Indice

Articoli Giovanni Cordini, I diritti sullacqua e il diritto allacqua. Le risorse idriche: profili giuridici............................................................................. pag. Francesco Manganaro, La giustizia innanzi allautorit garante della concorrenza e del mercato ....................................................................... StUDi Paolo Urbani, Per una critica costruttiva allattuale disciplina del paesaggio .......................................................................................................... rASSegne eD illUStrAzioni Cecilia Lorenzoni, I programmi di clemenza nella disciplina antitrust .................................................................................................... Vittorio Pampanin, Contributo a una definizione della regolazione (caratteri distintivi e ambito di pertinenza)........................................... Vincenzo Satta, Potere regolamentare del governo e servizi pubblici locali a rilevanza economica nellart. 23-bis del d.l. n. 112/2008. Problemi costituzionali ................................................................................. oSServAtorio Di giUriSprUDenzA Alberto Tampieri, La responsabilit del dirigente pubblico dopo le recenti riforme ......................................................................................... Sezione Di Diritto internAzionAle DelleconoMiA Giurisprudenza della corte di giustizia e del tribunale di primo grado delle Comunit europee.......................................................................... Atti normativi delle Comunit europee ................................................ Legislazione nazionale ............................................................................ lettUre: ScheDe, coMMenti e rifleSSioni Giovanni Barozzi Reggiani, Fenomeno sportivo e ordinamento statale: una questione di rapporti di forza.............................................

23

41

75 111

147

159

171 178 181

185

convegni e SeMinAri, relAzioni, interventi e note A MArgine Diritto e politiche del turismo. Italia e Friuli Venezia Giulia (Grado, settembre 2009), a cura di Camilla Buzzacchi e Sara dUrso .............. pag ABStrActS.......................................................................................... note SUi collABorAtori .......................................................

205 215 221

Indice
Articoli Lidianna Degrassi, Federalismo fiscale. Il problema della collaborazione stato-regioni .................................................................................. pag. Giorgio Pastori, Principi costituzionali e ordinamento della dirigenza ............................................................................................................... Giampaolo Rossi, Profili contrattuali e fiscali nella prestazione di servizi pubblici. Il limite delle idee chiare e distinte ............................. StUDi Francesco Bonamassa, Lattivit di operatore di rete televisiva tra normativa comunitaria e disciplina nazionale. Una verifica della convergenza tra ordinamenti alla luce delle categorie tradizionali ....................... Paolo Colombo, Le funzioni di indirizzo politico-amministrativo degli organi di governo .................................................................................... Alessandro Crosetti, In tema di sdemanializzazione: il caso dei beni culturali .................................................................................................... Alessandro Tonetti, La nuova disciplina per lo sviluppo della banda larga e il ruolo dellAgcom ..................................................................... rASSegne eD illUStrAzioni Miriam Allena, Organizzazione e funzionamento delle fondazioni di origine bancaria ................................................................................... Valentina Antonelli, La disciplina in materia di servizi pubblici locali alla luce del nuovo art. 23 bis del decreto legge n. 112 del 2008, come modificato dallart. 15 del decreto legge n. 135 del 2009, convertito nella legge n. 166 del 2009....................................................................... Claudio Mandrino, Riflessioni sul Gect Euroregione Alpi-Mediterraneo: in particolare, la disciplina europea e i rapporti tra lo stato italiano e le regioni coinvolte ................................................................. Dario Scarpa, Nascita di un nuovo modello comportamentale .......... 227 239 249

253 311 353 395

425

459

469 489

oSServAtorio Di giUriSprUDenzA Filippo Pizzolato, La concorrenza nella giurisprudenza costituzionale................................................................................................................ pag. Gerolamo Taccogna, Principi del diritto privato e procedimento amministrativo .............................................................................................. Sezione Di Diritto internAzionAle DelleconoMiA Giurisprudenza della corte di giustizia e del tribunale di primo grado delle Comunit europee.......................................................................... Atti normativi delle Comunit europee ................................................ Legislazione nazionale ............................................................................ Attivit delle organizzazioni internazionali.......................................... Suggerimenti bibliografici ...................................................................... lettUre: ScheDe, coMMenti e rifleSSioni V. Ricciuto e A. Nervi, Il contratto della pubblica amministrazione (volume del trattato di Diritto civile del consiglio nazionale del notariato, a cura di P. Perlingieri), Napoli, 2009 (a cura di Sandro Amorosino) ...................................................................................................... S. Villamena, Contributo in tema di proporzionalit amministrativa. Ordinamento comunitario, italiano e inglese, Milano, 2008 (a cura di Giovanni Barozzi Reggiani) ................................................................... convegni e SeMinAri, relAzioni, interventi e note A MArgine La carta delle autonomie nel disegno di legge calderoli: luci ed ombre (Desenzano del Garda, palazzo Todeschini, 18 gennaio 2010) a cura di Giovanni Barozzi Reggiani ................................................................... VIII Convegno internazionale in ricordo di Marco Biagi (Modena, 18, 19, 20 marzo 2010) a cura di Laura Solieri ................................ ABStrActS.......................................................................................... note SUi collABorAtori .......................................................

