Administrative and Procurement LAW - Riassunti corso

Administrative and procurement law

Legal system – sources of law

The legal system is constituted by four main elements:

• A number of people with one or more common goals or interests, who make up a social group.
• Certain criteria of evaluation that allow the group to understand what is permitted or not.
• A territory in which the group lives that has to be defended from other groups.
• Amongst the members of the group, a subject (authority) is recognized with decisional power and able to solve any contrast within the group itself.

Legal rules are aimed at governing the relationships within a certain social organization. They:

• Ensure the regular life of the organization and define the boundaries of the different interests;
• Not only impose duties but also guarantee rights;
• Aim at reducing and solving conflicts.

Legal systems are therefore essential in the relationship between:

• Private powers: define and promote cooperative behaviors in the framework of possible disputes arising from the existence of conflicting interests.
• Public and private powers: define the limits of the public power action.

Legal norms and sources of law

Ulysses pact: a freely made decision that is intended to bind oneself in the future. The rule-makers do have the power to limit their own power, but once they have done so, they can’t change their mind. The new rule, in this case, would be totally out of effects.

• Modern Constitutions: limit the power of the authority and establish certain legal rules on fundamental matters that cannot be changed in the future.

But only some of these norms/rules can be defined as legal norms. The sole fact that a norm attempts to govern relationships among members of society is not sufficient to define such a norm as legal.

• Legal norms can be produced solely by a legal system, i.e., in contemporary societies, by the State or the government of a legal system (in Latin positus, in Italian “diritto positivo”). This is why legal norms are different from norms that exist per sé (non-legal norms), such as the so-called “natural rights,” i.e., those rights that all men possessed prior to the formation of governments and cannot be taken away: these are not “positive” norms.
• The difference is important because only legal norms can be considered legally “binding.” That means that violation of a non-legal norm has no consequences from a juridical point of view because it has no legal effects.

Every legal system identifies a limited number of sources of law (place and way through which law come from) which produce norms with legal effects. In a legal system, there are different regulatory layers, organized among them according to a strictly hierarchical relationship. Understanding this hierarchy means understanding the ability of a certain rule to prevail over other rules and overcome the possible conflicts among the different layers and the different legal norms.

Categories of sources of law

There are three main categories of sources of law (three hierarchical levels):

1. European
   • TFEU and other Treaties (I°) - Directive (II°) must be in compliance with treaties
   • Regulations (II°)
   • Decisions (II°) always addressed to a specific EU member state, they produce the same effect as regulations, but they are specific to the member state
   • Decisions of the Court of Justice
2. National
   • Constitution (constitutional source) at the top
   • Ordinary State Law (I°)
   • Acts having the force of Law: Legislative Decrees + Law Decrees (I°)
   • Government regulations (II°)
3. Regional and local
   • Regional Laws (I°) - every region could approve laws and sometimes there’s competition with State
   • Local Statutes and regulations (II°)

European sources of law

• Treaties I°
  • Primary source of law and are at the top of the legal source ranking.
  • They are very general and abstract.
  • The supremacy of Treaties is guaranteed by the European Court of Justice (ECJ), which has exclusive jurisdiction with regard to the interpretation of both primary and secondary sources of EU law.
• TFEU (Treaty on the functioning of the European Union) I° (art. 3 + 4)
  • Establishes the founding principles and the competences of the European Union
  • Regulates EU bodies and their legislative powers
  • Establishes the procedure for adopting secondary sources of EU law
• Directives II°
  • Binding, in order to achieve a specific result. It’s up to each Member State to put the directive into effect and to choose the most suitable legislative instruments for achieving the results within a certain time limit.
  • Directives may be addressed to individual, several, or all Member States.
  • The EU usually employs directives to establish those general principles necessary for the harmonization of the different rules at the national level. Very important in order to have a real “union.”
  • Directives cannot introduce obligations for individuals but only for Member States.
  • Even though directives are not binding before they are implemented by member states, there’s a special type, Self-Executing Directives, they introduce rules from the beginning and they can have direct legal force within the member state, they are immediately binding for the citizens.
• Regulations II°
  • EU Regulations establish general and abstract rules, which are mandatory and binding for all EU citizens.
  • Modify legislation immediately: they are directly applicable within the legal system of the member state to which they are addressed.
  • In case of contrast between a national rule and EU norm established by a Regulation, national courts have to apply the EU norm instead of the national one.
  • The ECJ has declared illegitimate the national laws that do not apply the EU regulations. If a law doesn’t comply with an EU Regulation, it immediately dies!
• Decisions II°
  • Directly applicable acts that are binding in their entirety on the Member State to which they are addressed.
  • They are individually rather than generally applicable, and this distinguishes them from Regulations.
• Soft laws
  • Acts of non-binding nature may be adopted by the EU institutions.
  • They are aimed at determining the content of certain EU policies before bringing these policies into effect. Their function is to involve Member States, regional governments, or individuals in decisions the EU is about to adopt.
  • The most common instruments of “soft law” are:
    • Green Papers: documents with which the Commission outlines the problem it intends to address and the main direction this action will take.
    • White Papers: documents in which the Commission illustrates its proposed intervention.
    • Plans of Action: documents in which the Commission explains in detail a certain action it intends to implement in order to address a specific problem.

