Session 1: The Characteristics of the State

List of Contents:
1. Legal system
2. Legal norm
3. The state
a. Territory
b. Sovereignty
c. People
1.Legal system: Technical concept to describe a set of legal rules. Emerges when humans
enter into forms of cohabitation and coexistence with each other’s.
The state is just one of the possible legal systems.
A legal system has 3 constituent elements.
 Certain number of subjects, who make up a social group and have common goals
and interests
 Titular power and authority assigned within the group which legitimize the use of
force
 Authority has means of coercion to ensure the legitimate exercise of power.
 Among the member subsists a private relationship qualified by norms.
Members of a legal system recognize the authority.
Authority exercises power by the use of legitimate forms (=rules you have to follow)
Rules are followed because members know that those rules have to be followed.
The state is a special kind of legal system in which the authority is exercised in a special way.
It is a set of rules.
The legal system can be classified with different criteria:
 The relationship of the legal system with the intensity of the community ties
 The nature of social ties, which can be voluntary or necessary
 The relationship of the members with the national territory:
o Territorial legal system birth or permanence constitute ties
o Non-territorial legal system territory is just a limitation of jurisdiction
 The common goals and ends
o General system covers all the member’s needs
o More limited legal system pursue just one specific goal
 The relationship established with others legal system
 The type of authority exercised:
o Sovereign: if de facto holds sovereign power
o Non sovereign: when use of legitimate force requires permission from external
superior authority
The state is a concentrated legal system, necessary, territorial in nature, focus on general
aims, independent and sovereign.
2. Legal norm:
 Relationships among members of the same social group are regulated by numerous
norms.
 Only some are legal.
 Legal norms are those that are produced solely by a legal system.
We distinguish POSITIVE NORMS: human made laws from NATURAL LAW: human natural
rights.

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Legal rules are those passed by authorities who have the specific power to pass rules. Power
conferred by the constitution.
We need a hierarchy of rules, because we have to identify the rule which is applicable to the
specific case.
Distinctive characteristics of legal norms:
1. Effectiveness: ability to impose rules or norms on its participants. Ability of a norm to
produce its own effects.
2. Force: you will suffer some kind of sanction if you don’t follow the rule. Ability to
innovate the positive legal system.
3. Generality and abstractness: legal rules always apply to general cases; no details in a
legal rule
4. Produced solely by a legal system
5. Following a particular procedure: procedure that made the rule; constitution is the law
of all laws, and needs to be respected by all other laws; procedure to adopt a
constitution is special; hence the procedure makes a legal force; law passed by the
parliament are the highest
6. Only by a competent authority: parliament is more important than the executive.
The government (executive) is very powerful, but when it comes to legislation the
parliament is more important.
Which source produce legal effects?
 Constitution: basis of legality and validity of the sources. It governs the sources of law
subordinate to it.
Identification of legal sources
Sources are legitimate if they comply the requisites of:
 Competent authority organ or entity that have the jurisdiction or power to make
the law
 Nomen iuris the name of the law, sources of law constitute a closed system
 Legislative procedures constitution set procedure to produce normative laws
3. The state:
 The State legal system is founded to actively pursue general goals or ends.
The state is free to choose its own goals. It legitimately regulate any aspect of social human
life.
University is a legal system but with specific goals and not with general goals.
State general goals: protection of welfare, property, environment, economy,
 The State as an original or non-derived entity can be distinguished from derivative
entities.
The state is an original or non-derived entity: it means that the organization is in its own
territory, not derived from anything. The UN for example is a derived entity.
 Each State has its own territorial area of jurisdiction.
The state needs to have a jurisdiction, a territory. Jurisdiction is the portion of territory on
which the state exercises its political power.
State: we need to agree on a territory otherwise we can’t have a state
 The sole existence of a single political power to which all in that territory are subject
becomes the unifying element which binds together the participants in a given legal
system.
In Libya for example there is no single political power, but there is a competition.
It can hardly be seen as a state because there is no single political power.
Values and principles:

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  Mean to reach a system goal which are its values
 Are ordered hieratically in the constitution through which they receive legal
recognition
 Are “elastic”: open to different interpretations
 Legal norms of superior level
There are three characterizing elements of the State legal system. We need 3 elements to
call something a state.
i. Territory
ii. Sovereignty
iii. People
i. Territory:
 The elements that constitute the territory itself are:
 dry land
 continental shelf: portion of land below the sea (very important for raw
resources)
 waters included within the confines of the State
 aerial space
definitions of territory
 territory as the limit of the validity of the legal norm
 area in which the legal norms are applicable
 state territory constitutes the specific use of the power of rule
 one of the constitutive elements of the state
Those things are considered the territory of the state.
ii. Sovereignty:
Full control
state sovereignty has two dimensions:
 externally ruling dynasties in European states stop recognizing the existence of any
superior political authority and began to establish relationship with other authorities
( ius excluding alios)
 internally state power is unconditional since it is sovereign.
We have internal and external sovereignty in a state.
 The legitimization of sovereign power is based on:
 Theocratic theories: the power is given directly by god; the foundation is the
will of god; He will reveal to the people who will have the power. The power
belongs to god and is revealed to human beings.
 Legitimization theories: the democracies are normally founded on them; the
only power that can be exercised is given by rational reasons; They believe in
the power of rationality; everything should be reasonable; they try to
understand why power is located to certain people; it is based on the idea of
royal institutions and dynasties and it can legitimize non-democratic power.
 Contractual theories: the US constitution is based on it; the basis of legal
system is a social contract; social contract: people agree to obey to an entity
which has power because of a reason; we all agree to obey to an entity; we
agree because this entity exercises authority through reason; voluntary act of
individuals; they agree to be subjected to an authority to live peacefully;

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  Theories basing sovereignty upon the idea of the Nation: nation as subject of
the entire political system which express itself toward the voice of
representatives.
historical origin= the French revolution; sovereignty is based on the will of the
Nation; the Nation is an abstract concept; during the French revolution the
concept mentioned the people;
Concept of Nation during the French revolution: French were the free man,
there was no ethnicity involved in the concept of Nation; Nation was able to
express the abstract will of the Nation; Nation was opposed to the absolute
power of the King;
Other concept of Nation: Nation may qualify also people that belong to a
certain ethnicity; the concept of Nation can be used in a different basis.
So it had a completely different meaning;
The nation can do whatever it wants, as long as the majority agrees. The full
power is based on the Nation.
It is a controversial view as it can lead to populism
 Theories that attribute sovereignty to the public legal personage of the State:
The state has a legal personality separated from the will of people. Can end up
with non-democratic governments.
State has legal power, legal duties and legal rights; the State is separated from
the will of the people; the State is a separate identity; is not the sum of the
will of the people of the nation; The will of the state does not derive from the
will of people;
This was not designed to justify authoritarian regimes, but it ended up doing
this.
All those theories are nowadays not accepted by contemporary democratic states.
 Democratic constitutionalist theories: sovereignty is given to people (for
example art. 1 Italian constitution) the state is the supreme holder of political
power.
those theories are based on the idea that people agree on basic values; those
values are clearly stated in the constitution or in constitutional texts.
Basic values are like fundamental rights.
Democracy entails the protection of fundamental rights.
Democracy is a procedure plus some fundamental rights.
Even if the parliament wants to state a law, it can be that it can no do so, because
there are some substantive values that they have to respect. Hence even the
parliament has no authority to pass every law.
They reject the idea that the parliament can do whatever it wants.
Constitution is a limitation even of the wills of the majority.
iii. People:
People are the totality of the governed ones
Political power is what distinguish people from sovereignty (holder of power limited by divine
and natural laws). People subject to the will of sovereignty
People are a social formation in order to pursue a “pactum unionis” they make a “pactum
subjectionis” the sum of these two forms the social compact.
HOBBES says that the function of the social compact is to guarantee the inviolable rights of
men. People delegate the power to an authority. Such delegation can be revoked.

