Fiches : Eu & Italian Public Law

I. Right and Law, Norms, Values and Principles (Ferrari Chap 1)

Main Subjects: The foundations of Law, The contrast between Natural Law
& Positive Law (and its eventual conciliation)

1. Justice and Law: (contrast of Natural Law/Positive Law)

• Natural Law refers to natural rights/human rights (they exist on their own,
because of the human nature and human being) → In this vision, there are rights
even if the legal system and the law do not recognize them. Hence there is
a difference between Right and Law.

• Positive law: (positum = established): Law = Norm . In this vision, the rights
are only those established by the legal system. →
Right=Law=Norm

• Eg. of Antigone that shows the contrast between the Difference between
two. Antigone wanted to bury her brother to not disobey
Justice & Law
the Law of Gods, Creon (the ruler of the polis) wanted
to live him to rot (Law of the City) → There is a contrast
between the law of the political power (the polis, the • Law refers to a legal
State, the legal system, the positive law) and the law of system: the system of
the conscience, in an ethical sense, in a moral meaning. rules which a country or
community recognizes as
• After WW2, : West constitutions and international regulating the actions of its
declarations recognize Human Rights → The Positive members and which it may
Law recognize Natural Law. → Italian Constitution, enforce by the imposition of
art. 2: « The Republic recognizes and guarantees the penalties.
inviolable rights of Man »
• Justice has a meaning
• Link between Law, Right and Philosophy: The related with philosophy and
especially with Ethics. It is
reason is the legal source valid for everyone, the
a virtue, according to
Law is the dictate of the reason.
Aristotle and is based on
equality of rights, fairness
and morality.

1
 II. Characteristic of the State (Ferrari Chap 1)

Main Subjects: Legal Systems, what makes a State, Theories and

Characteristic of the State.

1. Modern Theories over the Nature of Legal Systems:

• Normativisme (Hans Kelsen) : Le normativisme énonce un système

juridique fondé sur la hiérarchie des normes. Dans le normativisme, une norme
n'appartient à l'ordre juridique que parce qu'elle a été créée conformément aux
dispositions d'une norme supérieure du même ordre.

• Théorie de l'institution (Romano and Hauriou) : Pour lui l'institution est :

« une idée d’œuvre ou d’entreprise qui se réalise et dure juridiquement dans un
milieu social ; pour la réalisation de cette idée, un pouvoir s’organise qui lui
procure des organes ; d’autre part, entre les membres du groupe social intéressé
à la réalisation de l’idée, il se produit des manifestations de communion dirigées
par les organes du pouvoir et réglées par des procédures. »

2. Legal Systems by Experience

What makes a legal system?

Whenever humans enter not forms of cohabitation or coexistence with others, legal
systems emerge.
Roman maxim : « ubi societas, ibi jus » = « Là où il y’a une société, il y’a du Droit »

Elements of a legal system

a. Subjects/People: who make up a social group and interact with each

other
b. Norms: emergence of regulations, favorable legal situations (rights,
power, legitimate interests) and unfavorable ones (obligations,
offenses) = ‫الحقوق والواجبات‬
c. Political Power: Assigning an individual or group of individuals of the
society to certain responsibilities by legitimizing his use of power. Marx

2
 Weber’s classification (Traditional power, charismatic power, legal-
rational power)
d. Authority: power of coercion, to ensure the legitimate exercise of
power (State monopoly of violence for example). Sanctions and
punishment are included in this sense.

Plurality of legal systems

Since a legal system consists on the elements cited above, there exist many examples
of legal system in the real life (not limited to the State), for example:

- The State
- European Union
- African Union
- The European Convention on Human Rights
- The Catholic Church

3. The State

Definition
State (Etat): A concentrate legal system, necessary, territorial in nature, focused on
general aims ,independent and sovereign.

During the 16th and 17th centuries: the breakup of medieval universalism and the
overcoming of the two great pre-existing political realities: the Catholic Church and
the Holy Roman Empire. = Séparation du politique et du religieux

1648 = Treaty of Westphalie = end of the Thirty Years War

3
 Characteristics of the State

Sovereignty

Definition: Sovereignty is the principle of supreme and unquestionable authority,

reflected in the claim by the state to be the sole author of laws within its territory.

