Chapter 1

1. What is the difference between Natural Law and Positive Law?

Natural Law refers to natural rights and human rights. They exist on their own because of the human
being. (Ontological status) Although before WW2, States didn’t recognize them as laws they’re
considered as rights. In this case Law =/= Rights.

Positive Law comes from the latin word “positum” which means “established”, it refers to the system of
laws established by a legal system. In this case Law = Norm = Rights.

2. What is the difference between Justice and Law?

Law refers to a legal system in an objective sense.

The system of rules which a community recognizes as regulating the actions of its members and which it
may enforce by the imposition of penalties.

Justice from “just” as in “reasonable”, holds more of a philosophical meaning, in an ethical and moral
sense. According to Aristotle, it’s a virtue and it presumes the “rights”.

3. What are the modern theories over the nature of legal systems?

Hans Kelsen talks about the normativistic concept, in a sense that Law=Rights=Norms, and is in the basis
of the hierarchy of legal sources.

Santi Romano talks about the institutionalistic concept, on the basis of sociological elements, like the
nature of the group, of the components of its members and authority.

4. What makes a legal system?

Wherever there’s people who coexist, legal systems emerge. “Ibis ius ibis societas”

5. What are the elements of a legal system?

 People: who make up a social group and interact with each other
 Norms: that regulates a legal system, regulations, rights and obligations, sanctions...
 Political Power: assigning one person/organ certain responsibility and legitimizing his
political power, according to Marx, legitimacy of political Power can be Historical or
Traditional power/Legal-Rational power and charismatic power.
 Authority: refers to all the means of coercion to exacerbate this political power and
norms in the society. According to Marx, the monopoly of violence of the state, gives it
the legitimacy to use the force.

6. What is the definition of the State?

State: A concentrate legal system, necessary, territorial by nature, focused on general aims,
independent and sovereign

A legal system having general ends and aims, territorial by nature, which exercises sovereign
power over a specific territory , to which the subjects or participants belonging to such system
are necessarily subject and subordinated

7. What are the elements of the State?

 Sovereignty
 Territory
 People

a) Sovereignty: Principle of supreme and unquestionable authority. Means that the State is the
sole author of Laws within its territory.

External Sovereignty: Refers to the capacity of the State to act independently in the world stage.
That States are all equal and each has an inviolable sovereignty.

Internal Sovereignty: Refers to the relationship between the State and its subjects. (Contractualist
theory)

b) Territory: a defined geographic area (land, air or sea) belonging or under the jurisdiction of a
sovereign authority.
c) People: those who are governed/ participants who are subject to the power of the states and
bound by its rules.

8. What is a norm and what are its characteristics?

Legal norms that are produced by Government or State legal system or by a source that a system
recognizes. They have binding effects on participants of this legal system.
  Effectiveness: the norm’s ability to impose binding effect on participants
 Force: the norm’s ability to innovate and amend laws. (force of law)
 Generality: the norm’s ability to apply to all participants (indefinite number of people)
 Abstractness: the norm’s ability to apply to an indefinite number of situations.

9. What is the Contemporary State?

Evolution from feudal system → Contemporary State

In the Middle Ages the organization of the feudal system was characterized by a high degree of
power dispersion, social and class fragmentation.

10. What is Contemporary Constitutionalism and what are its principles?

The concept of Constitution emerged from liberal revolutions (American and French 18th century)

3 principles of contemporary constitutionalism: (Montesquieu/Rousseau)

 The rule of law (government authority may only be legitimately exercised in accordance with
laws that are adopted)
 Separation of powers
 Constitutional supremacy (the constitution as the supreme law).

Chapter 2 (Look at slides)

Chapter 3
1. What’s the difference between Form of State and Form of Government?

Form of State is the rules and principles that govern a legal system, it is the relationship between the
State and the citizens.