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RUSSEAU direct democracy, legitimacy and political power have to be based on a general
will, should not be delegated.
We also need to make a distinction between:
 POPULATION: everyone who live in a certain territory even if they don’t take aprt in
the political life
 NATION: daily expression of the consent of a legal system participant to maintain in
existence the social ties that unite them
People, citizens, population, Nation
People who are subjected to a legal power in a certain territory. We are referring to those
who are in the long run subjected to a legal power. They have a permanent relationship with
a given territory.
Citizens citizenship implies democratic participation /political participation; people have
the right to vote;
Population: everyone, even people without citizenship; very broad concept; everyone, even
temporary in a state, are part of the population;
-voters: those who qualify as voters; hence a 17 old citizen is not a voter; hence voters and
citizens do not necessarily coincide;
 Doctrinal debate that has led to the formulation of four separated theories
regarding the nature and content of the concept of “people” itself:
1. The theory of the people as a constitutive element of the State.
No people no state. If we cannot identify people, we cannot identify a state.
They are subject to the same political power but it does not mean that they have something
special in common that they can’t share with foreign people.
People are one of the constuitive elements of the state.
2. The theory of the people as the object of State sovereignty:
It is true that we are subjected to a certain political power, but to consider people simply as
the object has some kind of implication.
This theory has been rejected by contemporary democratic scholars.
3. The theory of the people as subject of rights toward the State:
People can claim rights against the state. Very limited way of thinking of people, because
people do not simply claim rights, but they also participate in the political power.
4. Theory of the people as creator of the State’s will:
Sees in the people the creator of state will.
Same theory as: sovereignty based on the Nation; sovereignty is based on the will of the
people; people are able to create the will of the state.
Limitations again derive from the constitution.
 Citizenship is a concept identifying the condition of being bound to a given State,
from which the individual:
1. receives certain rights
2. to which her or she owes certain obligations
3. is forced to respect certain duties.
Legal status which implies both rights and duties. Also the state has some kind of duties
towards the citizen.

Citizens have two rights: One right is to vote, and the other right that only citizens have is
the right to enter the territory of a state. If you have no citizenship, there can always be
denied the entry in the territory. You always have the right to stay. There is no duty to admit
people who are not citizens.

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How can citizenship be acquired:
-birth
-naturalization: after a certain period in a territory you get the citizenship
Two criteria are used as distinctive elements to differentiate citizens form aliens:
1. ius sanguinis: citizen by origin; (here you are restricting the number of citizens to certain
ethnicity; used to guaranty some kind of ethnic uniformity in the population; you want to
keep the political community closed to those who always belonged to that community; very
exclusive way to get citizenship)
2. ius soli: you get citizen because of birth in a given country. Common law countries tend to
use ius soli
State use one rule or a combination of those rules.
3. Ius conubii: foreign wife/husband can obtain citizenship from the partner
Generally, states have clear and precise rules.
USA uses ius soli.
Common law countries tend to use the ius soli, while civil law countries tend to use the ius
sanguinis.
If you were born in Italy, but your parents are not Italian, then you don’t get the Italian
citizenship. You need to be over 28 to ask for it.
Now some states want to change rules. Because citizens are votes; hence if you can change
citizenship you also change the electoral system.
Immigrants: you can try to keep them out of the political system or in; while you can’t refuse
its citizens.
Session 2: Forms of the state
List of contents
1. Introduction
2. Forms of State
i. Diachronic classification
ii. Synchronic classification
1. Introduction
Definition: Is the relationship between the State (constitutional body) and the people

The contemporary classification looks at the relation between state, individuals and
territory. We have different forms of states according to the relationship between
individuals and the state.
“form of state” relationship between the holder of power and the subject of that power.
“form of government” set of rules concerning the distribution of power
2. Forms of State
i)Diachronic Method
a. feudal system
b. absolute State
c. liberal State
d. democratic pluralistic State
sub d. welfare State
e. totalitarian/authoritarian State; Category that was elaborated between the 2 world
wars. There was the rise of the totalitarian state. It is believed as a form of state
which is no longer in place. Maybe north Korea.

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 f. socialist State
a,b,c are historical forms of state that are no longer in place.
a. Feudal system
It is a system and not a State because we don’t properly have a form of State.
It existed in Europe from 8th to 12th century.
It’s not properly a form of State Because:
1. of the total identification of the feudal lord (or the King) with the property of the
land. The feudal lord was the one that owned the land, in which the power was
organized. The power belonged to an individual. In order to live there individuals
needed the permission of the feudal lord. There is no separation between the feudal
lord and the territory.
2. it was organized on the basis of private agreements, contracts between individuals.
Individuals that lived on the feudal land; contract called “fedus”. “Fedus” is the basis
for the exercise of powers. Individuals agree to be ruled by the lord. The lord has the
power, because he won a war for the land. This was the origin of his power. Hence
individuals agree to be ruled by him.
3. The sole aim was the protection of the land and its related possessions (including the
peasants) from external attacks. This was the only reason why power is exercised.
Individuals living on this land will wage war with the lord, if the land lord requires
this. They agree to go to war with him if he requires this.
There are no general aims, no other links between the individuals than being subject to the
land lord. Hence it is not a state.
It establishes a rights on lands and peasants and the lord had the right to administer justice
and to collect taxes.
We have form of a sovereignty over a territory, but it is based on this very weak link
between the individuals and the feudal lord.
Collapsed in the middle age and substituted.
b. Absolute state
In the 14th century there was the passage prom feudal system to absolute state (divine origin
of power)
 Two power shifts play a key role in the move from feudalism to an absolute State:
o 1) the shift of power from the feudal lords to the King (and thus the
stabilisation of monarchical authority); Dynasty was a key moment when we
had the passage between the feudal lord and the king.
o 2)the shift of power from land to money.
 Under absolutism, the state is more interventist and (little) tries to fulfill a general
interest of people.
 Sovereign power resides in the King.
 Typical absolute State is Louis XIV’s France.
 The strengths of absolutism were: large centralized bureaucracy, maintain large
armies and proper and uniform taxation
 There were also cases of “Enlighted absolutism” characterized by more freedom of
speech and religious tolerance
 The aim was improving lives of the subjects
 And the UK?
Term absolute: we are referring to “legibus solutus”an individual which is not bound by
law, because he makes the law. Kings base their authority divine origin.

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The King may decide what to do for the people, but everything is based on the will of the
King.
In this period there was no need for law.
This form collapsed with King Henry VIII (UK), because he decided to divorce from the
Spanish Queen to marry another woman, hence he needed the contribution of the
parliament. The parliament must give him the right to create his own church, separated
from the church in Rome, because the Pope would not let him divorce.
This was the birth of parliament and the end of absolute monarchy in the UK. This was in the
16 century. By the 17 century there was a strong parliament in the UK.
This was not a democratic parliament.
 Magna Carta (root of democracy):
 Clause 12: «No scutage nor aid shall be imposed on our kingdom, unless by common
counsel of our kingdom, except for ransoming our person, for making our eldest son a
knight, and for once marrying our eldest daughter; and for these there shall not be
levied more than a reasonable aid. In like manner it shall be done concerning aids
from the city of London».
 Clause 39: «No freeman shall be taken or imprisoned or disseized or exiled or in any
way destroyed, nor will we go upon him nor send upon him, except by the lawful
judgment of his peers or by the law of the land».
 Clause 40: «To no one will we sell, to no one will we refuse or delay, right or justice».
Those were ways to limit the authority of the King. It was like an agreement between the
King and the lords. This was a moment in which the King was very weak, and he started to
increase the power of land lords. But not a real parliamentary system really existed.
It was like a monarchy under some laws.
Origin of limitation of power.
No taxation without representation (US; in the war for independency). If I have to pay tax, I
have to see for what I am paying and what happens in this land.
The democracy started because of very specific claims of some people and later there were
claims of the entire population.
 Passage to liberal State: due tu a crisis of the absolute state for financial,
socioeconomic and political reasons
1. gradual (UK and US); Parliament became always more important. It was like a gradual
process. The process in the UK started with Henry VIII and developed after the civil
war and the glorious revolution. In the US we had the independency declaration.
4.July 1776) wide recognition of individual rights and protection under the
constitution.
2. violent (France); In France it was like the result of the French revolution. Fight
between bourgeoise and nobility and with the despotic rule
3. top-down (Germany and Italy). In other countries it was a top-down process, like the
result of a process. Restoration after Napoleon.
1861 Italy was unified, but still under a crown.
The end of the absolute state was the beginning of a new form of state, but this did not
mean the end of the power of Kings. So, you can still have Kings also if the absolute form of
the State is not a monarchy.
History tells us why in some countries we have certain forms of power and not others. (Weil
es in Deutschland schon mal eine richtige Diktatur gab, wird es dort wahrscheinlich immer andere
Staatsformen wie in England geben, wo es nie eine richtige Diktatur gab).
In the 19 century the liberal state was born.

