Public Law PDF (BAE 2024/2025)

First year BAE 2024/2025 PUBLIC LAW 18/09/2024 Legal systems around the world change, we have countries that belong to civil law, common law, muslim law, customary law, mixed law. Law changes depending on the country. It di...

First year BAE 2024/2025 PUBLIC LAW 18/09/2024 Legal systems around the world change, we have countries that belong to civil law, common law, muslim law, customary law, mixed law. Law changes depending on the country. It differs basing on the countries that adopt a Civil law system or a Common one. A LEGAL SYSTEM is a set of rules that share the same purpose of regulating and harmonizing human activity in the society. Civil law and Common law: We talk about this because we want to understand how the world is structured, and it is a topic : Where does the legal phenomenon come from? Where does law come from? Where do we find the origins of a legal system? Civil law refers to a family which must be considered in contrast with the common law (we do not talk about types of civil laws). The Civil law tradition comes from the roman empire, while the Common law tradition is younger, it comes from the feudal system and the origins have to be found in England. There are many differences between these two systems, which are also converging. Public Law lesson - (teacher: Martina Conticelli) 1  First year BAE 2024/2025 THE CIVIL LAW SYSTEM. Civil law → “jus civile” - civil comes from the idea of existing (it refers to “cives”, citizens). Apart from the origin, the codification was quite a political action in order to govern and it gave a political message. Before the codification there was a period where locally there were “praetors” who could decide on the basis of the knowledge → how to solve problems with procedures developed with justice and equality. There was also a group of jurists: they studied what praetors said and the legal phenomenon itself. In the course of time these jurists came to enjoy the very highest prestige in the law; emperors and magistrates not only sought their consultation and advice but in general followed and adopted their opinions. They started to elaborate rules and people asked them for consultation and advice. This movement led to a system. The emperor Justinian thought there must be a codification that made his name immortal, it had to be a comprehensive set of rules ruling and disciplining the whole system. This codification was of fundamental importance. → Some of the main rules that we apply today are still the same that were created at that time. Many emperors in the time thought that the codification was a good idea as a political action and a political message, to gain consents (like Napoleon; we also remember the Statuto Albertino). The essential characteristics of the legislative codifications fixed the basis and determined the nature of the legal systems of which they were the expression. People wanted peace (which was sometimes avoiding conflicts, disputes) → you can reach it by law. THE COMMON LAW SYSTEM. In England – origins of the Common Law system It takes its origins first in the feudal period where disputes were solved in a local level (local law); the king could not accept there were local laws (centralisation of power) – the king court would have interpret all cases by ensuring uniformity (interpretazione uniforme), COMMON LAW OF THE LAND, local courts can be kept but they obey to the king court (hierarchical system), the king's court is the one that spread the common law in the land (uniformity). The king, in his quality of sovereign judge and source of justice, and to discharge his responsibility for the preservation of peace, established his own courts with judges who went on circuit throughout the entire country. Even though these were not courts of general jurisdiction, but only competent in certain kinds of cases, they were not well received at first. Suffice it for present purposes to say that the king's courts were the victors in the ensuing struggle for authority. By means of their decisions they created the first uniform rules and the first basis of uniformity in the legal order, by establishing general norms which were common throughout the whole country. It was a form of general law or common law for all parts of the realm; hence the name, common law. In both the "law" and "equity" branches of the common law, the established body of legal rules came essentially from judicial decisions. Public Law lesson - (teacher: Martina Conticelli) 2  First year BAE 2024/2025 code: comprehensive set of rules Legislation → base of Civil Law Case law, judicial decisions → basis of Common Law The code is comprehensive set of rules which governs a whole system ​ A civil code is a book which contains the laws that regulate the relationships between individuals. Generally it contains the following topics: persons and the family, things and ownership, successions and donations, matrimonial property regimes, obligations and contracts, civil responsibility, sale, lease… The nature of such a code naturally calls for a liberal interpretation in order that it may serve as the basis of decision for new situations. ​ Case law is that kind of law which comes from the decision of courts. The common law was conceived as being all-inclusive and complete; if a rule had not already been formulated, it was the judge's responsibility to declare it. Thus, judicial decisions were both the source and the proof of the law, pronounced in connection with actual cases. What gave stability and continuity to the Common Law system was the ”rule of the precedent” → the decision adopted by a superior court is binding in subsequent decisions taken by lower courts. Once a point had been decided, the same result had to be reached for the same problem. This rule was applied only to the “ratio decidendi” (essential point considered in the rule of the precedent). Non essential points were classified as “obiter dicta”. The court has to apply the rule of the precedent to the ratio decidendi. Court can decide to change jurisprudence. Overrule If a new situation resembled a prior case but was not exactly the same, the judge could "distinguish" the previous decision and leave its application limited to the specific fact situation which it controlled. In extreme situations, a court could brand an earlier case as erroneous and "overrule" it, thereby providing a new precedent for the point involved. Overruling gives the system the possibility to evolve, change with the changing of times. ➔​ Apply, distinguish, overrule. CONSIDERATIONS Even though it can be admitted that the civil law and the common law started from opposite extremes, it is sometimes said that as a result of the movements each has made in the direction of the other, there is no longer much difference between them. The same social needs, and similar economic and technical conditions, have led to the adoption of similar solutions for their legal problems. If it is true that the results are so close to each other, the methods used to reach them are nevertheless extremely divergent, and the matter is not that simple. While the common law starts with a case-law basis it also includes legislative encroachments, and while the civil law starts with a legislative basis, it incorporates developments of case-law. The fundamental difference in the nature of the two systems continues to express itself in many other ways. Public Law lesson - (teacher: Martina Conticelli) 3  First year BAE 2024/2025 PUBLIC LAW 23/09/2024 The way law is taught differs from experience to experience. Law (in general) is a phenomenon not easy to define. Law stands for many objectives, mainly law ensures the peaceful living of people and individuals. The legal system is a comprehensive set of rules, organization and procedures. (sport for example is a legal system, since it is based on rules, organization, institutions, procedures) STATE is not at all a synonym of Legal system. (there are legal systems inside or outside the State for instance). You need to extract from the legal system the law you need to solve a case. Each law is divided in Substantial and Procedural sides. Substantive law defines what rights and duties exist, while procedural law outlines how those rights and duties are enforced in the legal process. -​ Civil law (as a synonym of private law): Civil law is a branch of law that deals with disputes between individuals or organizations, typically involving issues like contracts, property, family matters, private