External sovereignty: external sovereignty refers to the capacity of the state to act
independently and autonomously on the world stage. It implies that states are legally
equal and that the territorial integrity and political independence of a state is inviolable.

Internal sovereignty: Internal sovereignty refers to the relationship between a

sovereign power and its subjects – it refers to the location of the supreme authority
within the state. (Contractualist theory: Locke/Hobbes, le Leviathan…

Territory

Definition: a geographic area belonging to or under the jurisdiction of a sovereign

authority.

The territory is not only terra firma (dry land), it also includes the maritime and aerial
space. – Convention of Montego Bay (Law of the Sea)

4
 People

Definition: Those who are governed / participants who are subject to the power
of rule of the State and who are bound to respect the norms established by the
State.

18th and 19th Century, American and French revolutions put an end to feudal systems and
introduced the concept of “popular sovereignty” = “Volonte Generale” du peuple.

Italian Constitution (Theory of the People as creator of the State’s will :

People’s sovereignty is expressed in the ability to participate in the political decision-
making process. → contributing to State’s will by electing the parliament for example

Art.1: Sovereignty belongs to the people, which exercises it in the forms and within the
limits of the Constitution

4. Norms

Definition:
Legal norms are produced by the government or state legal system or by sources
that a system internally recognizes (sources of law). They have the power of
producing binding effects on participants (or subjects ) in the system.

Characteristics: (that norms must possess)

• Effectiveness: the norm’s ability to impose binding rules on its participants

• Force: concept of “force of Law”, the norm’s ability to develop and innovate
the positive law. (it must be effective to be developed)
• Generality: the norm’s ability to apply to all participants of a legal system
(indefinite number of people)
• Abstractness: the norm’s ability to apply to an indefinite number of
situations, repeatedly over time (vague et general)

Norms and Constitution

5
• It is necessary that a legal system identifies which sources produce or have legal
effect.
• The Constitution is at the top of the hierarchy of legal sources (loi supreme), it
is considered as super-primary source of Law.
• The Constitution governs the sources of law immediately subordinate to it
(primary sources) and leaves open the group of secondary sources (themselves
based on primary sources)

5. Contemporary State

Evolution from feudal system → Contemporary State

In the Middle Ages the organization of the feudal system was characterized by a
high degree of power dispersion, social and class fragmentation.

Contemporary Constitutionalism
The concept of Constitution emerged from liberal revolutions (American and French
18th century)
3 principles of contemporary constitutionalism: (Montesquieu/Rousseau)

• The rule of law (government authority may only be legitimately exercised in

accordance with laws that are adopted)
• Separation of powers
• Constitutional supremacy (the constitution as the supreme law).

III. Trends in the Development of the Italian State (Ferrari Chap. 2)

1. Independence of Italy

• 18th Century: Italy was divided between two States, Spain in the South and
Austria in the North.
• End of 18th Century: Napoleon Bonaparte came into the picture, took over
Italy.
• Independence 19th Century: Proclamation of the Kingdom of Italy in 1861

2. Birth of the Italian State

6
 • The Kingdom of Italy’s first Constitution “Statuto Albertino” which was
inherited from the Kingdom of Savoy. → It was considered as a granted and
flexible Constitution
• Principles of Liberal State and Rule of Law → Constitutional Monarchy
• Evolution from Const. Monarchy to a Parliamentary from of government → First
relationship of confidence between the government and Chamber of Deputies.
• First 21st Century, Gov. of Giolitti: Liberalization of economy → rise of a multi-
class society
• The Italian State went from being liberal to becoming more of an
interventionist State

• Kingdom of Italy 1861

• Statuto Albertino - First Constitution
19th • Constitutional Monarchy

• Evolution towards a Parliamentary form of Government

• First relationship of confidence between the Government and the chamber of deputies
19th

• Major Social and Political reforms

• Rise of a multi-class society | Extension of the Right to vote
early 20th • Liberalization of the economy

• The Italian State went from being liberal to becoming more of a socially interventionist State
• Begining of Fascism
1920s

3. Fascism and Mussolini

In 1922 the King asked Mussolini to form a government → 20 years of fascist rule.

7
 Statuto Albertino formally still
Suppression of civil and
in force but modified for the
political liberties + freedom of
interest of the fascist party
the press and freedom of
(garanteeing seats in the
association
Chamber)

Fascism

Government > Parliament. Electoral law was abolished and

Mussolini put an end to
parliamentary form of
government = The executive is
irresponsible in front of the
parliament
plebiscite regime was
established. Chamber of
Deputies became Chamber of
the Fasces.