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 c. Liberal state
First experience of democracy.
It is closer to what we consider now as a democratic state. But there was still no form of
direct democracy. There was a strong separation between the authority of the state and
individuals.
 It was characterised by:
1. a strong separation between the State and society; there was no universal right
to vote
2. the protection of rights and freedoms; basic freedoms were protected
3. the rule of law; the State was governed by the concept of the rule of law. It is the
concept according to which the exercise of power should always be bound.
4. “minimum state” i.e. with a limited number of functions;” minimum state” it
tended not to interfere with the exercise of private power and private things; no
public education, no public welfare or health system. Private parties should
organize those services. No involvement in economic activities, to protect
economic freedom. The US is still based on this concept. Minimum involvement.
5. popular or national sovereignty; sovereignty was based on the will of people and
not on the will of the King. Kings share power with parliaments, and the laws
were binding for both, King and parliament
6. representative government; Executive power; they had a very crucial role in the
organization of the public powers. We had like 2 parties:
King and parliament
At the beginning the government was like the secretary of the King, but when the
King could not handle everything on his own, the government became autonomous
from the King. The government started to be accountable before the parliament (the
parliament started to ask/challenged the government.) The king was slowly set aside,
isolated from the exercise of power.
7. The principle of separation of powers. In the absolute State there was no
separation between the King and the State. The King was the State.
The principle of separation of powers was elaborated by French philosophers.
Later by Americans for the American constitution. This principle was the basis for
the liberal state.
You can still have a king but with a very limited authority. The power should be
limited, to protect the freedom of individuals. This is our final purpose.

There was still no right to vote.

It was only recognized to the people with few requirements:
-man
-rich, needed to possess property
Wealthy men don’t need to think about other things, so they can dedicate their life to
politics. This requirement was written in the French constitution.

The crisis of the liberal state started at the beginning of the 19century and ended in the early
years of the 20 century.
-the working class started to claim protection of social rights and economic freedom, they
started to ask for minimum wages and a limited number of working hours.
These claims were the starting point of political parties based on the involvement of all
people.

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The crisis of the liberal state started with claims of the working class. (Working class claim
and nationalist ideologybeginning of the authoritarian state)
In some cases, the claims coming from working class reached parties with very illiberal
concepts. Nazis and fascists. They used the working class claims to gain power.
They combined socialism with nationalism.
They matched two different claims and turned to be illiberal (unduldsam, nicht liberal) .
They were helping those parties that were excluded from society.
They wanted to go back to the “golden state”
1922 in Italy the liberal experience ended.
We had the rise of the totalitarian and authoritarian state.
Totalitarian state was Germany in the 30-40s.
It tends to control the whole society and every aspect of life. Everything should contribute to
the State ideology, the building of an empire.
The Fascist regime in Italy was an authoritarian regime, which never became so inclusive in
the life of individuals.
Hence only Germany achieved this form of totalitarian regime.
Fascist regime is an example of a purely authoritarian regime. The parliament was
increasingly isolated until Mussolini achieved the abolition of the parliament and replaced it
with a fascist council.
He wanted to abolish every kind of liberal constitutionalism.
We call the fascist regime an authoritarian regime because of the complete isolation of the
parliament and the repeal of the institutions.

 From the crisis of the Liberal State emerged:

1. democratic pluralistic State
2. totalitarian/authoritarian State
3. socialist State
d. Democratic Pluralistic state
 Features that need to be highlighted:
1. the passage to a multi-class society; universal right to vote. Recognition of a
plurality of groups, interests and ideas
2. the creation of mass parties; system in which parties try to collect the interest
and the needs of the entire population; they try to involve the entire population;
parties were groups of elites, intellectuals that expressed the needs of a certain
portion of the population;
3. the recognition not only of liberal first-generation rights, but also second
generation social and economic rights.
 Especially after World War II, some countries in Europe adopted a particular type of
democratic pluralistic State known as the welfare State (strong protection of social
economics rights). the model of welfare state was elaborated in UK during WWII with
William Beveridge.

These states believed in the need to be tolerant and accept more than one ideology. They
are believed to be neutral. But they have a preference for market economy.
Constitution article 41:
Private economy is free, it may not be carried out against the common good or in such a
manner that could damage safety, liberty and human dignity.

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You have to accept the competition in the market, also with public services, because the
private economy is free. The article was interpreted as the basis for a market economy. How
can we derive market economy from this article?  Human dignity
If you prevent an individual to run their private business, you violate human dignity. The
same premises which was the basis for market economy, was used as the justification of
market economy.
(Example: Pharmacies can’t set their own prices, but need to accept prices decided by the
State, in order to allow to the majority of the State to buy the product. For some life-saving
products you do not even pay. The State can prevent private companies in some cases to set
to high prices.)
(Once we also only had State television, until Berlusconi came and wanted to make his
private television; but this was a public service, because through television you can inform
people. In the 80s there was passed a law, which allows to make private television.)
Other examples:
- maternity was protected by the state
- equal opportunities for illegitimate children
- cooperation between workers and employees

The Democratic Pluralistic State is based on the fact that parties compete during elections,
and hence there is no stable ideology, because always a different party wins the elections.
The model has been criticized because when population start to rely on social facilities,
public debt increases.
Sub d. Welfare State
 In truth, the first Constitution committed to social and economic rights was the
Weimar Constitution of 1919. This was the first time in which the welfare system was
tested in order to overcome the mistakes of the liberal state. They tried to overcome
the weakness of the liberal state.
 Highly detailed and advanced provisions:
1. Art. 119 (3): maternity protected by the State;
2. Art. 121: equal opportunities for illegitimate children;
3. Art. 165: cooperation between workers/employees and employers.
This was a very anticipated idea of state.
The democratic pluralistic state is not necessarily a welfare state, but every democratic
pluralistic state has a welfare system.
In a welfare state we have a very strong protection of social rights.
 Immediately after WWII, the model was the UK system, founded in the Beveridge
Report (1942):
 Proposals for the future should not be limited by "sectional interests" in learning
from experience; Hence we look at the interest of everyone and not just of some
sections (=sectional interest)
 Social insurance is only one part of a "comprehensive policy of social progress".
The five giants on the road to reconstruction were Want, Disease, Ignorance,
Squalor and Idleness;
 Policies of social security "must be achieved by co-operation between the State
and the individual", with the state securing the service and contributions.
The only constitution who really accepts this idea of the social welfare state is Italy. We have
a list of social rights in the Italian law.

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This is believed to be the instrument to prevent what happened in the past. Prevent the
State to become again an authoritarian regime. This is a way to have the population
participate in the political system.
This model was criticized, because when the population starts to rely too much on welfare
provisions, we have an economic problem like: -public debt, -people have weak incentives
to search a job;
(Hence the US does not believe that much in the idea of a welfare system. They think people
should be active participants for the welfare of a state.)
Hence welfare state is not the only form in which we experience a democratic pluralistic
state.
 Waves of democratisation:
1. immediately after WWII:
a. Japan (1947);
b. Italy (1948);
c. Germany (1949).
2. decolonisation:
a. India (1950).
3. Mediterranean area:
a. Greece (1974);
b. Portugal (1976);
c. Spain (1978).
4. South America:
a. Argentina (1983);
b. Chile (1988).
5. transition in Eastern Europe

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e. Totalitarian/Authoritarian state
The rise of working class brought the rise of nationalism which was the base of
authoritarian and totalitarian regimes
 In totalitarian States there are:
1. a strong, one-party system that is ideologically-based; Every citizen is obliged to
contribute to the realization of the totalitarian state.
2. an official ideology. Everyone has to contribute to the official ideology.
 In authoritarian States:
1. the party system is extremely weak; The authoritarian party is not that strong,
but still it is a party that rules. Hence, we have more than one party, but the
system was very weak. It was like having one party.
2. is driven by the lust for power of the individual leader. Based on the existence of
certain political figure that attracts the population.
In both cases we have that strong figure. In the totalitarian State there is no other
alternative, not even formally. But in Italy there was, at least formally, an opposition or
other parties.
We use these categories since after world war 2. Before those categories did not exist. Those
forms of State were essentially the result of the crisis of the liberal State.

e. Socialist State
 The constitutional model was based on:
1. the abolition of private property;
2. the monopoly of the state with regard to the means of production;
3. proletarian dictatorship;
4. democratic centralism;
5. was thus characterised by strong central government.
We have a specific ideology: communism
Communism: The State has the complete control of the economy (opposite of the liberal
State). It is based on the fact that each form of State needs just a step to achieve the pure
communist state. Every moment in history is just a step to achieve pure communism.
The first step is the proletarian dictatorship. Then socialism and in the end communism.
Those states are very centralized. No devolution of powers to local entities or regions.
This is needed to have the complete control of the economy.
Contemporary China is a form of socialist state.