disputes…(personal injuries). It encompasses various legal codes and principles that guide the resolution of these issues through litigation or alternative dispute resolution methods. -​ Criminal law: part of public law (offense in the general public) Criminal law is a branch of law that defines crimes, regulates the prosecution of offenders, and establishes penalties for criminal behavior. The primary aim of criminal law is to maintain public order, protect individuals and property, and deter criminal behavior. -​ Public law or constitutional law: includes all the institutions of State. A constitution (institutional basis of a State) is a basic set of rules. Public law is a branch of law that governs the relationship between individuals and the government, as well as the structures and operations of government itself. It encompasses areas such as constitutional law, administrative law, and criminal law. Public law addresses issues such as the rights of citizens, the powers and responsibilities of government entities, and the enforcement of laws that protect the public interest. Its primary focus is on the regulation of government actions and ensuring accountability to the public. -​ Business law: (business for business) Business law is a body of law that governs commercial transactions and the conduct of businesses. Business law provides the legal framework for business operations, covering issues such as formation of companies, mergers and acquisitions, partnerships, consumer protection, and compliance with regulatory requirements. Its main purpose is to ensure fair practices in the marketplace and to protect the rights and interests of businesses and their stakeholders. -​ Labour law: Labour law is a branch of law that regulates the relationship between employers, employees, and labor unions. It encompasses various aspects, including employment contracts, wages, working conditions, employee rights, and collective bargaining. Labour law aims to protect workers' rights, ensure fair treatment in the workplace, and promote safe and equitable working conditions. -​ Administrative law: It is a branch of law that governs the activities of governmental agencies. It involves the rules, regulations, and procedures established by administrative bodies, which are responsible for enforcing specific statutes and regulations. Its primary purpose is to ensure that government actions are lawful, fair, and reasonable, while also providing mechanisms for individuals to challenge or appeal those actions. -​ Public Law lesson - (teacher: Martina Conticelli) 4  First year BAE 2024/2025 PUBLIC LAW 24/09/2024 -​ The foundation of the Nation State The foundation of the Nation State raises back to an era (feudalism) where the world was fragmented: feudalism was the outcome of the collapse of the Roman Empire (which brought fragmented powers). The Nation state was a way to get rid of this fragmentation. The modern concept of Nation state refers to realities different from each other (Canada, Usa, Vatican city…). There are different forms of government, there is a huge variety, it's not easy to distinguish features. Political fragmentation brings conflicts → political order (political/ central authority) appeared around the 15th century: it is a phenomenon which corresponds to the spread of monarchies in Europe. (the experience of the USA is completely different). The process of State building followed common routes in Europe. Affirmation of political order and centralized authority (we go from fragmentation to the gathering of power in the hands of a monarch). The process was driven by the need to centralize power and leave back fragmentation. The power was in the monarch's hands and the monarchs were able to impose rules, a big change in the modern contemporary world was that the king/queen was submitted to law. ​ There is a date considered conventionally an important passage for the recognition of States → 1648 (peace of Westphalia) only the State could now govern. (it was recognized now the State (by recognizing each other)). The peace recognized the exclusive sovereignty of the State over its population. Together with the Nation State there was the birth of National law. The concept of national law refers to the body of legal norms and regulations that are created and enforced by a sovereign state. It encompasses the laws that govern a nation’s internal affairs, including civil, criminal, administrative, and constitutional law. “In our boundaries we find the limits of our power” The Modern State is made of 3 elements that distinguish it from the previous forms of political obligations: 1.​ Territory – Which identifies the boundaries in which a legal system is enforced. Where the power can be exercised. It expands not only in lands but also in water and air. 2.​ People – All the people living within the boundaries of the state are subject to State legal order; territory and boundaries of the State identify the community of people. 3.​ Sovregnity – (superiorem non recognosens - non recognised anything superior) Recognition that other authorities cannot be considered within the State; Modern State does not allow other authorities within its boundaries and over its people. States are being overcomed by other entities which close the State (today there is a different vision than the traditional one). Public Law lesson - (teacher: Martina Conticelli) 5  First year BAE 2024/2025 PUBLIC LAW 25/09/2024 ​ FEDERALISM Federal state: describe the division of power between the state and substate entities, an internal division of the power. A federal state (or federation) is a form of government where power is divided between a central (national) authority and smaller political units, such as states, provinces, or regions. In this system, the central government and the regional governments both have certain areas of authority that are constitutionally guaranteed. 4 models of state: 1.​ Unitary state (France for ex.) → It is a form of government where a single central authority holds the majority of the power, with little or no power constitutionally reserved for regional or local governments. 2.​ Regional state (Spain, Italy) → It is a type of government system that combines elements of both federal and unitary systems. In a regional state, power is concentrated at the central level, but significant authority is devolved to regional governments. 3.​ Federal state (US, Germany, Switzerland) 4.​ Confederations → A confederation is a union of sovereign states, where the member states retain the majority of their independence and powers, while agreeing to cooperate on certain matters of common interest. The central authority in a confederation is usually weak and operates based on the powers delegated to it by the member states. DIFFERENCES (Read differences in the paper). 1.​ Allocation of legislative power: problem that we face in the Obama case. The allocation of legislative power refers to the division of law-making authority between different levels or branches of government, usually within a federal or decentralized political system. It determines which government entity - whether national, regional, or local - has the power to make and enforce laws on specific issues. In a federal state, the constitution typically divides legislative powers between the central (federal) government and regional governments (such as states, provinces, or territories). This allocation ensures that certain powers are exercised at the national level, while others are reserved for regional authorities. In unitary states, legislative power is typically concentrated in the central government, which may delegate powers to regional or local authorities. However, the central government retains the right to revoke or change the delegated powers. 2.​ Allocation of judicial power: It refers to the division of authority and responsibility for interpreting and enforcing the law between different courts or judicial bodies within a legal system. This allocation determines which courts have the power to hear specific types of cases and make legal decisions on various matters. In a federal state, judicial power is typically allocated between federal and regional (state or provincial) court systems. Public Law lesson - (teacher: Martina Conticelli) 6  First year BAE 2024/2025 In a unitary system, judicial power is usually centralized in a national court system. Regional or local courts may exist, but they are subordinate to the central judiciary and often implement national laws. 3.