Diritto pubblico - Public Law

LAW

The “Supremacy clause” :

- the Treaty of Lisbon does not include it

Declaration No. 17 Treaty of Lisbon

- It is stated in the attached to the

- It is mentioned in several decisions of the European Court of Justice

- It is mentioned in several decisions of National Constitutional Courts

=> Make sure it should always prevail on domestic issues.

=> Treaties usually do not refer to principle of supremacy/ supremacy clause.

The Principle of Supremacy is not absolute and is subject to the following

limitations :

Principle of Conferral

- the being complied with

who is competent to evaluate whether the EU competences were correctly

-

exercised?

Principle of Subsidiarity

=> The should be the most important!

- https://eur-lex.europa.eu/summary/glossary/subsidiarity.html

Principle of Supremacy

The European Union law should always prevail over



domestic legislation, so the final purpose of the Treaties is to make sure that the European

legislation will always prevail in domestic laws conflicts.

Treaty of Lisbon Supremacy clause.

The does not include the It is mentioned in several



decisions of the European court of justice and of the National Constitutional Courts.

TECHNICAL IMPLEMENTATION of EU LAW into ITALIAN LAW

Implementation may happen by means of:

(“legge comunitaria”);

- An ordinary law

- The Parliament delegates to Government to implement EU law;

[Deregulation]

- discussing about taking something out and try to delete something =>



need to create the upcoming law regulation/a new European directive regulating the same

thing;

- Implementation by administrative decisions (territorial entity): in accordance with their

own competencies.

MiFID : adopted in 2 occasions (2004, 2018).

The Markets in Financial Instruments Directive (MiFID) is a European regulation that

increases the transparency across the European Union's financial markets and

standardizes the regulatory disclosures required for firms operating in the

European Union.

MiFID implemented new measures, such as pre- and post-trade transparency requirements,

and set out the standards of conduct to be followed by financial firms. MiFID has a defined

scope that primarily focuses on stocks.

The directive was drafted in 2004 and has been in force across the European Union (EU) since

2007.

MiFID was replaced by MiFID II in 2018.

MiFID 2 https://www.investopedia.com/terms/m/mifid-ii.asp

MiFID II is a legislative framework instituted by the European Union (EU) to regulate

financial markets in the bloc and improve protections for investors. Its aim is to

standardize practices across the EU and restore confidence in the industry, especially

after the 2008 financial crisis.

“In order to strengthen the protection of investors in the Union, it is

Recital no. 42:

appropriate to limit the conditions under which Member States may exclude the application of

this Directive to persons providing investment services to clients who, as a result, are not

protected under this Directive. In particular, it is appropriate to require Member States to

apply requirements at least analogous to the ones laid down in this Directive to those

persons, in particular during the phase of authorization, in the assessment of their reputation

and experience and of the suitability of any shareholders, in the review of the conditions for

initial authorization and on-going supervision as well as on conduct of business obligations ”.

A member State should not be entitled to completely exclude categories of persons, unless



for specified reasons.

“Member States should ensure that investment firms act in accordance with

Recital no. 71:

the best interests of their clients and are able to comply with their obligations under this

Directive. Investment firms should accordingly understand the features of the financial

instruments offered or recommended and establish and review effective policies and

arrangements to identify the category of clients to whom products and services are to be

provided. Member States should ensure that the investment firms which manufacture

financial instruments ensure that those products are manufactured to meet the needs of an

identified target market of end clients within the relevant category of clients, take reasonable

steps to ensure that the financial instruments are distributed to the identified target market

and periodically review the identification of the target market of and the performance of the

products they offer”.

“Member States may not impose requirements for the notification to and

Art. 12 , para 7:

approval by the competent authorities of direct or indirect acquisitions of voting rights or

capital that are more stringent than those set out in this Directive ”.

Member States are affected to limitations, related to regulations in this case, it affects

 

freedom.

Not entitled to be more stringent for a country implementing regulations.

 “Member States may, in exceptional cases, impose additional

Art. 24 , para 12:

requirements on investment firms in respect of the matters covered by this Article. Such

requirements must be objectively justified and proportionate so as to address specific risks to

investor protection or to market integrity which are of particular importance in the

circumstances of the market structure of that Member State ”.