507

537

547 558 560 564 568

569

573

581

591 597 605

Indice

Articoli Fabrizio Fracchia, La gestione integrata delle coste pag Fabio Merusi, Variazioni su crisi economica e regolazione StUDi Massimo Occhiena, La riforma della vigilanza finanziaria dellUnione Europea rASSegne eD illUStrAzioni Maria Elena Boschi, Fondazioni bancarie e societ strumentali Giuseppe Cappiello - Gabriele Mazzantini, La concorrenza per il mercato nei servizi pubblici locali: gli effetti dellart23 bis della legge 133/2008 Claudia Marcolungo, Interesse pubblico, interesse sociale o interesse dei soci (nelle societ miste)? oSServAtorio Di giUriSprUDenzA Giovanni Barozzi Reggiani, Campane a morto per le espropriazioni indirette Sezione Di Diritto internAzionAle e comUnitArio Lucia Papi, Considerazioni sulla tutela della propriet intellettuale in Cina lettUre: ScheDe, commenti e rifleSSioni Vittorio Gasparini Casari, S Cassese (a cura di), MS Giannini, ed Laterza, 2010

609 623

637

671

691

717

735

765

805

convegni e SeminAri, relAzioni, interventi e note A mArgine Recensione alla tavola rotonda su Il diritto dellimmigrazione, Mucchi editore, 2010 tenutasi il 10 novembre 2010 presso luniversit degli studi di Pavia a cura di Giovanni Barozzi Reggiani ABStrActS note SUi collABorAtori

799 813 819

Il dIrItto delleconomIa 1-2010

Riassunto di articoli, studi e rassegne (abstracts)

Giovanni Cordini WATER RIGHTS, WATER MANAGEMENT AND THE GLOBAL WATER SUPPLY DIMENSION Water is a vital resource for man and this can also be confirmed by those ancient rights where water was referred to as both property (for example, re ownership and management of wells which enabled life and trade in desert areas) and spiritual wealth linked to religion (great sacred rivers and the meaning water has in many religions, including Christianity, where baptism countersigns belonging to a community that believes in Christ). Some of the planets resources (air, food, water) are related and essential for life with water having the primary role. It is in that sense that it can be deemed necessary to declare water a fundamental human right, as it is essential for peoples lives. Without becoming as catastrophic as many writings on the environment, it is certain that there is a growing, worrying lack of water in poor Third World countries and limited commitment to international policies that could really affect this disastrous state of affairs through rational, global management of water resources (water rights). Observing reality allows us to state that there is a huge lack of proportion between acknowledging the principle expressed in constitutional and legal formulas and the conditions many of the Earths populations actually live in. From a juridical point of view, acknowledging the public interest involved in both ownership and management of water resources (water rights) safeguards a principle and can only be effective if accompanied by intervention aimed at preserving water from the degradation caused by human activities and limiting the effects caused by natural occurrences with disastrous consequences also on availability and use of water resources. On the other hand, this juridically outlined interest must not become an insurmountable limit against the intervention of supra-national regulation and control powers. This report aims to highlight the following: quality of life related to territory and use of water resources; protecting the water environment and guaranteeing human rights; sustainable development and planning when managing water resources, water management and correlated juridical regimes, monitoring water, the demand for safety and hydro-geological risks. Finally, both the supra-national dimension of action taken to safeguard the water environment and the principles assimilated by the European Union regulations will be mentioned, pointing out some Community policy guidelines on safeguarding water resources.

216

Abstracts degli articoli e rassegne

Francesco Manganaro JUSTICE BEFORE THE GUARANTOR AUTHORITY FOR COMPETITION AND THE MARkET The Guarantor Authority for Competition and Market, just like other independent administrative authorities, was founded as a watchdog body designed to protect the public interest from a neutral stance, acting independently of executive power. According to part of the doctrine, such neutral stance, together with the powers endowed to it, makes this antitrust authority comparable to a magistrate of competition, i.e. a judge, insofar as the role it plays is one of a parajurisdictional nature rather than administrative in the strictest sense. However, such theses do not appear entirely credible, as there are a series of key factors that diverge from such a definition which distinguish this body from those of a jurisdictional nature. This is also confirmed in the light of the new functions attributed to the authority by the legislation over the last few years: in fact, in most cases, the administrative nature of the body does not appear to be placed in doubt. Therefore, a conclusion may be drawn in which the antitrust Authority, despite undoubtedly remaining a public and essentially administrative subject, does in certain cases carry out functions of a parajurisdictional nature, in particular with regard to the profiles of justiciability connected to the implementation of its mandate, which concerns misleading publicity and questionable commercial practices. The issue relative to the actual nature of the functions exercised by the Guarantor Authority for Competition and Market also poses delicate questions to do with the limits of jurisdictional control in the light of decisions taken by the Authority itself.

