Private and Public law lesson 10 Government and the Public Administration: overview of the Italian Administrative bodies

Private and Public law

lesson 10Government

and the Public Administration: overview of the Italian Administrative bodies

- the Council of Ministers- the President (Prime Minister)- the Ministers

- the Sub-Secretaries of State- the Vice-Ministers- the Vice-President- the “Cabinet”- the “Agencies” - the Inter-Ministerial Committees (e.g., CIPE)- the Committee of Ministers

The Government_______________________________

- The Prime Minister: art. 95 of the Constitution:

“The Prime Minister directs the general policy of the Government and is responsible for it. He makes sure that the political and administrative policies are uniform and homogeneous, and promotes and coordinates the activity of the Ministers” .

The Government_______________________________

The “Cabinet”:

- It is comprised of Ministers identified by the Prime Minister- The Cabinet supports the Prime Minister in performing the tasks and duties contemplated by art. 95 of the Constitution

- Certain Ministers play a different role within the Government: does it create any inequality among Ministers?

- Does that give rise to a sort of “directorate” where key decisions are made? Lack of transparency?

The Government______________________________________

The Government is comprised of: - The Prime Minister- The Ministers (with or without expenditure power)

- the vice-Ministers- the deputy-Ministers (sottosegretari)

The Government_______________________________

The Prime Minister is also supported by: - The “Agencies”- The “General Secretariat” / Departments- Extraordinary Commissioners- Vice-President(s)

The Government_______________________________

- Decision making - Power to issue optional/mandatory/bindingopinions - Duty to supervise and control- Power to define the general views of the Administration

What do we mean by “Administration”? The general duties and powers

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Art. 95 ConstitutionThe Prime Minister’s office is regulated by a law of the Parliament, which also determines the number,

attributions and organization of the Ministers

Art. 97 ConstitutionPublic offices are organized according to the

provisions of the law, in order to ensure the proper conduct and impartiality of the Administration

How are citizens primarily protected against abuses by the Administration?

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Art. 97 ConstitutionCivil servants and the Administration personnel are hired by means of competitive examinations, save

for the situations envisaged by the law

Art. 51 Constitution All citizens of either sex are eligible to take office as

civil servants, according to the conditions established by a law of the Parliament

Art. 98 ConstitutionThe law may set out limitations to the right to be

enrolled with political parties, for members ofthe Courts, military personnel in office, civil servants,

police agents and diplomatic representatives

Citizens are protected against any possible influence, deriving from any overlapping between

administration and political engagement

How are citizens primarily protected against abuses by the Administration

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Art. 23 ConstitutionCitizens may not be compelled to perform any action

unless within the scope of a law of the Parliament

Art. 13 (and following) ConstitutionThe citizens’ fundamental freedoms may be limited

only in cases and manners provided for by law


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Art. 5 ConstitutionThe Republic conforms to the principles

of “autonomy and decentralization”

the citizens’ right to have access to the Administration internal documents and files


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Art. 52 ConstitutionThe rules regulating military personnel conform to

the general principle of democracy.

- right to strike?- right to run for political elections? Right to make

political propaganda?- right to set up trade-unions / labor associations?

- right to express their thoughts and opinions?


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In particular: liability of civil servants and of the Administration

Art. 28 ConstitutionCivil servants and State employees are directly

liable, according to criminal, civil and administrative laws, for breach of the citizens’ rights. Civil liabilities may be incurred by both the State and other public

entities

Potential liabilities for civil servants and/or the Administration

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Art. 113 ConstitutionCitizens are always entitled to challenge acts of the

Administration in breach of the citizens’ rights (“diritti soggettivi” or “interessi legittimi”) before the

ordinary or administrative Courts.Such right may not be excluded or limited for

particular categories of acts.The law shall determine which Court is competent to

cancel acts of the Administration upon the conditions and with the consequences provided for

by a law of the Parliament.


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As a general principle, the State / public entities may be liable for procuring unjust damages (art.