​ Representation in the upper house: structure of the parliaments - parliaments can be unicameral or bicameral It refers to the way members are chosen or appointed to serve in the upper chamber of a bicameral (two-house) legislature. In bicameral systems, the legislature is divided into two parts: a lower house (often representing the population based on proportional representation) and an upper house, which may represent regions, states, or other interests. The upper house often has distinct responsibilities from the lower house, such as reviewing and revising legislation, representing regional interests, or providing checks and balances on the government. The method of representation in the upper house varies depending on the political structure of the country. 4.​ Constitutional amendments: It refers to changes, additions, or deletions made to a country's constitution. A constitution is the supreme legal framework that defines the structure of government, the distribution of powers, and the rights of citizens. Since constitutions are fundamental to a nation's legal and political system, amending them is often a complex and carefully regulated process. We define a State like federal if the constitution lists the subject matters on which the central government can legislate. What remains residual unsaid. (those topics which are not listed are not up to the central government but to the substates) (divide the power between the central entity (the state) and the substates) Italy is confusing because it's considered a regional state but considered also as a federal one. -​ Article 117 of the Italian Constitution regulates the distribution of legislative powers between the State and the Regions. It establishes that both entities exercise legislative power, but the State has exclusive competence in certain matters, such as foreign policy, defense, security, currency, and fundamental rules on rights and duties. The Regions have exclusive or shared competences in other matters. Laws must respect the constraints deriving from European regulations and international obligations. citizenship al livello of state not regions -​ Article 148 of the Spanish Constitution lists the areas in which Autonomous Communities can assume legislative powers. A confederation offers its member entities a stronger position than a federation by allowing them to maintain their status as independent sovereign states. In a confederation, states can unilaterally exit or secede without needing approval from others. The central authority does not act directly on individuals but requires the consent of the member states’ political institutions before making decisions. Additionally, any central actions must receive unanimous consent from all member states, emphasizing their autonomy and collaborative relationship. Regional devolution arises from regionalism, a process that allows territorial subunits within sovereign states to gain influence through socioeconomic, political, or cultural factors. While largely a bottom-up movement, it requires the central government's approval to increase regional autonomy. Strong regionalism can create a regionalized state with developed local governments, but these regions remain subordinate to the central authority, which can adjust or withdraw their autonomy without consent. Public Law lesson - (teacher: Martina Conticelli) 7  First year BAE 2024/2025 OBAMACARE CASE -​ Case: Obama reform (about introducing a system of healthcare affordable for everyone). In the USA patients have to pay for their treatments. -​ 2 big systems in the world: NHS (National Health System – the State/ public powers provide treatments for patients, supposing that patients are paying taxes and sometimes by a copayment for the treatment itself) Another system is based on insurers (public entities). Independently from the fact of being public or private, the citizens have access to the system by showing that they have a contract with insurers which cover the payment. The ObamaCare case pertains to legal challenges surrounding the Affordable Care Act (ACA), enacted in 2010 to expand access to health insurance and reduce costs. A key feature was the individual mandate, requiring most Americans to have health insurance or pay a penalty, aimed at ensuring a broad risk pool. The ACA also expanded Medicaid eligibility. Significant legal challenges included NFIB v. Sebelius (2012), where the Supreme Court upheld the individual mandate as a tax but allowed states to opt out of Medicaid expansion. In King v. Burwell (2015), the Court ruled that federal subsidies were permissible for individuals using federal exchanges. In Texas v. United States (2018), a challenge claimed the ACA was unconstitutional after the individual mandate penalty was removed, but the Supreme Court ultimately ruled in California v. Texas* (2020) that the challengers lacked standing, preserving the ACA. These cases have significantly influenced U.S. healthcare policy, maintaining coverage for millions despite ongoing debates. The legal battles surrounding ObamaCare have significantly shaped U.S. healthcare policy and the national debate on healthcare access and affordability. Despite ongoing challenges and political opposition, the ACA has remained in effect, providing millions of Americans with health coverage and setting the stage for continued discussions on healthcare reform in the United States. The ACA's survival through these legal challenges has allowed for the continued implementation of key provisions designed to increase access to healthcare and protect individuals with pre-existing conditions. READ PAGE 187 OF THE BOOK TO CLARIFY THE OBAMACARE CASE. Public Law lesson - (teacher: Martina Conticelli) 8  First year BAE 2024/2025 PUBLIC LAW 30/09/2024 Sources of law. The system of sources of law may change depending on any legal system. To understand what a source of law is, it is better to start from the concept of conflict: Conflicts → give the idea on how a source of law is structured, there is an interpretation of the legal text. A rule of law in general contains abstract rules, the application of rules is given to the court or to the public administration. In any application of the rule it is assumed that there is an interpretation. The interpretation of the written text becomes relevant, any source of law needs interpretation. Interpretation is a resource to avoid an antinomy. When facing an antinomy, those who are entrusted with the power to interpret and apply norms, must first of all try to construct the norms in order to make them consistent one with the other. The effort of the judge or the administration to find an interpretative solution to the antinomy is obviously limited by the general principles that lead to the interpretation of law, that are mandatory for all of them. Let's imagine a conflict in law: 1- Lex posterior derogat priori (a newer law amends the previous one) P t1 (time1) – law A P t2 – law A revisited – this law is valid as EX NUNC from now onwards The newer law replaces the previous one → It responds to the need to have a dynamic legal system Law usually has validity also for the future, so this operation is called the REPEAL. Law cannot have a retroactive effect, → Chronological criterion CHRONOLOGY : a subsequent law at the same level can amend the previous one. This criteria implies an understanding of the dynamic of the legal system and the need to change 2- Lex superior derogat inferiori – a higher law prevails over a lower one. in curbeau case : belgian law in conflict with the tretates : the treats prevale. Sources of law arranged in a pyramid. → Hierarchical criterion HIERARCHY is the opposite of chronology When the conflict between a superior law and an inferior law is a constitutional conflict, not only the superior law prevails, but the inferior law is annulled. Annulment is valid EX TUNC: has a retroactive effect, it cancels all the effects produced by the invalid norm. Any constitution describes the order of the sources - hierarchy. Public Law lesson - (teacher: Martina Conticelli) 9  First year BAE 2024/2025 3- Criterion of competence Assumes that laws are at the same level. According to this there are fundamental pieces of legislation that regulates the competences. Some legislators are given some areas of competences. (ex: in Italy both the state and the regions have legislative power, but the regions can legislate in some areas while the State in some other areas). In between two norms, when you