Paolo Urbani TOWARDS A CONSTRUCTIVE CRITICISM OF CURRENT LANDSCAPE REGULATION Landscape regulation seems to have found a suitable framework in the legal Code for landscape and cultural heritage, also thanks to the impulse of the European Convention on landscape to which our country is a signatory. The landscape plan plays a key role in the protection, development and recuperation of landscapes throughout the regional territory. This appears to put the landscape plan at the forefront in regulating the structure of the terrain, at the same level as the district plan in its various aspects regarding the regulated use of water and

Abstracts degli articoli e rassegne

217

the protection of the soil. In any case, the scope of application to all uses of the territory, albeit in landscape terms, gives rise to important issues regarding the compatibility of its provisions with the autonomy constitutionally guaranteed to municipalities on town-planning matters. This necessitates the issuance of regional-level regulations directed substantially at local administrations regarding the techniques for drawing up town plans with landscape objectives which cannot be contained in an administrative tool such as the landscape plan. Otherwise, the rules of the game and the rules of the plan, or, in other words regulations of actions and regulations of relations get mixed up and overlap in a contradictory fashion, with inevitable consequences on the disparity of treatment regarding the private property system and on economic development.

Cecilia Lorenzoni LENIENCY PROGRAMS IN THE ANTITRUST DISCIPLINE The most serious infractions of competition law are the acknowledged secret syndicates, which are difficult to ascertain and immediately affect consumers through price increases and reduced product choice. The most advanced frontier of the antitrust law in the fight against secret syndicates is represented by leniency programs. These programs provide that a colluding business may benefit from immunity from fines, or rather their substantial reduction, in exchange for a selfdeclaration of involvement in the syndicate and collaboration with the authority for the purposes of verifying the crime. The European Competition Network (ECN), the European Commission and the member states have set out a discipline of the instrument. In Italy, the AGCM notice of 15th February 2007, adopted as a result of the modifications introduced by the Legislative Decree 223 of 2006 to the Antitrust Law, therefore provides total immunity from fines for businesses that spontaneously offer information or documents proving the existence of a secret syndicate first and a reduced fine when total immunity has already been granted to another business, or rather the probationary standard needed to obtain total immunity hasnt been reached, given that the applicant considerably contributes towards verifying the crime. With the flexibility and deformalisation elements underlying the procedure (and made necessary by the structure and purposes of the leniency program) the role of the antitrust authority becomes even more incisive, also from the point of view of its dissuasive powers.

218

Abstracts degli articoli e rassegne

Vittorio Pampanin CONTRIBUTION TO A REGULATIONS DEFINITION (Distinctive elements and sphere of relevance) Despite decades of market culture dominance, the current global financial economic crisis is showing the necessity of the return to a more incisive public presence in economic issues, by means of the enforcement of new rules and controls. As a consequence, it appears to be necessary to clarify the limits of the concept of regulation, as an instrument of State intervention in the market. Starting from the observation of the natural ambiguity of the concept of regulation, the Author traces the progressive development relative to the way to consider and define the phenomenon of regulation, beginning from its origins to the present time. The contribution comes to a close, by observing that the regulation has now achieved strict connections with competition law, and that the same competition law could be considered as a form of regulation as well. Vincenzo Satta THE REGULATORY POWER OF THE GOVERNMENT AND ECONOMICALLY SIGNIFICANT LOCAL PUBLIC SERVICES AS PER ART. 23-BIS OF LEGISLATIVE DECREE NO. 112/2008. CONSTITUTIONAL PROBLEMS The article examines a number of aspects of constitutional importance of art. 23 bis of legislative decree no. 112/2008, which contains the new regulatory framework of local public services, with particular reference to two questions: on the one hand, the regulatory power of government, to which paragraph 10 assigns the regulation of specific subject areas involving economically significant local public services, and on the other hand, the relationship between the provision of public services and the safeguarding of constitutionally guaranteed rights. With regards to the first question, the author expresses a certain degree of concern, given that the subject of local public services should be covered exclusively by parliamentary law. With regards to the second question, the author describes how, in the absence of implementation regulations, it is impossible to establish how to achieve the right balance between the safeguarding of competition in economically significant local public services and the need for such services to contribute to ensuring the effectiveness of constitutional rights, particularly corporate rights.