4. Fall of Fascism and Birth of Italian Republic

• Fall of Fascism - The king forced Mussolini to resign

• Armistice signed with France, USA and Great Britain
1943

• Pact of Salerno: King and Anti-Fascist party gave life to a government

1944 • Choice was give to the people --> Stay as a Monarchy or Switch to Republic

• A referendum was held, Italians voted in favour of a republic

1946 • Proclamation of the Republic of Italy + Election of Constituent Assembly

8
 5. Constitution of the Italian Republic

• The Assembly was composed of several parties (pluralism)

• The Italian Constitution is a historic compromise between Catholics, Marxists
and Liberals.
• 1948 The Current Italian Constitution came into force.

6. Globalization and Multi-Level Constitutionalism:

With the rise of globalization, key economic decisions are made on a supra national
basis. Supra-national organizations (UN, EU, NATO or WTO) impose the objectives
that national governments must pursue.

Multiplication of certain levels of policy-making power centers + Erosion of each

country’s sovereignty, it may be sub-divided among different levels

Multi-level constitutionalism: progressive emergence and development of

organs, structures and procedures that create legal norms and impose such
norms on citizens of different national States.

7. State and International Law: Relationships between national and external

norms

a) Dualistic approach: when a legal system provides concurrent recognition of

the value of external legal norms. Separation of internal and international
disposition. → International Law must be transposed into internal law.

Le dualisme tend à considérer le droit international et le droit interne comme

des ordres juridiques distincts, le droit interne devant déterminer à quelles
conditions les règles internationales sont transposées en droit interne.

b) Monist approach: : the internal legal system automatically accepts the

entry of the international norms into the national system

9
 c) Italian Choice: (Art. 10 and 11) The Italian juridical order conforms to the
generally recognized norms of international law BUT it still falls into the
dualist group. The Constitutional Court recognized the immediate
effectiveness of Community law in internal national legal system.

8. The Historical Development of European Community

• Treaty on European Coal and Steel Community

Paris, 1951

• European Economic Community Treaty (EEC/CEE)

• Abolishing Customs tariffs on imports and exports
1957 • Circulation of people and capital

• Establishment of European Parliament + organizational structures

1979

• Single European Act (SEA).

Luxemburg ,
• New matters were transferred to community jurisdiction: social policies, enviroment,
1987 economic integration

• Creation of European Union + European Citizenship

Maastricht, • Monetary Union, European Central Bank, a single currency (Euro)
1992

• Strengthening integration and cohesion policies w/ common foreign & security policies & judicial cooperation
Amsterdam, in criminal matters
1997

• Charter of Fundamental Rights was issued that was to become legally binding once included in the European
Constitution
Nice , 2001

•Charter of Fundamental Rights of European Union become binding

•The European Convention on Human Rights entered inside the legal framework of European Community.
Lisbon, 2009 •TEU + TFEU

10
IV. Forms of State and Forms of Government:

1. Difference between Form of State and Form of Government:

a) Form of State:

Rules and Principles that govern a legal system, it is the relationship between the
State and the citizens, the governors and the governed. → Vertical relationship of
power.

State

Citizens

b) Form of Government:

Rules concerning the distribution of power among the branches of government / the
relationship between constitutional bodies with each other → Horizontal relationship
of power.

Parliament

Judicial
Goverment
Corpus

11
 2. Form of State (Political Power distinction)

a) The Feudal Society: (8th – 12th century)

• It isn’t considered as a real form of State, because the main aim was not to
fulfill the general interest but simply meet the need of the lord and his manor.