 The Socialist State à la chinoise:

1. Preamble: “ […] China will stay in the primary stage of socialism for a long period
of time. The basic task of the nation is to concentrate its efforts on socialist
modernization by following the road of Chinese-style socialism. […] the Chinese
people of all nationalities will continue to […] develop a socialist market economy
…”
2. Article 13 (1): “Citizens' lawful private property is inviolable”. Private property is
protected. This is an incentive form individual to participate in the market, to
make a better economy.
China has international relationships, hence to protect property is also a manner
to like to attract international people to participate in the economy.

13
ii) Synchronic Method
a. unitary State
b. decentralised  We can distinguish between:
a. federal State
b. regional State
 The distinction is made on the basis of four elements:
1. extent of the legislative power exercised by the sub-state entities;
2. existence of a separate branch of the judiciary at sub-state level;
3. presence of a second Chamber of the Parliament that represents the sub-state
entities;
4. involvement of sub-state entities in constitutional amendment.

UNITARY VS DECENTRALISE SYSTEM

Another way to classify forms of state is their territorial organization: level of separation of
power between central governments and sub-state entities.
- CENTRALIZED: legislative power is exercised by a central government. For example in
France the central government has total authority over the sub-states entities. The
power is exercise by one central government, this form of state characterizes the
absolute state, the socialist state and fascism and Nazism, they had a preference for
centralization as it helped the leader to keep power, autonomy comes with political
autonomy. Functional to authoritarian government.
Only the central government has legislative power, there is just one authority which
is able to pass law.
- DECENTRALIZED: legislative power is exercised by both central government and sub-
state entities. It can be regional or a federal system, for example US are a federal
government, Italy is a regional system. Devolution king of power of UK. Devolution
from a central government. Subnational entities that has legislative power, may also
have political majorities that are different from the national political majority. The
political coordination is harder.
in decentralize system we have
- Federalism: example in which we have subnational entities with strong power, high
devolution of legislative power
- Regionalism: lower level of political autonomy and modest devolution of legislative
power. France is the start with the lest regional power.
- Devolution
We distinguish federal from regional system by four elements:
- extent of legislative power
- existence of a separate branch of the legislative sub-state entities
- presence of a second chamber
- involvements of sub-states entities
In all these cases we have a vertical separation of powers between central government
and sub-national entities, relationship between individual and the state in different
authorities and entities. Individual-central government, individual-subnational entities.
DIFFERECES BETWEEN FEDERALISM AND REGIONALISM
FEDERALISM: for some scholars it is an ideology which reflects.
Federalism was interpreted as an instrument to preserve freedom.

14
The congress shall not intervene in the federal affairs, ideology bases in the principles of
freedom. Especially economic liberties. The logic of federalism is the logic of not giving
power to the central government. Powers of the central government need to be limited.
Two different way to create federal state:
- bottom up process states decide to create a central government.
Ex US which was the result of 13 colonies which wanted to be independent states
from England, however they decide to be one single entity, the first organization of
power was called confederation, then from a confederation, they decided to
transform themselves into a federation which implies a strong concentration of
power. It was a process of centralization in a federal government.
- Top down process central state which decide to divide its self in different portion. In
most recent example we have a centralize state which decides to start a process of
division. For example, Italy was started to think about a process of feralization. UK,
Spain, last year there was a referendum for independence of Catalonia. Trend of
decentralization.
ALLOCATION OF LEGISLATIVE POWER:
 FEDERAL the constitution contains a list of subject matters which are exclusive
competence of the central government
 REGIONAL constitution contains a list of subjects matters over which sub-state
entities can exercise their power
In some cases, the constitution contains a list of “concurrent subject matter” subjects on
which both central government and sub-state entities can exercise legislative power. There
are two countries which are an exception:
- CANADA: federal state BUT residual subject matters to central government
- ITALY: regional state BUT art 112: “the regions shall have sole legislative power with
respect to any matter not expressly reserved to state law”
ALLOCATION OF JUDICIARY POWER
 FEDERAL sub-states entities have separate court system and their own procedural
law, we distinguish:
o Separate models: for example, in US each state has its own criminal and civil
code
o Integrated model: for example, Canada, only the federal government can pass
laws, but provinces can decide how to enforce the law
 The member states have their own judiciary system: judiciary power is the power to
identify and apply the law, you have rights and duties, in order to enforce these
rights and duties we need a court. You can have independent criminal court and
some kind of independence also in private court.
 REGIONAL regions don’t have their judiciary system. In Italy there is only one
procedural law court and one criminal court. There are the tribunal amministrativi
reigonali which are first instance administrative courts.
REPRESENTATION IN UPPER HOUSE
 FEDERAL the second chamber represent the sub-state entities ( in us the states
have equal representation but in other federal government the representation is
weighted)
 REGIONAL the second chamber does not represent subnational entities. The
parliament represent the nation, they cannot be bound by regional system.
CONSTITUTIONAL AMENEDMENT POWER

15
  FEDERAL member states have constituent power and take part in amending
constitution
 REGIONAL Regions don’t take part in the constitution amendment procedure.
Regions can ask for referendum to decide to approve an amendment.
 Fiscal authority federalized government should be fiscal authority (TAX RAISING
POWER). Regions does not have fiscal autonomy in order to reach an equal
distribution of sources.

EXAMPLES OF HOW MODELS WORK IN PRACTICE

US
- Sec. 3: The Senate of the United States shall be composed of two Senators from each
State, ...
- Sec. 8: The Congress shall have Power to ...
- Art. V: The Congress, whenever two thirds of both Houses shall deem it necessary,
shall propose Amendments to this Constitution, or, on the Application of the
Legislatures of two thirds of the several States, shall call a Convention for proposing
Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part
of this Constitution, when ratified by the Legislatures of three fourths of the several
States, or by Conventions in three fourths thereof, as the one or the other Mode of
Ratification may be proposed by the Congress; ...

everything which is not included in the list of power is a power that can be exercise
by the states. The model of federal state is based on the us example.
If senators do not comply with the preferences expressed by his voted he will not be
candidate again for his territory.
If I elect someone and promise to do something and he doesn’t I can recall him.
This system is used In the German senate, the German house of representative does
not work like this.
Representative government: you elect someone that will exercise the power for you.
You are giving someone the power to vote for you.
In private low you can recall someone who missuses his power. In constitutional law
you don not have power to recall him because of something called freedom of
conscience. You can’t force someone to vote for what you want. This person is free
to vote for whatever he thinks is good when he is in parliament.
In the US there is not a state health-care, Obama wanted to introduce compulsory
health insurance, it gives too much power to the central government.
Arguments are related to federalism ì, to the need to keep the central power limited.
Even the debate on the healthcare reform is based on the freedom of federal system.
GERMANY
Art. 51:
(1) The Bundesrat shall consist of members of the Land governments, which appoint
and recall them. Other members of those governments may serve as alternates.
(2) Each Land shall have at least three votes; Länder with more than two million
inhabitants shall have four, Länder with more than six million inhabitants five, and
Länder with more than seven million inhabitants six votes.
Art. 70
(1) The Länder shall have the right to legislate insofar
as this Basic Law does not confer legislative power on

