European and italian public law - appunti.pdf

European and italian public law Materials: Italian constitutional in European context 17th December oral exam Two intermediate exams: 21th October - ? November...

European and italian public law Materials: Italian constitutional in European context 17th December oral exam Two intermediate exams: 21th October - ? November Legal system | Forms of state | Forms of government | UE integration process | Council of Europe | ITA legal system Legal system EU and Italian Public Law: Focus on Public Power and Citizens One key concept in public law is the "legal system." De nition: A legal system is the framework of rules, procedures, and institutions that a community uses to interpret and enforce its laws. This concept applies to various cases, highlighting the plurality of legal systems. The State and Legal Systems The state plays a pivotal role in the concept of a legal system. The modern state, as we understand it today, is conventionally traced back to the Treaty of Westphalia in 1648, which ended the Thirty Years' War (1618–1648) and marked the birth of the absolute state. Under this treaty, the "state" is de ned by two key elements: 1. Originality – The state does not derive its authority from external sources. 2. Sovereignty – The state legitimizes itself by establishing governance and creating legal rules for its population within a de ned territory. In its origins, the state was characterized by an absolute legal system, where power was centralized in the hands of a monarch. However, over the centuries, the absolute power of the king became progressively limited through: Internal Constraints: Power became fragmented among regional and provincial authorities, leading to the theory of the separation of powers. External Constraints: International and supranational organizations gradually assumed more authority, limiting the state's absolute control. Post-Absolute State Developments After the era of absolute states, two key developments emerged: 1. Theory of the Separation of Powers: This concept frames modern sovereignty, dividing the functions of governance (legislative, executive, and judicial) to prevent the concentration of power. 1 fi fi fi  2. The Birth of Constitutionalism: This emphasizes the importance of a constitution as a set of rules superior to ordinary laws. Constitutionalism ensures the separation of powers and the protection of individual rights and freedoms. Key Milestones in Constitutionalism: UK: Bill of Rights (1689) USA: Constitution (1787) France: Declaration of the Rights of Man and of the Citizen (1789) Constitutional justice: states within the international order are regarded as equals and are the primary subjects of the international legal system. State Legal Systems: Internal Legal System – Governs the legal framework within a state’s territory. European Context: In Europe, two signi cant legal experiences have shaped the legal framework: 1. The European Union (EU) Integration Process: The EU is a supranational legal system, meaning it goes beyond the international legal system. It has the power to limit state sovereignty. One principle of EU law is direct effect—EU laws are directly applicable in member states without requiring national legislation. 2. The Council of Europe: Founded on May 5, 1949, by the Treaty of London, the Council of Europe is a key institution. In 2007, the Italian Constitutional Court (Sent. No. 348-349) clari ed that the European Convention on Human Rights (ECHR)does not create a supranational legal system and does not produce directly applicable rules within member states. How does the ECHR operate then? Article 117, paragraph 1 of the Italian Constitution states: Legislative powers shall be vested in the State and the Regions in compliance with the Constitution and with the constraints deriving from EU EU legislation and international obligations. ECHR Interposed Rules: These are rules positioned between Italian and EU legislation, with the ECHR acting as an interposed rule Italian legislation between the two legal systems. The State The State is composed by 3 constitutive elements: Territory → The territory represents the spatial projection of the state's sovereignty. It defines the geographical boundaries within which the state exercises its authority. Population → The population includes all individuals residing within the state, encompassing both citizens and non-citizens. Among them, the electoral body refers specifically to those who possess political rights, such as the right to vote. Sovereignty → Sovereignty can be understood in two dimensions: Internal Sovereignty: The state's supremacy over its internal legal system, meaning all laws and regulations within the state derive their legitimacy from the state itself. External Sovereignty: The state's originality and independence in relation to other legal systems, af rming that the state does not derive its authority from any external power. 2 fi fi fi  Forms of State and forms of government Forms of state Forms of state: → Relationship that exist in the three constitutive elements of state. → Aims and goals that the state want to achieve Patrimonial state The first form of state, established in 1648 with the Treaty of Westphalia, is the patrimonial state. In this form, the state is identified with the sovereign, who holds absolute power. There are no guarantees or protections for individuals. This form evolved into the police state during the 18th century. Pólice state A police state is characterized by extreme governmental control over civil society and individual liberties. However, there is growing respect for public officials who implement actions directed at citizens. The police state, which some call enlightened absolutism, has different elements of difference from the absolute one: it is no longer based on a self-sufficient reason of state but on the purposes of collective well-being that are the duties of the sovereign to pursue; the sovereign is not the holder of an absolute