JUS - 2009 - 3

In this presentation the author points out the particular inclination of the eminent colleague as to substantial law, which is a praiseworthy peculiarity for a professor of civil procedure.This particularly refers to the question of effects of registration of a civil action regarding a right which during the process is transferred to a third party. This question has been the object of research both in substantial as well as in procedural law.

ARTICOLI In ricordo di Armando Bartulli p. 5 A. CALOIA, La crisi finanziaria: origini, caratteristiche, rimedi e prospettive» 39 F. CAVALLA, Sergio Cotta interprete di S. Agostino » 433 U. DE SIERVO, Valori e attualità della Costituzione nel suo sessantesimo Anniversario » 25 P. DURET, La giustizia dell’«amministrare». Riflessioni preliminari nel solco della sussidiarietà » 517 G. FELICIANI, Le ordinazioni episcopali senza mandato pontificio in Cina. Il punto della situazione e le possibili soluzioni » 161 V. FERRANTE, Sciopero ed eccezione di inadempimento nella disciplina dei servizi pubblici essenziali » 121 G.M. FLICK, Ombre e immagini dei diritti fondamentali. Riflessioni margine del sessantesimo anno della Cosituzione e della Dichiarazione Universale » 7 G. FORTI, Il potere segreto della metamorfosi. “Magie” criminali e controllo penale dell’occulto » 133 O. FUMAGALLI CARULLI, Libertà della Chiesa, libertà nella Chiesa » 409 G. GUIGLIA, I servizi sociali nel processo di integrazione europea » 457 M. MADONNA, La Francia e le garanzie internazionali all’indipendenza della Santa Sede (1940-1948). Alle origini del “Progetto Maritain” e all’art. 7 della Costituzione » 169 M. NAPOLI, La riforma degli assetti contrattuali nelle intese tra le parti sociali » 443 G. NEGRI, Appunti per uno studio sull’abuso del diritto » 107 G. PRESTI, Le agenzia di rating dalla protezione alla regolazione » 65 M. ROMANO, Crisi finanziaria e diritto penale » 59 CONVEGNI UN MAESTRO DEL DIRITTO COMMERCIALE: ARTURO DALMARTELLO A CENTO ANNI DALLA NASCITA NOTA BIOGRAFICA » 199 Saluti inaugurali F. ANELLI » 201 G. PASTORI » 205 C. CASTRONOVO p. 207 A. CRESPI » 213 G. ROSSI, Arturo Dalmartello giurista e avvocato » 215 N. IRTI, Arturo Dalmartello civilista » 221 G.B. PORTALE, Arturo Dalmartello nel diritto commerciale » 227 S.M. CESQUI, Umanità di un Maestro » 239 B. PELLEGRINON, Arturo Dalmartello alpinista fiumano » 245 A. DALMARTELLO, Congedo » 249 S. SCOTTI CAMUZZI, La lezione di Arturo Dalmartello ai giuristi del nostro tempo » 251 G. CIAN, La rappresentanza nella contrattazione d’impresa. Interazioni fra categorie civilistiche e regole commercialistiche » 257 M. LIBERTINI, Il ruolo della causa negoziale nei contratti d’impresa » 273 A.A. DOLMETTA, Sui «contratti d’impresa»: ipoteticità di una categoria (ricordo di Arturo Dalmartello) » 291 F. MACARIO, Dai «contratti delle imprese» al «terzo contratto»: nuove discipline e rielaborazione delle categorie » 311 A. ALBANESE, I contratti dei consumatori tra diritto privato generale e diritti secondi » 347 G. SCORZA, Arturo Dalmartello maestro di avvocati » 359 PRESENTAZIONE DEGLI STUDI IN ONORE DI VITTORIO COLESANTI Saluti inaugurali F. ANELLI » 373 G. PASTORI » 377 C. CASTRONOVO » 379 A. PROTO PISANI, Vittorio Colesanti: processo e diritto sostanziale » 383 C. CAVALLINI, Vittorio Colesanti Maestro » 395 V. COLESANTI, Parole conclusive » 399

ABSTRACT: The Author makes a journey through the memories of the friendship with Vittorio Colesanti, highlighting his profound sensibility as well as his superior cleverness and going back over the main stages of his fruitful academic life, enriched by the challenging closeness with some of the major jurists, such as his master Enrico Tullio Liebman, Enrico Allorio and Giuseppe Stolfi. By remembering the foremost Vittorio Colesanti’s writings, through few hints at technical issues, the Author praises his work overall, seen in the wake of Chiovenda’s teaching, that has made him become one of the finest scholar of civil procedure and bankruptcy law.