need to choose which to apply, you have to look at the specific competence. → The criterion comes from a source of legislation which states who is competent in what. 4- Lex specialis deregat legi generalis → Criterion of specialisation/ interpretation. There are pieces of legislation that have a more general nature. For specific cases you need specific rules which prevail over a general rule. There’s always room for interpretation, in order to understand whether a rule is in contrast with another one or not. -​ Secondary sources of law (common regulations) -​ Primary sources of law (ordinary law, referendum) referendum: action taken by citizens to abrogate a law A constitutional amendment is a posterior constitutional law which repeals a previous setting of the constitution, following a specific procedure. Public Law lesson - (teacher: Martina Conticelli) 10  First year BAE 2024/2025 PUBLIC LAW 01/10/2024 MARBURY VS MADISON CASE. It established judicial review and decided that courts had the power to strike down laws. American courts have the power to strike down laws that are in contrast with the constitution. The court manages to remain a bit outside the true political problem that is behind this case and at the same time define the boundaries between the executive and judicial branches of the federal government. What's the problem behind, from which the case originates? Marbury is appointed as a justice of peace in the District of columbia. This is a problem because he is nominated Justice of peace by president Addams, before the end of the Mandate of president Addams (so when Addams still is a president). The next president is Jefferson. The appointment is followed by a formal act which makes the appointment concrete (called commission) Marbury never received this commission, in the meanwhile, Jefferson became president (Jefferson didn't like this appointment, so he didn't send any insurance for the appointment). From the political side, the case shows the rivalry between Addams and Jefferson and it expresses itself from a series of assessments and remarks. At a certain point Jefferson orders Madison (his secretary of State) to not deliver (to withhold) the commission anymore (to not complete the procedure). Marbury and his lawyer pointed out that the commission indeed was a pure formality, without any political meaning: the pure political part of this procedure was already played. The supreme court decided to hear the case, despite Jefferson's hostility. So Marbury and Madison went before the court. Justice Marshall contributed to make relevant this decision, the Supreme court managed to give the problem a solution and to remain neutral with the political problem behind (which was not easy because it was like saying “this president is right and this is wrong”). Marbury asked the court to issue a writ of mandamus to deliver the commission (this would meant the Jefferson's failure) Marshall divided the decision in 3 main steps: 1.​ First question - Did Marbury have the right to commission? 2.​ Second question - If he had a right, and this right had been violated, did Marbury have a remedy, a solution to this violation? 3.​ Third question (crucial one) - If Marbury had the right, and that right had been violated and he had had a remedy for that, was that remedy a writ of mandamus to be issued by the supreme court? (the answer to this was a textbook of the review of the constitutionality of the law) Solution based on the judiciary act (section 13), which gave the supreme court the permission to decide and issue the writ of mandamus. The supreme court found that the judiciary act was unconstitutional, it was inconsistent with article 3 section 2 of the US constitution (it grants federal courts authority over cases involving the Constitution, U.S. laws, and disputes between states or citizens. The Supreme Court has original jurisdiction in cases involving ambassadors and states, and appellate jurisdiction in others. Criminal trials must be by jury and held in the state where the crime occurred.). (US constitution non riprendeva quanto detto nel judiciary act) Public Law lesson - (teacher: Martina Conticelli) 11  First year BAE 2024/2025 The constitution must prevail. The supreme court said that marbury was right but they didn't have jurisdiction, because it is given to them by constitution. PUBLIC LAW 02/10/2024 This case was important because the supreme court somehow managed to affirm the relevance of the constitution and at the same time they set the boundaries of legislative executive and judiciary power. The constitution is a guarantee which represents the rights of citizens. There are some legal systems where the constitutions are not rigid (ex: statuto albertino in the past). The constitution is binding on the president, parliaments… In general Constitutional courts or Constitutional tribunals are the guardians of the constitution, they are bodies whose composition, membership, duration and mandate are essentially, of extreme relevance. The constitution is paramount law. It is not unchangeable, but there are parts of it that cannot be changed (for ex: the fact that Italy is a republic cannot be changed). The guardians of the constitution are an essential component of democracy (constitutional courts): they review the constitutionality of the laws, they protect individual rights. The constitutional control in countries could be exercised in 2 forms: 1.​ Constitutional power which is centralized 2.​ Constitutional power which is diffused composizione governo, quando e da chi vengono eletti quanto rimangono in carica. Guardians of the Constitution: The guardians of a constitution include courts, legislatures, executives, independent councils, and the people. Courts, particularly constitutional or supreme courts, play a central role in interpreting and protecting the constitution. Legislatures ensure laws comply with constitutional principles, and the executive branch may veto unconstitutional laws. Independent bodies and the public also play essential roles in safeguarding constitutional integrity and preventing abuses of power. Public Law lesson - (teacher: Martina Conticelli) 12  First year BAE 2024/2025 ​INTERNATIONAL LAW Birth: 1648 (peace of Westphalia) when states recognized each other. Law tries to prevent and solve conflicts peacefully. The International legal system,which is made mainly by States, NGOs (non-governmental organizations), organizations, regional organizations, general organizations…, can be made by other legal systems The UN (intergovernmental organization) is made by states and works with the presence of governmental representatives. IO (international organizations): agreement among states which takes the shape of a Treaty. Public International Law is composed of the laws, rules, and principles of general application that deal with the conduct of nation states and international organizations among themselves as well as the relationships between nation states and international organizations with persons, whether natural or juridical. The traditional reference for sources in law is the article 38 of the statute (international court of justice) (an organ created to solve disputes). -​ International conventions, mainly treaties (Final agreement among states in order to create an international organization (small legal system). Treaties are written agreements between States that are governed by international law. Treaties can be bilateral (very diffused when two states want to rule the commerce in between them; multilateral (huge number of States), regional (related to specific areas of the world - for ex: EU) and global. The 1969 Vienna Convention on the Law of Treaties contains the basic principles of treaty law, the procedures for how treaties become binding and enter into force, the consequences of a breach of treaty, and principles for interpreting treaties. The general rule is PACTA SUNT SERVANDA which means every treaty in force is binding upon the parties to it and must be performed by them in good faith. -​ International customs Rules of customary law bind all states. Custom: repeated practice over time with the belief that this corresponds to law – OPINIO JURIS AC NECESSITATIS. General principles recognized by civilized nations -​ Judicial decisions Ratio decidendi e obiter dicta Jus Cogens – "compelling law." In international law, it refers to fundamental principles or norms that are recognized as peremptory, meaning they are universally binding and cannot be violated