JUS - 2008 - 1

The last scientific pages by Giorgio Berti mix with a skilful hand a learned doctrine and a melancholy mood. Looking backwards to his first steps as a student at the University of Ferrara, and afterwards as a scholar of public law, he travels over again the cornerstones of his thinking that consists of a different way of looking at the administrative law as a complex system which springs up from a society that has the ambition of governing itself in a perennial struggle and compromise with an authoritative state.

The article explores the general prospects of «Italian commercial law» in the age of economic globalization, going back to the process which led to the unification of the two codes, ended with the promulgation in 1942 of the Italian civil code and with the so called «commercialization of civil law». In particular, the article discusses the issue of the special role – and thus the conceptual independence – of commercial law, which at the dawn of the XXI century has been regaining importance among european scholars.

The article analyzes in a critical prospective Italian Constitutional Court jurisprudence on tax law within the last fifth years. A particular attention is given to the serious problems of policy influence in this matter. The article also analyzes new laws’ violations to the Italian Constitution, with special regard to the several remissions of tax liability: the Court has always saved them, with the justification that the remission of tax liability is pre-ordered to acquire more income to the State and to avoid actions. The Auctor hopes a new jurisprudence of the Court specifying and confirming the principle of equal treatment in tax law.

In this paper the author presents his opinion on the concept of work according with some recent innovation in Italian labour law. He holds a specific legal meaning of the constitutional rule written in the article 1 of the Italian Constitution: «Italy is a democratic republic founded on the work». In the opinion of Mario Napoli, article 1 finds its factual conditions in the concepts of enterprise and market. But the whole regulation is based on the person who works, i.e. on the working people. The author links his opinion on article 1 to the content of articles 2 and 3 of the Italian Constitution, which deals with fundamental rights and equality of treatment, and to the «first part» of Italian Constitution, in particular to principle and rules on the economic relationships (Section III).

The connection between Constitution and contractual freedom underlines several and opposite settlements changing from assertion of a strong link between the two terms of the connection to negation of any connection, till getting to reach a recovery of fundamental value of our economic Constitution in a responsible fulfilment of the contractual freedom.

In this article the author points out some peculiarities of Sergio Cotta’s philosophical thought, which, through a double leave-taking (from Hegel and from Kelsen) and a distance-keeping (from Capograssi), interprets the legal phenomenon as the perspective giving normative meaning to the human existence conceived as a relational structure. The author underlines, above all, how Cotta works with a methodological approach based on sources coming from different scientific fields (anthropology, logics, psychoanalysis, linguistics). In this way, Cotta emphasizes the ontological structure of the existence as the existential legitimating foundation of the legal phenomenon.

In Part I of this study the author reviews an «initial reading» of essays by Luigi Mengoni, putting them in their context and indicating the main contents. Readers are reminded that the part of Mengoni’s work commented on in this article dates back to 1958 and was written in an important historical moment for Italy as far as economic development was concerned. It was an age when heady ideals stimulating the social reconstruction of the nation, based on the new democratic and republican Constitution ratified in 1948, were rampant. The author identifies five topics Mengoni dealt with in this piece of research, namely: industrial capitalism, managerial capitalism, corporate social responsibility, constitutional economic order, «mitbestimmung». The commentator scrutinizes Mengoni’s analysis which indicates ownership or «proprietà» of companies, full management control over firms giving the power to fix objectives and relations with the market in particular with regard to relationship with labour, as crucial fields of research. In Part II of this study the present writer proposes an «updated reading» of Mengoni’s essay demonstrating that in changed current circumstances it still constitutes a valid, modern approach to the problems governing the regulation of the business sector and more generally speaking of the economy. During the actual financial capitalism phase these problems can still be explained and managed taking into account Mengoni’s analysis. However it appears evident that the conflict of interests is a new instrument and a sector of research which absolutely must not be underestimated. Mengoni’s updated analysis, re-examined in a contemporary context, underlines many critical points of law regulating the economy that legislators have so far failed to review and modify adequately. This factor is particularly relevant in the field of the market for the transfer of ownership of firms, of the role of the banks and of the regulations controlling the conflict of interests. Above all in this write-up it appears manifest that Mengoni’s work highlights, thus increasing our awareness, that neither labour nor rule of law are such as to be determined or conditioned in a predominant way by market mechanisms.

The legal position of places of worship in Italy has changed profoundly, but religious practice has changed even more, as a new religious pluralism has taken root. Among the most important problems are those of churches owned by the «Fondo Edifici di Culto»; legal constraints on usage; different concepts of worship in the recently arrived religions. Moreover, the privileges granted to Catholic churches are being curtailed and identical rights are being extended to other religions. Yet the denominations of the immigrant communities, although representing significant numbers of adherents, are unable to profit from the provisions of the law, since they themselves are not juridical entities and are not duly recognised as such by local authorities. Some denominations constitute themselves as associations or non-profit-making organisation (ONLUS) in order to enjoy legal benefits. This often leads to disputes between property owners and religious bodies. The article considers the contradictions arising from this situation and sets forth proposals for fair and equal legislation concerning places of worship.

In the 1930 edition of the Italian Criminal Code, only a few rights were afforded to party consultants; the new 1988 Code, in a more prosecutory approach, introduced a new profile for party consultants, quite similar to the role played in common law Courts by expert witnesses. The party technical consultants have therefore achieved brand new chances to defend their hypothesis, even in cases in which no expert witness has been performed. The Author, after an analysis of the roles played by defense consultants, General Attorney consultants, and expert witnesses, together with their differences and analogies, carries on his personal considerations in order to define the party witness liability limits, describing in detail which criminal offences could apply. As Judges appear even more aware of scientific evidences, it becomes inevitable to detect, in consultant «malpractice» cases, the possible criminal liabilities relating to every technical consultant or expert that have played a role in the process, no matter which party he works for. The Author concludes that, in most cases, only a few criminal offences are consistent with the role of expert witness; nevertheless, an analogical criterium is not allowed by the Criminal Code and the same criminal offences are not consistent with party consultants.

The duty of political solidarity enunciated by article 2 of the Constitution (beside the economic and social one) first of all implies that the actual political forces accept and agree with the original «constitutional pact of solidarity» which, although the extinction of parties that originally drew it up in 1948, our democratic coexistence is still now based on. The same principle of political solidarity refers to the Parliament as the privileged institutional arena, in which, beyond every legitimate contrast on the political issues, the every day competition between the parliamentary majority and the opposition, both responsible of the national policy, takes place.

Ethical products, preferred by the critical consumer, imply social accountability and respect for the environment. The conformity of ethical products concerns «how» it is manufactured rather than «what» is sold to the consumer. This kind of warranty creates for the first time an unavoidable link between the sale B2C and the B2B supply chain. New general purchase conditions must be applied in the supply chain in order to fulfil the ethical warranty. A breach of this kind of warranty could be sanctioned as unfair commercial practice according to Directive 2005/29/EC.

This article concerns the current relation between rule of law and public administration, especially its power of organizing bureaucratic departments. Traditionally, the debate was if the organisation of public departments fell under either Parliament or Government competence; however, this power was in general believed subjected to the rule of law. This paper shows how since 1988 the privatisation of power of organizing and its equalization to private employer’s power have changed the perspective on this matter. The analysis explains how the rule of law deals with this power.

Public administration today is defined in an objective way, appreciating activities and aims to reach, rather than the subjective belonging to a particular area. Public aims can be achieved through private forms, such as government controlled companies. Thus, these private subjects enter the administrative world and are, consequently, subjection to state Audit Court control.