Relationship between European and national law

The project for a unified Europe has been problematic for each Member State. The most critical aspect is that rules are established not by the authority controlling the territory, but from an external subject which does not directly represent the political interests of the single territory.

• Art. 11 Constitution mechanism through which EU regulations have effect on Italian legislation, it provides that Italy «shall agree, in 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 between nations; it shall promote and encourage international organizations having such ends in view». Therefore, the transfer of competence and the limitation of Italian sovereignty is provided for by the Constitution itself.
• This issue is less critical for Directives which must be implemented by the Member States by a law or an act having force of law. While it’s more critical for Regulations, because the EU Regulation must be applied and disregard the Italian law that it’s in contrast with it. European law prevails over the laws of the Member States.
• The mentioned difficulties have been solved by the amendments of 2001 to Art. 117, par. 1, of the Italian Constitution. Conflicts between Italian law and EU law be solved by applying the criterion of competence established in this article. The EU has the last word.

National sources of law

• Constitution “constitutional source”
  • Founding source of Italian law, it has:
    • Active force: maximum innovative capacity;
    • Passive force: maximum capacity to resist repeal or modification.
  • Its fundamental principles can be amended only through a very complex procedure, considering the limits established by the Constitution itself (Art. 138 The laws of revision and other constitutional laws are adopted by each of the two chambers, with subsequent deliberation at intervals of at least 3 months, and approved by an absolute majority. Then there’s the Referendum).
  • The Italian Constitution is:
    • Rigid: compliance with its provisions is guaranteed by the Constitutional Court.
    • Long: it doesn’t merely regulate the organization of the State, but also recognizes and protects rights which citizens have before public authorities.
    • Programmatic: it provides general rules to regulate public power and its relationship with citizens and sets the objectives of the activity of the State (art. 3).
    • Adaptable: is open to different interpretations. This dynamic approach has ensured the longevity of the Constitution’s fundamental principles.
• Constitutional Amendment Laws
  • Their aim is to modify the Constitution with the explicit and implicit limits defined by the Constitution.
  • Only one explicit limit: art 139 Republican form of State may not be changed because it’s strictly connected to the democratic nature of the system.
  • Implicit limits:
    • Art 1 “sovereignty belongs to the people”
    • Art 3 “all citizens are equal before the law” the State must do anything it can in order to assure it. This article is very important for tender procedures, where equal treatment is a fundamental principle.
• Ordinary State Law I°
  • Primary sources rank just below the Constitution in the hierarchy of legal sources.
  • Primary laws that don’t comply with the principles and provisions of the Constitution are illegitimate and can be declared null and void by the Constitutional Court.
  • Art. 70 establishes that “legislative power shall be exercised jointly by the two Chambers, the Chamber of Deputies and the Senate of the Republic”.
  • Perfect bicameralism: Once the legislative iter is concluded within one Chamber, the bill goes to the other Chamber for discussion and vote. After the so-called double vote, the law text becomes final. If the second Chamber amends the text voted by the first Chamber, the first Chamber must re-approve the amended text. This transfer from one Chamber to another continues until both branches of Parliament vote an identical text.
• Acts having force of law I° (Lgs. Decree + Law Decree)
  • Legislative Decrees and Law Decrees are acts having force of law issued by the Government.
  • These acts are considered primary sources of law on the same level as ordinary State laws.
  • In both cases, the Parliament controls and supervises the Government’s activity: for a legislative decree exercises a prior control, for a law decree a subsequent control.
  • Circumstances that legitimize the exercise of primary legislative power by the Government:
    • The Parliament doesn’t want to directly issue a law itself for technical or political reasons.
    • Exceptional situation that requires prompt ruling.

