Comparing Government Forms & Constitutions: Italy vs Germany - Prof. Barettini, Appunti di Diritto Pubblico

Scarica Comparing Government Forms & Constitutions: Italy vs Germany - Prof. Barettini e più Appunti in PDF di Diritto Pubblico solo su Docsity! PUBLIC LAW- 1 semester DIFFERENT FORMS OF GOVERNMENT A government is a body that determines how a country, town, city, etc is run. Laws and policies connected to daily life are created and must be abided by all citizens. There are different forms of government such as: ● DEMOCRACY comes from Greek and literally means people and rule of the government. In this system leaders have been elected by the people. People are free to decide who will lead them. This is completed through the process of free and fair elections. - PARLIAMENTARY DEMOCRACY: elected representatives meet in parliament to make laws ● MONARCHY is when an individual leads a country. They usually inherit the position and hold it for their entire life and pass it to their relatives. - ABSOLUTE MONARCHY: all the decisions are made by one - CONSTITUTIONAL MONARCHY: this country has a written constitution but also a monarch that leads the country ● REPUBLIC has an elected or chosen head of government or president. They usually are head of government for a specific length of time also called term of office. - DEMOCRATIC REPUBLIC: people choose the leaders through elections, whereas in UNdemocratic republics the leaders are chosen by a small group and can be head of the state for longtime. ● TOTALITARIANISM is when the government has absolute control over every aspect of a person’s life, as well as their beliefs and thoughts. This has been created in the 1920s when the fascist government was established in in Italy and Germany - FASCISM is a form of government with a dictator as head of the state who controls the political, economic, cultural and religious aspect of the citizens’ life. It involves patriotism and discrimination against minorities - DICTATORSHIP is a form of government with a dictator as head of the state who has absolute power. There is not a rigid set of beliefs but dictators use the force to remain in power. - COMMUNISM is an economic system where there is no private ownership but everything is held by the community and the economic activities are controlled by the state - OLIGARCHY is a form of government where a small group of wealthy people hold the power - ANARCHY is a form of government where there is no leader so it is characterized by the state of lawlessness SOURCES OF LAW source of law=fonte del diritto def. The sources of law refer to the set of written and unwritten resources from which binding legal norms are ’drawn’; the sources do not contain information about the law, they constitute the law as they decide what counts as law Each country’s legal system has its own sources of law. The most common are the constitution, the legislative enactment/statute, the judicial decision, treaties and other sources. CONSTITUTION It is a set of fundamental ground rules that set out (espongono) the powers of the different parts of the government (executive, legislative and judicial). They also set basic principles. In civil law systems these rules are embodied in codes. Few countries have written constitutions, however their interpretation may be difficult. A constitution usually overrides any other sources of law and it is hard to amend (make minor changes to a text). LEGISLATIVE ENACTMENT-STATUTE It is the second source of law after the constitution. There might be more than one legislative body but there are rules that determine to which extent they have priority over another. JUDICIAL DECISIONS They might be authoritative and develop into the “case of law” that may extend the application of legislation and form part of the law. However, in other jurisdictions they are only deemed to interpret the existing law. TREATIES A country can be subjected to laws made by other subjects. Some examples are the laws of the European Union or the WTO (world Trade Organisation). For instance, the body of regulations and directives of the European Union take precedence over the national laws of the members. They must be adopted by all the members but also the countries that are trying to accede. Rules can also be imported as standard of engineering and health guidelines. There are also other sources of law, like writings of legal scholars,edicts from kings, sharia law. etc. 2.10.2023 LEGAL SYSTEMS The legal system is the set of rules of a community. Whenever people live together, they set some rules in order to regulate life. When there are bigger groups of people these rules are laws. In latin, we say ubi societas, ibi ius. The constituent elements of a legal system are - a certain number of subjects - relationships among members of the group qualified by norms - legals of the community→ somebody who has the authority→ titular power and authority within the group - coercion: it means having the force to punish who infringes the rules, people must follow the rules, if not they are punished There are many and different legal systems around the world. LEGAL FAMILIES They are groups of legal systems based on something they have in common. - civil law family (romanistic): they originally come from ancient roman law, then they changed because of the influence of others. All the European legal systems apart from the British one come from this family. Many aspects that were in roman law don’t exist anymore (ex slavery) → we are not applying roman law, but the main concepts remain. Not only in Europe, but also in South America or Africa. It is called civil law because it comes from latin “civis”. The main source of law is written legislation. - common law (anglo saxon family): William the Conqueror arrived from Normandy around the year 1000 and they signed the Magna Carta. They arrived in the peninsula and they found anglo, saxons and some danish living together in a simple way. The Magna Carta was adopted and it was the first declaration of rights of the knights. Normands didn’t force them to adapt to their lifestyle. Common law includes all legal systems which come from the aglo saxon law, for example australia, india, new zealand, some african countries. They have some basic concepts that are the same. This comes from the english commons (the normans lords under william the conqueror). The source of law is where the law originates and comes from. In English law the main source of law is the case or legal precedents. SOVEREIGNTY IN THE GLOBALIZATION ERA The principle of not interfering in the internal affairs of other states is limited in the age of globalization, because of the presence of supranational bodies. One of the core features of the traditional sovereignty was the capacity of a state to solve its internal problems on its own, but now the nation-states are becoming ineffective in coping with problems and threats which are getting more globalized (the world is more and more globalized, for instance students who get in touch with other cultures, flight tickets are more accessible so we move around the world, companies are globalised, not only multinationals but also transnational companies like the Nestle). So international cooperation is gradually more needed and interdependency among States increases against global problems such as economical and financial crisis (stock exchange is connected all over the world), environmental issues, spread of diseases, drugs, violation of human rights or international terrorism→ problems are globalised, so we need international cooperation. Joining the EU means losing some national sovereignty→ the EU is very integrated. The United Nations talk to the members but not to the citizens and we cannot talk to the UN directly. However, we can do that to the eu which talks to the members but also the citizens. Eu legislation is a law for all the EU citizens. Based on the EU treaty there should not be discrimination in the EU or for example the EU rules also concerns us in other aspects of our life, ex sport. TERRITORY - It is not only the land, but it is constituted by dry land, territorial seas, airspace and subsoil (with no limits) - It is the limit of the validity of legal norms governing a certain legal system and the space where a state exercises its sovereignty. PEOPLE - Citizens and possibility to exercise sovereignty (e.g. Italian constitution: Italy is a democratic republic founded on labour. Sovereignty belongs to the people who exercise it in the manner and within the limits provided for by the constitution) - Relationship and connection with the different concepts of ● Population: whoever lives on a territory, includes citizens, foreign citizens, stateless persons (apolide). ● People: the citizens, they posses the sovereignty power which they exercise though their chosen representatives People vs peoples: people means a collective group of human beings belonging to a particular/specific nation, community or ethnicity. Peoples means the same as “people” but it is used to denote groups of people belonging to different communities, ethnicities, religions, nationalities, etc. ● Nation: community of people sharing common language, culture, ethnicity and history: there might be different ethnic groups on a territory, therefore different nations in a state CITIZENSHIP Def. the condition of being bound to a given state from which every individual receives certain rights and to which he-she is forced to respect certain duties→ we all have rights but also duties. Citizenship replaces total subjection to the power of the sovereign, typical of absolute monarchies→ the king could decide everything, on the contrary being citizen means that we have rights How to obtain citizenship? It depends on the state. There are different ways: - Ius sanguinis→ it is based on the law of blood, so the son of a citizen receives