Abstracts degli articoli e rassegne

219

Alberto Tampieri THE RESPONSIBILITY OF PUBLIC SECTOR MANAGERS SUBSEQUENT TO RECENT REFORMS The article examines the different forms of responsibility assumed by public sector managers, with particular reference to the distinction between managerial and disciplinary responsibility. Special attention is then given to the new aspects introduced by delegated law no. 15/2009 and the subsequent delegated decree no. 150/2009. Specifically, with regards to managerial responsibility, besides reiterating previous sanctionative measures (including dismissal), the reform added a new form of management responsibility for lack of supervision with regards to compliance with qualitative standards (art. 21, para. 1-bis legislative decree no. 165/2001). With regards to disciplinary responsibility, the new types of conservative disciplinary sanctions are analysed (specifically, suspension and a reduction in performance bonuses), contradicting what had previously been established in collective bargaining, which provided for dismissal as the only disciplinary sanction. In conclusion, the article underlines how recent reforms have failed to unify the procedure for ascertaining public sector managers responsibility, the breach of which often renders the sanction invalid

Il dIrItto delleconomIa, 2/3-2010

Riassunto di articoli, studi e rassegne (abstracts)

Lidianna Degrassi FISCAL FEDERALISM. THE ISSUE OF THE COOPERATION BETWEEN STATE AND REGIONS In the political, cultural and doctrinal debates taking place in Italy, the theme of federalism occupies a very important place. From an institutional point of view, Statute 5th May 2009, n. 42 throws a new light and interest on this theme, all the more so if it acts as the initial step of fiscal federalism leading towards the federal process. There are indeed many doubts and fears how new institutional relationships between State and Regions can be set out, given the fundamental role in assuring the political autonomy of Regions and local bodies. Such a danger, however, can be exorcised if the relationships are set up in line with the principle of fair collaboration between State and Regions, implied in the V heading (titolo V) of the amended Constitution. With this premise in mind, the paper has analyzed statute n. 42 of 2009 in order to understand if it contains this constitutional principle, above all where it reviews principles and criteria in order to form the delegate decrees (decreti delegati) which will contain fundamental principles concerned with of coordination of public finance and taxation system. The answer is not as to be expected, because, against article 76 of the Constitution, the procedure quoted above sees Parliament abdicating in favour of the Government, with a result that the fundamental principles of the future framelaw will be carried through with a delegate decree by the political majority, with no attention paid to the Regions, which need cooperative instruments to put them and State on an equal level. In these circumstances, fiscal federalism is not beginning under the best light. Giorgio Pastori CONSTITUTIONAL PRINCIPLES AND THE MANAGERIAL ORDER The study focuses in particular on a number of profiles regarding the role and the discipline of management in the field of the relationship between politics and administration: the constitutional foundation and the managerial organisation in terms of the function, order and treatment of managerial staff. Under the first profile, also in the wake of the constitutional jurisprudence that first came to the fore in the 1990s, there has been a growing tendency to-

598

Abstracts degli articoli e rassegne

wards the valorisation of the way in which the constitution has set about connoting the administration as an objectified function. Herein arises the principle of separation between the functions of administration and government. This entails an administrative organisation designed as a whole in terms of an objectives and results-based administration, internally structured following the diktats of socalled management by objectives. As far as the ordering of managerial staff is concerned, while there is no doubt that there must be unity behind the figure of the public manager (as regards the constitution and the ways in which the working relationship is handled, professional training and so on), on the other hand it is inevitable for there to be a certain difference in the juridical regime of managers with respect to the political organs, according to the organisational position they hold. However, we may note the guarantist orientation which has recently taken hold in jurisprudence, especially in the constitutional court, due to the adoption of procedures aimed at providing greater transparency and participation also with regard to the managerial figures characterised by a relationship of trust with the political organs. However, within this profile, a further valorisation of management is desirable, as an expression of its autonomous and responsible capacity to govern public administration, in order to constitute a body or a set of technical/professional bodies, ordered and treated as such.

Giampaolo Rossi CONTRACTUAL AND FISCAL PROFILES IN THE PROVISION OF PUBLIC SERVICES. THE LIMITATION OF CLEAR AND DISTINCT IDEAS The paper stems from this question: why is there so often confusion between the fiscal and contractual nature of the relationship between users and providers of public services? In theoretical and conceptual terms, the difference is clear, as is the relative legal system. In actual fact, in the authors opinion, there would be no confusion if the provisions of services were still defined and organised as administrative services, but this is not the case, and it explains the resulting legal uncertainties (e.g. the sentences of the constitutional court no. 335 of 2008 on water services and no. 238 of 2009 regarding waste disposal charges). Its therefore necessary to adopt a more flexible approach in order to take account of the new situation that has evolved. The author affirms that in mixed cases, it is no longer possible to think in terms of categories which were established before mixed cases existed. Instead it is important to adopt a criterion of predominance, similar to what has occurred with regards to public bodies, on the basis of a series of key indicators based on good practice.