16
 the Federation.
(2) The division of authority between the Federation and
the Länder shall be governed by the provisions of this
Basic Law concerning exclusive and concurrent legislative powers.
Art. 79:
(2) Any such law shall be carried by two thirds of the
Members of the Bundestag and two thirds of the votes of the Bundesrat.
Political accountabilityin Germany chamber which is constitution required to
represent local government.
ITALY
Art. 57:
The Senate of the Republic is elected on a regional basis ...
Art. 117:
Legislative powers shall be vested in the State and the Regions in compliance with the
Constitution and with the constraints deriving from EU legislation and international
obligations.
The State has exclusive legislative powers in the following matters: ...
Concurring legislation applies to the following subject matters: ...
The Regions have legislative powers in all subject matters that are not expressly covered
by State legislation.
Art. 125:
Administrative tribunals of the first instance shall be established in the Region, in
accordance with the rules established by the law of the Republic. Sections may be
established in places other than the regional capital.
Art. 138:
... Said laws are submitted to a popular referendum when, within three months of their
publication, such request is made by one-fifth of the members of a House or five
hundred thousand voters or five Regional Councils...
clause listing power of the central government, characteristic of federal system. It is a
sign of this federalizing process which characterize Italy, it is an attempt to build a
federal state.
strong tendency to the devolution of power.
The senator is elected on regional bases which means that every region has a limited
number of senators to elect, but senators does not have to represent their regions. It is
not required thart the senator comes from that specific region.
the regional assembly cannot be called parliament it has to be called council.
CANADA
Sec. 22:
In relation to the Constitution of the Senate Canada shall be deemed to consist of Four
Divisions:
Ontario; Quebec; The Maritime Provinces, Nova Scotia and New Brunswick, and Prince
Edward Island; The Western Provinces of Manitoba, British Columbia, Saskatchewan, and
Alberta; which Four Divisions shall (subject to the Provisions of this Act) be equally
represented in the Senate as follows: Ontario by twenty-four senators; Quebec by twenty-
four senators; the Maritime Provinces and Prince Edward Island by twenty-four senators, ten
thereof representing Nova Scotia, ten thereof representing New Brunswick, and four thereof
representing Prince Edward Island; the Western Provinces by twenty-four senators, six
thereof representing Manitoba, six thereof representing British Columbia, six thereof

17
representing Saskatchewan, and six thereof representing Alberta; Newfoundland shall be
entitled to be represented in the Senate by six members; the Yukon Territory, the Northwest
Territories and Nunavut shall be entitled to be represented in the Senate by one member
each.
In the Case of Quebec each of the Twenty-four Senators representing that Province shall be
appointed for One of the Twenty-four Electoral Divisions of Lower Canada specified in
Schedule A. to Chapter One of the Consolidated Statutes of Canada.
Sec. 38:
(1) An amendment to the Constitution of Canada may be made by proclamation issued by
the Governor General under the Great Seal of Canada where so authorized by
(a) resolutions of the Senate and House of Commons; and (b) resolutions of the legislative
assemblies of at least two-thirds of the provinces that
have, in the aggregate, according to the then latest general census, at least fifty per cent of
the population of all the provinces.
Sec. 91:
... the exclusive Legislative Authority of the Parliament of Canada extends to all Matters
coming within the Classes of Subjects next hereinafter enumerated; that is to say, ....
Sec. 92:
... In each Province the Legislature may exclusively make Laws in relation to Matters
coming within the Classes of Subjects next hereinafter enumerated; that is to say, ...
Residual power to the Federal Government.
Sec. 97:
Until the Laws relative to Property and Civil Rights in Ontario, Nova Scotia, and New
Brunswick, and the Procedure of the Courts in those Provinces, are made uniform, ...
FEDERAL AND REGIONAL SISTEM
- Problem of fiscal autonomy:
- No true federalism without tax raising power. Tax raising power is important to have
true form of regionalism or federalism.
- In regional system, one of the reasons why regions do not have tax raising power in
order to reach an equality between more regions
Central government are required to keep a certain level of equality in services. Richer
regions or states may want to keep their wealth in their territory. In Italy the main claims
came from northern regions which wanted to keep the money in their territory and invest
these monies in their territory.
DEVOLUTION IN UK
An alternative way to organize power is devolution, which is essentially the form of power
chosen by uk
There are local entities: Scotland, Wales, England, Northern Ireland.
England has different powers because England was considered the “motherland”, England
was left alone by the other entities. We don’t have England act.
- Scotland Act 1998 & 2012 & 2016: Residual legislative power is attributed to the
Scottish Parliament on the lines of a federal system. Limited competences for the uk
parliament, all the other competences are of the Scottish power. In Scotland, most of
the legislative power concern the criminal law and family law.
- Government of Wales Acts 1998 & 2006: First only executive/administrative powers
were devolved to the Welsh Assembly, but the GWA 2006 gave the possibility for
Wales to opt for Scottish style devolution which is the choice made in March 2011.

18
 Only in 2006 Wales acquired legislative power. Legislative power is the last power
that the central government is willing to recognize to local entities. Because in this
way they acquire a political strength and autonomy. Wales has condition of
autonomy which are less relevant the Scottish.
- Northern Ireland Act 1998: Northern Ireland assembly exercises legislative powers
but on a different subject-matter compared to Scotland.
Devolution is based on the principle that local entities have different power. The
central government has a lot of power but there is no equality among local entities.
In uk there not written act.
UK devolution is asymmetrical:
- Functional asymmetry: in 1998 only Scottish and Northern Ireland parliament had
legislative powers while welsh assembly only exerted
- Componential asymmetry: Scottish and Northern Ireland assembly exercise
legislative power but on different subjects.
- Structural asymmetry: Westminster (UK parliament) is also the English parliament.
Scotland has a different relationship with the central government as they express
different political power. The central government does not want these entities to
separate from the central government
The UK countries voted on English laws but there are technical difficulties in identifying
English laws. The solution was to use some technicalities in the procedure of the
approval of laws that identify the importance of English questions and decisions.
Since England does not have a power it represents an entity by different entities. When
something affects only England, it is discussed in the house of common by different
member of the parliament.
Barnett formula: is a mechanism used by the Treasury in the UK to automatically adjust
the amounts of public expenditure allocated to Northern Ireland, Scotland and Wales to
reflect changes in spending levels allocated to public services in England, England and
Wales or Great Britain, as appropriate.
The formula gives the devolved administrations a proportionate share of spending on
‘comparable’ functions in other parts of the UK, given their populations compared to
UK’s. if there is an investment in public services in England, these differences will be
reflected in the amount of public resources allocated. This solution was adapted to
guarantee the level of services in the territory of the state.
THE ITALIAN REGIONS
The Republic is one and indivisible (Art. 5)
— Nonetheless, the unitary character of the State has not stopped the development of a
rather complex five-level system of autonomous territorial areas (Art. 114):
1. Municipalities
2. Provinces (?)
3. Metropolitan Cities
4. Regions
5. The State
Due to historical reasons, not all Regions are equal:
a. Ordinary Regions (15)
b. Special Regions (5)
The classification as Regions depends on the
adoption procedures used for the individual regional Statutes, and therefore of their
hierarchical position as a source of law.

19
Session 4: Forms of Government
LIST OF CONTENT
 introduction
 forms of governments
o parliamentary executive
 historical evolution
 the UK
 the Italian case
 the constructive vote of no confidence
o presidential executive
 the US
o semi-presidential executive
 France
 Sub-classification
 The Bulgarian paradox
o Directorial executive
o Neo-parliamentary executive

INTRODUCTION

Forms of government: the relationship between the people that have political power and
the electoral system.
Political system is the system of parties.
The kind of electoral system that you have in a political system has consequences in the
organizational power. They are not neutral.
We have a proportionality form
Majoritarian system: you have 2 major parties that compete in an election. The winner is the
one who gets the absolute majority of the voters. Often more than two parties, but the 2
major parties are very easy to identify.
Proportional system: The winner is the one who gets the relative majority of the voters. You
have more than one 2 parties.

There are different methods of classification of form of government.