citizenship, also descendants of italians can receive the citizenship - Ius soli→ if a person is born on that territory receives citizenship, for example in the USA or Ireland. - Ius connubii→ through marriage people can receive citizenship, it depends on the state, some people receive it immediately some others have to wait - Naturalisation through decree of the president of the republic→ every country has its rules, in italy it’s 10 years Eu citizenship→ before we said that citizenship is linked to a state, but eu in a supranational organisation not a state. EU citizenship started after the treaty of Maastricht (1992). Since then, if a person has citizenship of a member state he has the eu citizenship as well. This citizenship is different from the others because it gives people rights (ex we can vote in the country of residency for european elections, we can travel and live everywhere in the eu with any limitations, but two: if they committed crimes or if a person has not sufficient funds to live on the country without graving on the incoming country social assistance; we have the diplomatic assistance→ if we’re outside our country and we have a problem, but our embassy is not working, we have the right to be assisted by any other eu embassy) and duties. Forms of state and forms of government These concepts are different when we talk about Italy - Form of state: the principles and rules governing a State’s legal system, the form of State defines “the relationship between the holder of the power and the subject to the power and therefore the various aspects of the relationship between authority and liberty” (costantino mortati) → relationship between the freedom of people and the ones that have been chosen by them who are head of the state - Form of government: rules concerning the distribution of power among the branches of government, i.e. the relationship between constitutional bodies (the bodies which are above all others and have the same level of sovereignty and independence) → this is set out in rules concerning the bodies and how they interact These notions are specifically connected to Italian public law. In the U.S. and the British system these terms are mostly treated as synonyms, with the expression “form of government” used more frequently, because government refers to the state as a whole. Different forms of state (diachronic→ in history the forms of state we had) - Feudal society: Europe up to the 12th century, it was characterised by total identification of the feudal lord with the land and the power → it was originally created in small areas. It was called “patrimonial state” because there was a lord owning lands and therefore owning also people who lived on these lands for example they had to pay taxes and they had to obey him. - Absolute state: shift of power from feudal lords to a single monarch, from a small portion of land to a bigger one and from land to money → there was centralised bureaucracy and a large army. The sovereign had absolute power over the people. - Liberal state: there was a strong separation between the state and society, there was the introduction of the rule of law (=nobody is above the law and it is adopted by people through an established procedure) → prevalence of individualism, protection of rights and freedoms. There was not a king or a sovereign anymore who could decide everything, instead there were laws. Magna carta was the first step toward this type of state. Democratic pluralistic state It is the result of the slow transformation of the liberal state from a mono- to a multi-class society. It is characterised by the recognition and protection of a plurality of groups, interests, values which are allowed to coexist in society and are represented in Parliament→ extension of voting rights (1946 women started voting in italy) → universal suffrage (everyone can vote and therefore people elected in parliament should represent everyone). This transformation was very slow and it brought the creation of - mass parties - elected bodies - second generation rights (social and economic→ ex right to work, education and political participation→these rights are shaped by a radically different context, which is the advent of industrialization and the growth of capitalism) added to liberal first generation rights (then third generation rights and now we have 4 and 5 generation rights). Welfare State It is a particular type of democratic pluralistic state. It’s the concept of a government in which the state plays a key role in the protection and promotion of the economic and social wellbeing of its citizens. It is based on the principles of equality of opportunity (Ex. in Italy our state gives the opportunity to everyone to study with fellowships, economic aids, etc), equitable distribution of wealth (people who have larger incomes have to pay larger parts of taxes), and public responsibility for the disadvantaged (in italy we have an almost free health system). We will always have people that are better than others because it cannot be abolished, but in this way they are trying to give an equal dignity and eliminate extreme poverty. Italian constitution - Art 3, 2° paragraph: It is the duty of the Republic to remove economic and social obstacles which, by limiting the freedom and equality of citizens, prevent the full development of the natural person and the actual participation of all workers in the political, economic and social organization of the country. → our state is trying to remove obstacles to give equal opportunities to everybody Germany: Art 20, 1° paragraph, german basic law: “the federal republic of germany is a democratic and social federal state” Alternatives to democratic pluralistic state - Totalitarian-authoritarian state ex fascism and nazism → there’s a total absence of checks and balances as to the command structure of the state, use of force and intimidation, limitation of basic individual rights→ they base their power on intimidation of the citizens who don’t feel free - Socialist state: it is based on the abolition of private property and on the public control of the means of production → humans need some properties so it is likely that it will never work - Theocratic state (coming from greek theo is god and kratos is power): it is under the control of a church or state-sponsored religion . Forms of state on the basis of territorial organisation - Unitary states where entire authority is in the central state - Regionalised states divided in administrative areas that have some power but there is also a central power that has the majority of it - Fully federal states, they are states that are fully independent united in a federation → Italy is a decentralised state Art 114: The Republic is composed of Municipalities, Provinces, Metropolitan Cities, Regions and the State. Municipalities, provinces, metropolitan cities and regions are autonomous entities having their own statutes, powers and functions in accordance with the principles set forth in the Constitution. Rome is the capital of the Republic. Its status is regulated by State. FORMS OF GOVERNMENT (SYNCHRONIC) - parliament executive - Presidential executive - Semi presidential executive - Directorial executive In democratic pluralistic states, since in authoritarian or totalitarian states there is no real separation of powers nor system of checks and balances. PARLIAMENTARY EXECUTIVE 1. Relationship of confidence between the executive (i.e. prime minister and cabinet) and the parliament 2. There are both a head of state and a head of government - The head of state in a parliamentary monarchy is determined on a hereditary basis (Spain, GB). - In a parliamentary republic the president is elected by the parliament →it is not the people electing him → in both cases it’s not popularly elected - the head of government is not elected directly, but in some cases there is a popular election sensu lato (in a wide sense) of the head of the government → In a majority system or proportional representation with a premium of seats (Italy) ensuring a healthy majority, the election of the head of government is similar to a popular election, because the head of state has no choice but to appoint the leader of the winning party (Italy, Spain) → Our government is not elected directly by citizens, but we vote for the parties. In uk after an election the leader of the largest party will be invited by the king to form a government and become prime minister 3. Term of office: - the head of state has a term of office: in a parliamentary monarchy the president stays for life, however in a Parliamentary republic he stays for a fixed term ex in Italy is 7 years, in Germany is 5 - the head of government has not a term of office PRESIDENTIAL EXECUTIVE The head of state and head of government are combined into one institution, that is the president (for example in the USA/constitution 1787 —> their constitution is pretty old, but they have amended it many times). It has been imitated by countries in Central and South America, Asia, Africa, sometimes with powers the president does not have in the usa, such as dissolution of parliament —> they have given the president extra power and so it has often gone towards authoritarian presidentialism. These presidents have taken all the command in their hands. It is diametrically opposite to the parliamentary form of government. The characteristics are: 1. There is no relationship of confidence between the president and legislature, i.e. the congress that is composed of House of Representatives and senate —> they can be oriented differently 2. The president is popularly elected (for example in the usa it is indirectly: citizens vote for the presidential electors, who then elect the president —> it is not direct, but less indirect than in Italy) 3. The president serves for a term of 4 years and can be re-elected once SEMI PRESIDENTIAL EXECUTIVE In France since 1958, the constitution combines elements of the presidential and the parliamentary form of government (this already existed in the Weimar Constitution of 1919, in Finland, Austria, in Ireland, and several other countries). 