by any state under any circumstances. These norms are considered so essential that no state can opt out of them through treaties or agreements. Public Law lesson - (teacher: Martina Conticelli) 13  First year BAE 2024/2025 PUBLIC LAW (recupero appunti) 07/10/2024 THE EUROPEAN UNION LEGAL SYSTEM The UE union is an international organization constituted by the Treaty of Rome – (which gave birth also to) → European Economic Community (1997) (EEC), an area of economic integration to achieve peace and prosperity. The previous big event was World war II, which had roots in economic problems (caresty ecc). The EEC with the European coal and steel community and the EUROTAM (European Atomic Energy Community) would have helped in reaching peace and prosperity. -​ This goal relled on a common market (internal market), it adopts one uniform custom duty. A market might adopt the same boundaries of a legal system ex: two states, completely separated, in order to have goods and services circulating between the two need an agreement between them. States can decide to leave the economic boundaries and let the goods circulate freely among them by an agreement. → Free-trade zone. Otherwise states need to pay custom duties. What is the aim of custom duties? To encourage national products. If you want to buy the same product in your country you pay a certain amount, while from another country you pay a price plus the custom duty. It responds to the exigency of protectionism, protecting your economy. What was the idea of EEC? Create States where each country had no problems in the internal circulation of products inside, opting a common custom duty and to let goods, services, capitals and workers circulate free among the territories. – The four freedoms, also called inputs of production. Market integration includes inputs and the final product. Step-father is the European Monetary Union, one monetary policy, one coin and one central bank. -​ After the Treaty of Maastricht -​ Needed to overcome disputes for economic reasons. What initially was only an economic project, started to be also a political project. At the end of the ‘70s the Parliament started to be elected directly leading it into becoming a political project. With the Treaty of Amsterdam and then of Nice we got EU citizenship and the adoption of a charter of rights. Citizens aro also allowed to travel freely around the EU territory. The possibility of opting out was given by the Treaty of Lisbon. Other institutions are: -​ European council -​ Commission -​ European Court Of Justice -​ European Central Bank Public Law lesson - (teacher: Martina Conticelli) 14  First year BAE 2024/2025 VAN GEND LOOS CASE (1963) It refers to custom duty. Is it possible for a state to apply an import duty of 8% in the Netherlands? Can states decide autonomously within the EU to apply a custom duty? Practically no. The prohibition of introducing custom duty was written in article 12 of the Treaty of Rome. That article said that member states shall refrain from introducing any new custom duties in their commercial relation with each other. The problem faced by the court is whether the treaty could be considered directly applicable on the member states’ territories. Was a National Administration obliged to follow a provision which was part of a treaty? – The National administration was accustomed just to add member states should transform into national norms the provision of the treaty. – Treaties enter into force through a ratification of national parliaments. Direct applicability of the treaty implies a citizen unsatisfied by something, claiming for one of his right to be protected before the national court but according to the Treaty of Rome, that provides many sources of law. Can the national court, on the basis of article 12, lay claim to individual rights that the court must protect? Are we bound to a treaty? Is the word of a treaty so clear that we do not have to interpret? In 1963 it was revolutionary that treaties were effective without the State having legislative upon it. The word of article 12 was clear and unconditional, it's a prohibition, but there is some resistance from countries, the Netherlands still wanted to interpret it – so the Netherlands cannot apply an import duty of 8%. A part of sovereignty is lost when there is a clear and unconditional provision. Article 12 does not require any implementation. The EEC creates direct rights for citizens. The EEC constitutes a new legal order of International law, for the benefit of it, states have to limit their sovereign rights, which are given to a set of institutions that work for the benefit of the EU. EU – supranational institution. Community law imposes obligations on individuals and confers them rights. The power goes to the parliament, commission, council. the council of Europe is not an institution of the EU and it gave birth to the ECHR (European Convention of Human Rights): Public Law lesson - (teacher: Martina Conticelli) 15  First year BAE 2024/2025 The Van Gend en Loos case, ruled by the European Court of Justice (ECJ) in 1963, is a landmark decision in the history of European Union law. It addressed fundamental issues about how EU law applies and is enforced within the legal systems of member states. This case is especially notable for establishing the principles of direct effect and the supremacy of EU law over national laws. The case arose in the context of the European Economic Community (EEC), which had been established by the Treaty of Rome in 1957. The Treaty aimed to create a common market and ensure the free movement of goods, services, people, and capital between the member states. In 1960, a Dutch company, Van Gend en Loos, imported material from Germany into the Netherlands. At the time of the importation, the Dutch customs authorities imposed a higher tariff on the goods than was permitted under the EEC rules. The company argued that this tariff violated Article 12 of the Treaty of Rome which prohibited member states from increasing tariffs or introducing new ones in their trade relations with each other. Van Gend en Loos filed a complaint in the Dutch courts, arguing that the tariff imposed by the Netherlands was illegal under EU law. The Dutch court, in turn, asked the European Court of Justice to clarify whether Article 12 of the Treaty could be directly invoked by individuals in national courts, and whether EU law would take precedence over national law in this context. In its ruling, the European Court of Justice made two landmark findings: 1. Direct Effect: The Court held that Article 12 of the Treaty of Rome has direct effect. This means that EU legal provisions can create rights for individuals that are enforceable in national courts. Specifically, the Court ruled that the provision in question was sufficiently clear, precise, and unconditional to confer rights directly on individuals, allowing them to invoke those rights before national courts without needing any additional national legislation. 2. Supremacy of EU Law: The Court also established the principle that EU law takes precedence over national law. In case of conflict between EU law and national law, EU law must prevail. Conclusion: The Van Gend en Loos case marked a turning point in the relationship between European law and national legal systems. It empowered individuals to invoke EU law directly in national courts and affirmed that EU law supersedes national legislation in case of a conflict. This case laid the foundation for the evolution of EU law into a powerful, effective legal system that shapes the daily lives of citizens and businesses within the European Union. Public Law lesson - (teacher: Martina Conticelli) 16  First year BAE 2024/2025 PUBLIC LAW 08/10/2024 European Parliament: It represents the citizens. At the origins of the European communities, Parliament was not an elective institution; it was composed, instead, of delegates of the national parliaments. It is only since 1979 that Parliament began to be elected by the citizens of the member states. In parallel, the weaknesses of Parliament in the framework of the European procedures were progressively overcome, until reaching the current balance with the other bodies. The increasing role of the European political arena has led to the organization of a European party system, determined by the aggregation of national political parties in political families, or in groups that share a common vision of EU politics. The European Parliament (EP) is one of the key