Abstracts degli articoli e rassegne

599

Francesco Bonamassa THE ACTIVITIES OF TELEVISION NETWORK OPERATORS WITH REFERENCE TO EUROPEAN COMMUNITY REGULATIONS AND NATIONAL LAW. A REVIEW OF THE CONVERGENCE BETWEEN LEGAL SYSTEMS IN THE LIGHT OF TRADITIONAL CATEGORIES. National regulations for radio-television operators do not always correspond with European Community policies for the liberalisation of electronic communications services. While general authorisation is compatible with the free-market system prescribed for the activity, the procedures for assigning frequencies do not seem to be transparent and non-discriminating as the 2002 directive package imposes. A barrier against entering the market is thereby introduced which reinforces the dominant position of existing operators. Following the establishment of the essential facilities doctrine, it is clear that the restrictions against free competition in the networks market do not exclusively relate to the limited competitive capacity of rival businesses, but also extend to the market with regards to content suppliers, with consequent repercussions on the constitutional principle of pluralism in the divulgation of information. The basic concept expressed in this paper is that the multiplicity of opinions in information provided by television mainly depends on effective competition in the network markets and in contents. The latter objective presumes a procedure for assigning frequencies which is transparent and non-discriminating, besides anti-monopoly laws capable of effectively limiting the maximum market share controlled by a single network operator. These conclusions, however, do not imply that network operators activities are necessarily carried out either in the public interest, or in the interests of the company network, which is subject to private property laws, though limited by the exercise of public control (through concessions) and private powers (access and interconnection).

Paolo Colombo DIRECTIONAL FUNCTIONS OF A POLITICAL-ADMINISTRATIVE NATURE PERFORMED BY GOVERNMENT BODIES. In the first part, the paper refers to the problem of defining, in theoretical terms, the notion of direction and, more specifically, that of political-administrative direction, examining its nature and content, and focusing on the relationships between the exercise of relative power and, in general, the exercise of discretional power. The paper then moves on to examine the most important aspects with specific reference to the organisation of public administration, and particularly to the

600

Abstracts degli articoli e rassegne

profiles related to the model introduced by Legislative Decree no. 29/1993, today regulated by Legislative Decree no. 165/2001 and subsequent modifications. With regard to this model, the paper then seeks to demonstrate how this notion has changed and evolved from 1993 to today, due to various legislative developments, to the huge doctrinal and juridical debate surrounding it, and to the greater use of the model on the part of the public administration itself and its governmental bodies. The paper identifies three different historic phases: the first corresponds to the five-year period 1993-1998, the second to the period 19982002, and the third the subsequent period. Finally, the paper concentrates on the current situation, describing how the exercise of directional power on the part of government bodies assumes different characteristics depending on the nature and size of the bodies, how there remain vast grey areas characterised by the excessive use of informal direction practices (and therefore inadequately subject to control and judicial review) and how, moreover, jurisprudence has recently developed in the sense of attributing to the notion of direction, as regulated by Legislative Decree no. 165/2001, with fewer formal characteristics than those traditionally associated with it in the last decade.

Alessandro Crosetti THE TRANSFER OF ASSETS FROM PUBLIC OWNERSHIP: WITH REFERENCE TO CULTURAL HERITAGE The paper outlines the regulatory process for the privatisation of public assets, and particularly cultural heritage assets. It moves on to focus on the basic reasons for state ownership of historical-artistic assets and on the procedures to assess the cultural value of public assets, as well as relative subjective and objective assumptions. It then examines the complex system for the circulation of public cultural assets in the light of the new Urbani code. The paper concludes that, after a long and difficult evolution, the regulatory framework for the circulation of public cultural assets appears to provide for the protection of the cultural heritage of our nation which is nevertheless strict, though in some ways flexible: alongside a large group of assets which are absolutely and definitively inalienable, the authorisation procedure regarding the transferability of (residual) cultural assets of a public nature and which constitutes justification for their release from public ownership introduces a complete system for the safeguarding of cultural heritage, so that any transfers of public assets may no longer be carried out for the mere purpose of collecting funds, but must serve for their conservation and development.

Abstracts degli articoli e rassegne

601

Alessandro Tonetti THE NEW REGULATORY FRAMEWORK FOR THE DEVELOPMENT OF BROADBAND: A REAL SIMPLIFICATION? After examining in detail the new state regulatory framework for the development of broadband (with particular reference to the regulations regarding the Dia tlc (business registration for the telecommunications industry) and the National Broadband Plan), the paper asks if and how this regulatory framework can contribute to overcoming the institutional fragmentation that has so far compromised the achievement of infrastructural development objectives. In the authors opinion, any appraisal is necessarily complex. While it is in fact true that the recent measures taken by the state legislator have in many respects met the need for simplification, it is equally true that it is currently difficult to fully appreciate their actual effectiveness. The results obtained from such measures depend on their concrete application, and therefore on the ability of administrators to adopt coherent solutions with properly pursued aims. Since this ability can by no means be taken for granted, its important that the best equipped body, Agcom, takes on a guiding role so as to prevent the project for the development of broadband from suffering, as in the past, further delays which will end up damaging the whole economic system.