LESSION 6 The principles of the Italian Constitutional order:

the Economic Relationships

Art 41 to 47 are principles governing economic relationships.

Constitution contains principles regarding:

The right to carry out business activities

· The right to work

· Ownership

·

It determines regulations regarding:

Public intervention in the economic system

· Regulation of the economic initiative (both private and public)

· Regulation of ownership rights

·

There is not 1 option/ model taken into consideration by the constitution but 4 different

models:

1. Free market

2. Public monopoly/ public intervention

3. “Self-production”

4. Arts & crafts

Free market

1. : option chosen by constitution legislator as most important option:

- art. 41 and 42

- “the” Constitutional option

- it goes hand in hand with regulations, limitations, and rules of conduct

- sensitive” public services

specific sectors are generally held as “ - areas, types of



business activities that need to be subject of specific rules due to sensitivity of area.

Public monopoly Public intervention

/

2 : possibility for Central State to step in in

. Public services

business activities operated by individuals “ ”:



- Services rendered by either public or private subjects (which are also entitled to provide

public services), in order to meet interests or needs of the community (social

e.g.,

purposes in a broad sense - rather than create profit for a limited amount of people):

transports, energy and other utilities, supply of water, etc. “public

Services addressed to specific individuals are generally not considered as

services” - they should be addressed to all members of the community.

- They may be outsourced to private entities by means of:

(i) a competitive bid

(ii) a mixed company

(iii) “in-house” providing

(i) Competitive bid = proceeding set up by public entity:

The bid may have as object: works, services, supplies may be set with respect



to the content of the service - provision of goods on a periodical basis in favor of

someone else.

 “on public-private partnerships and Community law on public

Green Paper

contracts and concessions” (EU Commission): selection of the private partner;

public disclosure of the public entity’s intention to launch a bid; contractual stage.

(ii) “Mixed” companies = unilateral creation of a company by a public entity

possibility for public entity to create a private company subject to regulations

 MIXED:

governing private comp in general (like civil code) shareholders are both the

public entity and private shareholders.

It will satisfy needs on behalf of the public entity:

- the company is purely a private subject;

- its corporate purpose must be restricted to performance of the activity to which

it is “dedicated”.

only activity the company is entitled to carry out is that public service;



- the private partner must be selected by means of a competitive bid;

- the majority stake in the corporate capital of the mixed company must not

necessarily belong to the public stakeholder;

- the private partner may not be a mere “financing” stakeholder: it must also

participate to the service rendering;

- the private partner may not assign / dispose of its shares - because it won the

competition;

- once the service (to which the company is “dedicated”) is interrupted, the

private partner must assign its shares to the public entity so that the company can

be liquidated.

(iii) In-house providing : the service is entrusted to a company which is wholly

owned by public entities: fully owned by a public entity (no mixture) 

public entity is willing to entrust a private company to perform a public service.

Instead of competitive bid and mixed company - want to create a completely fully

owned by public entity.

The company must meet the following requirements:

1- the corporate capital must be entirely held by public entities;

2- the shareholder must have the same degree of control over the company which

is exercised on its own services public must be able to demonstrate to be able



to exercise same degree of control on the company as the control it has on the

public services provided;

3- the company must carry out the major part of its activity in cooperation with its

controlling entity Majority of activity are carried out by a cooperation between



public entity and company.

The public entity has supervisor power over the company that cannot do what it

wants.

Requirements balance the proceeding of competitive bid.

options for a public entity such as a city/”commune” to perform public



services - to procure that someone else is allowed to perform a public service.

State-owned undertakings directly

: acquired and managed by Central State.

- The State may influence the structure of Corporate Governance (if major shareholder, it

has power to appoint member in Board of Directors or to impact on decision made within

the company);

- The State is entitled to exercise shareholders’ rights (shareholder will be entitled to receive

dividends, adopt resolutions, participate to corporate proceedings to approve financial

statements);

- The State is entitled to influence and determine the company business and its targets /