institutions of the European Union (EU), playing a vital role in shaping EU legislation and representing the interests of its citizens. It is the only directly elected body within the EU, with its members, known as Members of the European Parliament (MEPs), elected every five years by voters from all EU member states. Council court: Intergovernmental institution. Composed by ministers working at a national level. There are compositions for each area (ex. health). It is an institution which varies according to the topic that needs to be discussed. The Council represents the Government and the national interest. The European Council: Composed by Heads of State or of Government. Depending on the country you’ll have the President of the Republic (Head of State) or the President of the Council of Ministers / Prime Minister (Head of Government). The European Commission: Most supranational institution that brings on the interest of the EU. It is independent and its composition is based on a complex procedure which involves the intervention of the EU Parliament, to create an organ which is able to promote the supranational interest. The Legislative power is exercised by the Council and the EU Parliament. The political address states the major guideline of the working of the political action of the EU within a certain time and it is held by the EU Council. The EU Commission has the power of discussion, the initiative of the legislative process. It also has the power to supervise that member states respect the EU legislation : guardian. EU sources of law can be divided as: Non - binding → recommendations and opinions Binding → regulations, directives, decisions. What legal acts do they adopt? -​ regulations, directives, decisions, recommendations, opinions Public Law lesson - (teacher: Martina Conticelli) 17  First year BAE 2024/2025 PUBLIC LAW 09/10/2024 Forms of government –the way states arrange government in general 3 main forms of government -​ Parliamentary (Italy, Germany, The UK) A main feature of this form of government is the relationship of confidence between the executive and the Parliament, it means that the executive must enjoy the confidence of Parliament. A confidence that must last for the whole mandate of the parliament and of the executive. Any law or proposal of law submitted from the executive must be approved indeed by the Parliament. If the Parliament does not approve what the government does (in terms of proposal of law or other situations) this relationship breaks and the situation becomes difficult. The head of State (1) and the head of Government (2) are usually 2 different figures. 1- Someone who is usually appointed over a form of election that does not include people (presidente della repubblica in italia votato dal parlamento non dai cittadini), or has the role because of the hereditary succession. They have different roles 1- a role of impartiality, neutrality. Is someone that usually indicates or chooses someone who will be given the responsibility to form a new government (ex. Meloni in Italy). The term of office of the head of the State is longer than the term of office of the Parliament. 2- (In Italyi president of the council of ministers) Some legal systems (like Germany) designed a particular situation: in cases of not confidence, the instrument that they use is the Constructive Vote of No Confidence (when the parliament is voting for no confidence against the executive, the parliament must find a possible solution. A motion of no confidence provocs triggering designation of the government. When the government expresses no confidence, the executive must resign, the resignation can bring to the power of dissolution – led to the Head of the State. Another feature – The power of dissolution (only the head of the state can dissolve the parliament) Before dissolving the Parliament, the President should look within the Parliament and check if there could be another executive that he can trust. -​ Presidential (US, Latin America, Asia, Africa) This form of government is quite the opposite of the Parliamentary one. Power here is more concentrated so – a huge power which is less controlled. The Head of State and the Head of government are concentrated and combined in one figure: THE PRESIDENT (very powerful figure, popular power) The congress is formed by the house of representatives and the senate. No relationship of confidence between the president and the congress, this does not mean that they are completely separated, they interact – the President can veto the congress’ legislation and the congress can impeach the power of the president. The president is popularly or directly elected: (1)​ Directly elected - When citizens go and vote for the president (not the case of US) (2)​ Popularly elected - They go and formally vote (if a presidential candidate obtains the majority in the electoral college then it is foregone that he will be elected President). Public Law lesson - (teacher: Martina Conticelli) 18  First year BAE 2024/2025 -​ Semi-presidential (France) Here there is both a Head of State and a Head of Government. The President of the Republic is elected directly (people go and vote for the president). The Head of the Government is appointed by the President of the Republic but, as in parliamentary executive, he/she (and the Council of Ministers) must have the confidence of the majority of members of the National Assembly. The election of the President of the Republic and the National Assembly do not take place at the same time; therefore one may have “cohabitation” (i.e. the President of one party and a parliamentary majority of another). In this system the President (= the head of state) enjoys the power of dissolution. LOOK AT SEMINARY MATERIALS. Public Law lesson - (teacher: Martina Conticelli) 19  First year BAE 2024/2025 PUBLIC LAW 14/10/2024 The ECHR – an international organization - European convention of human rights (european refers to the geographical and political area considered, it's not about EU which is not party of the convention) The EU is not a part of the convention, the conventional provisions are considered the general principles of the EU. The convention is applicable to the european union member states (they signed the convention) but not to other european union institutions. Is an international treaty which gathers together the council of Europe and it contains fundamental rights. Individuals have direct access to the court and they are seeking for protection. Lautsi case: Typical case where the European court leaves the final decision to the margin of appreciation. The case behind: A group of parents are challenging a specific provision in Italy according to which a crucifix needs to be present in all classrooms. Relationship between the State and the Vatican State (in Italy Patti Lateranensi). Is this provision protecting the freedom of our children? The idea of Lautsi: the presence of the crucifix was infringing the freedom of expression and education both for students and teachers. The children may get the idea that the crucifix and its religion is normal and mandatory, The challenge raised by a group of parents was about the crucifix in class which was limiting the freedom of expression, education and thought of the students. The freedom of expression relates both to you and to me (I do not have to convince you or condition you with my ideas). The decision of the court Margin of appreciation on member states is an attitude of deference which the European court of Strasburg uses when specific values are enrolled. It comes after a long discussion on what is happening among the countries in the convention (like a comparison). When you have different legal systems and different realities you have to imagine that you can analyze all of them and try to confront what is happening. Public Law lesson - (teacher: Martina Conticelli) 20  First year BAE 2024/2025 PUBLIC LAW (recupero appunti) 15/10/2024 LES VERTS CASE. It involves a political party. It begins with the request from this political party (Les Verts) for a refund of electoral campaign expenses. Les Verts VS European Parliament. Why do political parties need to reimburse electoral campaign expenses? To allow any party to create their electoral campaign otherwise the richest party will have more opportunities. In order to ensure equality between parties. They presented an action about article 230 (Treaty Of Rome) against the Parliament before the EU court of justice. The Parliament is the legislator in the legal EU legal system. In this case it is presented in his administrative function. The general secretary of Parliament deals with refunds. The party is against the general secretary and the specific decision adopted but it is considered unfair. -​ This party filed an application to the ECJ against a decision adopted by a bureau of the EU parliament regarding the allocation of funds for the refund of the electoral campaign expenses. According to article 173 (Treaty of Rome) the main point is whether an action can be brought before the Parliament. This article was referring to the court of justice that could review the legality of some acts adopted by some institution. 