rule over goods and people but he himself is an official of the State, subject before the order of this. Rule of law (stato di diritto) This form introduces legal guarantees for citizens and the affirmation of the principle of legality, also known as the rule of law. According to this principle, administrative acts must conform to the law, and citizens can appeal to a judge in case of law violations by the executive (administrative) power. During this period, administrative justice was established. Liberal State → Social State The transition from the 19th to the 20th century in Europe marks a shift from a liberal state to a social state: The liberal state limits state power through constitutional commitments to equality and individual rights. It promotes a free market based on the competition between supply and demand.The forms of government of the liberal state tend to be all parliamentary, but with largely different balances in the relations between the parliament and the executive branch. From a rst phase of limited control of the parliament over the powers of the crown (phase of the constitutional monarchy) we move on to a phase of more accomplished supremacy of the same parliament (phase of the parliamentary government). The social state (or welfare state) emerged with the expansion of the social base and the rise of the middle class. It aims to protect and promote the economic and social well-being of citizens, grounded in principles of equal opportunity, equitable wealth distribution, and public responsibility for those unable to secure a minimum standard of living. Economic freedom, the principle of legality, and formal equality before the law (Art. 3, par. 1) are fundamental to this state. As society diversi ed, the social state aimed to address the different needs of its various classes. Constitutional Rule of law In this phase, not only must administrative bodies act according to the law, but the law itself must also conform to the Constitution. This period saw the establishment of constitutional justice and a strong limitation on governmental power. 3 fi fi  Authoritarian form of state An authoritarian state is defined by the absence of fundamental human rights, such as freedom of religion, or a lack of political competition where the government and opposition do not alternate power through free elections. Democratic form of state In a democratic state, some positions are directly elected, while others are elected through a second-level electoral process. Unitary state A unitary state is governed as a single entity, with the central government holding supreme authority. Power may be delegated to local bodies, but these bodies do not possess true autonomy. Composite state A composite state consists of one or more substates. Power is distributed between the central government and regional or territorial autonomies. Federal state A federal state is a territorial and constitutional community that forms part of a federation. It lacks international sovereignty, as powers are divided between the central (federal) government and the individual federated states. The powers of the regions are enshrined in constitutional law. Regional state A regional state (or regionalized unitary state) formally operates as a unitary state, but significant political power is decentralized to regional governments. While the central government retains ultimate jurisdiction, regions exercise a high degree of political autonomy. Forms of government Forms of government: → Relationship between the main bodies of the state legal system → The way in which the power is organised to achieve aimes and goals 1. Absolute State The very rst form of government is the absolute state, often referred to as absolute monarchy. In this system, a single ruler —typically a king or queen—holds unrestricted power over the state and its people. As for the form of government, we are in the presence, in all cases, of (more or less) limited monarchies, with the clari cation that in absolute states there are no supreme organs of the State other than the Crown, which formally sums in itself all the attributions. Key characteristics include: Concentration of power: All powers (executive, legislative, and judicial) are centralized in the hands of the monarch. No legal limitations: There are no constitutional or legal constraints on the monarch’s authority. Divine right: The monarch's rule is often justi ed by the belief that they were chosen by God to govern. Historical examples include France under King Louis XIV and Tsarist Russia before the 1917 revolution. Today, absolute monarchies are rare, with most modern monarchies being constitutional monarchies, like those in the UK and Spain, where the monarch’s powers are limited by a constitution or law. 4 fi fi fi  2. Constitutional Monarchy As the absolute state evolved, it led to the establishment of the constitutional monarchy, where a monarch shares power with a constitutionally organized government. The monarch may serve as the head of state or hold a ceremonial role. Power is divided between the monarch, parliament, and judiciary. This form of government marks the beginning of the separation of powers, a theory rst theorized by John Locke in England. Later, in France, Montesquieu and Rousseau further developed this theory, distributing power among parliament, government, and the judiciary. The balance of power gradually shifted in favor of parliament by the late 19th century, with the government starting to establish an autonomous relationship with parliament based on con dence. The government once formed must present itself before the parliament to obtain the con dence of parliament (article 94 of the Constitution), which grants or denies it by voting on a motion of con dence that is based on the programme communicated to the Houses of Parliament by the incoming Government. Parliament exercises a policy-setting function in respect of the Government, primarily by means of the vote of con dence. Pursuant to Article 88 of the