One way to classify them is by using Elgie’s three dispositional properties:
1. whether there is both a head to state and a head of government.
Head of government in the USA: Trump
Head of the state in the USA: Trump

20
 In parliamentary executives (Italy, Germany, Spain): the head of the state is not the
same person as the head of the government
2. whether or not the incumbents of these institutions are popularly elected. There are
cases in which those persons are elected directly by people, and cases in which at
least one of the 2 is not elected by the public.
Italy: parliamentary system; like in Germany and in the UK, voters elect members of
the parliament. In Italy and Germany, voters elect the members of the parliament,
and then the government is formed by the parliament. The head of the state is than
elected from the parliament.
whether the incumbents serve for a fixed term. UK; we have a division between the
head of the state and the head of the government, and the head of the state serves
not for a fixed time (Queen stays for her life time; hence not fixed time).
3. The way how governments are organized depends on their history
The way how governments are organized depends on their history.

PARLIAMENTARY EXECUTIVE
FROM THE BOOK
Origins: Great Britain. Office of prime minister has evolved as a matter of political
expediencies.
In 1782 in England and IS there was a war and the resignation of Lord North. King George III
was appointed as a prime minister from the majoritarian party. Majority in parliament
emancipated from the monarch
From 1834 the prime minister and the cabinet became an autonomous body
All the parliamentary executive government are based on a RELATIONSHIP OF CONFIDENCE
between the executive and the parliament.
This form of government has both a head of state and a head of government.
In a parliamentary monarchy: the head of state is determined on hereditary basis, while the
head of government is appointed trough elections by the parliament.
In parliamentary monarchy the head of state is in charge for life, while in a parliamentary
republic for a fixed term (7 years in Italy)
The head of government has no fixed term, he remains in office for the entire duration of the
legislature.
In Germany vote of no confidence for the chancellor, in other countries vote of no
confidence against the government.

Parliamentary executive: introduction

21
General vote only for the parliament. And from the parliament we get the head of the State
and the head of the government.
There is a relation between the government and the parliament.
The parliament can remove the relationship of trust between the parliament and the
government.
Vote of confidence the parliament can decide over the government.
Relationship between the parliament and the government, when the parliament does not
trust the government, the parliament can decide to remove the relationship of trust and
confidence between the parliament and the government.
The parliament can push the government to resign.
If we have a form of government in which the parliament can easily remove the government
from office, we are in a situation in which the parliament is to powerful.
The power of dissolution power exercised by the government, executive decisions of the
parliament to determine the government to resign, on the other hand there’s the power of
the government to resolve the parliament. the government can decide that the parliament
must be dissolved and re-elected.
Hence both have power. The parliament can stop the relationship between them, while the
government has the power to dissolve the parliament.
The final decision is made by the voters.
We may have the situation in which we have more than one parliament and many
executives.
When we have the vote of confidence, we always have the power of dissolution. These two
rights have to balance each other.

Voter elect a parliament. Within this parliament it will be decided who will be the head of
the government. Hence the government will be formed listening to the government.
The head of the state is a completely different figure. (either the Queen or a president, who
is elected by a parliament, before the general election.)
You don’t vote at the same time the head of the state and the parliament. The president is
elected every 7 years, while we have general elections every 5 years.
The government and the parliament are connected. They are meant to stay in office
together. The Parliament may be that it does not trust the government anymore, hence they
can vote against the government. They are revoking the confidence.
 we have a crisis
In this crisis the government can suggest to the head of the state to dissolve the parliament.
Hence the head of the state has the actual power, but he often works together with the
head of the government. hence the parliament may face dissolution
If a new government will be elected, then also a new government will be elected.
When government push the head of the state for dissolution, they only do this when they
know they are strong.
It can hence be that we have the same parliament but a new government.
It is easier for the parliament to ask for dissolution of the relationship, than for the
government to ask for dissolution of the parliament.
SHORT RECAP
A parliamentary system is a system of democratic governance of a state where the executive
branch derives its democratic legitimacy from legislature (parliament) and is also held
accountable to that legislature. In a parliamentary system the head of state is normally a
different person from the head of government. This is in contrast to a presidential system in

22
a democracy, where the head of state often is also the head of government, and most
importantly, the executive branch does not derive its democratic legitimacy from the
legislature.
Countries with parliamentary system may be constitutional monarchies, where a monarch is
the head of state while the head of government is almost always a member of the legislature
(such as the United Kingdom, Sweden and Japan), or parliamentary republics, where a most
ceremonial president is the head of state while the head of government is regularly from the
legislature (such as Ireland, Germany, India and Italy).
In a few parliamentary republics, such as Botswana, South Africa and Suriname, as well as
German states, the head of government is also the head of state but is elected by and is
answerable to the legislature.

-executive power is held in a cabinet

-cabinet only serves as long as there is confidence from the parliament
-a “Vote of Confidence” can be called at any time, and a majority vote can unseat the
existing cabinet (“government fails”)- this requires that a new government be formed
-but the cabinet can also hold the parliament in check. The leader of the cabinet (Prime
minister, premier, etc.) can disband a parliament and call for new elections.

HISTORICAL EVOLUTION
The origins of the parliamentary form of government are to be found in Great Britain,
although the Office of the prime minister and the Cabinet has evolved as a matter of political
expediency and constitutional practice rather than by law given that the country does not
have a codified constitution.
1782 is considered an important moment in the evolution from constitutional to
parliamentary monarchy.
Hence, we don’t have a codified constitution.  customary constitutional law, which evolves
with practice; we don’t have a written constitution; things become custom over many years.
It is unwritten.
You don’t find the constitution in statutes.
We have a constant practice over the years. The government and the parliament always act
in a certain way.
(The queen is a complete neutral power, she has no influence at all in the political power).
1782: historical moment in the UK; late 18th century; the UK was in a war with the US for the
independence of the US;
Why 1782m
1. Up until that moment the King had the power to appoint and to dismiss the Prime
Minister and the rest of the Cabinet.
2. Resignation of Lord North after losing a vote of confidence.
3. First time a Prime Minister resigns following a vote of no confidence.
4.King George III realised he had no choice but to appoint a Prime Minister with majority in
Parliament...
5. ...i.e. Charles Watson-Wentworth who was the leader of the largest group in Parliament,
the Whigs.
Another crucial event occurred in 1832.
Why in 1832?
1. Approval of the Reform Act
2. Struggle between Parliament and Monarch came to a head.

23
3. 1834 King William IV decided to dismiss the then Prime Minister Lord Melbourne and
replace him by the Tory Robert Peel.
4. King was forced to reappoint Lord Melbourne
5. Last time a Monarch will dismiss a Prime Minister of his own accord.
1781 we had the last victory of the US over the UK in Virginia; up to 1782 the King had the
power to appoint and dismiss the prime minister. Hence the Head of the State had the
power to decide who is the head of the government.
The prime minister resigned, because he decided to resign after a vote of confidence. Hence,
we have a new practice;
Vote of confidence means that the government has to resign; this is just what happened and
then became law.
1832 the reformat was approved, that limited the power of the King.
This was the last time that the King ever attempted to change the government without the
approval of the parliament.
The King will lose authority, because the parliament was stronger.
This is the historical practice. After that Kings avoided to do something like this.
In the UK the head of the state is just a formal neutral figure, but the executive power is in
the Government and in the Parliament.

THE UK
Fixed-term Parliaments Act 2011:
 Introduces fixed-term elections to the Westminster Parliament. Under the provisions of
the Act, parliamentary elections must be held every five years, beginning in 2015.
 Before the passage of the Act, Parliament could be dissolved by royal proclamation by
virtue of the Royal Prerogative. Over time, the monarch increasingly acted only on the
advice of
the prime minister.
Parliaments Act was the first time in which a fixed term election was introduced.
The government had always the substantial power to dissolve the parliament. Formally it
was an act of the queen.
There are also two ways in which an election could be triggered before the end of the five-
year term:
 if a motion of no confidence is passed and no alternative government is found within 14
days
 or if a motion for an early general election is agreed either by at least two-thirds of the
House (including vacant seats) or without division.
The constructive vote of non-confidence. The government can vote against the parliament.
Then they have 14 days to find a solution, but otherwise we have a no solution, and general
elections will be held.
Hence the parliament can make a vote of no confidence also if they want general elections
and do not have an alternative government.
If there is a wide agreement in the parliament for the elections, than they can be held before
the 5 years are over. =self-dissolution of the parliament
Parliament can be dissolved if we have a crisis between parliament and government.
How many times parliaments are dissolved in general elections which were triggered
because of a vote of no confidence? Basically never
A vote of no confidence is very uncommon.

