Private and Public law

lesson 1Forms of State

forms of government

- independence- preeminence

- based on a territory- general aims

The main features of State______________________________

- The feudal society- Absolutism

- The “police” State- The “modern” State (rule of law)

- The socialist State- AuthoritarianismThe welfare State

The “forms” of State_________________________________

Centralised State

Decentralised State – “regional State(s)”

Self-government

Bureaucratic decentralisation

Institutional decentralisation

- Article 5 of the Italian Constitution (“The Republic is a single and indivisible entity”)

- Article 117 (State’s powers; common powers; Regions’ powers)

- Article 119 (Financial powers and duties of the Regions)

Decentralisation in the Italian Constitution_________________________________

In particular: the European

Union

Confederations

The Unions of States

- Territory- People

- Sovereignty

The constitutional elements of States______________________________

- natural and artificial borders - Article 241 of the Italian Criminal Code:

crimes against “the State territorial integrity”

- Does a State legally “survive” an invasion?- “extra-territoriality”

______________________________Territory

- territorial immunities- What about colonies?

- “territorial” and “non territorial” entities- the State’s non transferrable assets

______________________________Territory

- The status of citizen: rights and duties (<> residence; domicile)

- Values and “interests” in common? (“idem sentire de re publica”)

- People = population? - people = nation?

- Art. 11 and 22 of the Italian Constitution: gain and loss of citizenship; waiver

- Non-citizens and stateless people (apolidi)

______________________________People

- “multi-national” States

- Articles 6, 3, 51, 9, 11, 16, 49, 67, 87, 98, 117 and 126 of the Italian Constitution:

“The members of the Parliament represent the nation”

“The President of the Republic represents the unity of the nation”

“public employees shall exclusively serve the nation”

What is “nation”?______________________________

- Art. 7 of the Italian Constitution: the State and the Holy See

- power to issue laws, administrative decisions; theories about sovereignty

- Art. 1 of the Italian Constitution: people as the “holder” of sovereignty

- the State is (also) sovereign?

______________________________Sovereignty

- Article 11 of the Italian Constitution (limitations to sovereignty)

- Regulations (or Directives) issued by the European Union

- Articles 41 and 42 of the UNO Charter

Limitations to “sovereignty”______________________________

• Forms of State/government and public finance

• “public finance”- Establishing duties and taxes - Managing assets owned by the State and

other public bodies- Making available resources (through public

services and works)

• Main principles of public finance:- Political aims and general purposes- Control by the parliamentary assembly

• Historically:- The functions afforded to the State have been

eroded by both the EU and by the increasing powers of territorial entities

- Within the State, the role played by the Government has become increasingly important; the importance of the parliamentary assemblies has decreased

Role of the Parliament:

• Law approving the State financial statements: political priorities are established

• Approval of “rendiconto”: subsequent control over the Government’s actions, which should be in compliance with the approved financial statements

Missing approval > resignation of the Government members? (art. 94, para 4)

• “No taxation without representation”

- United Kingdom- XIX century Germany

- Liberal State (majority approach) - Social-democratic State

• Provisions of the Italian Constitution on public finance

- art. 23: all fundamental decisions regarding financial policy (establishing new taxes) must be adopted by the Parliament. However, due to high sophistication, the intervention of the Government is often significant (examples)

- art. 53: main criteria to which public finance policy must conform: (i) tax treatment must be proportionate to the capacity to generate revenue: (ii) as long as such capacity is increased, tax obligations should get tighter

“Fiscal compact” (Treaty on Stability, Coordination and Governance in the Economic and Monetary

Union, signed on 2 March 2012 by all EU Member States, except the Czech Republic, the United Kingdom, and Croatia)

Member states bound by the fiscal provisions of the treaty will face annual fines up to 0.1% of GDP, if they after one year of the Fiscal Compact entering into force for them, have failed to enact a domestic "implementation law" establishing a self-correcting mechanism, guided by surveillance of a governmentally independent fiscal advisory council, which shall guarantee their national budget be in balance or surplus under the treaty's definition. The treaty defines a “balanced budget” as a general budget deficit not exceeding 3.0% of the GDP, and a structural deficit not exceeding a country-specific Medium-Term budgetary Objective (MTO) which at most can be set to 0.5% of GDP for states with a debt-to-GDP ratio exceeding 60% - or at most 1.0% of GDP for states with debt levels within the 60%-limit.

• “Fiscal Compact” implementation mechanics- Italy- France- Germany

• Art. 81: the State must ensure appropriate balance between available resources and expenses. To that purpose, it must also take into consideration any favorable/unfavorable economic cycles

• Art. 119: an analogous principle is set out with respect to territorial entities

• Art. 97: all branches of the public Administration must ensure steadiness of the accounts and sustainability of their debt

• New article 81, paragraph 3 of the Italian Constitution: obligation to provide coverage for all laws contemplating new expenditures

- Consider any possible unbalances: (i) additional, unexpected expenses; and (ii) lower incoming amounts

- Ratio of the norm: (i) decision on expenditure coverage must be contextual with the decision on the relevant expense; (ii) both decisions are made by the same subject (responsibility)

• The law approving the financial statements is no longer a “formal” act of the Parliament, since it may include decisions regarding new taxes or new expenses

• May the law approving the financial statements allow the State to resort to incur new indebtedness?

- Past approach: the scholars and the Constitutional Court tended to endorse such approach (see decision no. 1/66)

- Now: EU constraints: thresholds of 3% of deficit to GDP and 60% of debt to GDP + new article 81, paragraph 2: faculty to incur new indebtedness only in case that exceptional circumstances occurred (“serious economic recession”/”extraordinary events the State may not control”) + approval by the absolute majority of both Chambers

• “SPECIAL” FUNDS- Past approach - Now: expense funds may not be

utilized unless the relevant “active” funds have been created (or re-created)

• The role of the main bodies involved in the approval of the financial statements

- The President of the Republic. He is entitled to reject final approval of laws/decrees,

highlighting the need for a more thorough analysis by the Parliament

. He is entitled to identify any potential breach of the Constitution (not only with respect to coverage)

. Moral suasion- Corte dei Conti

. The expenditure coverage policy is scrutinized

. A report is submitted to the Government and to Parliamentary Commissions on a four-month basis

. A report is attached to the “rendiconto generale”

. It may defer any question to the Constitutional Court (e.g., to detect any breach of the new art. 81, para 3 of the Constitution)

- The Constitutional Court