Private and Public law
lesson 1
Forms of State
forms of government
The main features of State
______________________________
- independence
- preeminence
- based on a territory
- general aims
The “forms” of State
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- The feudal society
- Absolutism
- The “police” State
- The “modern” State (rule of law)
- The socialist State
- Authoritarianism
The welfare State
Centralised State
Decentralised State –
“regional State(s)”
Institutional
decentralisation
Bureaucratic
decentralisation
Self-government
Decentralisation in the Italian
Constitution
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- 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)
The Unions of States
Confederations
In particular:
the European
Union
The constitutional elements of States
______________________________
- Territory
- People
- Sovereignty
Territory
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- 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
People
______________________________
- 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)
What is “nation”?
______________________________
- “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”
Sovereignty
______________________________
- 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?
Limitations to “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
• 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