1. Bicephalous executive system: there is a head of state and a head of government, but according to the French constitution “the president of the republic presides over the council of ministers”. 2. The president of the republic is directly elected by the population. The head of the government is appointed by the president of the republic, but must have the confidence of the majority of members of the National Assembly. 3. Since the president of the republic and National Assembly are not elected at the same time, there may be “cohabitation”, therefore a president of one party and a parliamentary majority of another party. In order to minimise the risk of situations of cohabitation, in the year 2000 the term of the president of the republic was shortened from 7 to 5 years. CATEGORIES OF SEMI PRESIDENTIAL SYSTEMS - the prime minister prevails, ex Austria and Ireland - Separation of competences between prime minister and president of the republic, ex Finland and Portugal - The president of the republic plays a central role, ex in France DIRECTORIAL EXECUTIVE It is only in Switzerland. Here the head of state and the head of government are combined in one institution that is the federal council (collegial institution—> whenever it takes a decision, all the members take it together —> the institution is seen as a group). SOURCES OF LAW A state is a legal system created whenever humans enter into forms of cohabitation or coexistence with others. The relationships among members of the same group are regulated by many norms BUT only some of them can be defined “legal”. Effectiveness of legal norms: legal norms are characterized by being coercive or mandatory —> they have to be respected by the people and the court has to apply them. THE ITALIAN LEGAL SYSTEM IN THE CONSTITUTION The Italian legal system of the sources of law can be traced in the constitution. The constitution describes the organization of the republic as centered in the parliament, which is the only body empowered to make legislation (art 70 const.) with the exceptions of the government and regions. Both governments and regions act under the supervision of the parliament. THE CRITERIA TO SOLVE LAW CONFLICTS Since there are many sources of law, there may be conflicts so it is necessary to find specific rules for solving conflicts between different sources. there are four criteria: - CRITERION OF HIERARCHY: lex superior derogat legi inferiori —> the law on the lower level is declared illegitimate and then annulled. The superior law prevails. - CRITERION OF CHRONOLOGY: lex posterior derogat priori —> an old law that contrasts with a new one approved at a later date is repealed (revoked) by the new law and ceases to have effect —> the new law prevails - CRITERION OF COMPETENCE: when there is a contrast between laws on the same level, it is resolved through the fundamental principles defining an area of competence. The prevailing law source is one the constitution considered competent in that area —> we look at whose the competence was, ex it could be a regional competence matter so we must follow regional laws - CRITERION OF SPECIALISATION: lex specialis derogat lex generali, a specific law has priority over a general one Example of a conflict: an Italian citizen marries a Japanese one, which laws are applied for this marriage? In the past before the reform of 1975, the marriage was governed by the laws of the citizenship of the man at the time of the marriage. Then, in case of mixed marriages it is legislated by the place they are. Example 2: international contracts, Italy and usa companies make a contract, either it is set out in the contract this is rules by the law of the country that has the closest connection, the one that has more characteristics. - The repeal (abrogazione) is effective ex nunc, from now to the future - The annulment (invalidamento) is effective ex tunc, from the origins of the act —> all the consequences have to be taken back repeal=revoke or annul a law or act of parliament= abrogazione, revoca ITALIAN LEGAL SYSTEM NATIONAL SOURCES Sources of law= fonti del diritto, where the rule we live by come from 1. CONSTITUTION (supreme principles) Our constitution is not very long, it holds the basic principles 2. CONSTITUTION, LAWS REGARDING CONSTITUTIONAL AMENDMENT, OTHER CONSTITUTIONAL ACTS (leggi costituzionali) How our constitution can be changed, and other acts 3. PRIMARY SOURCES (ordinary law, decree-law, legislative decree, regional law, abrogative referendum) They are on the level of ordinary law, also our civil code is here. Abrogative referendums are created in order to cancel a law → they are on the same level, also regional laws are there, but they can legislate only in a certain area. Once they have legislated they are on the same level as the ordinary laws 4. SECONDARY SOURCES (government regulations) Government regulations are underneath the other laws, they tell us particular things applying to the laws CONSTITUTIONAL SOURCES: THE CONSTITUTION - RIGID: super primary source of law. It represents the supreme norm of the juridical order, sited on the top of the pyramid of norms. The respect of its provisions is guaranteed by the constitutional court (art 134 const). Constitutional review or constitutional control is the evaluation, in some countries, of the constitutionality of the laws→ they evaluate if the laws contrast with the constitution, they check whether they go against the constitution or not - LONG: it regulates the organization of the state but it also recognises and protects rights → constitutions can be long or short, the short ones decide only how the state is organized, the long ones also decide the fundamental rights - PROGRAMMATIC: it also sets objectives to which the activity of the state must be directed → it sets objectives and aims of the collaboration of the citizens in the state CONSTITUTIONAL AMENDMENTS In Italy we have a rigid constitution but it can be amended with a particular procedure. The constitution can be amended following the art 138. This procedure is different from the ones for the amendment of a normal law. should behave diligently. International contracts must be respected but there is no law that says it, it is a principle of international law→ pacta sunt servanda is basic principle of international law. → international treaties: it comes into force when there is a sufficient number of ratification. I trattati internazionali hanno rango di legge ordinaria= international treaties are on the level of ordinary laws. Provisions infringing the constitution are illegitimate and can be annulled by the constitutional court. The system of primary sources is a closed system because all sources at this level must be expressly provided for by the constitution. Among them, ordinary law is particularly important: it can amend preceding laws and regulations, but it resists repeal (abrogazione) or amendment by laws that are subordinate to it, such as government regulations→ Capacità di resistere all’abrogazione o modifica da parte di atti fonte che non siano dotati della medesima forza, in quanto espressione del medesimo processo di produzione normativa (profilo passivo). ORDINARY LAW (leggi ordinarie) - The procedure for the approval of an ordinary law is set forth in arts. 70 to 74 of the constitution - A number of citizens (50,000 electors), the government and single members of the two chambers can propose a law → ex. Legge basaglia has been proposed by a member of one of the chambers - Once it has been approved by the two chambers, each by a simple majority, a law still has to be promulgated by the president of the republic, whose refusal must be accompanied by a reasonable explanation and may in any case be overturned by a second approval of both chambers, again with a simple majority→ he can refuse to approve it but it has to be with a reasonable explanation - The promulgated law is at the end published in the Official Journal (gazzetta ufficiale) and enters into force 15 days after publication, unless the law itself states something different→ this period is called vacatio legis LEGISLATIVE DECREES (decreti legislativi) - The parliament can delegate the power to the government for a period of time - They are delegated legislation used in technically complex fields (ex taxation, procedural codes) where a sophisticated system of coordination is needed - The parliament enacts a delegating law setting the basic principles and the time required, and the government issues the actual delegated decree→ it bases the decree on the instructions given by the parliament LAW DECREE (decreto legge) - It is an urgent legislation and it is a temporary emergency legislation - Law decrees may be issued by the government only in “exceptional cases of necessity and urgency” and they have to be immediately transmitted to parliament which can approve them within 60 days, otherwise they lose their effect as of the date of issue→ conversione in legge means that it is converted into a law - Constitutional court, decision 360/1996 declares: “illegitimate to submit a new law decree whose text is identical to a previous one that was not converted, unless the new law decree is based on new cases of necessity and urgency and unless its provisions have been modified accordingly” →they cannot submit an identical text if it was not converted, it can be repeated if the situation of urgency comes up again or it has evolved REGIONAL LAWS - The Italian regional system has undergone a complete change with constitutional law n. 1/99 (about the regional statutes and the regional electoral system) and then, even more