Fundamental Rights and Freedoms

The contribution analyses, in the context of the relationship between State and market, the so-called "golden power". Through an in-depth analysis both historical and of the regulatory framework, the author identifies its origins, its procedural, organizational and control modalities, as well as the prerequisites for its compatibility with the European legal system.

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The contribution addresses the issue of access to justice, in the perspective of the sustainable development goal 16 of the United Nations. After a brief analysis of the territorial organization of Italian administrative justice, the author focuses on the innovations of the electronic administrative trial to assess to what extent it has facilitated access to justice. The contribution therefore evaluates what limits still exist in the electronic administrative trial in the perspective of reducing distances and, on the basis of these considerations, makes some proposals to mitigate the problem of excessive length of the trials.

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This article examines the ruling by which the German Federal Constitutional Court declared on 24 March 2021 that certain provisions of the Climate Protection Act of 12 December 2019 (KSG) are unconstitutional. The national climate protection targets and the annual permissible emission volumes up to 2030 that the provision envisages were found to be incompatible with fundamental rights, as they lack sufficient requirements for further emission reductions from 2031 onwards. The ruling recognises that every freedom is potentially affected by these future emission reduction obligations because almost all areas of human life are still depending by the emission of greenhouse gases and are therefore threatened by drastic restrictions that could occur after 2030 according to the current regulation. The legislator should therefore have taken precautions to mitigate these high burdens in order to safeguard fundamental rights in an innovative ‘intertemporal’ perspective, and thus also adequately guarantee the rights of future generations.

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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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Within the development of artificial intelligence, a first sanding role is played by autonomous vehicles; these are supposed to revolutionize transports, with material economical, industrial and even social consequences. Several juridical issues are involved in this process, with particular reference to the allocation of liability, in order to provide a sufficient level of legal protection to the relevant interests at stake. This essay intends to focus the potential criminal risk related to programming, manufacturing and manning this kind of vehicles.

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The article aims to analyze in a linguistic perspective the administrative measures taken by the government to deal with the health emergency. More specifically, the contribution highlights the linguistic difficulties as well as the poor understanding of regulatory texts, or of their provisions, which result from a fragmentary and hasty legislative technique. Hence the difficulty for interpreters, and especially for those called upon to apply the same rules, to have a stable regulatory framework over time, and such as to allow a smooth and timely application and implementation.

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The French Council of State rules that the existing threat to national security currently justifies the generalized retention of data. It affirms also that the possibility of accessing connection data in order to fight serious crime allows, at the present time, the constitutional requirements of preventing breaches of law and order, and the tracking down of authors of criminal offences to be ensured. However, after examining the conformity with EU law of French rules on the retention of connection data, and verifying that the implementation of EU law (as interpreted by the European Court of Justice) does not jeopardize the requirements of the French Constitution, the French Council of State orders the Government to reassess regularly the threat that exists in France so as to justify the generalized retention of data, and to submit the use of these same data by the intelligence services to clearance provided by an independent authority.

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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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Distrust in science and the spread of pseudoscientific theories appears to be one of the main factors threatening the freedom of science in modern Western democracies. This article discusses how due to the CoVid-19 pandemic this danger may even increase. In particular, the article highlights how certain behaviours of members of the scientific community may contribute to the spread of anti-scientific attitudes in society. The author analyses which strategies of action, especially within the scientific community, can be used to contrast such a tendency and points out that, regardless of the strategy chosen, the fight against pseudoscience requires a deep reflection on the problem of the “demarcation”, a key issue of the philosophy of science, which has been neglected in recent decades.

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