Constitution, the President of the Republic, having consulted with the Presidents of the two Houses of Parliament, may dissolve Parliament before term and call new elections. In practice, this occurs when the Houses of Parliament are unable to nd a majority to sustain a Government. Deputies and Senators may move a motion of no con dence in the government at any time. The motion of no con dence must be countersigned by at least one tenth of the members of one of the two Houses of Parliament. Further, the Government may call a vote of con dence in order to compel the House to recon rm its support in relation to a speci c text being considered by the House (with certain limitations, in the case of the Chamber of Deputies, as indicated in Rule 116). Votes of con dence are also by roll-call. An interval of at least 24 hours must pass between the proposal of a vote of con dence in the Chamber of Deputies and the holding of the vote itself. This new organization represent the transition to constitutional to parliamentary monarchy. In a constitutional monarchy, the monarch's powers are limited by a constitution. A parliamentary monarchy is a form of constitutional monarchy where the monarch's in uence is largely ceremonial. Changes the role of the head of state, it becomes the expression of a neutral power far from te political parties and it guarantees the constitutional legalities. 3. Parliamentary System In a parliamentary system, the head of government (typically a prime minister) is distinct from the head of state. The prime minister and cabinet are politically responsible to parliament, and their authority depends on maintaining parliamentary con dence. Variations include: 1. Cabinet government (e.g., Switzerland): A collective and collegial decision-making process, where the prime minister acts as primus inter pares ( rst among equals). 2. Prime ministerial government (e.g., Israel): The prime minister has signi cant authority and can set the government’s agenda. 3. Ministerial government: Decision-making power is dispersed among individual cabinet members. 5 fi fi fi fi fi fi fi fi fi fi fi fi fi fi fi fl fi  4. Presidential System A presidential system is a form of government where a president serves as both head of state and head of government. Key characteristics include: Separation of powers between the executive and legislative branches. The president is directly elected and has signi cant authority but cannot dissolve parliament. There is no con dence relationship between the president and parliament. The United States (1787) is the rst example of a presidential system. 6. Semi-Presidential System A semi-presidential system combines elements of both presidential and parliamentary systems. Characteristics include: Direct election of the president, who shares executive authority with a prime minister and cabinet. Dual con dence: The government is responsible to both the president and parliament. The president can dissolve parliament and appoint the government, but the government remains accountable to the legislature. Examples of semi-presidential systems include France (1958) and Germany (1919). 7. Directorial System A directorial republic is a system where executive power is held by a group of individuals (a directory) rather than a single leader. This system aims to prevent the concentration of power by distributing executive authority among several members. The most notable example is Switzerland. This system is characterized by: Shared executive responsibility, where the directory functions as a collective executive rather than having a single head of state. Checks on individual power, reducing the risk of authoritarianism. Often, a rotating chairperson is used to lead the directory for a set period, but this person usually holds no extra powers beyond the other members of the directory. Comparison to Other Systems: Unlike a presidential or parliamentary system, where a single individual leads the executive branch (president or prime minister), a directorial system prevents centralization of executive power. The directorial system is a variation of democratic governance, typically seen in countries that value consensus and balance among various political factions or regions. 8. Forms of Government in Socialist States In socialist states, the means of production (factories, land, resources) are owned or controlled by the state, and economic planning is central to reducing inequality. The single party plays a dominant role, both as an organizer of social interests and as a substantial holder of the powers to determine the directions at which the constitutional organs of government are obtained. Key forms of government include: 6 fi fi fi fi  Authoritarian socialism: Power is concentrated in the hands of a single party or leader (e.g., the former Soviet Union, Cuba). Democratic socialism: Socialism implemented through democratic processes (e.g., Scandinavian welfare states). The Soviet Union under the 1936 constitution is an example of an authoritarian socialist state, where a hierarchy existed between the Supreme Soviet (legislative body) and the Presidium (executive body). The Communist Party held centralized control, and decisions made by the party leadership were rubber-stamped by the Supreme Soviet. The Presidium acted as the executive body of the Supreme Soviet. It was responsible for the day-to-day running of the state and had the authority to issue decrees when the Supreme Soviet was not in session. These decrees had the same legal force as laws passed by the Supreme Soviet itself. The Presidium was led by the Chairman, who was the de facto head of state of the Soviet Union. The means of production, such as factories, land, and resources, are owned or controlled by the state or the public rather than private individuals or corporations. The government typically plays a central role in economic planning and distribution, aiming to reduce economic inequalities and provide essential services (like healthcare, education, and