deeply, with the constitutional law n. 3/01 (about the legislative, administrative and taxation power of the regions) - Part 2, V title of the constitution regulates Regions. They have a regional council elected by the people and regional government called giunta and a regional President who, following constitutional law n. 1/99, is directly elected by the people. - Art. 118 const. Introduces the principle of subsidiarity (it means intervening as a help) of the administrative authority: “administrative functions shall pertain to the municipalities, unless they pertain to the provinces, metropolitan cities and regions or to the state, pursuant to the principles of subsidiarity, differentiation and proportionality, to ensure uniform implementation. Municipalities, provinces and metropolitan cities carry out administrative functions of their own as well as the functions assigned to them by state or by regional legislation, according to their respective responsibilities” → administrative functions pertain to the closest authority to the citizens and the people that have to live according to the decision that people are taking, unless specific cases, so the first choice is to give these functions to i comuni. This principle comes from canon law (diritto canonico) because there was the pope and many archbishops so they decided that they had to make decisions for a smaller territory because the pope could not regulate everything by himself, in fact families had different needs in different places. - Art 119 states that municipalities, provinces, metropolitan cities and regions shall have independent financial resources. They shall set and levy (imporre) taxes and collect income of their own, and they share in the revenue from state taxes related to their respective territories. ITALIAN REGIONS - REGULAR REGIONS have their own statute approved by the national parliament but proposed by the regional assembly, which regulates their internal organization - FIVE SPECIAL REGIONS (aosta valley, trentino alto adige, friuli venezia giulia, sicily and sardinia): they have a special statute which regulates their legislative and administrative authority and has a constitutional force→ they have more power than the other regions, in fact there were minorities that had different history and wanted to be independent from italy ITALY AND THE EEC-EC-EU - Italy’s participation in the EEC and the signature of all other treaties up to the treaties of Maastricht, Amsterdam and Lisbon, has been constitutionally justified by the italian constitutional court (decisions n 14 of 1964 and n 183 of 1974) based on art 11 ital. const.) - Art 11 ital const. Says that Italy “shall agree, on conditions of equality with other states, to such limitations of sovereignty as may be necessary to allow for a legal system that will ensure peace and justice among nations” → italy can participate in any supranational organization that aims to peace and justice as long as they are equal to other states EU law is the same for all the states, it is translated word by word, unless they make mistakes since sometimes there are problems of translation (words that don’t have a translation, concepts that are difficult to express in another language, ecc) undertake= intraprendere, undertake= impresa, undertaker= becchino Sometimes eu law tries to be concise and omits something that can be misinterpreted. APPLICATION OF EU LAW IN THE NATIONAL LEGAL SYSTEM - If an eu legislation is in conflict with the italian constitution: Initially the italian constitution court stated that, in case of contrast between community and internal statutory rules, italian judges were compelled to ask the constitutional courts for judicial review according to internal standards. - In 1984, with the constitutional court decision in the Granital case, it was finally settled that italian judges can autonomously refuse to apply internal rules that conflict with EC law, without seeking judicial review from the constitutional court → eu laws prevails over national law - The rule of direct effect states that individual rights are self-executing (something that goes into effect or can be enforced after being created without anything else required) upon citizens of the member states → if eu legislation has come into force, but the member states still not have, a citizen of the states has the right provided by the eu legislation - The adoption of the rule of direct effect avoids the risk that the failure of a member state in implementing an eu directive has the consequence that individual rights afforded by the directive are not guaranteed → if a state has not implemented the directive by the time he should have, eu directly says that the citizens have those rights. If the citizen is damaged by that he can ask to be repaid HISTORY OF EU The iron and steel community was founded in 1951 after the second world war. This institution survived for several years. The European Union was founded as the European economic community (EEC). It was an economic agreement between 6 states (Belgium, France, Italy, Luxembourg, the Netherlands, and West Germany). It was signed in 1957 with the Rome treaty→ These States got together and made an international convention, made in two steps: 1. The representatives met 2. The representatives went back to the states and decided if they accepted that, this step is called ratification. - Eu Council = composed of ministers from each member state, so the decisions are taken by the state and not by the people = the council is the legislator of the EU, it approves, amends or rejects the laws. It has regular meetings once a month for the regular meeting. There is not a list of members nor a president of the council, since it is composed of the ones that are in that moment ministers in the member state. Every six months the president changes (now there is Spain, so the Spanish minister is the leader of the council now), the president works closely with the previous one and the next one, so that the change is not brutal. All states have the same weight. - Court of justice - Court of auditors: it is not a court, not a body deciding on litigation but it is the corte dei conti. It deals with spending of Eu, so the budget created for the following year. They check if the money has been spent according to the budget set. The auditors (revisori contabili). If they find something that is not okay, they tell it to the body in competition. The European market is becoming more and more an integrated market. The relevance of the European Parliament has risen a lot (it was called parliament because it was made up of members of parliament of each member state and they represented their country but they didn’t have power of legislation). Then it changed. In 1995 the members of parliament became elected. In recent years the parliament has gained more power and for most of the matters the Parliament opinion is now binding (it has to be respected). The EU is closer to its citizens than the other supranational organizations. There are many council meetings. Now we have to vote for the European parliament every 5 years and European citizens can vote wherever they have their residence if it is in Europe. Then they added the Eu central bank and the European Council (then we have another supranational organization called council of europe that is out of the european institutions and it deals with human rights). - European Council: it is the meeting of heads of executive of member states (italy is Giorgia meloni now, so in italy is the prime minister). It has no legislative power. The summit of the chief of the executive is a meeting that became institutionalised. They write reports that are not binding but they state the direction in which the EU is going. - European central bank: it is in Frankfurt and it manages the euro policy and the monetary policy. The president now is Charles Michelle. . COURT OF JUSTICE Court of Justice: 1 judge from each Member State (they must sentence objectively), plus 11 advocates general (deals with requests for preliminary rulings from national courts—> they make suggestions, infringement proceedings: mistakes in implementing or delays in it, certain actions for annulment and appeals, actions for failure to act and for damages). The advocates general write a document known as conclusions of advocates general, but this solution is not binding for the court. –General Court (earlier: Court of First Instance): 2 judges for each MS (deals with competition law, State aid, trade, agriculture, trade marks). Judges and advocates general are appointed for a renewable 6-year term, jointly by national governments. Location: Luxembourg ROLE OF THE ECJ - Ensuring EU law is interpreted and applied the same way in every EU country; - ensuring member states and EU institutions abide by EU law: everyone respect eu law - settling legal disputes between national governments and EU institutions; - it can also, in certain circumstances, be used by individuals, companies or organisations to take action against an EU institution, if they feel it has somehow infringed their rights. RULINGS OF THE ECJ ● Interpreting the law (preliminary rulings): if a national court is in doubt about the interpretation or validity of an EU law, it can ask the Court for clarification. The same mechanism can be used to determine whether a national law or practice is compatible with EU law. ● Enforcing the law (infringement proceedings): this type of case is taken against a national government for failing to comply with EU law (can be started by the EU Commission or another MS). ● Annulling EU legal acts (actions for annulment): if an EU act is believed to violate EU treaties or fundamental rights, the Court can be asked to annul it (by a MS government, the European Commission or another EU Institution). Private individuals can also ask the Court to annul an EU