Relazioni, rassegne e segnalazioni

The Italian Civil Code has been characterised, ever since the original text dated 1865, and also in the legislative act issued in 1942, and still in force today, by its durability and resistance over time: first of all the paper analyses the reasons underlying this temporal permanence. In the same way, and also over the course of time, strong connections have been highlighted between the rules contained in the Civil Code, and their application with regard to public administrations: these connections are also discussed in the paper, both with regard to specific areas of the organisation of public administrations, and with regard to the general principles, deriving from civil law, that are applied today within administrative activity.

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With the decision n. 248/2022 of the 12th of February 2022, the Administrative Court of Puglia has ruled on aspects of the impact of a new generation of agrivoltaic plant, concluding them to be less impacting than a traditional photovoltaic plant. The Judge of first instance recognized the inadequacy of the Regional Territorial Landscape Plan of the Region of Puglia with reference to these new plant configurations, concluding agrivoltaic plants as being compatible with the agricultural and pastoral uses activities in the region.

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As part of CERIDAP's "Book Forum" initiative, a study meeting to present the book "L’intervento pubblico di contrasto della povertà"(Editoriale Scientifica, Naples, 2021), written by Prof. Claudio Franchini, was held on 27th of January 2022. The contribution aims to review the interventions of the meeting.

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In a recent judgement, the administrative court of Lazio has annulled the circular of the Ministry of Health concerning the domestic management of Covid-19 patients. It has in fact argued that the binding nature of the circular undermines the possibility of the physicians to freely select the most suitable therapy for the patient. The Council of State has a different opinion and, reforming the judgment of the TAR, has also ruled on the complex issue related to the relationship between the standardization of care and autonomy of the physicians. This contribution offers an overview on the rulings of the administrative courts on this topic and then focuses on a short analysis of the second instance judgment.

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By judgment No. 2309 of 17 March 2021, the Council of State has further confirmed – overcoming the idea that the term for the conclusion of ARERA’s sanctioning procedure is merely ordinary – the peremptory nature of such term, therefore its overrun affects the challenged sanctioning measure, implying that it is unlawful. Indeed, the provision of a procedural time frame, to be determined by the Authority on a case-by-case basis, shall ensure that the time of sanction ascertainment is close to that of its punishment, thus meaning that the undue time lapse of the administrative action implies the unlawfulness of the sanction measure.

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The Council of state refused the appeal against the judgement of the T.A.R. Lazio, which denied a protective order for suspension of the mandatory use of so-called Green Pass, in order to exercise certain activities as introduced by the Decree of the President of the Council of Ministers of 17th June 2021. The decision stresses the importance of the vaccination as one of the UE measures for citizens’ health protection, as well as the evaluation of a real or a merely potential risk of security in processing of sensitive data, or in ensuring right to privacy and non-discrimination.

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With the decision n. 261/2021 of the 10th September 2021, the Administrative court of Friuli Venezia Giulia has ruled on relevant aspects related to the compulsory vaccination for healthcare personnel established by art. 4 D.L. 44/2021. The court has clarified that it is incorrect to claim that the vaccines used in the current vaccine campaign are still on trial, since they have been authorized by the Commission with a conditional marketing authorization, after EMA recommendation.

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The Council of State confirmed the illegality of the resolution of the Municipality of Seregno which approved a complex corporate integration project between its subsidiary and A2A S.p.A.. The judgment is particularly interesting for two reasons. Firstly, it is confirmed that a public tender must be carried out in circumstances such as those of the present case, and secondly, it remains to be seen what consequences the ruling will have on the operation.

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Since the adoption of the Charter of Fundamental Rights, in the context of the European Union the so-called “good administration” has emerged as a new fundamental right: the right to good administration, as written and detailed in Article 41 of the EU Charter. As for its specific contents, there is a clear correspondence with the provisions of Article 97 of the Italian Constitution with respect to the need for impartiality and good performance/efficiency of the Public Administration: two principles of which the best expression is found in Law 241 of 1990 on administrative procedure. It is precisely in this perspective that modern Information and Communication Technologies (ICT) can play a fundamental role in the context of public administration, especially in as far as the possibility to carry out an adequate and prompt investigation process during the administrative procedure is concerned.

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The judgment C-761/18 P appealing by Professor Päivi Leino-Sanberg the order of the General Court T-421/17, concerns the refusal of access decided by the European Parliament regarding the dissemination of the content of some trilogues (object themselves of the well-known De Capitani case T-540/15). Thus, the reasoning of the Court allows to make some reflections on the interest of the beneficiaries of the «right of access» to documents, as well the legal consequences of their publication online by a «Third party». Consequently, it leads to argue on the relationship between «administrative transparency» and «right to online access» in the age of digital administration.

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