• It is also private agreements and contracts between individuals and the feudal
lord. The sole aim was protecting the land and its inhabitants from external
attacks (Land possession = Land + Peasants/labor work)

b) The Absolute State: (14th century)

• Transition: The shift of power from the feudal lords to the monarch (king)
The shift of power from land to Money

Characteristics:

• Institutional system dominated by the noble classes or the King himself

• Economic protectionism, the State became more interventionist.
• The state tries to fulfill the general interests of the people and not just the needs
of the lord of the manor.
• Large centralized bureaucracy and proper tax system.
• Ability to maintain a large standing army to expand policies at home and abroad

c) The Liberal State (17th - 18th century)

• Transition: Crisis of the absolute state is due to the growing bureaucratic and
military machinery (financial factor), the industrial revolution and growing
hegemony of the middle classes (socio-economic factor)

Characteristics:

• The liberal State is characterized by a strong separation between the State and
the society
• Prevalence of individualism
• The protection of rights and freedom

12
• Rule of Law principle
• The legitimation of power based on popular sovereignty
• Minimum state instead of strong state intervention
• BUT it is still a mono-class society because only high-class society get to vote
and be part of the parliament (census suffrage)
• Example: French revolution
• Example: Italy and Germany: top down revolution expansion of Prussia and the
Kingdom of Sardinia (the liberal state form came from the state)

d) The Democratic Pluralistic State (20th century)

• Transition: A slow transformation of the liberal state from a mono to a multi-

class society

Characteristics:

• The state is based on recognition and protection of a plurality of groups

represented in Parliament (=/= Mono-class society)
• Extension of voting rights (universal suffrage =/= census suffrage)
• Creation of mass parties
• Parliament as the space of discussion and dialogue for diverging interest groups
• Recognition of 1st generation rights but also 2nd generation of social and economic
rights
• The passage from liberal state to democratic pluralistic State differed from State
to another, for example Britain chose to adopt the welfare state → Social Security
must be achieved by the cooperation between State and individuals. (the State
shall accompany the citizen from cradle to grave)
• After WWII, almost all western European countries evolved into liberal democratic
states → Privatization over Nationalization (except for Scandinavia)

e) Totalitarian and Authoritarian States (Alternatives to the Liberal State)

The crisis of the liberal State not only resulted in the evolution towards democratic
pluralistic State. Some countries transformed either to Totalitarian and
Authoritarian States or Socialist States.

Totalitarian states claim that political pluralism fragments the political system
concentrating both executive and legislative power in the hand of one
institution/the head of government (single party system)

Characteristics:

13
• Absence of checks and balances with regard of command structure of the State
(checks and balances, making sure that the decision is not dominate by one
structure)
• Executive domination of the bureaucracy and the military
• Use of force and intimidation and limiting individual rights

f) The Socialist State (Alternative to the Liberal State)

• Based on the theories of Marx and Lenin.

• Abolition of the private property
• Monopoly of State regarding the means of production: the socialist state aimed
to abolish the market economy in favor of a collectivist one
• The origin is in the Proletarian Dictatorship , which had the aim of eliminating
the bourgeoisie and creating a society without classes and social conflict
• Significant limitations of basic individual rights : freedom of association , of
religion, of expression and movement.

3. Form of State (Territorial distinction)

Separation of Power between Central Gov and Sub-State Unities:

Central
Government

Sub-State
Entities
• Difference between Unitary and Decentralized States:

Unitary State Decentralized State

• Legislative Power is exercised only • Legislative Power is exercised by

by central government both central and government

14
 • Difference between Federal State and Regional State:

Federal State Regional State

Constitution contains a provision or Constitution contains a list of matters

clause listing of subject matters on which over which the sub-state institutions can
the central state can legislate, leaving the legislate, while the State has competence
residual matters (that are not listed in the regarding all residual matters. (Limiting
Allocation of
Const.) to the sub-state entities. for the Region)
Legislative
Power Exception: Canada, allocates the residual Exception: Italy, there’re “concurrent
matters to the federal State not the subject matters” in which both the State
provinces. and Region can legiferate.

Separated model: as in USA, each State Only one judicial system applicable in the
has its own criminal and civil codes whole State.
Allocation
Integrated model: as in Canada, there is In Italy there are first instance
of Judicial
only a criminal code of Canada, even if administrative tribunals in each region,
Power
provinces can appoint their own but the administrative procedural law is
provincial judges and decide how they the same throughout Italy.
want to enforce the criminal code.