act that directly concerns them. ● Ensuring the EU takes action (actions for failure to act): the Parliament, Council and Commission must make certain decisions under certain circumstances. If they don't, MS, other EU institutions or (under certain conditions) individuals or companies can complain to the Court. ● Sanctioning EU institutions (actions for damages): any person or company who has had their interests harmed as a result of the action or inaction of the EU or its staff can take action against them through the Court. EUROPEAN COURT OF HUMAN RIGHTS (ECtHR) It does not belong to the European institutions. It is an international court that deals with human rights. Regional (it’s not worldwide, but only European) human rights judicial body based in Strasbourg, France, created under the auspices of the Council of Europe (not EU). This Court began operating in 1959 and has delivered more than 10,000 judgments regarding alleged violations of the European Convention on Human Rights, it interprets it. Human rights in Europe Council of Europe (Strasbourg 1949, 10–>47 Member States) it has been protecting human rights in Europe for years. European convention for the protection of HR and fundamental freedoms, 1950: civil and political rights European Court for Human Rights, Strasbourg (States and individuals can apply for infringement of human rights in Europe) European Union European Council Nice Charter, 2000 (originally not binding -> made binding by the Lisbon Treaty, 2009) MINOR INSTITUTIONS - European investment bank: they give out loans and they lend money to companies that intend to locate themselves in areas with delays in evolving/difficult areas also across the mediterranean. It cooperates with the objective of improving living conditions. It’s a supranational institution, it has its own statute, its own fundings and the members are the member states of the eu. It guarantees in case of need. It collects a small interest because it is non profit, it is a convenient interest. It takes its money from its capital and partially finances itself in the international financial market. It releases bonds and helps achieve EU objectives by financing investment projects - Economic and social committee: it has no binding power, but it expresses opinions. Opinions can be obligatory so they must be asked. It expresses opinions freely. They are the representatives of the member states from the social and economic point of view. Its goal is ensure that EU policy and law are geared to economic and social conditions, by seeking a consensus that serves the common good - Committee of the regions: each member state chooses the region that takes part in the committee. its members represent Europe's authorities at the regional and local level. This body must be consulted by various European Union bodies before decisions are made on matters that have local and regional impact. SOURCES OF EUROPEAN LAW https://www.lawteacher.net/lectures/public-law/the-european-union/ Primary law All other laws come from the treaties. The treaties also say how the secondary law is made. Treaties are also called original laws. - TEU - TFEU: it organises all the functioning of the European Union Secondary law In Italian they’re acts. They are regulations, directives, decisions, opinions, recommendations, communications. ● Regulations directly act to everybody. At the beginning they followed the criterion that said that all laws had to be translated immediately in the official language of the state. Then, it became more and more difficult because nowadays we’re 27 states with 34 official languages. Regulations make the rules uniform-equals ● Directives act only to member states, they implement rules of the member states. When they enter into force they’re an obligation for member states that have to prove that they have in their internal legislation the principles of the directive and that they respect them. Therefore, the rules are not equal among the member states but they are similar (they can have more things but not less than the directive). Directives are given by the parliament council. Problems: - The directive says the minimum time for implementation, but many states are usually late—> the delay in implementing is usually caused by discussions in the state - False implementation: it may be caused by the fact that the state does not like the directive or may not have understood it EC COMMISSION’S COMMUNICATION 2/2/2000 The precautionary principle may be used when potentially dangerous effects of a phenomenon, product or process have been identified through an objective scientific evaluation, but this evaluation does not allow us to determine the risk with sufficient certainty. So as to avoid use of the precautionary principle as a hidden form of protectionism, adopted measures must be: - proportional (not exaggerate) to the acceptable level of risk→ something can happen, there’s acceptable risk in everything - not discriminatory - coherent with those adopted in similar cases - based on a cost-benefit analysis of potential advantages and disadvantages coming from action and non-action → all the choices have costs and benefits - subject to revision in the light of new scientific data - kept up for as long as the risk is still considered too high to be imposed on society. ITALIAN INSTITUTIONS PARLIAMENT The Italian Constitution 1948 gave Parliament primary importance, setting it at the start of the frame of State bodies (Title I of Part II, 28 articles: from 55 to 82) (whilst in the previous Albertine Statute the initial part was for King and Crown). Art. 1 It. Const.: “Sovereignty belongs to the people, who exercise it by the forms and means provided for by the Constitution”. This was a reaction to the Fascist era, when powers were concentrated in the Head of Government. The new Constitution thus aimed at limiting executive power, to the advantage of Parliament as the expression of the people. The Italian Parliament has a bicameral structure: Chamber of Deputies + Senate of the Republic (both have a 5-year term). Perfect bicameralism, since the two Chambers have strong similarities, both structurally and functionally, despite some minor dissimilarities. DISSIMILARITIES (MINOR) BETWEEN THE TWO CHAMBERS According to the Constitution, the Senate “shall be elected on a regional basis”. But this refers only to the drawing of the electoral districts for the Senate, which are based on regional boundaries. Every Region has at least 3 Senators (except for Molise with 2 and Valle d’Aosta with 1). Further minor differences exist as to the electorate. This does not mean that the senators elected for a region must speak for that region, on the contrary they have to speak for the interest of the republic. Active and passive electorate Active electorate (right to elect members of the Chambers): Chamber of Deputies: there are no special provisions, so art. 48 It. Const. applies: all citizens who have reached the age of majority (now 18 years of age) are electors. Senate: the minimum age for electors was 25 years of age; Constitutional Law 1/2021 brought it to the same as for the Chamber of Deputies, now 18 years of age. Passive electorate (possibility of being elected): Deputies: 25 years of age Senators: 40 years of age (more “reflective” branch, for “cooling off” possible exaggerations by the “younger” lower Chamber→wise and mature men). Number of Deputies and Senators The It. Const. foresees a 2 to 1 ratio between Deputies and Senators: at present, 400 Deputies and 200 Senators. Alongside elected Senators, the It. Const. provides for some additional Senators (not elected), namely: - Senators for life: max. 5, named by the President of the Republic (for social, scientific, artistic or literary merits) - Senators for life by right: former Presidents of the Republic. ELECTORAL SYSTEMS Proportional representation systems (PR): seats are assigned to the electoral lists in proportion with the votes obtained. Majority systems: seats are assigned to the candidates who obtained the highest number of votes/who wins the elections (i.e.: who gets more votes, even 1 more, is assigned at least half of the seats plus 1, thus enjoys absolute majority). Comparison: a PR offers a more faithful representation of the reality of the political opinion in the country, but is detrimental(harmful, damaging) to the stability of political parties (and vice versa). Ex. 40% of people who voted for 1 list and we have a pr system, the 40% of the seats are theirs, on the other hand a majority system gives more stability Mostly, in the world there are mixed models: proportional models with majoritarian aspects, and vice versa. ELECTORAL DISTRICTS Electoral districts can be - Uninominal: a sole candidate is elected in a district (usually linked with the majoritarian mechanism) - Plurinominal: more candidates are elected in a district (usually linked with the proportional mechanism) THE ELECTORAL SYSTEM OF THE ITALIAN PARLIAMENT The electoral system of the Italian Parliament is governed by ordinary laws. 1948-1993: markedly proportional system. Referendum 1993 (high participation, approved by 82.7%): rapid amendment of the electoral laws of both Chamber and Senate 75% of seats assigned by majority system 25% of seats assigned by proportional representation system NOW: New electoral law 2017 (Rosatellum bis): 40% of seats assigned by majority system (uninominal) 60% of seats assigned by proportional representation system (plurinominal) Difficult to obtain parliamentary majority → political uncertainty. INELIGIBILITY - INCOMPATIBILITY Ineligibility: situations, provided for by ordinary law, which prevent the election of a citizen as Deputy or Senator (Major in large Municipality, Prefect, employed by a foreign Government, concessionaire of public service…). Incompatibility: (he or she may be elected but he has to choose between the two offices) situations, provided for by the Constitution or by ordinary law, which force a citizen elected as Deputy or Senator to choose between parliamentary position and a previously accepted office (Deputy and Senator, MP and President of the Republic, MP and member of the Superior Council of Judiciary, MP and member of the Board of Directors of a State controlled corporation…). STATUS OF MEMBER OF PARLIAMENT MPs have prerogatives which privilege them in comparison to other citizens, such prerogatives are instruments aimed at protecting the proper operation of Parliament as a whole. 