Miriam Allena FOUNDATIONS WITH A BANKING ORIGIN: TOWARDS A NEW ORGANISATIONAL AND FUNCTIONAL AUTONOMY? The article, after having examined the regulatory framework for foundations of a banking origin, also making reference to the decisions of the Constitutional Court in 2003 (sentences no. 300 and 301), analyses the organisational structure of such entities with regards to individual statutes and to internal organisational rules. The paper outlines how, although there are legislative provisions which still affect how former banking foundations are organised (for example the identification of structural, organic and functional aspects), new opportunities for autonomy have opened up today which allow the foundations to define their own structure and activities in relation to their different requirements and ambitions in the reference territory.

602

Abstracts degli articoli e rassegne

Valentina Antonelli THE LAW ON THE SUBjECT OF LOCAL PUBLIC SERVICES AFTER THE INTRODUCTION OF NEW ART. 23 BIS OF THE DECREE LAW N. 112 OF 2008 (AS MODIFIED BY THE ART. 15 OF DECREE LAW N. 135 DEL 2009, CONVERTED IN THE LAW N. 166 OF 2009). The recent reform of the economic public services introduced by the art. 15 of the Decree Law n. 135 of 2009 (converted into Law n. 166 of 2009), which has modified the art. 23 bis of Decree Law n. 112 of 2008 (converted into Law n. 133 of 2008), has again changed part of the previous law, in order to make clear several problems of compatibility with the rules of Community. The new rule, contained in the mentioned article, adds at the hypothesis of ordinary awarding of the management of the local public services (which is enriched), a hypothesis of awarding as an exception. Its clear that the new legislation gives the institution of in house-provision a marginal and residual role in consonance with the requirements outlined by the latest decisions of the Court of justice. It should be pointed out the legislatures intent to limit the application of the institution of in-house provision, whose abitual use causes considerable costes for the local institution entrusting the public services, with negative consequences in terms of budget for the institution itself.

Claudio Mandrino RIFLESSIONI SUL GECT EUROREGIONE ALPI-MEDITERRANEO: IN PARTICOLARE, LA DISCIPLINA EUROPEA E I RAPPORTI TRA LO STATO ITALIANO E LE REGIONI COINVOLTE A major issue in the process of European integration is the regional mobilization: European Regions request the introduction of mechanisms to enhance their ability to participate to European Union (EU) policymaking and ask that their role in the EU decision-making process is acknowledged by EU institutions and member States. A result of this mobilization is represented by a tendency to create networks generally known as Euroregions among cross-border Regions belonging to different member States. Through this cooperation European Regions create shared structures to face common problems, as well as to develop economic or commercial projects. The Lisbon Treaty introduces territorial cohesion among EU objectives and states that particular attention shall be paid to cross-border regions. This

Abstracts degli articoli e rassegne

603

provision suggests that cross-border cooperation will play a decisive role in the future EU integration process. In this regard, European Grouping of Territorial Cooperation (EGTC) represents a model for partnership within EU, allowing cross-border cooperation among local authorities by the means of a single framework applicable in the involved Member States. The Paper will be divided in four paragraphs. The first one will analyze the main features of Euroregions considering their legal goals and their institutional structure. The second and third paragraph will be centered on the legal framework in which Euroregions operate. In real facts, it is necessary to distinguish the hypothesis where the territorial authorities cooperate within the context of the Council of Europe from the other one in which a Euroregion is created within the context of the European Union, bacause the goals and the discipline of the cooperation are different in the two international organizations. In particular, the main legal elements of EGTC will be investigated. The fourth paragraph will analyze a case-study, namely EGTC Alpes-Mediterranean Euroregion, in particular the dynamics and conflicts arising between national and regional institutions in the creation of this EGTC.

Dario Scarpa THE INTRODUCTION OF A NEW BEHAVIOURAL MODEL Technical-scientific progress inevitably clashes with the slowness and rigidity of lawmaking models; this contrast leads to a bio-political and bio-juridical approach marked by the tendency to take a position before the possible occurrence of negative outcomes, and is characterised by extreme caution regarding situations of risk. This gives rise to the requirement for a behavioural model, on the part of business managers, which favours prudence as a general approach, located in an uncertain zone involving science, law, politics and ethics. The principle of prudence therefore becomes one of the means with which jurisprudence tackles the society of risks, the name with which the society in which we live may be defined, constantly characterised by technological risk. Besides prudence, a further principle is added to the behavioural model: adequacy. This should be considered as a general precept in the management of a business, becoming an essential criterion for the businessmans affairs.