A «lesson of freedom», translated as a «freedom of thought», is the core of Vittorio Colesanti’s strict as well as human teaching which has allowed the sensibility of the learner to be naturally guided and, thus, to grow in the academic environment, whose elitist purpose is to be conceived primarily as a method of education. This traditional perception of University, focused on the central role of individuals, reflects also the main idea of cooptation that stems from a qualitative assessment of the merit that Vittorio Colesanti was able to realize. In such a way he has not been like a chief of a School, nevertheless is honestly acknowledged as a Master.

Along with sincere acknowledgements to the important persons of his life as well as all those who contributed to the ceremony in honour of him, Vittorio Colesanti, reminiscing about the beginning of his academic studies that have so far revolved around civil procedure, calls to mind the tension between the past and the present, compared through the watching of the transformations with regard to both university and civil case reforms. In the end, it seems that everything and nothing alike has been changed, but the inevitable feeling of letdown tied to the decay of the quality of human being in general can be balanced with the belief to have tried to do one’s best that is also a hope wish.

This paper deals with two aspects of the religious freedom, with specific focus on the experience of the Catholic Church. The first aspect concerns the individual, comunitarian and institutional freedom of religion. This freedom is demanded by the Catholic Church in front of the political community according to an old dualistic principle dating back to the catholic predication and which is opposite to the monistic principle. The Italian experience is paradigmatic of the State’s attempts to revive a variation of the pagan monism. A special attention is also paid to the European détente process, in which the Christian Churches became «sage midwifes» of democracy while the international charters are reluctant to recognize the institutional freedom of religion. This paper also refers to the horizontal application of human rights as to one of the new challanges. The second aspect concerns dealt with by this paper is the freedom of the single believer within the Catholic Church. This freedom is strengthened by the Codex Iuris Canonici currently in force and only partially corresponds to the Human Rights ratified by International Charters. If the right and duty of communion is the lintel, the believers’ freedom of opinion and the other specific freedoms which are granted to laymen and laywomen are the walls of the new constitutional architecture of the Catholic Church. A comparison with Islam is then mentioned as one of the most relevant questions. Islam does not regard human rights as natural rights, but looks at them as divine gifts founded on the Shari’a. Such view is based on the theologic-juridical primacy of the law on the person. This idea is the opposite of the primacy of the person over the law, a foundational value which was brought in the Western Culture by the Christianism.

In his book published in 1951, Cotta showed that according to S. Augustine the external features of political institutions were not sufficient to grant their capacity to pursue an actual common good. In this way Cotta: a) drew away from ideological catholic thought which claimed to be able to outline the earthly features of a society totally inspired by christian values; b) showed the autonomy of augustinian thought from the later interpretation of S. Thomas which was inspired by the idea of natural law; c) offered an in depth analysis of the classical principle according to which it is impossible to draw a particular yet absolutely grounded conclusion from a universal principle; d) lastly, by claiming the presence of the transcendent in experience and through the critic to every kind of ideological dogmatism, he gave a lesson on the way in which a true lay political thought has to develop.

The subject of the article is the analysis and evaluation of recent agreements between the Government and the social partners on the structure of collective bargaining. The two levels of negotiation industry-wide (multi-employer) and plant, are confirmed. The establisched duration of collective agreements in 3 years. Remedies against inflation have been overhauled: a new index, the IPCA, has been adopted to guarantee the purchasing power of salaries. The orientation towards linking a share of salaries to the economic success of the enterprise has been confirmed and strengthened.

This paper focuses, first, on the gradual development of Social Services of General Interest (SSGI) by the Community law, reconstructing the conceptual distinctions made in the broader category of Services of General Interest (SGI). Second, in light of these distinctions, the Author analyzes the EU legislation applicable to social services, highlighting in particular the positions of the European Commission and the Court of Justice. Communications Commission and judgments of Court of Justice indicate, however, the propensity of European institutions to apply internal market and the competition rules to Third sector, not minding the values that such persons act in their favor: equality, solidarity and social justice. This approach penalizes Third sector and threatens to undermine the European Social Model and the same social and territorial cohesion of the Union. The entry into force of the Treaty of Lisbon and the new role will therefore be called upon to play the Charter of Fundamental Rights can, however, to conduct, both case-law and on that legislation, new forms of balance between the principles and values. However, we should ensure equal and balances, therefore, SSGI, and through which social rights are realized, in turn, being the expression of these principles and values, should be properly regulated by EU law and not left solely to the Court of Justice. Otherwise the same process of European integration is likely to hang, are legitimate concerns and distrust of citizens of the Member States relating to the European Social Model that shows the current time.

Moving from changes taking place in the administration according to the principle of subsidiarity, which is suggested to be consistent with the «nature of things» theory, the Author analyses some results of this «paradigm shift» relating to judicial review of administrative action.