1. Prohibition against imperative mandate (art 67): representation in parliament is national and not tied to geographical areas (despite senate elections being “on a regional basis”. So there are no legal ties between the representatives and the represented and there are no legal ties between the MP and his party of affiliation. 2. Parliamentary immunity (art. 68 Const.): - art. 68.1: Criminal immunity: MPs are not called to answer for opinions expressed or votes cast in the exercise of their functions freedom of expression and exercise of their political mandate; - Art. 68.2: Immunity against prosecution: MPs are not subject to personal or house searches, to arrest or to other interference with personal liberty, to wire-tapping or monitoring of conversations or communications, to seizure of correspondence without prior authorisation from the Chamber they are members of (exceptions: arrest based on an irreversible criminal sentence or arrest flagrante delicto). 3. Allowance (art. 69 Const.): the parliamentary mandate cannot be fulfilled gratuitously enabling all citizens to take elective office (while the Albertine Statute expressly barred MPs from receiving allowances). → L’articolo stabilisce che ai parlamentari spetta un’indennità, ossia un certo ammontare di denaro; concettualmente l’indennità è diversa dallo stipendio, che è legato al ruolo, all’anzianità ecc. PARLIAMENT’S AUTONOMOUS POWERS •Perfect bicameralism: - the two Chambers are autonomous and independent of each other: no interference between the functions of Chamber of Deputies and Senate; - independence of each Chamber as regards the checks on power procedures (internal to each Chamber) and all organisational and operational aspects. Prerogatives of each Chamber: - regulatory autonomy - financial autonomy - self-rule Prerogatives of each Chamber •Regulatory autonomy: each Chamber adopts its own Standing orders ( = rules of procedure), by majority vote of its members. •Financial autonomy: each Chamber independently prepares and approves its own budget; the budgets of the two Chambers are not subject to review by the Court of Accounts. •Self-rule (autodichìa in ancient Greek): everything happening inside parliamentary buildings is subject to the sole jurisdiction of the Chamber of Deputies or Senate no undue influence by the Judiciary. Internal organisation of the Chambers of Parliament As the internal organisation of each Chamber is governed mainly by its own Standing Orders, there are differences between them. However, the unifying principles of the Constitution provide for Parliamentary organs: - each Chamber elects among its members a Speaker, who directs parliamentary work and participates in calendar planning; chamber (it doesn’t matter to which is proposed first) (but deputies and senators must submit it to their respective chamber). Once the approached chamber has approved the bill (by simple majority = majority of the members present) the bill passes to the other chamber for discussion to vote. When the second chamber has approved the same text as the first chamber (by simple majority) the law is declared perfect. This law, with a message by the speaker of the chamber which voted last, is transmitted to the president of the republic who can verify the regularity of the procedure followed. The president may either promulgate the law within 30 days from the last Chamber’s final vote or send it back to the Chambers and request a new deliberation, stating the reasons why he requests it. If the parliament re-approves the bill, the president of the republic is obliged to promulgate the law→ the parliament has legislative power not the president and this shows it. The law is published in the Official Gazette within 30 days from its promulgation and enters into force 15 days after publication. LEGISLATIVE PROCEDURE: CONSTITUTIONAL LAWS Art. 138 Const. regulates the procedure for approving constitutional amendment laws (leggi di revisione costituzionale), which are aimed at amending the Constitution/it aims at changing some parts of the constitution, and other constitutional laws (leggi costituzionali), aimed at integrating the Constitution/it adds some parts to it. The conditions for their approval are more stringent than for ordinary laws (in order to demonstrate the necessary political consensus for their approval): 1. Double vote of each Chamber of Parliament 2. Interval of at least three months between votes in each Chamber (ex the first votes then the second then the first has to vote again but only after at least 3 months from the date of the first vote) 3. Approved by a qualified majority in the second voting 4. There must be a possibility to resort (ricorrere) to a popular referendum. The initiative is the same as for ordinary laws, as well as the first approval procedure. The first vote is of absolute majority After the first approval, three months must pass, to avoid hurried reforms→ they must be well-thought Second vote: → if the bill is approved by the qualified majority of two-thirds of the members of each Chamber, it is promulgated by the President of the Republic, published in the Official Gazette and comes into force after 15 days; or → if the bill is approved by an absolute majority (half of the Deputies or Senators of each Chamber plus one), but the qualified majority of two-thirds is not reached, the law is not promulgated, but published in the Official Gazette: during the following 3 months a referendum proposal may be submitted by: - 1/5 of the members of either Chamber, or - 500,000 electors, or - 5 Regional Councils Proposal of constitutional law on the direct election of the premier/italy 3rd nov. 2023 3rd nov. 2023 The Italian council of ministers approved a proposal of constitutional law on the direct election of the prime minister. The proposal foresees that the prime minister should be elected by citizens with a mandate of 5 years. During these 5 years the president of the republic should be enabled to change the prime minister by appointing a member of parliament of the same coalition ( → stability, same government programme) but only once. In case even this second prime minister leaves or has to leave, the president of the republic should dismiss the parliament and there would be new elections. This scheme should strengthen the role of the possible second prime minister, who would be crucial for the survival of the government. The election of the prime minister should take place together with the election of the members of parliament. The prime minister should be elected in the chamber within which he has submitted his candidature, and should necessarily be a member of parliament. The electoral system will be ruled by ordinary law, guaranteeing a premium on national basis, so that 55% of the seats of the chambers will go to the lists and candidates connected with the prime minister. The president of the republic will then: - Entrust the prime minister with the formation of the government - Appoint the ministers upon proposal by the prime minister - (senators for life should not be appointed by the president of the republic for special merits any longer, but those already appointed should remain in office) PRESIDENT OF THE REPUBLIC Second part of the It. Const. (framework of government), Title II: the president of the republic (immediately after title I, Parliament: parliamentary system) The head of state falls outside the legislative and judicial powers and the political power circuit. However the president of the republic has important powers: - Early dissolution of parliament (earlier than 5 years) - Appointment of the president of the council of ministers SUBJECTIVE REQUIREMENTS, ELECTION Subjective requirements (art. 84 const) - At least 50 years old - Enjoying full political and civil rights - Italian citizenship Election (art 83 const) - The president of the republic is chosen by a joint session of parliament with 3 delegates for each region (1 for aosta valley): he represents national unity - Secret vote (as is the constitution rule and requires for all voles concerning single individuals) - High deliberative quorum: ⅔ of the electors in the first three ballots, simple majority from the fourth ballot onwards INCOMPATIBILITY AND TERMS OF OFFICE The office of president of the republic is incompatible with any other office. The president takes office after having sworn allegiance to the republic and to abide by the constitution, before parliament in a joint session (without regional delegates). The newly sworn-in President normally holds a brief speech before the joint session of parliament, in which he outlines his planned programme. The term is seven years. No constitutional norm prohibits the renewal of the presidential mandate, even more than once, despite constitutional amendment plans. However, re-election is unusual. After completing his term of office, the PR becomes (save waiver) a life senator. CAUSE FOR TERMINATION OF THE MANDATE In addition to the natural end of the seven years term of office, other causes for termination of the mandate are: death, resignation, permanent impediment (ex. Becomes incapacitated) and loss of the mandate (ex. Loss of Italian citizenship, loss of civil or political rights, conviction for high treason or for overthrowing the