604

Abstracts degli articoli e rassegne

Filippo Pizzolato COMPETITION IN CONSTITUTIONAL jURISPRUDENCE The paper analyses the jurisprudence of the Constitutional Court with regards to the safeguarding of competition, with particular reference to rulings subsequent to the modification of Heading 5 of the Constitution. A description is given of the complex relationship that has developed between state and regional legislation in the various areas affected by competition with relation to the matters that art. 117 of the Constitution attributes to the competence (also exclusive) of the Regions. The extent to which the safeguarding of competition is reflected in Constitutional Court jurisprudence is then outlined, distinguishing a notion of competition for the market and competition in the market in traditional anti-monopoly measures. Although it has assumed objective and direct relevance, thanks also to the influence of European Community principles, competition is nevertheless considered by the legal system together with other values or interests at a constitutional level, so that the Court is also concerned with control over the reasonableness of the relative balance of values. In conclusion, the paper underlines how the safeguarding of competition is applied by the Court to guarantee the effective opening (or ethicality) of the markets, so that they are contexts in which businesses can freely operate. Gerolamo Taccogna THE PRINCIPLES OF PRIVATE LAW AND ADMINISTRATIVE PROCEDURE The principles of private law can be of relevance also in administrative procedure, primarily if and when the matter in hand effectively relates to the wider principles of the legal system as a whole; there are no particular reasons for distorting public law regulations with the introduction of private law principles.

Il dIrItto delleconomIa, 4-2010

Riassunto di articoli, studi e rassegne (abstracts)

Fabrizio Fracchia INTEGRATED COASTAL MANAGEMENT The work analyses the theme of the integrated management of coasts, with reference to the Italian system, emphasising the importance of the definitions established at a supranational level and the difficulty of providing a uniform framework in the light of the complexity of the subject under analysis and of the multitude of relevant legal instruments and vested interests. The paper puts forward the theoretical proposal of making reference to administrative operations, suggesting that this approach allows for integration with the principle of sustainable development. Fabio Merusi OBSERVATIONS ON THE ECONOMIC CRISIS AND REGULATION The paper considers two very important aspects which have characterised economic events on a global scale over the last few years: the securitisation of loans (and, more generally of credit risks) on the part of issuing institutions, as well as the high level of borrowing on the part of many states (not only in Europe or in Latin America, but also the USA) and the presence, as subscribers of public debt in these states, of so-called sovereign funds belonging to other states (such as China). They are phenomena which have had, and may still have, a significant (and as we have seen, sometimes also dramatic) impact on the correct functioning of economic systems based on free-market principles. How is it possible to avoid, or even limit, the negative effect of these phenomena, and avoid systematic crises at a global level? The paper examines the various possible responses to this question. Suitable regulation is given as a solution to the problem, but its very difficult to specify exactly what form it should take.

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Massimo Occhiena THE REFORM OF FINANCIAL SUPERVISION IN THE EUROPEAN UNION The global scale of the financial crisis that began in 2007 demonstrated the need for a rigorous reform of supranational supervisory systems. With regard to the European area, the crisis showed up the defects of the current model, marked by the fragmentation of supervision imposed at the national level. Focusing attention on the EU system, the work analyses the three phases of the reform of European financial supervision (the Lamfalussy procedure of 2002, the European plan of action and the conclusions of the 2008 Presidency of the European Council, and the Larosire report in 2009), describing the characteristics of the three different supervisory systems. Particular attention is given to the features and critical aspects of the control model presented in September 2009 by the Commission based on the work of the Larosire Group, which provides for the setting up of the European Systematic Risks Council (ESRC), dedicated to supervision on a macro scale, and of the European System of Financial Supervision, which will focus on supervision on a micro scale.

Maria Elena Boschi (PhD Student in Administrative Law at the University of Bologna) BANKING FOUNDATIONS AND AUXILIARY COMPANIES The essay deals with two topics: banking foundations auxiliary companies and the legal personality of these foundations. With regards to the first topic, banking foundations can operate a business through their auxiliary companies only if the latter carry on the kind of activities which are necessary for the attainment of the banking foundations business objectives. Nevertheless, these auxiliary companies should not be considered completely under the banking foundations control: in actual fact, they are private legal entities that work temporarily for the attainment of the banking foundations business objectives. With regard to the banking foundations legal personality, according to the current legal system these foundations are private legal entities that pursue profit and economic growth. The special legal regulations that banking foundations are subject to because of their business objectives dont prevent their being defined as private legal entities for all intents and purposes since, in the wake of the principle of subsidiary formalisation made by the constitutional reform of 2001, private legal entities can also pursue general objectives without having to be considered public legal entities. Therefore, too much special legal regulation may be at odds with the Constitution.

