n. 34
April
2016


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Palomar is not a newspaper, it is updated without a fixed periodicity, exclusively on the basis of the available materials and news; it is not, therefore, an editorial project subject to the discipline of Art. 1, c. 3, Law n. 62 of March 7, 2001.
The Italian Constitutional Court rules on the admissibility of the oil drilling referendum
The Italian Constitutional Court ruled on the relationship with the Parliament on criminal matters
The Italian Constitutional Court ruled on religious agreements
A Regional Law on the regulation of “lobbies” is approved in Calabria







The Italian Constitutional Court rules on the admissibility of the oil drilling referendum

With its important decision no. 17/2016 of the 2nd of February 2016, the Italian Constitutional Court ruled in favor of the admissibility of the request for referendum concerning the renewal of oil drilling licenses for hydrocarbon extraction within 12 nautical miles of the Italian coast.
The request was submitted by ten different Regional Councils according to Art. 75 of the Constitution and aimed to repeal Art. 6, subsection 17, of the Italian Environmental Code (i.e. D.Lgs. no. 152/2006), which allows the possibility to grant oil drilling licenses until the exhaustion of the oilfield.
Basically, the referendum committee intended to interrupt, through the referendum, the renewal of the offshore oil drilling licenses within 12 miles (20 km) from the Italian coast at the end of their current duration without further renewal.
Under Italian law, each referendum request must be examined by the Central Office for Referendum (Ufficio centrale per il referendum), established within the Supreme Court of Cassation, and by the Italian Constitutional Court in order to verify compliance with the proceedings envisaged by the law and the Constitution.
Pending the proceeding before the Constitutional Court, the Parliament approved Law no. 208/2015 which included amendments to the same Art. 6 of the Environmental Code.
According to Article 39 of the Law on referendum proceedings (i.e. Law no. 352/1970), in case of repealing of the law provisions subject to referendum, the Central Referendum Office shall suspend the referendum. Therefore, the above mentioned law basically allows the Parliament to introduce amendments to the Law in order to avoid the referendum.
Notwithstanding the above faculty, the same Law also envisages that, if the successive provision does not modify the essence of the matter, the referendum cannot be suspended. In other words the Law also considers the risks of possible abuses by the majority in the Parliament against popular sovereignty and includes such limit within the “ius superveniens”.
Thus the Constitutional Court, invested of the decision on the legitimacy of the request, had to carry out a preliminary examination in order to verify whether the new regulation had changed the essence of the matter.
After perusing the purpose of the reform and the measures established therein, the Court declared that the Law no. 208/2015 did not introduce a different regulation of the matter and confirmed the previous decision issued by the Central Office for Referendum to maintain the referendum.  
Finally, after having verified compliance with Art. 75 of the request, the Court declared the admissibility of the referendum which has been regularly held on the 17th of April 2016. (Simone Pitto)


The Italian Constitutional Court ruled on the relationship with the Parliament on criminal matters

With its judgment no. 23/2016, the Italian Constitutional Court set aside the request for preliminary ruling submitted by the Juvenile Court of Reggio Calabria challenging the validity of Art. 73, 5 of D.P.R. 309/1990 (Act on Drugs and Addiction Recovery Program). The Juvenile Court stated that Art. 73, .5 is inconsistent with the Italian Constitution, specifically with Art. 3 (principle of equality), Art. 27, .3 (penalties aimed at re-educating the convicted persons) and Art. 117 .1 (international obligations under European Union Law and European Convention on Human Rights) as the provision at issue provides the same penalties regardless of the kind of drugs possessed according to the Schedules of Controlled Substances (see Law no. 79/2014).
The Juvenile Court provided several reasons in support of this assumption. First, Art. 73 .5 allegedly violated the principle of reasonableness: the sentences for the misdemeanors associated with Schedule I drugs (hard drugs) should not be equal to those related to Schedule II substances (soft drugs). Penalties are supposed to be different according to the conduct whereas the provision at stake fails to punish the possession of different Schedule drugs in a different way (judgment no. 23/2016, 1). Secondly, establishing the same penalty for different conducts allegedly frustrates the purpose of Art. 27, .3 Const., which prevents minors from taking advantage of some benefits, such as probation, of alternatives to incarceration, etc. Finally, the Juvenile Court questioned Art. 75, .3 on the ground that it would infringe Art. 4 of the Council Framework Decision 2004/757/GAI (Criminal acts and applicable penalties in the field of illicit drug trafficking) and Art. 49 of the European Charter of Fundamental Rights and Freedoms (hereinafter ECFRF, principles of legality and proportionality of criminal offences and penalties).
In its judgment, however, the Constitutional Court entirely disagreed with the Juvenile Court. If the Constitutional Court had followed the Juvenile Court’s decision – as the Justices firmly remarked - this would have resulted in the violation of the separation-of-powers doctrine, since the Constitutional Court would have claimed for itself a general legislative power. The Constitutional Court may not “add a norm” – so to speak – unless the Constitution strictly requires the Court to do so (see Italian Constitutional Court’s judgment no. 277/2014). It falls within the legislature’s legitimate discretion to establish the same penalties for different criminal conducts, whereas it is for the courts to determine the actual penalty between a minimum and a maximum sentence established by law (judgment no. 23/2016, 2). Neither Art. 49, .3 ECFRF, nor Art. 4 of 2004/757/GAI are relevant in the case at issue as they only provide that the national legislatures have to establish the maximum of penalties above a minimum threshold. (Diego Serra)