constitution). If the President of the Republic is unable to carry out his duties, such duties are fulfilled by the speaker of the senate (art 86 const.). If the impediment becomes permanent, the speaker of the chamber of deputies should call for the election of a new President of the Republic within 15 days (same in case of death or resignation). However, a longer period may be provided if the chambers have been dissolved or if their term is to end within 3 months. KEY CONSTITUTIONAL ATTRIBUTES OF THE PRESIDENT OF THE REPUBLIC The constitutional functions of the President of the republic can be broken down into 3 macro areas based on whether they deal with - Legislative power - Executive power - Judicial power FUNCTIONS: 1. Appoint up to 5 life senators 2. Send messages to the chambers 3. Before promulgating a law: request to the chambers, stating the reasons, a new deliberation regarding such law → not a direct influence but he can ask to consider something 4. Dissolve the chambers, or one of them (after consultation with their speakers), however not in the last 6 months of his term of office, unless these coincide entirely or in part with the last six months of either chamber 5. Convene (radunate) each chamber for a special session 6. Call the elections of the chambers and fix the date of their first meeting 7. Call referendums 8. Promulgate the laws FUNCTIONS OF THE PR CONCERNING EXECUTIVE POWERS 1. Appoint higher state officials in cases laid down by law 2. Command the armed forces and chair the supreme defence council 3. Declare war when it has been resolved upon by parliament (parliament has the power to decide to declare war, but the actual declaration must be made by the pr) 4. Ratify international treaties, provided they are authorised by the parliament when such authorisation is needed 5. Accredit and receive diplomatic representatives 6. Issue decrees having value of law, and governmental regulations 7. Authorise the submission to parliament of bills proposed by the government 8. Confer the honours of the republic FUNCTIONS OF THE PR CONCERNING JUDICIAL POWER 1. Chair the superior council of the judiciary 2. Grant pardons and commute punishments 3. Appoint five judges to the constitutional court (it checks if law abide the constitution) IRRESPONSIBILITY OF THE PRESIDENT OF THE REPUBLIC Prerogatives of the president of the republic (art 90): irresponsibility (lack of responsibility) for acts carried out in furtherance of his office (except for presidential crimes). This irresponsibility is realised by requiring the ministerial countersignature: “no act of the president shall be valid unless it is countersigned by the ministers who submitted it and who assume responsibility for it. Acts having the value of law and such other acts as are laid down by law shall be further countersigned by the president of the council of ministers” (art 89) → to have an absolute guarantee Essential elements of administrative provisions Essential elements (if missing, the provision is null / non existent): - subject: the competent PA body (ex. Metropolitan City, City Mayor…) - object : thing or person affected by the legal effects (ex. person appointed, expropriated land…) - content: what the act provides for (ex. hiring a public employee, fining for speeding…) - “causa”: the act’s institutional function or purpose (i.e. the connection between the public interest abstractly entrusted to the PA by law and the public interest the PA is concretely pursuing) - (form): an “administrative provision” always requests a written form. But verbal and mechanical orders are admitted for some other measures (ex. traffic lights, city police when the traffic lights do not work…). Non-essential elements of administrative provisions Non-essential elements (if missing, the provision is invalid): - “Termine” (“term”): the (certain) moment the measure enters into effect or when its effectiveness ceases (but sometimes the term is determined by law). - “Condizione” (“condition”): a future and uncertain event to which the opening date (suspensive condition) or the closing date (resolutive condition) of the measure’s effectiveness are subordinate. - “Modo” (“modality”): particular responsibilities or behaviours required so that the effects of the provision can be produced (ex. particular ways of construction indicated in a building permit). Administrative procedure Administrative procedure: sequence of phases leading to the final decision. Procedure secures that the administrative action follows: - Impartiality - Disclosure of the documents - Coordination among the administrative bodies working together to realize a public interest - Full evaluation of all facts, acts and circumstances to be considered in balancing public and private interests. Law no. 241/1990 Administrative procedure was fully regulated for the first time in Italy by Law no. 241/1990 (previously, procedure was regulated by case-law and praxis). Law no. 241 is a general law dictating procedural principles valid for all Public Administrations. It is inspired by two essential principles: - Transparency: in order to ensure that citizens know how public interest is considered, safeguarded, realized → statement of reasons and “right of access”: right of interested parties to inspect and take copies of administrative documents. - Efficiency: public interest is carried out with as little use of organisational and financial resources as possible. → protection of legitimate expectations derived from legal certainty. Phases of Administrative procedure 1. Commencement of the procedure: upon request of private or public subjects, or upon initiative of the PA itself. 2. Preliminary fact finding: the PA acquires all information, factual premises and points of law to adopt the measure. 3. Decision: may be adopted by either a monocratic (=one person) or a collegial body. Except for cases defined by law, the silence of the competent authority within the established time frame is equivalent to a measure allowing the application: “silence equals assent”. 4. Effectiveness: in many cases, additional requirements must be met so that the measure can produce its effects (ex. Control by another authority, publication, notification…). Invalidity of administrative measures Law no. 15/2005 amended Law no. 241/1990 and codified various kinds of invalidity: - Non-existence: when so seriously flawed that the measure can not be qualified by law (ex. order of demolition of a building by the Foreign Minister instead of the Mayor) - Nullity (nullità): an Administrative Court can declare nullity of an invalid measure because it has violated some rules, the court has to declare it to make it officially null (ex. Decision by a Municipal Council without respecting the quorum) - Voidability (annullabilità): in case of incompetence, infringement of the law (i.e. incompatibility with national or EU law), abuse of discretionary power (how is the best way to pursue an interest): the measure can be annulled by an Administrative Court. It means that the measure can be carried out, but the measure itself is null. The measure can be annulled if someone has an interest in annulling it. - Mere irregularities: “small” violations of law which do not lead to voidability. Recent changes in the administrative system ● Decentralization: in 2001, Part II of the Constitution was amended to provide more legislative and administrative powers to the Regions → transfer of functions and resources to Regional and Local Authorities. Law no. 56/2014 created Metropolitan Cities. ● Independent Authorities and Administrative Agencies: - Authorities protecting interests anchored in the Constitution: the Government has no power of direction against them (Bank of Italy, Consob→ stock exchange , AGCM→autorità garante per la concorrenza ed il mercato: antitrust) - Authorities for the protection of constitutional rights: ex. We have the right to strike but there are limitations: Commission regulating strikes in essential public services, Italian Data Protection Authority - Authorities with economic regulatory powers: Regulatory Authority for energy, networks and environment (ARERA), Authority for Regulation and Surveillance in the telecommunications market (AGCOM). Recent changes in the administrative system Administrative simplification: Law 241/1990 introduced: - the principle of efficiency and rapidity of decision and the possibility to substitute some administrative provisions by public-private agreements based on consensus - the purpose to reduce bureaucracy and simplify administrative procedures - the possibility for citizens to self-certify personal conditions and civil status (date of birth, residency, citizenship, level of education…) → After the pandemic crisis: simplification of public procurement and digitalization of the PA. REGIONS Art. 5 const. Defines the Republic as one and indivisible but recognises and promotes local autonomous (possibility to self regulate) territories → four-level-system of 1. municipalities, 2. provinces, 3. regions and 4. the state This is rooted in history, in the past there were no regions. The constitution grants Regions (and not municipalities or provinces) legislative powers, increased in the last few years. SPECIAL REGIONS The majority are ordinary regions, but 5 special regions exist (sicily, sardinia, aosta valley, trentino alto adige and friuli venezia giulia) for historic reasons, these regions have been partially italian and partially after other territories, therefore not everyone was and still is passionate about italy. The statutes of the special regions differ because each of them has its own and may and do contain provisions differing from those generally contained in the constitution, but they are adopted by constitutional laws of the republic → the special regions have specific forms of autonomy but to modify their statutes they must