2043 of the Civil Code)

The State / public entity is/are jointly liable with the civil servant to restore damages caused to

citizens (art. 1292 of the Civil Code)


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May citizen also challenge political acts/decisions (e.g., the appointment of

Ministers, the opening of political elections, the order to execute an international treaty)?


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Definition of “Administration”

1- Administrative functions

2- Duty to define the Administration’s general approach

3- Decision making; power to enact norms and regulations

The general duties and powers of the Government___________________________________

- The Ministries / the Prime Minister- The Council of Ministries

They are both:- bureaucratic bodies; and- elements of the Government (as head of the “Administration

Central / peripheral bodies

The so-called “High administration” decisions

The administrative functions___________________________________

The Prime Minister:- power to address directives to the Ministries- duty to coordinate and harmonize the Ministries’ activity- power to suspend any act of the Ministries and to submit it to the Council of Ministries

He/she is not entitled to:- define the Government general views (such power belongs to the Council of Ministries)- revoke the Ministries (such power formally belongs to the President of the Republic)

The duty to define the Administrative general approach

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The Ministries (art. 95 Constitution)- individual liability - joint liability

The duty to define the Administrative general approach

___________________________________

The decision-making processes. The power to enact norms and

regulations

The Government may issue- Law Decrees (art. 77, paragraph 2, Constitution)- Legislative Decrees (art. 77, para 1, Constitution)- Regulations

Decision making; power to enact norms and regulations

____________________________________

Law Decrees (art. 77, paragraph 2, Constitution)

- “extraordinary situation of urgency and need”- the Decree must be submitted to the Parliament on the same date when it is enacted- the Law Decree is issued by the Government “under its responsibility”- the draft Decree must be converted into Law by 60 days of the relevant publication date- each Chamber of the Parliament has a given deadline (5/6 days) to obtain an opinion of the competent Parliamentary Commission; then, the Decree is voted by the Assembly

Decision making; power to enact norms and regulations ____________________________________

Law Decrees (art. 77, paragraph 2, Constitution)

- impossible to submit the same decree twice (where the latter was rejected /was not converted into Law by the Parliament upon the first reading)

- the Italian Government has not always been compliant with the applicable requirements

- the Constitutional Court is competent to assess whether the condition regarding the “extraordinary situation of urgency and need” was met (but this is not the same control carried out by the Parliament)


Law Decrees (art. 77, paragraph 2, Constitution)No Law Decrees may be enacted in the following sectors:

. regulating the legal relationships arisen from a draft Decree which was not converted into Law by the Parliament;. restoring any provisions which were declared unconstitutional by the Constitutional Court;. regulating the matters covered by art. 72, para IV of the Constitution (e.g., matters impacting on the Constitution; authorization to ratify international treaties; approval of annual balance sheets; etc.)


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Law Decrees (art. 77, paragraph 2, Constitution)- May the Parliament ignore the draft Law Decree submitted by the Government?

- What if the Parliament rejects the draft Law Decree? Retroactivity. But the Decree may have had irreversible effects

- What if the “extraordinarily urgent situation” is no longer in place, while the proceeding is under way?

- Is the Parliament entitled to propose amendments to the Law Decree?


Legislative Decrees (art. 77, para 1, Constitution)

- “Codes” - “Consolidated Acts” mere recollection of existing norms supplement / amend existing norms


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Conditions:1- principles and guidelines are set out by the Parliament2- time limits set out by the Parliament3- specific subject-matter


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- May the Government ignore the delegation act issued by the Parliament?

- What if the Government does not issue any delegated act? Is the delegating act still valid / able to give rise to any effect?


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Regulations

- enactment regulations- regulations supplementing laws (or assimilated acts)- autonomous regulations- organization regulations- “authorized” regulations


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Regulations

Regulations also play a role in the following sectors:- deregulation- implementation of EU law into domestic law- matters “reserved” to the Government regulations (certain aspects of the organization of Ministries)


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Documents

Private and Public law lesson 10 Government and the Public Administration: overview of the Italian Administrative bodies