Form of Government are rules concerning the distribution of power among the branches of government
/ the relationship between constitutional bodies with each other

2. What are the different forms of State and their characteristics?

 A. Political Power Distinction
Feudal Society: Not really considered as a State, it was mainly agreement between individuals and
feudal lords. It wasn’t to protect the general interest but only to protect the land from external
attack (land possession = land + peasants)

Absolute State:

 Institutional system dominated by the noble classes or the King himself

 Economic protectionism, the State became more interventionist.
 Bureaucracy and tax system
 Large standing army

Liberal State:

 Separation of Powers
 Prevalence of individualism
 Rule of Law
 Mono-class society (census suffrage)
 Popular sovereignty
 Minimum state intervention

Pluralist Democratic States:

 Recognition and protection of a plurality of groups represented in Parliament (=/= Mono-class

society)
 Voting rights (universal suffrage =/= census suffrage)
 Recognition of HR.

(There’s also talk about the welfare state as another form, from the cradle to the grave)

Alt: Totalitarian/Authoritarian States

 Executive domination. For ex. the fascist state concentrated power in the hands of the Head of
the Government , who exercised both executive and legislative powers
 Use of force and intimidating action
 Limitations of basic individual rights

Alt: Socialist State

 Proletarian dictatorship: eliminating the bourgeoisie and creating a society without social classes
 Abolition of economy of the market in favor of a collectivist one
 Abolition of private property
 Monopoly of the state of the means of production

B. Territorial Distinction
 * Separation of Power between Central Gov and Sub-State Unities *

 Unitary State
 Federal State
 Regional State

3. What is the difference between Unitary State and Decentralized State?

Unitary State Decentralized State

 Legislative Power is exercised only by central  Legislative Power is exercised by both central
government and government

4. What is the difference between federal and regional state? (both decentralized)
IMPORTANT RECURRING QUESTION

Federal State Regional State

Constitution contains a provision or clause listing
of subject matters on which the central state can
legislate, leaving the residual matters (that are not
listed in the Const.) to the sub-state entities.
Allocation of
Legislative Power Exception: Canada, allocates the residual matters
to the federal State not the provinces.
Constitution contains a list of matters over which
the sub-state institutions can legislate, while the
State has competence regarding all residual
matters. (Limiting for the Region)
Exception: Italy, there’re “concurrent subject
matters” in which both the State and Region can
legiferate.
 Separated model: as in USA, each State has its Only one judicial system applicable in the whole
own criminal and civil codes State.
Allocation
Integrated model: as in Canada, there is only a In Italy there are first instance administrative
of Judicial Power
criminal code of Canada, even if tribunals in each region, but the administrative
provinces can appoint their own provincial judges procedural law is the same throughout Italy.
and decide how they want to enforce the criminal
code.

Representation in the Sub-state entities are represented in the second Sub-state entities are NOT represented in the
Upper House chamber (upper house) second chamber.

Sub-state entities have constituent power and Sub-state entities DO NOT take part in
take part in amending the Constitution. constitutional reform procedures.
Constitutional
Amendment Powers i.e. in USA, amendments of the Constitution have
to be ratified by 3/4 of the Legislatures of the
States

5. What are the existing forms of Government?

 Parliamentary Executive
 Presidential Executive
 Semi-Presidential Executive
 Directorial Executive

a) Parliamentary Executive:

 The most important element is the relationship between the Executive and the Parliament
 There’s both the Head of State and the Head of Government
 The Head of Gov is not directly elected but appointed by the Head of State
 The Head of Gov doesn’t have a fixed term

Election

If it’s a majority system, it’s obvious who the Head of Gov’s gonna be
 If it’s a proportional system, the appointment of the Head of Government depends on
the number of members of parliament obtained by each coalition or party: The Head of
State has a more of discretionary power.

b) Presidential Executive:

 The President is popularly elected, and is both the Head of State and the Head of Government
 There is no relationship of confidence between the President and the Congress, but there is a
separation of powers: The Congress cannot vote a motion of no confidence
 the President has the power to veto legislation and the Congress has the power to impeach the
President
 The President serves for a fix term of four years and he could be reelected once

c) Directorial Executive:

 Exist only in Switzerland (Considered as a unicum)

 This system favorizes a collegial institution: The Federal Council
 The Federal Council is not directly elected but derives from the federal parliament.
 The collegial system combines both a head of Gov and head of State. (Only one head)
 There is no relationship of confidence between the Council and Parliament (and it has a fixed
term of four years)
 The President of the Council is elected among the seven members and remain in office for one
year
 The council includes members from 3 of the main political parties (Magical formula)

d) Semi-presidential Executive

 Combines elements from both systems

 There’s both a Head of State and Head of Gov
 President is elected directly (2 tours)
 The president has the right to dissolve the National Assembly (Like in all parliamentary forms,
for ex. Italy)
 The President will have to appoint someone who has the majority in the National Assembly
regardless of their political affiliation. (Cohabitation of both parties even if they’re politically
opposed)
Chapter 4
1. How important is Bicameralism for Federal States?