1.​ The administration must follow the law. 2.​ A decision that doesn't follow the law can be annulled, the court of justice can review the legality of acts adopted by some institutions. Law is something which acts as a shield of protection of human rights and prevents arbitrariness. Law has to be approved by parliament. Legality ensures that any general principle is to respect the law. There must be someone who has to check whether the law is being respected (= the court). Review the legality: not a constitutional review, check if the law has been applied correctly. If the behavior of the administration is not coherent with law, we talk about arbitrariness. The problem is: The Parliament is not enlisted in the institutions whose legality is reviewed by the court. In the article 173 we do not find the Parliament enlisted. Why was it not included? Because the parliament adopts law so it could have been a contradiction. It is considered as a legislator, not as an executive. What is the answer? The EEC is based on the rule of law so neither the member state nor the institution can avoid a review of the legality of measures adopted by the institution. If the act is incoherent with law, the act will be annulled. Public Law lesson - (teacher: Martina Conticelli) 21  First year BAE 2024/2025 PUBLIC LAW 16/10/2024 Parliaments Are strictly connected with constitutions, they were born together. Parliament cannot be compared to the royal assembly even if they could look similar. Parliaments are not even comparable to general assemblies in international organizations, for example in Italy some regions tried to call their regional councils as “Parliaments”, clearly the attempt was the one of someone to use a symbolic word in order to re-create the premises to become a sub-state. Those attempts were blocked by the constitutional court. Parliament and constitution reached together the stage of maturity, we could not imagine having a constitution without a parliament. Some parliaments are called “congresses” Parliament refers to an assembly which is representative for the nation state and plays the role of the legislator. The functions of Parliaments Two main functions of every parliament (when adopting a legal perspective, the function of each parliaments are compulsory determined by the respective constitutions, and each parliament is constitutionally obliged to exercise them): - Representation; - Decision-making. The link to the form of government in which that parliament operates and to the way in which the power of political direction is distributed leads to the distinction between parliamentarism and presidentialism, or more precisely between parliamentary and presidential forms of government. This distinction differentiates between : A. Parliaments those who operates in a system in which the legislative and the executive are selected by the legislature and responsible through its term of office ; B. Congress those who operates in a system in which the legislative and the executive are selected independently, and neither has the ability to dissolve or remove the other from office. parliaments can be unicameral or bicameral 1. Unicameral: A unicameral parliament consists of a single legislative chamber. This means all legislative functions, such as debating and passing laws, occur in one body. 2. Bicameral: A bicameral parliament has two separate chambers, typically an upper and a lower house. This structure allows for a system of checks and balances, as legislation must be approved by both chambers. The upper house typically reviews and revises legislation, representing regional or state interests, with fewer members serving longer terms. The lower house is usually the primary legislative body, responsible for introducing and debating most laws, particularly budget-related ones. It has more members, who serve shorter terms and are directly elected. The powers and functions of each chamber can vary by country. The choice between unicameral and bicameral systems can influence the efficiency, representation, and complexity of the legislative process. Public Law lesson - (teacher: Martina Conticelli) 22  First year BAE 2024/2025 Parliamentary groups Parliamentary groups are coalitions within a parliament formed by members of the same political party or parties. They coordinate legislation, represent collective interests, and typically have a leader or spokesperson. Members often vote together, which strengthens their influence on legislative outcomes. Coalitions may form between different groups to achieve a majority when no single party has one. Effective leadership is crucial for maintaining unity, especially during internal debates. Overall, parliamentary groups are essential for organizing legislative work and enhancing the effectiveness of parliamentary proceedings. Beside parliament we usually find the executive The executive branch is a vital part of government, working alongside parliament to implement and enforce laws and manage daily operations. It is typically led by a president or prime minister, with the former often directly elected and the latter appointed from the majority party in parliament. The executive includes various ministries responsible for areas like health and education. The executive is accountable to parliament, requiring its approval for budgets and major policies. In parliamentary systems, the executive derives its authority from parliament, while in presidential systems, it operates more independently. This separation of powers ensures checks and balances within the government. The president can have the cabinet The president’s cabinet is a crucial part of the executive branch, consisting of department heads who advise the president, develop policies, and manage government functions. Cabinet members are appointed by the president and play an essential role in the administration's effectiveness. Public Law lesson - (teacher: Martina Conticelli) 23  First year BAE 2024/2025 PUBLIC LAW (recupero appunti) 21/10/2024 Public administration. Public administration is the implementation of government policy and the management of public programs and services, encompassing a wide range of activities essential for the functioning of government at all levels. It involves the organization, management, and execution of public policies and services, focusing on how the government operates and delivers services to the public. Public administrators perform several key functions, including ensuring effective and efficient policy implementation, managing the delivery of essential services such as education, healthcare, transportation, and public safety, and overseeing financial, human, and infrastructural resources to meet public needs. It operates at various levels of government: local, state, and federal. Local governments manage community services and regulations; state governments oversee areas like education and public health; and federal governments handle national policies, defense, immigration, and international relations. In addition, public administration plays a critical role in developing, analyzing, and evaluating public policy. Administrators often collaborate with elected officials, stakeholders, and the public to design effective policies. They must also ensure accountability and transparency, adhering to laws, regulations, and ethical standards to effectively use public resources. Public administration is a body which supports institutions - they appear as bureaucracy, (For example you don't meet Salvini if your train is late but instead you talk to trenitalia or italo). The Fratelli Costanzo case refers to a significant legal decision made by the European Court of Justice (ECJ) in 1993, focusing on issues of trade and competition law within the EU. The case arose from a dispute involving Fratelli Costanzo, an Italian