Representation Sub-state entities are represented in the Sub-state entities are NOT represented in
in the Upper second chamber (upper house) the second chamber.
House

Sub-state entities have constituent Sub-state entities DO NOT take part in

power and take part in amending the constitutional reform procedures.
Constitutional Constitution.
Amendment
i.e. in USA, amendments of the
Powers
Constitution have to be ratified by 3/4 of
the Legislatures of the States

15
4. Forms of Government

a) Parliamentary Executive

• The most important element is the relationship of confidence between the

Executive (Prime Minister and Cabinet) and the Parliament.
• So, in a parliamentary form of government, there’s both the Head of State
and the Head of Government

The Head of Government in the Parliamentary Executive

• Strictly speaking he is not elected directly but appointed by the Head

of State

• He has no fixed term, If the government has a strong majority, the

Head of Government could remain the entire duration of the
legislature. It is also possible to change the Head of G. without
provoking the dissolution of the Parliament

• In Germany, there is an instrument called « constructive vote of no

confidence » : if the majority of members of the House have non
confidence in the Chancellor in office, they must be able of electing a
successor in order to replace him.

b) Presidential Executive:

• The President is popularly elected, and is both the Head of State and the
Head of Government
• There is no relationship of confidence between the President and the Congress,
but there is a separation of powers: The Congress cannot vote a motion of no
confidence
• the President has the power to veto legislation and the Congress has the power
to impeach the President
• The President serves for a fix term of four years and he could be reelected
once

16
 c) Directorial Executive

• Exist only in Switzerland (Considered as a unicum)

• This system favorizes a collegial institution: The Federal Council
• The Federal Council is not directly elected but derives from the federal
parliament.
• The collegial system combines both a head of Gov and head of State. (Only
one head)
• There is no relationship of confidence between the Council and Parliament
(and it has a fixed term of four years)
• The President of the Council is elected among the seven members and
remain in office for one year
• The council includes members from 3 of the main political parties (Magical
formula)

d) Semi-presidential Executive

• Combines elements from both systems

• There’s both a Head of State and Head of Gov
• President is elected directly (2 tours)
• The president has the right to dissolve the National Assembly (Like in all
parliamentary forms, for ex. Italy)

Il y a cohabitation lorsque les deux têtes de

l'exécutif, président et gouvernement, appartiennent
respectivement à des groupes politiques opposés.

The President will have to appoint someone who has

the majority in the National Assembly regardless of
their political affiliation.

17
 V. Parliament

1. The Italian Parliament

• Constitution of 1948:
• The part devoted to the Parliament in the Constitution is placed at the very
beginning which symbolizes its value. (position of primary importance)

Parliament is the most direct institution connecting people as expressed in Art. 1

“Sovereignty belongs to the people”

Of course, the legislative branch needs to be awarded a certain importance in the

organization of State powers.

• Les stigmates du fascisme ont fait que les italiens donnent plus de pouvoirs au
pouvoir législatif en limitant l’executif.

a) Bicameralism

Bicameralism is for example very essential in federal system, with one chamber
protecting the interests of federal unity and the other comprises of sub-entities
(rep. of federated states) and protect their interests

e.g. House of Representatives protects the whole federal unity, and the Senate has
senators of each Federated State (Florida, Illinois…)

Perfect Bicameralism Imperfect Bicameralism

If both chambers are structured Differences in the composition, powers

similarly or if they exercise the same and functions
powers and functions

Italy: 2 chambers, similar structure & functions

18
 b) Electoral System:

Proportional Systems Majority Systems

Def Assignment of seats to electoral lists Def Assignment of the seats to the
that are presented for elections in candidates which have obtained the
proportion with votes actually greatest number of votes in comparison to
obtained. the others

E.g. So if you have a 10-member district

and the Republicans win 50% of the
vote, they receive five of the ten seats

PR allows a more faithfully representation MR sacrifices a “direct majority” of the

of the reality of the political forces in the political party but achieves a “stable”
field (Ne favorise pas le bipartisme, majority within the parliament.
hegemony de 2 partis politiques)

BUT it acts to the detriment of the

stability of political majority.

c) Italian Electoral System:

• The electoral system is not provided by the Constitution but by ordinary laws →
subject to frequent changes
• In 1993, adoption of majority system → consequence, bipolar political landscape
• In 2005, the system in force is the proportional one

Current system (Chamber of Deputies) is proportional but if a list obtains, at

national level, the 40% of the votes , it will have a premium of 340 extra seats. +
The lists cannot organize a coalition between them.