Legislative decrees I°

• Legislative act, with the role of law adopted by Government (Executive power), by express and formal delegation of the Parliament (Legislative power).
• The Parliament may delegate to the Council of Ministers the power to issue acts having force of law regarding a specific subject matter (legislative decrees). This delegation takes place with a Legge Delega specific law approved by the Parliament, which delegates the Government to exercise the legislative function on a certain object. It contains principles, guidelines, objectives, and the time limit within which the Gov. has to adopt the D.Lgs.
• The Parliament may always explicitly or implicitly revoke the above power once granted.
• A legislative decree is deliberated by the Council of Ministers and issued under the nomen iuris of “Legislative Decree” (D.LGS.) by the President of the Republic.
• If a Legislative Decree doesn’t comply with the Constitution and the “Legge Delega”, it’s considered invalid and becomes constitutionally illegitimate.

Law decrees I°

• Provisional value
• Art. 77 Constitution “in exceptional cases of necessity and urgency the Government may issue provisional measures having force of law” (Law Decrees).
• The Government (i.e., the Council of Ministers) directly evaluates the urgency.
• Once published, a Law Decree enters immediately into effect, but it must be submitted by the Government to the Parliament for its conversion into law within 60 days, otherwise it loses effect ex tunc (i.e., from its origin, as if it had never existed).
• If a Law Decree is approved where there is no necessity and urgency as provided for by the Constitution, it is declared constitutionally illegitimate.

Government regulations II°

• The Government’s power to issue secondary sources of law is regulated by Art. 17 of Law 400/1988.
• It may be proposed by one or more Ministers, but it must be approved by the Government’s collegial body after the State Council’s binding opinion. Once this process is complete, the President of the Republic issues the regulation in the form of a Presidential Decree Law (DPR), submits it to the national Court of Accounts, and publishes it in the Official Gazette.
• Classification:
  • Executive regulations, for the execution of laws
  • Integrative regulations, for the integration of laws that are very general and abstract
  • Independent regulations, they intervene in subject matters not covered by statutory limits and not regulated by laws or acts having force of law.
  • Delegated regulations, for the administrative simplification and deregulation.

Deregulations (Art. 17.2 of Law no. 400/1988)

• Consists of the adoption of regulations which are issued for the purpose of superseding an existing law.
• Deregulation mechanism: a delegating law gives to the Government the power to issue a regulation to set out some general provisions and to repeal the current law. Once the regulation enters into effect, the law is considered repealed. The abrogation effect is formally determined by the delegated law, instead of regulation.
• This mechanism provides greater flexibility and faster adaptability of the legal system.

Regional sources of law (Must comply with Constitution + EU Laws)

• Regional Laws I°
  • Regional laws are a primary source of law and they rank below the Constitution and on the same level as ordinary State law and acts having force of law.
  • In 2001, the Italian Parliament approved a reform of the Constitution, amending Art. 114- 133, which refer to regional and local governments, in order to enable the Regions to decide and determine their own policies.
  • Art. 117: allocation of legislative powers between State and Regions. It lists:
    • 17 areas in which the State has exclusive legislative competence, so Regions have no voice at all;
    • 18 areas in which State and Regions have concurrent competence;
    • All other matters are subject to regional competence.
  • Concurrent competence means that in these matters a Region can enact parts of legislation on the basis of fundamental principles set forth by national primary regulation. Despite the extension of regional competencies, regional legislative power is still subject to interference by the State.
• Regional Regulations II°
  • Regional regulations are acts that rank below regional laws, which in turn rank below Regional Statutes (REGIONAL STATUTE → REGIONAL LAW → REGIONAL REGULATION).
  • Regions are not entitled to exercise regulatory power in the fields in which the State has exclusive legislative competence.

Conflicts between national and regional laws

• These conflicts have to be resolved by the Constitutional Court.
• When there is a conflict between two sources of law on a certain policy area, the source that is competent in that policy area prevails.
• If the matter is subject to concurrent competency, the criterion of hierarchy intervenes because State law prevails over regional legislation.
• Where a subject matter is not expressly included in the State exclusive competence, or in the concurrent competences, the power to regulate it rests with the Regions.
• «Public Contracts» the State has exclusive legislative competence on “protection of competition” and on public procurement rules.

Subsidiarity

• Central Government, Regions, Metropolitan cities, Provinces, and Municipalities are named “Enti pubblici territoriali” (public territorial authorities): they are public bodies that exercise their functions and powers on pre-determined territorial areas and they shall promote the autonomous initiatives of citizens relating to activities of general interest, on the basis of the principle of subsidiarity.
• Subsidiarity means that administrative functions must be carried out at the administrative and local level that is closer to the citizen.
• Each level manages its own tasks and functions as provided by law.