Bicameralism is for example very essential in federal system, with one chamber protecting the interests
of federal unity and the other comprises of sub-entities (rep. of federated states) and protect their
interests

e.g. House of Representatives protects the whole federal unity, and the Senate has senators of each
Federated State (Florida, Illinois…)

2. What is the difference between perfect bicameralism and imperfect bicameralism?

Perfect Bicameralism Imperfect Bicameralism

If both chambers are structured similarly or if Differences in the composition, powers and
they exercise the same powers and functions functions

Italy: 2 chambers, similar structure & functions

3. What are the characteristics of perfect bicameralism (Case of Italy)?

• The two Chambers have strong similarities with each other, both structurally and functionally

• The Executive must have the express confidence of both Chambers

 4. What is the difference between proportional systems and majority systems?
(Electoral System)

Proportional Systems Majority Systems

Def Assignment of seats to electoral lists that are Def Assignment of the seats to the candidates which
presented for elections in proportion with votes have obtained the greatest number of votes in
actually obtained. comparison to the others

E.g. So if you have a 10-member district and the

Republicans win 50% of the vote, they receive five
of the ten seats

P. Rep allows a more faithfully representation of M. Rep sacrifices a “direct majority” of the political
the reality of the political forces in the field (Ne party but achieves a “stable” majority within the
favorise pas la bipolarite partisane, hegemony de 2 parliament.
partis politiques)

BUT it acts to the detriment of the stability of

political majority.

5. What is the system currently adapted in Italy?

Current system (Chamber of Deputies) is proportional but if a list obtains, at national level, the 40% of
the votes , it will have a premium of 340 extra seats.

 The lists cannot organize a coalition between them.

 The lists should have minimum 3%

Current system (Senate of the Republic): « Consultellum »

 Proportional system
 Lists can organize coalitions between them
 6. What are the Parliament’s Autonomous Powers? (not on the slides)

 Regulatory Autonomy: each chamber has standing orders, rules under which the House
regulates its proceedings.
 Financial Autonomy: each chamber prepares and approves its own budget.
 Self-rule: Parliamentary is self-ruled, whatever happens within it is subject to the sole jurisdiction of
the two chambers (protecting parliament from interference of the judiciary)

Chapter 5 (Look at slides)

Chapter 6
1. What are the Characteristics of Public Administration?

a) Realization of Public Interests in the concrete:

“Concrete care of the public interest”

If the legislative pass laws that protects the public interest, and the judiciary makes sure these
laws are respected, Public Administration protects the public interest in a direct way.

e.g.: The Law determines how public health will operate; judiciary ensures observance of that
laws and public administration produces all the measures and services which make it possible to
access public health

b) Discretionary power:

 The power to decide the most effective way to realize public interests, the possibility to chose
among several alternatives.
 Public Administration has a more flexible margin of choosing ways to safeguard the public
interest, ofc within the margin of the Law.

c) Spontaneous action:
  Except for cases required by Law, Public Administration has the right to act spontaneously in
order to realize public interests. (unlike the judiciary for example, a judge cannot act
spontaneously)

2. What are Constitutional principles of Public Administration?

a) Principle of Autonomy:

Administrative decentralization: Art.5 specifies and accords the principles and methods of its legislation
to the requirements of autonomy and decentralization.

• The principle of Autonomy also enables sub-state entities to choose their own political orientation
within the framework of the Constitution and the State Law.

b) Principles of efficiency and impartiality

Impartiality: Art. 97

 Carefully ponder what interests may be sacrificed for the public interest
 Maintain political neutrality

3. Principles governing PA?

Cost-effectiveness

Efficiency

Full Publicity

Transparency

Public Competition (in appointing public administrators)

The obligation of public officials to be at the sole service of the

 Nation

Principle of responsibility: Officials and employees of the State and public

entities are directly responsible, according to criminal, civil and administrative
Laws.