24
Government resigned for many reasons, but generally not because of a vote of no
confidence.
SUM UP of the characteristics of the parliamentary executive:
 Power of dissolution (exercised by the government; the government is the
substantial wheel)
 Vote of confidence (all parliamentary executives have this vote)
The royal prerogative:
 is a body of customary authority, privilege, and immunity, recognised as the sole
prerogative of the Sovereign and the source of many of the executive powers of the
British government
 Prerogative powers were formerly exercised by the monarch acting on his or her own
initiative.
Since the 19th century, by convention, the advice of the prime minister or the cabinet has
been required in order for the prerogative to be exercised. The monarch remains
constitutionally empowered to exercise the royal prerogative against the advice of the prime
minister or the cabinet, but in practice would only do so in emergencies or where existing
precedent does not adequately apply to the circumstances in question.
 Today the royal prerogative is available in the conduct of the government of the United
Kingdom, including foreign affairs, defence, and national security. The exercise of the
prerogative is in the hands of the prime minister and other ministers or other
government officials
Royal prerogatives: were once powers of the King and are now powers of the government.
Formally exercised by the King/Queen, but substantially by the government.
The queen can exercise royal prerogatives only with the cozens of the prime minister the
government is the substantial will be the one of the parliament.
Why we still have these kinds of neutral power? The president/Queen (head of the state)
has a certain power of persuasion, power that will balance the relationship between
Government and Parliament in time of crisis.
In the UK now, this is really a soft power.  no substantial political wheel
Referendum
 Exception to the principle of parliamentary sovereignty.
 For any UK-wide referendum to be held legislation has to be passed by the UK
Parliament for each vote to take place, as there is no pre-determined format or voting
franchise for any such vote.
 Legally (and theoretically), Parliament at any point in future could reverse legislation
approved by referendum, because the concept of parliamentary sovereignty means no
Parliament can prevent a future Parliament from amending or repealing legislation.
However, reversing legislation approved by referendum would be unprecedented

Referendum: a vote of people, to regulate some things

In the UK referendum are held, when the parliament decides to.
It may be used in a populist way hence referendum is always regulated and there are
some subject matters, that are not available for referendum.
In the UK there is a political decision behind a referendum.
From a legal and theoretical point, the parliament can reverse the result of a referendum.
The parliament can authorise a referendum, but they can reverse the result of a
referendum, and future parliament is not bound by the decision of a referendum.

25
Traditionally there was a strong opposition to the concept of referendum by a certain
political party: left winged parties don’t like referendum, because they claim that
referendum is an instrument of populism.
That’s why there was a strong opposition to the instrument of referendum in Italy until the
70s.
In France, they used the referendum in many cases against the Government.
 very controversial legal instrument
Huge difference between the south and the north.
But not a huge difference in terms of voting (only 2%).
The parliament passed a law, accepting a referendum concerning membership to the EU.
Brexit
 The European Union Referendum Act 2015 made legal provision for a non-binding
referendum to be held in the United Kingdom of Great Britain and Northern Ireland and
Gibraltar, on whether they should remain a member of the European Union or leave it.
 Can the cabinet trigger Art. 50 under royal prerogative, meaning without a bill by
Parliament?
 R (Miller) v Secretary of State for Exiting the European Union.

Non- binding: the act said, that they are going to ask the people, but then they are not
bound to the decision of the people. The referendum, per se, does not terminate the
membership.
Art 50; The government needs to notify the EU, that they leave. Can the government trigger
art 50, without a bill of the parliament, where they clearly state that that they want to leave
the EU?  no they can’t
There is still some disagreement; the government can’t trigger article 50 without a
parliamentary bill.
 they can’t leave the union, without asking the parliament
A parliamentary intervention is needed, hence they can reverse the result of the
referendum, since the referendum has no legal binding effect.
The prime minister, Elisa May, was trying to us the article 50 without asking the parliament.

Today there are still negotiations between the UK and the EU. The EU says, that they are
going to this with harsh conditions commercial agreement will be hard, UK will no longer
be a special partner in commercial things, but they will be treated like every other country
outside the EU. UK citizens can’t just live in the EU.  huge problem; The UK does not want
to be treated like China; they still want that their products can be sold in the EU without
problem; The EU said, this can only be accepted if they get back some things, like for example
that every EU member is treated equally in the UK.)
But actually, the EU does not want the UK to leave.
Everything would have huge consequences. (Problem zwischen Nord Irland und Irland; man
müsste sogar eine Grenze aufstellen.)

 On the 21st of January, the Supreme Court judges voted eight to three against the
government, upholding a November High Court decision.
 In their ruling, the Supreme Court judges rejected an argument that devolved
administrations in Scotland, Wales and Northern Ireland had the right to be consulted on
the Article 50 process. The assemblies are not entitled to a veto.
The supreme court said that there is needed a bill of the parliament to trigger art 50.

26
Afterwards Scotland wanted to make a referendum to split from the UK, since they want to
remain in the EU.

Recap:
Parliamentary executives: Are characterized by the vote of confidence and the power of
dissolution (exercised by the Government; formally be the Head of State, but it is a
substantial decision of the government) In the UK the Head of State is the Queen, only
formal, and the government makes the substantial decisions.
The evolution of the parliamentary executive was born when the liberal state was born.
Relationship between the liberal state and parliamentary executive.
At some point the dissolution of the absolutist state gave birth to the liberal state.
This was the moment when governments started to get rid of the King and get accountable
before the Parliament.
Dissolution of the absolutist state, absolutist regimes collapsed rise of the liberal state;
Governments started to be accountable to the parliament rather than to the king.
First forms of government in Europe where parliamentary executives.
Absolutism started to collapse because Henry the VIII gave some power to the parliament.
Governments were the inner circle of advisors for the King. Later they became independent
from the King and have their own power.
In the UK, the head of the State is a neutral power.
Italy is an example of parliamentary executive that has a problem with stability.

THE ITALIAN CASE

 Vagueness of the Constitution’s text
 Therefore, the President of the Republic’s position as developed throughout the history
of the Republic, has been heavily influenced by the interpretation given to the role by
the Presidents of the Republic.
 Requirements:
o 50 years old
o enjoy full political and civil rights o have Italian citizenship
In Italy voters vote only for the parliament. The parliament will vote for the Head of the
State and will establish the government.
The President in Italy has powers that differently exercised in times of crisis and in normal
periods. The role of the president changes in times.
Times in which presidents are very active, and times in which the president has a very
neutral role. In times of crisis the president is very important. In times of no crisis, and we
have a strong majority in parliament which establishes a stable government, than the
president is not that important.
The role of the president changes when the majority in the parlimant changes.

