Private and Public law
lesson 10
Government
and the Public Administration:
overview of the Italian Administrative
bodies
The Government
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- 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
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- 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
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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
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The Government is comprised of:
- The Prime Minister
- The Ministers (with or without expenditure power)
- the vice-Ministers
- the deputy-Ministers (sottosegretari)
The Government
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The Prime Minister is also supported by:
- The “Agencies”
- The “General Secretariat” / Departments
- Extraordinary Commissioners
- Vice-President(s)
What do we mean by “Administration”?
The general duties and powers
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- Decision making
- Power to issue optional/mandatory/binding
opinions
- Duty to supervise and control
- Power to define the general views of the
Administration
How are citizens primarily protected against abuses by the
Administration?
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Art. 95 Constitution
The 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 Constitution
Public offices are organized according to the
provisions of the law, in order to ensure the proper
conduct and impartiality of the Administration
Art. 97 Constitution
Civil 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
How are citizens primarily protected against
abuses by the Administration
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Art. 98 Constitution
The law may set out limitations to the right to be
enrolled with political parties, for members of
the 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 Constitution
Citizens may not be compelled to perform any action
unless within the scope of a law of the Parliament
Art. 13 (and following) Constitution
The citizens’ fundamental freedoms may be limited
only in cases and manners provided for by law
How are citizens primarily protected against
abuses by the Administration
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Art. 5 Constitution
The Republic conforms to the principles
of “autonomy and decentralization”
the citizens’ right to have access to the
Administration internal documents and files
How are citizens primarily protected against
abuses by the Administration
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Art. 52 Constitution
The 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?
In particular: liability of civil
servants and of the Administration
Potential liabilities for civil servants and/or the
Administration
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Art. 28 Constitution
Civil 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 Constitution
Citizens 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.
Potential liabilities for civil servants and/or the
Administration
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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)
Potential liabilities for civil servants and/or the
Administration
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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)?
Definition of “Administration”
The general duties and powers of the
Government
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1- Administrative functions
2- Duty to define the Administration’s
general approach
3- Decision making; power to enact norms
and regulations
The administrative functions
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- 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 duty to define the Administrative general
approach
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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 decision-making processes.
The power to enact norms and
regulations
Decision making; power to enact norms and
regulations
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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
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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
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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)
Decision making; power to enact norms and
regulations
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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.)
Decision making; power to enact norms and regulations
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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?
Decision making; power to enact norms and
regulations
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Legislative Decrees (art. 77, para 1, Constitution)
- “Codes”
- “Consolidated Acts”
mere recollection of existing norms
supplement / amend existing norms
Decision making; power to enact norms and
regulations
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Legislative Decrees (art. 77, para 1, Constitution)
Conditions:
1- principles and guidelines are set out by the
Parliament
2- time limits set out by the Parliament
3- specific subject-matter
Decision making; power to enact norms and
regulations
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Legislative Decrees (art. 77, para 1, Constitution)
- 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?
Decision making; power to enact norms and
regulations
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Regulations
- enactment regulations
- regulations supplementing laws (or assimilated
acts)
- autonomous regulations
- organization regulations
- “authorized” regulations
Decision making; power to enact norms and
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)