19
Current system (Senate of the Republic): « Consultellum »

• Proportional system
• Lists can organize coalitions between them

Parliament’s Autonomous Powers:

• Regulatory Autonomy: each chamber has standing orders, rules under which the
House regulates its proceedings.
• Financial Autonomy: each chamber prepares and approves its own budget.
• Self-rule: Parliamentary is self-ruled, whatever happens within it is subject to
the sole jurisdiction of the two chambers (protecting parliament from
interference of the judiciary)

VI. The Government

In the Italian Parliamentary system, the Government’s function is to formulate

and implement administrative and political policies.

Historical context:

• Developed in England : The King chose Ministers, delegated some of his

executive power, and had a relationship based on trust.
• With the Act of Settlement (1701), Parliament could control the acts of
Ministers by threatening to impeach them
• In the middle of 1700s, there was a relationship of confidence between the
PM and the electoral body (Parliament).

1. The Government in Italian Constitution

Art. 92: “The Government of the Republic is composed of the President of the
Council (Head of Government) and the Ministers who, together, form the Council of
Ministers. The President of the Republic (Head of State) nominates the
President of the Council of Ministers and, on his proposal, the Ministers”.

President of
the Council Council Government
(Head of (Ministers)
Government)

20
 2. Formation of the Government:

Depends on the electoral system:

1st Stage:

In a Majority System In a Proportional System

Easy, the winning coalition, the The President of the Republic needs to
parliamentary majority and even the consult political leaders to understand
name of the President of the Council is which political coalition could obtain a
predictable after the election day. majority in the Parliament and
eventually its confidence.
The President of the Republic has an easy
task nominating the President of the
Council.

2nd Stage:

The Pres. of Council once

nominated should prepare the
list of the names of Ministers &
proposes it to the Pres. of
Republic
The Gov. shall be sworn The Government should
The Pres. of Republic signs
by the Pres of Republic wait for the vote of
an official decree appointing
and can exercise its confidence (10 days after
them to office
functions formation)

Art. 94:

1. The Government must have the confidence of both Chambers.

2. Each Chamber accords or withdraws its confidence through a motion that states
its reasons, and which is voted on by a roll call.
3. Within ten days of its formation, the Government shall come before the
Chambers to obtain their confidence.

21
 When is the Government formed?

• At the beginning of the legislature

• When there’s a crisis:

a) There is a no confidence vote from the Parliament to the Government. (never

happened in Italy)
b) Anticipated dissolution of the Parliament
c) The Government resigns (happens a lot in Italy)

Should the Head of State dissolve the Parliament if it fails to form a

political majority (party coalitions)?

Answer: No, in 1995 the Head of State refused to dissolve the Parliament even if it
was impossible to reform the majority and appointed a new Government with a new
coalition that obtained the confidence from the Parliament. (Only change of Gov,
no need to dissolve the Parliament)

3. Organizational Principles of the Government

a) Principle of monocratic leadership of the President of the Council:

The President of the Council directs the general policy of the Government and
is responsible for it. = It puts him in a position of supremacy

• The President of the Council has the power to represent the entire Government

• The President of the Council has the power to promote and coordinate the
activities of the Government.

b) Principle of Collegiality:

• The Council of the Ministers determines the general policy of the Government
(Directed by the Pres. Of Council ofc)
• Competence of legislative initiative

22
 • Presentation of the budgets and final balance to Parliament
c) Principle of Individual responsibility of the Ministers:

• Each Minister is responsible for his actions in his Ministry.

• He may get called by the Council of Ministers or in Parliament to explain some
of his ministerial decisions
• And can also receive an individual vote of no confidence
• This can lead to his resignation → They can appoint another Minister ad interim
or it could legit create a Government crisis.

4. Government’s Relationship with the Parliament

➔ First, what are the instruments of the Government?

Power to adopt Law Decrees and Legislative Decrees and approve regulations
Power to govern state Public Administration.

The Government can influence parliamentary activity by:

Planning of its agenda (which is based on Gov. directives and parliamentary

group proposals)
Parliamentary standing orders guarantee the Government a definitive period
of time in which examine bills it proposes for carrying out its program.

Government’s decisional power in sensitive sectors:

• Foreign policy, military policy, EU policy, economic policy…

The Vote of Confidence

The government may request a vote of confidence from the Parliament regarding
one of its crucial policies. (Example, Finance bill)

If the Parliament refuses (by simple majority) it means that the Government must
resign. (Because if the bill represents the whole political program, and it fails to
garner the Parliament’s confidence then it loses confidence as a whole)

Motion of No-Confidence

Even if the Parliament already issued a vote of Confidence for the Government, the
Parliament can always issue a Motion of No-Confidence

23
 ➔ What’s needed for a motion of No-Confidence?