housing) to all citizens. Socialism emphasizes collective ownership and strives for a more equitable distribution of wealth and resources. Transformations in the Italian constitutional experience during 1848-1949 The Albertine Statute (Statuto Albertino) was the constitution granted by King Charles Albert of the Kingdom of Sardinia on March 4, 1848. It is significant because it later became the foundational legal framework for the unified Kingdom of Italy. The Statuto Albertino remained in force after the unification of Italy in 1861, becoming the constitution of the Kingdom of Italy with many substantial transformation even if formally remained the same text. It remained in place until the end of World War II and the birth of the Italian Republic in 1946. Key Features: Constitutional Monarchy: It established a pure constitutional monarchy, meaning the king retained signi cant powers but had to govern in cooperation with a parliament. There are two centres of power: parliament and sovereign, balanced in favour of the sovereign. Bicameral Legislature: The statute created a bicameral parliament: ◦ Senate: Appointed by the king and made up of nobility and clergy. Is royally appointed. ◦ Chamber of Deputies: Elected by a limited franchise (based on property and wealth). Royal Powers: The king held substantial authority, including: ◦ The ability to appoint and dismiss ministers. ◦ Command over the military. ◦ Power to veto laws and issue decrees. Civil Liberties: It recognized certain civil liberties like freedom of the press, freedom of assembly, and some degree of legal equality, though these rights were limited. There are only 9 articles dedicated to civil rights. Liberal form of state Formal equality of the citizens before the law 7 fi Similar to other 19th-century constitutions, the Albertine Statute has three fundamental characteristics: 1. Granted from Above: It was a constitution given by the monarch, re ecting a fragmentation of power but maintaining the central role of the sovereign within the institutional system. 2. Short Constitution: Composed of only 84 articles, it was concise compared to modern constitutions. 3. Flexible Constitution: It could be amended through ordinary laws, making it adaptable without requiring a special constitutional amendment process. Between 1848 and 1949, Italy experienced signi cant changes in both its form of state and its form of government: 1. Reduction of Royal Powers: There was a progressive decline in the powers of the monarchy. Power shifted towards the parliament-government axis, meaning the government now had to gain the con dence of parliament in order to govern. 2. Growth of the Executive: The executive branch (the government) saw a progressive expansion of its powers, particularly in the normative realm (law-making powers). This was evident in the: ◦ Law Decree (Decreto-Legge): The government could adopt laws that required parliamentary rati cationat a later time. ◦ Legislative Decree (Decreto Legislativo): These were government acts adopted following a delegation law, where parliament would delegate legislative authority to the government under speci c conditions. 1848-1861 (Kingdom of Sardinia): A constitutional monarchy under the Albertine Statute, with strong royal powers and a limited parliamentary system. ↓ 1861-1922 (Kingdom of Italy): Italy became a uni ed state with a constitutional monarchy. Over time, the government liberalized, expanding suffrage, but the king retained signi cant power. ↓ 1922-1943 (Fascist Regime): Under Mussolini, Italy became a totalitarian state and an authoritarian government. Mussolini held dictatorial power, and the monarchy was largely symbolic. ↓ 1946-1949 (Italian Republic): After World War II and a 1946 referendum, Italy abolished the monarchy and became a republic with a democratic government, marking the end of the monarchy and the birth of the Italian Constitution in 1948. 8 fi fi fi fi fi fl fi  Electoral Legislation Changes (1848-1948): The modi cations in electoral legislation of 1848 led to a more representative parliament by recognizing electoral rights. However, only 2% of the population had the right to vote. In 1877, suffrage was extended to adults who had completed their education, increasing voter representation to 7% of the population. In 1912, voting rights were further expanded to adults who could read or write, had served in the military, or were males over 30, extending suffrage to 23% of the population. Universal male suffrage was granted in 1919. However, it took another 30 years before Italy achieved full suffrage for both men and women. In 1945, both men and women were granted active electoral rights, and by 1946, women gained passive electoral rights (the right to stand for of ce). The Fascist Regime and Institutional Changes: After World War I, the institutional system struggled to manage the post-war situation. The Fascist Party, founded in 1919, began its rise to power, with the March on Rome in 1922 marking the formal start of the fascist regime. Under fascism, the form of state and form of government changed signi cantly. The Albertine Statute had established a constitutional monarchy, which evolved into a dualist form of government, where the king shared power with other state institutions. The state's role in the economy grew, transforming from a liberal state into a welfare state. In 1938, the fascist regime introduced racial laws, resulting in a severe restriction of rights and freedoms. Post-Fascism and the Birth of the Republic: After the fall of the fascist regime and the end of World War II, Italy held a crucial referendum on June 2, 1946. For the rst time, women were included in the electoral body. The referendum posed two key decisions: 1. Whether to maintain the monarchy or establish a republic. 2. Electing members of the Constituent Assembly, responsible for drafting a new constitution. On December 22, 1947, the new Italian Constitution was approved, and it came into effect on January 1, 1948. 9 fi fi fi fi