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Giuseppe Cappiello - Gabriele Mazzantini COMPETITION FOR THE LOCAL PUBLIC SERVICES MARKET: THE EFFECTS OF ART. 23 bis OF LAW 133/2008 This paper aims to analyse and describe a number of the effects produced by art. 23-bis of Law 133/2008 after about two years from its introduction. Specifically, it seeks to assess whether the regulation of local public services, established by the recent reform, manages to promote the principle of competition for the market in a sector in which many are calling for greater efficiency in the management and containment of costs for the consumer. In compliance with paragraph 4 of the article of the law that came into force in September 2008, the Antitrust Authority for Competition and the Market (AGCM) has received more than 100 requests for an opinion with regards to waiving assignment by tender. From an analysis of the opinions made to the Authority and the grounds given, it emerges that the effectiveness of art. 23-bis is today still very limited and the data appear to confirm the concerns already expressed by the AGCM; as at July 2010, only in one case was the opinion favourable, but above all, and more seriously, in most cases the requesting Administrations ignored the negative opinion expressed by the Authority and proceeded with direct assignments.

Claudia Marcolungo PUBLIC INTEREST, CORPORATE INTEREST OR THE INTEREST OF THE SHAREHOLDERS (IN PUBLIC-PRIVATE COMPANIES)? In companies financed by shares there is an interplay of interests of different natures: corporate interest, the interest of the shareholders and the public interest. This situation can give rise to different relationships: of conflict, convergence, alignment, agreement and incommunicativeness. An analysis of the specific dynamics and aims helps to understand what the main critical aspects of public-private companies are, revealing the need for action at the root of the issue. A clearly-defined system is required, rather than a multitude of legal provisions and an overlapping of models that do not allow for either a comprehensive structure of the subject or consistency with declared assumptions. Such an undertaking needs to start from an analysis of certain fundamentals of company law, as reformed in 2003, moving on to refer to the concept of public interest, both in terms of compatibility and in terms of conflict. The inevitable decline forecast by a number of academics seems in practice to be the unavoidable consequence of a failure to take proper account of the social model of the company. In this sense it becomes essential to define the role assigned to the company financed by

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shares and, first of all to describe the nature of public participation in the economic system. Short-sighted swings, from state-controlled market models in which the degree of public intervention is linked to emergency economic circumstances or pseudo higher interests to be protected, to competition models or, finally, towards hybrid models dont effectively correspond to the public interest nor to the general principles of the legal institutions that, in the succession of these events, lose their characteristic features. Giovanni Barozzi Reggiani DeAth knell foR inDiRect expRopRiAtions. This paper aims to analyse the legislative framework regarding the theme of indirect expropriations (the expression is considered as including latu sensu phenomena of expropriation, as opposed to the canonical expropriation procedure outlined by Decree of the President of the Republic 327/2001, and which are subdivided into compulsory purchase, seizure and remedial purchase) which emerged further to ruling no. 293/2010 by which the Constitutional Court declared the constitutional illegitimacy of art. 43 of the Consolidated Act regarding expropriations, effectively eliminating the concept of remedial purchase (through which the public administration was able to acquire as part of its unavailable assets, having evaluated the conflicting interests, a property used for purposes in the public interest, modified in the absence of a valid and effective expropriation measure or a declaration of public usefulness, with the payment of compensation of damages to the private party) from the Italian legal system. The first part of the paper is dedicated to a historical-legal review of the practices known as compulsory purchase and seizure, with the aim of explaining their formation (created in a jurisprudential context), their alternating rises and falls in fortune, the latter being due (at least in part) to the action of the European Court of Human Rights which ruled the two concepts as being in conflict with the first protocol of the charter. The second part contains a brief comment regarding the ruling of the Constitutional Court and is aimed at providing an assessment, from a de iure condendo point of view, of what could be the legislative and jurisprudential developments on the matter.

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Lucia Papi OBSERVATIONS ON THE PROTECTION OF INTELLECTUAL PROPERTY IN CHINA The aim of this work is to analyse the degree of different forms of protection currently afforded to intellectual property in the Peoples Republic of China. The relationship between Chinese culture and the concept of intellectual property rights is described with reference to legal and operational instruments, as well as the reasons behind, and the development of, this relationship which has led to an increasingly robust legal framework in the sector, so far as to arrive at the Microsoft/Dazhong ruling involving compensation for damages for 2.7 million Yuan in favour of the former. China attracts businesses thanks to the vastness of its market. At the same time, however, it frightens those who are wary of investment there because of a legal, political, linguistic and broadly cultural system that often appears enigmatic and (almost as if it were a direct synonym) untrustworthy, as seen from a purely western point of view. Changing the approach to an issue, as does the article which follows, may therefore reveal solutions which are surprisingly evident and logical. A little more than 30 years have passed since the end of the Maoist isolation, less than ten years from Chinas entry into the World Trade Organisation, and a few months since China overtook Japans GDP. What China has managed to achieve has no historic precedents, and deserves acknowledgement, together with its efforts to become part of the international community. Everything, obviously, carries a price, and in the Chinese case, this relates to cultural legacies, which in certain cases cause understandable controversy. Nevertheless, it is from such questions, such as the case of intellectual property, that the West could have much to learn.