1/10 (one tenth) of the Members of one of the Chambers

At least 3 days must pass before it’s debated in the Parliament

Requires Open Voting

VII. Public Administration

1. Characteristics of Public Administration:

a) Realization of Public Interests in the concrete:

“Concrete care of the public interest”

If the legislative pass laws that protects the public interest, and the judiciary
makes sure these laws are respected, Public Administration protects the public
interest in a direct way.

e.g.: The Law determines how public health will operate; judiciary ensures
observance of that laws and public administration produces all the measures
and services which make it possible to access public health

b) Discretionary power:

• The power to decide the most effective way to realize public interests, the
possibility to chose among several alternatives.
• Public Administration has a more flexible margin of choosing ways to
safeguard the public interest, ofc within the margin of the Law.

c) Spontaneous action:

• Except for cases required by Law, Public Administration has the right to act
spontaneously in order to realize public interests. (unlike the judiciary for
example, a judge cannot act spontaneously)

24
 2. Constitutional Principles of Public Administration

a) Principle of Autonomy:

Administrative decentralization: Art.5 specifies and accords the principles and

methods of its legislation to the requirements of autonomy and decentralization.

• The principle of Autonomy also enables sub-state entities to choose their own
political orientation within the framework of the Constitution and the State Law.

b) Principles of efficiency and impartiality

Impartiality: Art. 97

• Carefully ponder what interests may be sacrificed for the public interest
• Maintain political neutrality

3. Principles governing public administration

Cost-effectiveness

Efficiency

Full Publicity

Transparency

Public Competition (in appointing public administrators)

The obligation of public officials to be at the sole service of the

Nation

Principle of responsibility: Officials and employees of the State and public

entities are directly responsible, according to criminal, civil and administrative
Laws.

25
 4. Distinction between lawful rights and legitimate interest

Lawful Rights Legitimate Interests

The right to something Procedure (keyword) The way this

something is being drawn out (the
legitimate/fair procedure)

VIII. The President of the Republic

• The President of the Republic represents National Unity, both internally and
externally.
• His position depends on the form of State (Monarchy, Republic…) and his
characteristics/competences on the form of Government (Parliamentary,
Presidential…)

In parliamentary systems the Head of the State is excluded from the political
power circuit between Parliament and Government confidence.

He is the guardian of the Constitution, the balancer of the powers of

State, the neutral power, upholder of the State in moments of crisis.

1. President of Republic in Italy:

• His role is regulated by constitutional norms, by constitutional practices and

habits and by the interpretation given to the role by the various Italian
Presidents of the Republic.

a) Election of the Pres. Of Republic:

• He is elected by the Parliament in joint session (both Chambers) + 3 delegates

in each region. (they’re present too)
• The vote is secret.
• Elected for 7years.

26
b) (Ir)Responsibility of the Pres. Of Republic:

• No act of the President of the Republic is valid if it is not signed by the

proposing Ministers. (who assume repsonsability for it)
• The acts that has legislative value shall be countersigned by the Pres. Of the
Council (pcke le president n’est pas habilite a legiferer)

The Pres. of Republic is NOT responsible for the acts performed

during his exercise. Except for high treason or plots against the
Constitution. In such cases he is “impeached” by the Parliament.

c) Competences of the Pres. Of Republic:

• Legislative Powers of the Pres.:

• Appoint 5 senators for life

• Before promulgating (executing) a law, ask for a new deliberation Free action
• Dissolve Parliament

• Call referendums
• Promulgate laws Limited action

• Executive Powers of the Pres.:

• Appointing higher State officials

• Commander of the Armed forces – Shall declare war if voted upon in the
Parliament.
• Ratifies Intl. Treaties (again if authorized by the Parliament)
• Issues decrees of Law values and governmental regulations.

• Judicial Powers of the Pres.:

• Shall chair the Superior Council of the Judiciary

• May grant pardons (grace)
• Appoint 5 judges to the Constitutional Court

27
 d) The Tripartition of the Presidential Acts:

• Formally presidential acts which are substantially

governmental:

Presidential in Form, but Governmental in Content

Acts having the force of Law and containing governmental regulations → but take
the form of a presidential decree.