4. What is the difference between lawful rights and legitimate interests?

Lawful Rights Legitimate Interests

The full expression of law, guaranteed erga Procedure (keyword) The way this something is
omnes / The right to something being drawn out (the legitimate/fair procedure)

to have a proper evaluation, without inequity

Chapter 7 (Look at slides)

Chapter 8
1. What is the Head of State in Parliamentary form of government?

In parliamentary systems the Head of the State is excluded from the political power circuit between
Parliament and Government confidence.
He is the guardian of the Constitution, the balancer of the powers of State, the neutral power,
upholder of the State in moments of crisis.

The President of the Republic represents National Unity, both internally and externally.

2. How is the role of the president of Italy regulated?

From Constitution, Constitutional Norms and habits from previous Italian Presidents.
 3. How is the President of republic elected?

 He is elected by the Parliament in joint session (both Chambers) + 3 delegates from each region.
 The vote is secret.
 Elected for 7 years

4. Explain the irresponsibility of the President of Republic.

The Pres. of Republic is NOT responsible for the acts performed during his exercise. Except for high
treason or plots against the Constitution. In such cases he is “impeached” by the Parliament.

In fact:

 No act of the President of the Republic is valid if it is not signed by the proposing Ministers. (who
assume repsonsability for it)
 The acts that has legislative value shall be countersigned by the Pres. Of the Council (pcke le
president n’est pas habilite a legiferer)

Which explains his (ir)responsibility better.

5. What are the competences of the Pres. Of Republic?

A. Legislative Powers of the Pres.:

Free action

• Appoint 5 senators for life

• Before promulgating (executing) a law, ask for a new deliberation

• Dissolve Parliament

Limited action

• Call referendums

• Promulgate laws

B. Executive Powers of the Pres.:

• Appointing higher State officials

• Commander of the Armed forces – Shall declare war if voted upon in the Parliament.

• Ratifies Intl. Treaties (again if authorized by the Parliament)

• Issues decrees of Law values and governmental regulations.

C. Judicial Powers of the Pres.:

• Shall chair the Superior Council of the Judiciary

• May grant pardons (Grace)

• Appoint 5 judges to the Constitutional Court

6. What do we mean by the tripartition of the presidential acts?

 Formally presidential acts which are substantially governmental:

Presidential in Form, but Governmental in Content

Acts having the force of Law and containing governmental regulations  but take the form of a
presidential decree.

 Formally Presidential acts which are substantially presidential:

Acts that are purely presidential (in form and content)

For example: Appointing 5 Const. judges or Senators for life.

 Substantially Complex Acts

Acts that requires more stakeholders. (Acts in consultation...)

For example: Acts that require a consultation/concertation process. (Appointing President of Council or
Dissolution of the Parliament).
Chapter 9
1. What are the characteristics of the Judiciary?

The judiciary is an autonomous and independent branch of government not subject to any other.

2. What is the principle of single judiciary?

Judicial power is assigned only to ordinary judges who would act both as judges and public prosecutors.

Some exceptions: Regional Administrative tribunals, Court of Accounts…

3. What is the principle of functional independence of the judge?

• Judges are only subject to the Law (la ghayr) Not letting any other power interfere.

• Judges are appointed on the basis of public competitive state examinations (legitimate interests)

4. What is the Superior Council of the Judiciary and what is its role?

It’s a self-governing body for the judiciary. (1/3 members appointed by Parliament, 2/3 from ordinary
judges)

Its role is to: “appoint, assign, move and promote members of Judiciary and take disciplinary actions
against them».

5. What is a fair trial cause, and what are its elements?

 Impartial Third-Party Status of the Judge (The judge should not interfere in an unbiased way
the dispute between two parties)
 Principle of Confrontation (Each party shall confront the other, for example criminal proof
against each other)
 Reasonable duration of the trials

Chapter 10
 1. What is the Constitutional Court and what is it in charge of? Who are the “workers” in
CC?

It is an « ad hoc » body, not part of the Judiciary with specific functions. It is composed of 5 judges
appointed by the Pres. of Republic, 5 judges appointed by the Parliament and 5 appointed by the
supreme court.