The Italian Constitutional Court ruled on religious agreements

With its judgment no. 52/2016, of January 27th, the Constitutional Court overturned the decision of the Court of Cassation (of June 28th, 2013, no. 16305) which had adjudicated on the decision of the Council of Ministers of the 27th of November 2003 not to initiate negotiations concerning the entry into an agreement with the Union of Rationalist Atheists and Agnostics (UAAR) under Art. 8, para. 3 of the Italian Constitution (which regulates the relationship between religious confessions and the State) on the assumption that the atheism professed by that association would exclude the religious aspect of the confession, required by the aforesaid constitutional provision. After having declared the intervention of UAAR admissible, according to the judgment which was rendered under appeal by the Joint Chambers of the Court of Cassation and having recognized the legitimacy of the same judgment to be part of a conflict between state powers, the Constitutional Court had to address two different issues.
On the one hand, it had to assess whether the initial denial of the negotiations opposed by the Government could be subject to review by the Court; on the other hand, it had to engage with that review, which in the opinion of the constitutional judges should exist in order to prevent discrimination according to the principle of equality enjoyed by all religions under Art. 8, para. 3 of the Constitution.
Regarding this aspect, the Constitutional Court stated that, in domestic Law for institutional and constitutional reasons, there is no possibility for ordinary judges to review a possible refusal by the government against an initial agreement with an association of a religious nature.
More specifically, Art. 8, para. 3 of the  Constitution, concerning bilateralism, which is embodied in the mutual will of both parties to conclude but also to be able to launch agreed negotiations, excludes the possibility for ordinary courts to review the possible refusal to conclude the agreement expressed by the Government, since otherwise the same method of bilateralism enshrined in the Constitution would be undermined.
In conclusion, the entry into agreements depends both on the initiative of a religious denomination and on the necessary consent that must be expressed by the Italian Government which is not bound by any specific provision to the initiation or termination of an agreement.
In addition, by balancing the different interests protected by Arts. 8 and 95 of the Constitution, the Constitutional Court stated that there is no justiciable claim for starting the negotiations according to Art. 8, para. 3 of the Constitution for an association of a religious nature.
If necessary, the Government that denied the opening of negotiations will respond politically before the Parliament, and not in before a court on the reasons of its decision.
For these reasons, the Italian Constitutional Court declared that the Joint Chambers of the Court of Cassation were expected to reject the possibility to review the decision of the ordinary judges. (Floriana Plataroti)


A Regional Law on the regulation of “lobbies” is approved in Calabria

The Regional Council of the Calabria Region approved (on February 8th, 2016) Law no. 4 of 2016 entitled “Regulation regarding the transparency of the political and administrative processes of the Calabria Region and its controlled public entities in relation with the activity of representation of interests”.
In its second Article the Law provides a definition of both the “groups with particular interests”, intended as all the associations, foundations, comities, groups, corporations and moral persons, which sponsor “particular” (meaning “not general”, they might indeed not have an economic nature) interests, and the “activity of the representation of particular interests”. According to the Law, this last expression means all types of activity (such as the presentation of requests, proposals, studies, reports, analysis, documents, etc.) of the “groups with particular interests” directed towards the “policy makers”. In addressing “policy makers” the Article refers to: “the President (to be clear, the “Governor” of the Region) and the members of his Cabinet, the President and the members of the Regional Council, the top public officials acting for the Cabinet or for the Council, the top managers of the corporations, agencies, institutions, associations, foundations and the other organs controlled by the Region, even private”.
Moreover, special importance is given to the definition of “representative of particular interests”. In order to be a “representative” an individual needs to be at least 18 years old, without previous convictions for crimes against the State, the public administration and the public finances, , to not have been declared bankrupt before, and not have been a member of the Regional Council or of the Cabinet in the two years before appointment to the office, and finally, to not have been employed by the Calabria Region for the same amount of time. However, no general obligation is introduced for representatives to be registered: indeed, representatives only have the faculty to join the “Register”. In fact, the law prescribes the establishment of a particular “Public register for the representatives of particular interests”. This Register is divided in two “sections”, one held by the Presidency of the Regional Cabinet and, the other, by the Presidency of the Regional Council. The data required for registration are: a) personal data (name, address) of the representative of the particular interests; b) the identifying data of the “group of particular interest”; c) the particular interest represented; d) potential beneficiaries of the lobbying activity.
Indeed, the registration allows vantages (or “prerogatives”, see art. 5) and prescribes obligations (see art. 6) for the representatives. They can ask to be heard by the commissions or by a singular member of the Regional Council, by the entire Cabinet or by members, by the top managers of the institutions and companies controlled by the Region. Moreover, they have the faculty to present to the different organs of the Regional Council proposals, studies, reports, analysis, documents, and any other initiative or information. They are also granted access  to the offices of the Regional Council to request information or technical clarifications about acts within their competences or related to the procedures followed by the Council, by the Cabinet or by the different Commissions, according to national laws. Finally, they can follow the sessions of the Regional Council, unless the Council states otherwise, according to the Regional Statute.
The different Commissions of the Council, the entire Cabinet or its members have the possibility to hear, “with priority”, the representatives registered. And, if the latter ask to be heard, the members of the Commissions have the legal obligation to hear the representatives registered unless this contrasts with the celerity of the proceedings and insofar as the interests represented are “pertinent” with the current proceeding.
The representatives registered have to act according to the following obligations prescribed by the Law, which requires for example: to respect the principles of legality, transparency and institutional fairness; to treat personal data or facts ensuring confidentiality; to communicate every donation, good, service, or any other monetary promise (for more than 150 Euros of value), granted to “policy makers” or in favour of their relatives (even if granted in occasion of particular circumstances, such as marriages, baptisms, etc.). (Francesco Campodonico)