• Formally Presidential acts which are substantally presidential:

Acts that are purely presidential (in form and content)

For example: Appointing 5 Const. judges or Senators for life.

• Substantially Complex Acts

Acts that requires more stakeholders. (Acts in consultation...)

For example: Acts that require a consultation/concertation process. (Appointing

President of Council or Dissolution of the Parliament).

IX. The Judiciary

Most important aspect: It’s an independent branch of government.

1. The Single Judiciary Principle:

Judicial power is assigned only to ordinary judges who would act both as judges and
public prosecutors.

Some exceptions: Regional Administrative tribunals, Council of State.

2. Principle of functional independence of the judge

• Judges are only subject to the Law (la ghayr) → Not letting any other power
interfere.
• Judges are appointed on the basis of public competitive state examinations
(legitimate interests)

3. The Superior Council of the Judiciary

• To further establish its independence, the ordinary judiciary has a self-

governing body.
• “Has the sole right to appoint, assign, move and promote members of Judiciary
and take disciplinary actions against them».

28
 4. The Fair Trial Cause

Principle protected by the Constitution:

Impartial Third-Party Status of the Judge (The judge should not interfere in an
unbiased way the dispute between two parties)

Principle of Confrontation (Each party shall confront the other, for example
criminal proof against each other)

Reasonable duration of the trials

X. Constitutional Court in Italy

Considered as an “Ad Hoc” institution (not part of the judiciary system)

1. Composition:

5 judges appointed by the Parliament

5 judges appointed by the President of Republic

5 judges appointed by the Supreme Court

2. Functions:

• Constitutional Review of laws and acts having the force of Law

• Settlement of disputes between State and Regions
• Judgments against President in case of high treason
• The power to decide admissibility of referendums

a) Constitutional Review:

The Constitutional Court has the power to decide on the validity of certain Law and
acts having the Force of Law.

29
There are two types of proceeding:

1) Direct proceeding: The Central Gov or Region claims directly to the CC. (60
days following the law)
2) Indirect proceeding: an ordinary judge can claim during a regular trial.
(sometimes it can be claimed by a citizen, one of the parties in the trial but
through the judge)

• Judgment of the Court

The judgments by which the C.C declares a law unconstitutional have general effect
(erga omnes)

• Parameter of Judgment

First and foremost, it’s the Constitution and Constitutional Law

Then Customary Law, European directives, Concordat between Italy and the Holy
See

• Types of final judgements

1) Judgements of Acceptance: in which the CC accepts the claim that a Law is

unconstitutional
2) Judgements of Dismissal: in which the CC dismisses the claim and believes
that the law is not in contrast with the Constitution.
3) Interpretative Judgments: in which there may be more than a norm
(different meaning/interpretation) in the challenged provision; the Court
declares the unconstitutionality of a specific meaning: “the Law is
unconstitutional in the part in which it provides that…”
4) Judgement of partial acceptance: as its name indicates, in which the CC
declares one part of the challenged provision as unconstitutional and not the
whole legislative text. “The CC shall declare as unconstitutional the Law X in
the part in which…”
5) Substitutive Judgment
6) Additive judgments
7) Exhortative judgments

b) Resolution of Jurisdictional Disputes

• Disputes between branches of government that have a “Constitutional tone”.

• The CC may intervene in order to declare that function X should be exercise
by body Y
• The Court may declare the annulment of the concrete act that provoked the
dispute

30
 c) Resolution of disputes between the State and the Regions:

• If the Region issues an act that invades the sphere of competence of the State
and vice verca, the State or the Region will fill a claim to the CC.

The CC will then resolve the dispute by declaring who the competence belongs to
(State or Region) and can also annul the act that provoked the dispute

d) The Impeachment of the President of the Republic

• The Constitutional Court shall decide on accusations made against the

President of the Republic.
• The pres. Of the republic is not responsible for acts carried out in the
exercise of his duties, except for high treason and attempts to overthrow the
Constitution.
• Two stages of impeachment: 1st during a joint session of the Parliament and
2nd before the CC

e) Judgment of admissibility of abrogative referendums

The function of the Court is to ensure that the referendum request does not violate
one of the limits of admissibility contained in art. 75, and in the case law of the
Constitutional Court itself.

31