ask he Parliament in Rome to do so. ORDINARY REGIONS Regions were contemplated for the first time in Italian history in the constitution of 1948. However, they were only concretely instituted in 1970, when the first Regional Councils were elected. During the 1970s, entire “blocks” of specialised powers were transferred from the state to the regions regarding areas identified as regional under the constitution. At the end of the 1970s the Regions became fully operational. In the 1990s, the regional system provided for by the constitution was profoundly reconsidered following the financial crisis and the crisis of the italian political system. Reform of 1999 Constitutional law no. 1 of 1999 introduced: - A change to the regional form of government: direct election of the regional president and fiduciary relationship between regional council and executive. - A change in the statutory powers held by the ordinary regions: statute approval procedures entirely within the regional sphere. However the statutes must be in harmony with the constitution: not only in compliance (the statute may not avoid constitutional provisions, but it must also respect the spirit and sounding principles of the constitutions). Reform of 2001 Constitutional law no. 3 of 2001 was approved with a very thin majority and later confirmed by a referendum. - It rewrote title V of part II of the constitution (it deals with territorial governments other than the states→ state bodies connected to the territory) - New wording of art 114 const, which used to read “the republic is constituted by regions, provinces and municipalities” → the republic is constituted by municipalities, provinces, metropolitan cities, regions and the state” → ascending order, from the ones closest to the citizens → it includes the state → complete rewriting of the allocation of legislative powers between state and regions: legislative power exercised both by the state and regions, with substantial qualitative mutual recognition→ each one recognises the power of the other one They talk about general and abstract rights, not particular privileges. John Locke, 1690 said that human beings as such have innate, natural rights nobody may violate (not even the king or the state). Voltaire, Rousseau and Kant talk about freedom, equality and brotherhood. Then political movements appeared in the US and French constitutions. FROM POLITICS TO LAW Declaration of rights of the north americn states Declaration of the rights of man and citizen (reach National Assembly 1789, after the French Revolution). It introduced: - —> new concepts of state: not absolute, but limited - —> not priority of people’s duties, but priority of citizens’ rights For the first time ethical and moral requirements are put down in written rules. Human rights become positive rights (recognized by written rules) but they loose universality (rights of citizens, not rights of an human being). They talk about general and abstract rights, not particular privileges. John Locke, 1690 said that human beings as such have innate, natural rights nobody may violate (not even the king or the state). Voltaire, Rousseau and Kant talk about freedom, equality and brotherhood. Then political movements appeared in the US and French constitutions. FROM POLITICS TO LAW Declaration of rights of the North American states Declaration of the rights of man and citizen (reach National Assembly 1789, after the French Revolution). It introduced: - new concepts of state: not absolute, but limited - not priority of people’s duties, but priority of citizens’ rights For the first time ethical and moral requirements are put down in written rules. Human rights become positive rights (recognized by written rules) but they lose universality (rights of citizens, not rights of a human being). FROM NATIONAL TO INTERNATIONAL LAW: UNITED NATIONS ORGANIZATION (U.N.) •6th January 1941: US President Roosevelt’s speech to the US Congress: “4 fundamental freedoms as necessary conditions for durable international peace: - freedom of creed (religious, political beliefs —> freedom of belief) - freedom of speech - freedom from need - freedom from poverty”. •25th April 1945: S.Francisco Conference —> United Nations Organization Un charter Art.1: cooperation for peace; economic, social and cultural development; promotion of HR. Art.55: respect and universal observance of HR and fundamental freedoms for everybody, without distinctions of race, sex, language or religion. Art.56: Member States agree to act, collectively or singularly, in cooperation with the Organization in order to achieve these aims. Art.68: Commission for the promotion of HR. Universal declaration of human rights !!!10th Dec. 1948: UN General Assembly approves the Universal Declaration of Human Rights —> Revolution in the history of HR: at the time - in the USA there was still social segregation - in many States, even in Europe, women had no right to vote - many countries were still colonies Universal declaration of hr Civil and political rights: -Right to life, freedom and personal safety -Freedom from slavery, torture and any cruel, inhuman or humiliating treatment or punishment -Equality before the law -Protection from arbitrary conviction or exile -Right to an equitable and public hearing before an independent and impartial Court -Right to presumption of innocence until a crime has been legally proved in a public procedure -Right not to be condemned for an act that was not a crime when committed -Freedom of movement and residence within a State -Right to political asylum -Right to citizenship -Right to marriage -Right not to be arbitrarily deprived of property -Freedom of speech, conscience and religion -Freedom to gather and associate pacifically -Right to participate in one own’s country’s government, directly or through freely chosen representatives •Economic, social and cultural rights: -Right to work and protection against unemployment -Right to equal pay for equal work -Right to equitable and satisfactory pay, ensuring the worker and his family an existence conform to human dignity (and integrated, if necessary, by other means of social protection) -Right to constitute syndicates and join them -Right to rest, to a reasonable limitation of working hours and to paid holidays -Right to social security and education World conference on human rights Vienna 1993 “The Universal Declaration constitutes a common standard of achievement for all people and all nations. It is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms”. The un system for the protection of hr A) UN Commission for HR (art 68) -UN may not intervene in questions reserved to States -Resolution 1235/1967: the Commission may examine information on heavy and systematic violations of HR and fundamental freedoms international independent experts on thematic violations (= viol. of certain HR in several countries) -Resolution 1503/1970: procedure for simple violations (= instances presented by individuals international independent experts) B) Treaty bodies = Committees for: - elimination of racial discrimination - HR and against torture - elimination of women discrimination - economic, social and cultural rights - rights of children (1990: International Convention for the Rights of Children) •C) UN High Commission for HR (Unhchr), Geneva 1993 – mainstreams HR in all policies and actions of all UN agencies D) “Ad hoc” International Criminal Courts - Internat. Court for Ruanda (Arusha, Tanzania 1994) - Special Court for Sierra Leone (2000) •E) International Court of Justice (ICJ) The ICJ is the principal judicial organ of the United Nations. It was established in June 1945 by the UN Charter. The seat of the Court is at the Peach Palace in The Hague. The Court’s role is to settle, in accordance with international law, legal disputes submitted to it by States and give advisory opinions on legal questions referred to it by authorized UN organs and specialized agencies. ICJ on Ukraine 16th March 2022 By a vote of 13 to two, with Vice-President Kirill Gevorgian of Russia and Judge Xue Hanqin of China dissenting, the ICJ ruled that Russia “shall immediately suspend the military operations that it commenced on 24 February.” •The ruling is in response to a suit filed by Ukraine on 27 February, accusing Russia of manipulating the concept of genocide to justify its military aggression. •Although the ICJ's verdicts are binding, news reports questioned whether Moscow would abide by the ruling, and the court has no direct means of enforcing them. ICC (not UN, but connected) Permanent International Criminal Court – ICC (The Hague, 2002) The International Criminal Court (ICC) investigates and, where warranted, tries individuals charged with the gravest crimes of concern to the international community: genocide, war crimes, crimes against humanity and the crime of aggression. Governed by an international treaty called the Rome Statute, the ICC is the world’s first permanent international criminal court. ICC on Ukraine 2nd March 2022 - Statement of ICC Prosecutor, Karim A.A. Khan, on the situation in Ukraine: received Referrals from 39 States Parties and opened an investigation. The Office found a reasonable basis to believe crimes within the jurisdiction of the Court have been committed, and has identified potential cases that would be admissible. 16th March 2022 – Karim Khan: Today, I visited western Ukraine and Poland in connection with the ongoing investigation by my Office. We are ensuring that the full range of documentary, digital, forensic and testimonial evidence is drawn upon as part of our investigations. REGIONAL INTERNATIONAL SYSTEMS EUROPE •Council of Europe (Strasbourg 1949, 1047 MS) - European convention for the protection of HR and fundamental freedoms, 1950: it protects civil and political rights —> European Court for Human Rights, Strasbourg (States and individuals can apply)