2. What are the functions of the CC?

a) Constitutional review of laws and acts having force of law

b) Resolution of jurisdictional disputes between branches of government within the State and
jurisdictional disputes between State and Regions.
c) Deciding on accusations made against the President of the Republic (impeachment)
d) Decide on the admissibility of abrogative referendums.

3. What is Constitutional Review and to which extent can it be used?

The Constitutional Court is the competent body to declare the illegitimacy of primary sources that
contrast with the Constitution.

ATTENTION: Secondary sources, EU Law and Standing orders do not come under review.

4. What are the proceedings of Constitutional Review?

Two proceedings:

 Direct: The Government and the Region can directly claim the unconstitutionality of a law
before the CC. (The Gov can claim the unconstitutionality of a regional law and vice versa) + 60
days following the publication of the law.
 Indirect: a judge could file a claim during a regular trial, if they doubt the constitutionality of the
law. Also, the citizens part of the trial can also claim this. + 2 conditions to verify: the question of
unconstitutionality is relevant to the case and clearly founded.

5. What is the final decision of the CC?

The final decision of the CC is called judgment, it’s a final decision of the proceeding that can’t be
appealed and have general effect (erga omnes)

6. What are the parameters of judgement of the CC?

Constitution and Constitutional Law (DC) + Sub-constitutional parameters indicated by the Const. +
Community Law, Customary Law + Concordat between the State and the Holy See.

7. What are the fundamental types of judgment?

 Judgements of acceptance: judgments in which the CC accepts the question of

unconstitutionality and declares the challenged provision to be unconstitutional.
 Judgements of dismissal: in which the CC dismisses the claim and declares that the law is not in
contrast with the Constitution.

8. What are the other types of judgments?

 Interpretative Judgments: in which the Court declares the unconstitutionality of a specific

meaning: “the Law is unconstitutional in the part in which it provides that…”
 Judgement of partial acceptance: as its name indicates, in which the CC declares one part of the
challenged provision as unconstitutional and not the whole legislative text. “The CC shall declare
as unconstitutional the Law X in the part in which…”
 Substitutive Judgment
 Additive judgments
 Exhortative judgments

9. What can the CC do in case of a dispute between branches of the Government?

 The Court may declare that function X should be exercise by body Y.

 The Court may declare the annulment of the act that provoked the dispute.

10. What can the CC do in case of a dispute between the State and the Region?
  The Court will resolve the dispute by declaring who competence belongs to (the State or the
Region ) with consequent annulment of the disputed act.

11. How it the “impeachment” of the president carried out?

 The first stage in joint session Parliament = the overall majority of members must vote in favor
of impeachment.
 The second stage before the Constitutional Court (in this case the Court shall comprise sixteen
additional members)

12. What should be taken into consideration in order to declare an abrogative

referendum admissible?

The Court must ensure that the referendum request does not violate one of the limits of admissibility
contained in art. 75 and the Constitution itself.

Chapter 11
Chapter 11: Italian Sources of Law

1. What are the types of Sources?

 Sources ON Production: Rules on the production of law: they indicate the procedure and the
competent authority to deliberate law.
 Sources OF Production: They are basically the acts and facts that can produce law.
 Sources of Cognizance: Sources that give notice of sources of production (Bulletin Officiel/
Gazzeta ufficiale)
 Acts and Facts: Acts are laws adopted during the exercise of power conferred to a competent
body by the Constitution
Facts are not produced by the will of a specific body

2. What do we mean by interpretation of laws?

Interpretation means searching for the meaning of law (hermeneutical activity). Judges and
administrators must interpret the laws.
 3. What should be taken into consideration in case of conflict between sources of laws?

Certain criteria need to be respected:

 Criterion of Hierarchy:

1. The law on the lower level in contrast with the law on the higher level, is declared
illegitimate and then annulled. (Hierarchie des normes)
2. If it’s a law in contrast with the Constitution. It is declared illegitimate by the Constitutional
Court. (Duuuh)
3. It it’s a secondary law in contrast with an ordinary law, it Is declared illegitimate by the
administrative judge.

 Criterion of Competence:

1. If a law invades the competence of another, it is declared illegitimate by the Constitutional

Court.

 Criterion of Specialization

1. The specific law takes precedence over the general law (but general law is still valid in
other situations)

 Criterion of Chronology

A new law that’s in contrast with an old law is repealed by the new law, the old law ceases to
have effect in the future.

