instruments, delegated acts, opinions, recommendations: no legal obligation, are meant to influence and guide. Legislative procedures: 1. Co-decision procedure - is the most common legislative process, involving the European Parliament and the Council on an equal footing 2. Consent procedure - here the parliament must give its consent to specific legislative acts, allowing them to pass or not but without amendment 3. Consultation procedure - lastly the parliament is consulted on proposed legislation but its opinion is not binding Then the non legislative procedure includes consent and consultation methods varying the level of involvement of different eu bodies Principles of eu law: • Direct effect allows individuals and companies to directly invoke EU law at national courts, depending on the nature of the EU law • Vertical enables individuals to invoke EU laws against state authorities, ensuring state compliance with EU regulations • Horizontal allows individuals to apply EU laws in disputes with other private parties, broadening the scope of EU law enforcement beyond the state • Primacy, EU laws take precedence over conflicting national laws, ensuring uniform application and adherence to EU treaties Key legal doctrines Costa vs ENEL 1964 —> established the supremacy of eu law > national law Van Gend en Loos 1963 —> introduced the doctrine of direct effect, allowing eu law to be invoked by individuals within national courts 21 di 28 Lisbon treaty 2007 • Enhanced the democratic legitimacy of EU by: • Increasing the powers of the eu parliament • Consolidating legislative process ands simplified it Treaty of Nice, of Amsterdam, of Maastricht • shaped eu’s constitutional framework Implementation and compliance - Failure ti implement directives can leas to infringement procedures. - Directives must be transported into national law within a set deadline. - Decisions are binding on their addresses and do not require national transportation The regulations of the government Regulations serve as detailed extensions of primary legislation, providing necessary specifics to enact and implement laws effectively. These are not mandatory for all laws but are essential for clarifying and operationalizing legislative intent. Constitutional basis — an article of the constitution grants the President of the Republic the authority to issue government regulations and outlines the distribution of regulatory competencies across various levels of government Legal foundation — there is a law that solidifies the government's power to issue regulations, detailing the process and types of regulations that can be enacted Types of government regulations 1. Implementation - ensure the operational functionality of laws, containing rules necessary for their application 2. Integration - provide additional content to laws that are primarily based on principles, thereby aiding in their effective execution 3. Independent - established in areas lacking primary legislation, functioning independently from existing laws 4. Organizational - focus on the internal structuring of institutions, based on organizational principles 5. Delegated - focus on the internal structuring of institutions, based on organizational principles Procedure for issuing regulations a. Proposal initiated by one or more ministers b. Review involves consultation with the council of state and is subject to its non binding opinions c. Adoption requires approval by the council of ministers d. Audit must be approved and registered by the court of auditors e. Publication regulations are published in the official journal. Limitations on regulations: Substantive limits: Regulations must align with the Constitution and existing laws Competence limits: Defined by absolute or relative reservations to law, which can restrict the scope of regulatory authority absolute —> excludes all kinds of regulations 22 di 28 So when something violates directly the constitution or —> no interposed parameter While when’re there is an interposed parameter we have an indirect violation of the constitutional provisions by an imposed parameter. Anyway we have a violation of the constitution. 3. Defects could be formal that happens when you don’t respect the proceedings for enacting a norm or substantial so the defect is in the content of the normative. Direct proceedings a. State vs Regional: the state can deem unconstitutional a regional law and the region can deem unconstitutional a state law —> we have the same level between the two, but not the same power. This proceeding can be made subsequently (after 60 days) and the region can only defend its competence so can go against the state only if the law goes against the region while the state can go against the region to protect the whole constitution —> state has much more reasons to go against the regions. b. Regional statues (like constitution of the regions): as any other law of region must respect the constitution and it can be made a preventive proceeding (preventive because is made 30 day before its pulsation) and its done if this goes against the constitution c. Conflict of attribution: the object here is any kind of behavior so jurisdictional, administrative.. the power to give the pardon is of the president of the republic. The proceeding is divided in two phases, a prior decision by the court on admissibility of the conflict an then the judgment declares those competence it is and cancels the invalid act. And could be among: a. Powers of the state - the notion of power is much more extensive than the traditional tripartician (legislative, executive and jurisdictional) of powers so we have many more powers and b. Regions c. State and regions We have three kinds of decisions: • Orders of inadmissibility - there is a lack of subjective / objective prerequisites or there is a lacking of the conditions of the recourse —> order of inadmissibility by the constitutional court. If no lacking of there and the constitution can go into the merit, we have: • Decisions of acceptance - the constitution decides if accept or not the unconstitutionality and this says that the law is against the constitution • —> effects in space are erga omnes = every other judge in every other pending case we have to apply this constitutional court decision (the effect here is not just inter parties as before) 25 di 28 Power = organs competent declare definitively the will of the powers to which they belong Order = not defining, but relegated to the form of the question of • —> effects in time = the norm looses its effectiveness from this case on in the future, but this is valid also for all the judgments that are now pending (only exception is the definitive judgment that cannot be reopened because its considered closed, but there is another exception which is a criminal condition where the negative effects of the convicted person are ceased, without reopening the whole case. • Decisions of rejection - in this case the constitutional court rejects the idea of the judge that the norm goes against the constitution 26 di 28 The Regions Constituent fathers with reference to local autonomies had to take into account contrasting tendencies characterizing different phases of Italian history 1. Decentralization, defining feature of the medieval experience throughout the peninsula during the age of free municipalities starting from the middle ages 2. Centralization, kicked off with the unification of italy in 1861, imposed also with the idea of force throughout the role of provinces ‘long manus of central government’ this tendency was extremely amplified during the fascist era with Mussolini. 3. Regional state is the reconciliation of the two traditions within a “unique and indivisible republic”. The choice was between the 2 forms of states available ate the time: unitary state like France or Spain and decentralized (federal) like Germany. —> the decision was to create a third option, decentralized regional state which is a legal and territorial invention because existed provinces and municipalities, but not regions. The political commitment around it consisted I’m recognition of autonomy of the territories but at the same time being unified so not like a federal state. After WW2 italy experienced a feeling called veil of ignorance where the country started to write a new page of history for example women could vote —> a new political and geopolitical fresh start was needed. Another thing is that regions represented a guarantee on possible pockets of politics/differentiation with respect to political direction of central government. Degrees of autonomy: • Political, possibility to have an organ of Government (albeit local) politically different from the central one • Legislative, upon given subject matters • Financial, with freedom of expense but also to levy regional taxes —> 15 ordinary regions + 5 special regions (Sicily, Sardinia, Friuli, Venezia Giulia, trentino, Aosta) + autonomia provinces of Trento and Bolzano. No political party was organized on a regional base. Around 2000’s a wide constitutional reform realizing a strong decentralization of regions on various plans is passed: - 1999 concerned the form of government of regions introducing the direct election of the president of region. - 2001 legislative allocation of competences state-region, confirmed for a first time through a constitutional referendum. After 2001 we have a decentralized structure, from the administrative pov regarding vertical subsidiarity, administrative functions must be exercised by the level of government closer to citizen thus from the municipality. 27 di 28