company engaged in the sale of agricultural products. The Italian authorities had imposed restrictions on the sale of products from other EU member states, claiming that these products did not comply with national regulations. The primary legal issues in the case centered around the free movement of goods, a fundamental principle of the EU's single market. The court examined the extent to which national regulations could restrict this free movement and the balance between state intervention in regulating products and adherence to EU law. In its ruling, the European Court of Justice favored Fratelli Costanzo, emphasizing that national laws or regulations that create barriers to the free movement of goods within the EU are incompatible with EU law unless justified by an overriding public interest. The court's decision reinforced the precedence of EU law over national legislation in matters concerning the single market. This case is significant for several reasons. It affirmed the importance of the free movement of goods, thereby strengthening the framework of the EU's single market. Additionally, it limited the ability of member states to impose national regulations that could hinder trade between EU countries. The ruling set a precedent that has been cited in subsequent cases concerning the free movement of goods and has had a lasting impact on EU trade law. Public Law lesson - (teacher: Martina Conticelli) 24  First year BAE 2024/2025 PUBLIC LAW (recupero appunti) 22/10/2024 Rights and freedom We have the National Constitution or Bill of Rights (a component of the United States Constitution that guarantees individual freedoms and limits governmental powers), if countries are part of the EU we have a charter of nice and after ECHR. There is a multilevel protection of rights. In this specific case we have 2 different interests in conflict because the omega case first of all is a case discussed before the European court of justice. So the point is we have a company which is the omega one, recurring against a prohibition by national administration. Omega is a German company and it is operating in Bon and the activity, they have a laserdrome, a game based on killing other people so the omega is an economic activity, in order to start an economic activity you have to ask for a license. The omega wanted to install a structure for performing or making people lay with this kind of laserdrome, like a gun, other persons have a gun. Those who were living in the area where this laserdrome was located, part of the population, started making protests against this game, based on the fact that one of the fundamental laws of the German constitution, this was against human dignity. Some people in Bonn felt in danger of the laserdrome, and started to manifest their clear opposition against this economic activity. They started to make riots. Public administration did not confirm the license, this activity must be stopped. This, according to that kind of organization, was a dangerous game because of simulating violence and homicide. Public administration was responsible for public order. Omega reacted (you can react against public administration), because they were claiming that this act infringed their freedom to provide the services. This is freedom in the treaty of Rome, one of those freedoms which are part of the constitution of common mark, we find it also in the charter of Nice. You impede my company, doing my business. If you do not allow people to provide their economic activity, you will never constitute a market integrated. Against this freedom we have another important principle, the one of human dignity. In the German constitution there is it, we have on one side this, on the other that you are free to do your activity. Two different values in conflict. The right to live might imply that we want to have a right to die with dignity. The freedom of the treaty of Rome was fundamental to create the internal market. The question regards of course legality, public administration but it turns into something more complex. Human dignity is fundamental in the German constitution so there is an overall discussion. Public Law lesson - (teacher: Martina Conticelli) 25  First year BAE 2024/2025 – The Omega case is a significant legal decision made by the European Court of Justice (ECJ) in 2004. The case originated in Germany, where Omega, a company operating arcades with video games and gambling machines, challenged a national law that prohibited certain types of gaming machines featuring violent content, specifically those mimicking shooting games. The German law aimed to protect public order and morality, citing concerns about the impact of violent video games on society. The central legal issues in the Omega case revolved around the free movement of goods within the European Union and the extent to which national legislation could restrict the import and sale of such goods. The court examined whether the German law, designed to protect public policy, could justify restrictions on free trade under EU principles. In its ruling, the European Court of Justice sided with Germany, affirming that the national law was justified under EU law. The court concluded that member states have the authority to regulate goods based on public policy concerns, including moral standards and the protection of public order. While the free movement of goods is a fundamental principle of the EU, the court emphasized that it is not absolute. Member states may impose restrictions as long as they are necessary and proportionate to achieve legitimate public policy objectives, such as safeguarding public morality. The significance of the Omega case lies in its demonstration of the balance between the EU’s commitment to the free movement of goods and the sovereignty of member states to legislate on matters related to public policy and morality. The ruling established a precedent for future cases involving the intersection of trade law and national regulations, particularly concerning public morality and order. Public Law lesson - (teacher: Martina Conticelli) 26  First year BAE 2024/2025 PUBLIC LAW 23/10/2024 Rights and freedoms The development is from the 16th century until now, an exception is the magna carta 1215. Nowadays: period of notification of rights, rights and freedoms are not regulated by constitutional charts but from other charters - Bill of rights for ex. ECHR non coincide con EU, not to be confused with the supranational features of eu. Multilayer protection of rights: freedom of circulation, right to vote, right to education, right to free speech, health care… personal freedom - first position which protects you from being attacked (art 13 italian constitution), personal domicile, freedom of movement… multilayer protection of rights encompasses constitutional, statutory, administrative, judicial, international, civil society, and cultural dimensions. This comprehensive framework is essential for safeguarding individual freedoms and ensuring that rights are respected, protected, and fulfilled across different contexts. -​ Public rights freedom of association, assembly, expression, religion -​ Private rights social rights economic rights -​ Charter of Nice cerca su internet Dignity, freedoms, equality, solidarity, citizens rights, justice aggiungi a sources of law article 289 CERCA european convention of human rights The European Convention on Human Rights (ECHR) is a treaty established in 1950 to protect human rights and fundamental freedoms in Europe. It outlines essential rights such as the right to life, freedom from torture, and the right to a fair trial. The Convention is enforced by the European Court of Human Rights, which hears cases from individuals and states claiming violations. Signatory countries are required to uphold the rights enshrined in the ECHR and provide legal remedies for breaches. european charter of human rights The Charter of Fundamental Rights of the European Union (CFR) is a legally binding document that consolidates and guarantees the fundamental rights and freedoms of individuals within the European Union. It encompasses civil, political, economic, and social rights, serving as a key framework for the protection of human rights in EU law. The Charter is applicable to EU institutions and member states when implementing EU law, reinforcing the commitment to uphold human dignity, freedom, equality, and justice across the EU. european court of human rights Public Law lesson - (teacher: Martina Conticelli) 27