 Types of repeal:

1. Tacit: the new law is incompatible with the old one

2. Implicit: when the new law regulates the entire policy area

ATTENTION For facts subject to jurisdiction that emerged during the old law before the new one
came into effect, in this case, the old law is still applicable.

4. What are Constitutional Statutory limits?

Italian Constitution imposes primary sources of law in policy areas.

1. Absolute: only the law can regulate a particular policy area

2. Relative: the law establishes the principles and the secondary law establishes provisions
 5. What are Italian sources?

Con
stit. (Ordinary
Primary Sources
laws by Chambers,
regional laws, law
decrees/legislative
decrees, referendums...

Secondary sources (government and

minestrial regulations)

6. Describe the Italian Constitution.

 Rigid: cannot be amended easily

 Long: contains all the provisions (principles, organization, obligations, rights…)
 Programmatic: sets goals towards which the state activity must be directed. (obligatory)

7. What are the Constitutional Amendment Limits?

The Constitution can be modified within the explicit and implicit limit:

 Explicit: the republican form of state cannot be changed

 Implicit: Inviolable rights of the man and the supreme principles can’t be changed

8. What do we mean by “Force of Law”?

Laws that have the power to amend or in some cases, repeal, laws at the same level of hierarchy.

Primary sources, legislative and law decrees have the force of law.

9. What is the procedure for a law?

 i. Legislative initiative
ii. Debate
iii. Vote
iv. Promulgation
v. Publication in the Official Gazette

10. What is the procedure to transform a bill into a law?

1. Ordinary Procedure
2. Debating Procedure
3. Drafting Procedure

11. What is Shuttle-Mechanism?

 If the second Chamber amends the text voted by the first Chamber, the first Chamber must
re-approve the amended text. (Perfect Bicameralism)
 This passage from one Chamber to another continues until both branches of Parliament vote an
identical text (Shuttle like)

12. What is integration of effectiveness?

The president of the republic must promulgate the law voted by both chambers in order for it to be
effective.

13. Difference between Legislative Decrees and Law Decrees?

Acts having force of law. They are the only two instances when the Constitution legitimizes the
Government to exercise primary legislative power in the place of Parliament. (Both are still
controlled by the Parliament)

 For legislative decrees it is the Parliament that decides to delegate the Government to
adopt primary sources of law (for technical reasons for example)
 For law decrees it is the exceptional case of necessity and urgency that legitimizes the
Government’s intervention.

14. In order to be valid, the Legislative Decree must have what?

 Principle and Guidance criteria

 Subject matter
 Time limit
 15. In order to be valid, the Law Decree must?

 Be converted into a law within 60 days (Nature)

 Shouldn’t ignore constitutional limits (abuse)

16. What is an abrogative referendum?

An instrument of direct democracy that enables the people to totally or partially repeal an
ordinary State law or an act having force of law

The CC must verify its admissibility.

The law is repealed when there are more votes in favor of abrogation than against.

17. What are parliamentary standing orders?

They regulate both the internal organization of each Chamber and integrate the procedure
established by Constitution.

18. What are secondary sources of Law?

Refers to government regulations and regulatory power.

They are subordinate to ordinary laws and other primary sources of Law.

Procedure: Deliberated by the Council  registered by the Court of Account  Issued by the Pres. Of
Republic  Published in the official gazette

Chapter 12
1. What is the principle of autonomy?

The republic recognizes and promotes local autonomies (regions and municipalities) + promotes
administrative decentralization.

2. What is differentiated regionalism?

Ordinary regions may negotiate additional forms of autonomy and a State law must approve that with
an absolute majority of their members.
 3. What is a Statute of ordinary regions?

Each ordinary region is required to have a Statue of its own stating. The statute shall lay down the form
of government, the principles governing the region as well as the conduct of its business. The statute
shall also regulate the right of initiative and referendum on the laws and administrative measures of the
Region as well as the publication of laws and regional regulations. (adopted and amended by the
regional council)

 The statute is supraordinate to the ordinary laws.

 It has limits of competence defined by the Constitution (residual matters

4. What is the region’s power in legislation?

Both State Law and Region Law must respect the limits defined by the Constitution and Community Law
and International Law.

Regional law is a primary source of law and on the same level as ordinary state laws and acts having
force of law.

5. What is the relationship between State and Region?

It’s a relationship based on principle of competence.

6. How are legislative competencies of both State and Region

defined?

Exclusive competence of the State: legislative competence exclusive to the State

Concurrent legislative competency: subject matters that can come under both state and regional
legislation

Residual matters: legislative competence of the region

Chapter 13
European Sources of Law

1. What are the European Sources of Law?

 Original Law (Primary Sources ): Treaties of the European Community. Their supremacy
is guaranteed by the interpretation by the ECJ.
  Derived law ( secondary sources of law): Sources of community law adopted by
community bodies, on the basis of the procedure established by the Treaties.

2. What is the Principle of Attribution?

It’s when the Treaties expressly assign sectors to be regulated by the EU legislation.
(There are also subject matters assigned to the concurrent competence of both the EU and
Member States)

3. What is the Principle of Subsidiarity?

In sectors where the Community does not have exclusive competence, it may intervene only
when action of a Member State is insufficient to achieve the objective of a law.

4. What are the types of EU sources of law?

 Binding Acts: Regulations + Directives + Decisions

 Non-Binding Acts:

a) Recommendation: invitation addressed to Member States to conform to certain

behavior
b) Opinions: express the position of a European body

5. Elements of the Lisbon Treaty?

 EU became a legal entity

 Increase of the role of Parliament
 ECJ
 Charter of fundamental rights of the EU (Treaty of Nice) became at the same level as other legal
treaties.

6. What are regulations?

• They establish general and abstract rules, which are obligatory and binding for all EU citizens

• They are directly applicable within each legal system

• They must not be implemented by national law to become effective because they are immediately
binding.

• The ECJ has declared domestic laws that reproduce the content of the regulations to be illegitimate.
 7. What are directives? And what’s the distinction with self-executing directives?

 They are binding as to the result to be achieved, but leave their implementation to the discretion of
each Member State
 Their binding as to the deadlines
 Directives are generally drafted as a framework for more specific domestic legislation.

A ne pas confondre avec self-executing directives :

are very detailed, clear and precise: they can be applied directly if they are not implemented at national
level. And they introduce obligations for Member States.

8. What are decisions? (EU sources of Law)

 They are addressed to specific Member States or legal persons

 They are not general and abstract
 They are binding

9. What is Soft Law?

 Atypical acts of non-binding nature.

 Commission’s instrument of communication : green papers, white papers, plans of action

Relationship between EU and Italian Sources of Law

10. What is the relationship between Italian Constitution and Community Law?

 The Constitution agreed on article 11 on the limitation of sovereignty provided for by the founding
treaties
 When Italy joined the EU it did not have to amend Constitution.
 The Constitution provides specific references to EU obligations to which both State and Regional
legislation must adhere

11. How are EU Directive implemented into the Italian Law?

a) The Annual Community Law: It can directly implement directives (by amending or repealing Italian
laws) Directives are implemented every year.
b) The Annual Community Delegation Law: it can delegate to the Government to implement
directives. It can either:

 Authorize the Government to adopt secondary sources to implement directives

  The Gov. approves a framework law containing a series of guiding principles which
the Regions must follow.

12. How to resolve contrasts between directives and Italian primary sources of law?

 The rule is simple. Italian primary sources that are in contrast with the directives are considered as
unconstitutional (because they breach Art.11 and 117) They shall be declared as so by the CC.

13. How to resolve contrasts between regulations and Italian primary sources of law?

 When there is a contrast between European regulations and Italian primary sources of law,
European law prevails over the laws of the Member States.
 In case of a contrast, the Italian judge must adopt EU regulation

14. What is the relationship between Constitutional Court and EU law implementation?

 It accepted that community law takes precedence over Italian law

 Preliminary ruling : if an Italian judge or the Constitutional Court have a doubt about the
interpretation of EU law, they may refer the question to the ECJ.

15. What is controlimiti / counterlimit doctrine? (IMPORTANT)

The limit to the limitations.

 EU law must not be in contrast with supreme principles of Italian legal system and the inviolable
rights of human being.
 In that case, CC can declare a part of EU legislation as inapplicable.

See Fundamental Rights Slides