27
Parliamentry executives are based on the relationship between government and parliament.
Hence if the go along well, than the head of state is not that imporotant, but if there are
conflicts between the 2, than the president is very important.
The role of the president depends a bit on the history.Hence the past of former head of
states and the relationship between parliament and government.
Full political civil rights he has full legal capacity; this implies that he has no kind of life
sentence, or he was not sancioned for something which implies the loss of civiland political
rights.
The person does not need to be a politician, not a member of the parliament and also no
member of the government. But in italian history all presidents where members of one of
the 2.
Sergio Mattarella: he was a member of the parliament; he ellaborated the Mattarellum (is
an electoral law; it essentially tried to combine proportional system with majoritarian
systems). In italy we have many parties outcomes of elections are always a bit crazy
because we have many parties. Outcomes are not majoritarian. Mattarella tried to simplify
the outcome of elections.
(In other countries political offer is quit clear; either right or left; conservative or progressiv)
In proprtional system it is quit complicated. You have many parties; multipartitism implies
political outcomes that are quit difficult to read, and we have a quit unstable outcome.
Mattarella was a key figure in the late 1990s in a moment in which italy was in a very
complicated situation, when they tried to move to a majoritarian system. Matarella is
lawyer, and was a constitutional judge.
Berlusconi and his parties wanted majoritarian system, while other parties still wanted the
multiparty system .
Movimento 5 stelle and Lega were not majority parties. They are both new parties in the
Italian political system. 2 parties that at some point get the power, but don’t have a
grounded presence in the political scenario. This are voted parties what does this tell us?
Historical parties can’t get enough votes, because voters don’t vote for the same party
forever. They want a multiparty system.
Forms of government always interact with the political system. That’s why the role of the
president is so important now.
If the parliament and the government work together, the president is like set aside.
(Example the Berlusconi government was very well working).
 Election:
o Parliament in joint session
o three delegates for each Region
o the first three ballots cast, a vote of two-thirds of the electors
o from the forth ballot onwards an absolute majority
 Term of office:
o 7 years
o Possible re-election (only once, Napolitano in 2013)
In Italy the head of the state is elected in the joint session. Both the senate and the house of
representatives will vote for the president.
We have three delegates for each Region. Hence also local governments can say something.
But the real will that counts is the will of the parliament.
The Italian constitution says nothing about the possibility of being re-elected.
7 years meant 7 years only!--> the president was seen as a one term president.

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But in 2013 we have a huge crisis in the Italian parliament. We have elections, we have a
political institutional crisis.
Political parties asked the president to stay in office for additional 7 year. (It was Giorgio
Napolitano) because it would have been very difficult to agree on a new President.
He said he will only remain the president until the institutional crisis was solved. This was
the commitment that the president expressed.
He didn’t want to change the constitutional practice. Hence the president remains a one
term president. (He accepted the term for 2,5 years and then the parliament elected Sergio
Mattarella.)
This was only an exception.
Why? 7 years are already very long; we tend to avoid long term offices because of the
Fascist experience.
 The tripartition of Presidential Acts:
o Formally Presidential Acts which are Substantially Governmental
o Formally Presidential Acts which are also Substantially Presidential
o Substantially Complex Acts
 irresponsibility of the President:
o Ministerial Countersignature
 Presidential Offences
The kind of powers that the Italian head of state: He has a wide range of powers.
We can divide his power into 3 acts. tripartition of Presidential Acts

 Formally Presidential Acts which are Substantially Governmental

PROMULGATION: Officially declared. It means that the parliament adopts/ or passes
a law, but then this law has to be promulgated by the head of state. (in the UK also
called SANCTION). Act through which a law is officially declared. It officially becomes
part of the law.
Is the will incorporated in the law (will of the head of the State)? NO;
In the UK the Queen has no power.
In the USA the president can VETO the law at this certain stage.
In Italy we have something like a veto.
So, the substation will is a parliamentary and executive will.
Hence, we call this sustainably governmental. It is the government and the
parliament that want the law.
 hence called substantially Governmental.
 Formally Presidential Acts which are also Substantially Presidential:
When the head of the state wants to appoint someone to an official position.
E.g. Judge
Hence the president has this power to makes appointments.
In Italy 5 out of 15 judges of the constitutional court are appointed by the president.
This is a formal and substantial presidential act. It is substantially a will of the
president. Hence formally presidential acts which are also substantially presidential.
There are cases in which the appointments are driven by the government.
 Substantially Complex Acts
High council of defence. They seat when there is some kind of crisi. The decisions are
taken by the president with the minister for defence and the prime minster. Here is
more than one will involve. Hence complex acts.

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 It is the president that signs those acts, but the wills are actually complex. The
president is completely irresponsible, because there is an Italian motto which says
that the King cannot fail. SO, the presidential role in the Italian system was designed
after the role of the King. Hence the president can’t fail. Hence every presidential act
is countersigned by the prime minister, so the legal responsibility is always of the
government. So, the president can only prosecuted in only 2 cases:
-Hight reason; he is committing crimes
-attempt to over through the constitutional order.
Hence when the president appoints a prime minister, this act is countersigned by the
prime minister himself.
 complex act because more than one will are included
In every of this case, irrespective of the kind of act we are discussion, we have the minister
that countersigns!!!
(In Italy we don’t have a real prime minister, but only the president of the council of
minister. Hence in Italy he has less power than in the UK or in other countries. Hence, he is
not leading the government as in other countries. He is not a leading figure in the
government.)
THE CONSTRUCTIVE VOTE OF NO CONFIDENCE
 What is the constructive vote of no confidence? Article 67 of the German Basic Law:
a) “The Bundestag may express its lack of confidence in the Federal Chancellor only by
electing a successor by the vote of a majority of its Members and requesting the
Federal President to dismiss the Federal Chancellor. The Federal President must
comply with the request and appoint the person elected”.
b) “Forty-eight hours shall elapse between the motion and the election”.

German basic law= Grundgesetz; it is a constitution substantially

There we have the constructive vote of no confidence: Legal instrument to reduce the power
of parliament and to foster stability of government.
(Bundestage= House of representatives)
Article 67: The Bundestag is going to vote no confidence to the federal Chancellor (= the
prime minister) ; the can only do this if they have a solution, they open the crisis, but need
to close it again, meaning they have to find a solution. If they don’t find a solution, they pay
with dissolution. Like this they try to guarantee stability of the government otherwise they
are always like under the power of the parliament. Hence the constructive vote of no
confidence is designed to reduce the power of the parliament.

Article 68 of the German Basic Law:

1. “If a motion of the Federal Chancellor for a vote of confidence is not supported by the
majority of the Members of the Bundestag, the Federal President, upon the proposal of the
Federal Chancellor, may dissolve the Bundestag within twenty-one days. The right of
dissolution shall lapse as soon as the Bundestag elects another Federal Chancellor by the
vote of a majority of its Members”.
2. “Forty-eight hours shall elapse between the motion and the vote”.

Parliamentary executives with the constructive vote of no confidence are more stable.
In the UK something similar was introduced in 2011.
 In Germany it was used only twice.
 Spain too provides for the constructive vote of noconfidence (Section 114 Cost.).

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 The very limited resort to the constructive vote of no confidence in both Germany and
Spain should not lead one to think that it is of limited importance.
 It has worked as a strong deterrent.
Constructive vote of no confidence is a way to reduce the number of cases in which the
parliament is able to determine the resignation of the government.
Instability comes with parliamentary executive, because the parliament can always vote no
confidence. When the parliament votes against the government, but the simple voting
against the government does not always mean resignation of the government.

If the government has a proposal, the parliament can vote for it. The government does
simply say that this proposal is so important for them, that it is the same as voting for
confidence. Hence it is like voting the confidence.
Logic of something like this:
In Italy we have many cases in which the government wants that the parliament votes for a
certain proposal and attach the vote of confidence; logic behind it:
The parliament knows that the content of the vote of no confidence is the relationship with
the government, but if we vote for a proposal why is confidence attached. The government
hops that attaching the question of confidence, pushes members of the parliament to
change their mind. Hence if they would vote against, it would mean that they would vote
against the government.
But if the vote of confidence is attached, if members of the parliament don’t vote for the
proposal is it than like voting no confidence? Yes, it is like voting no confidence.
Then the government has to resign. (Noting of no confidence however is not really usual, but
often it was dissolved because of the question of confidence they attached to a certain
proposal.) Hence the government needs to be careful when attaching a question of
confidence to a proposal.
Way through which the government explains to the parliament what proposals are essential
for the political project of the government.

The constructive vote of no confidence is a way of reducing the power of the parliament.
In Germany it was used only 2 and in Spain as well only in few cases.
 it is a very strong/powerful way to make the parliament think 2 before start the process
that will eventually lead to the vote of no confidence against the government.
Hence this is an important instrument.
The Italian constitution does not have a constructive vote of no confidence. Hence if an
institutional crisis begins, the president is very important to solve the problem/ he needs to
find a solution.
In Italy the president has to find a way out while in Germany it is the parliament. Hence the
president is very important in times of institutional crisis.

ii) The Presidential Executive

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The US the first case in history.
The voters elect both the congress and the president.
The first clear difference between parliamentary and a presidential executive. The source of
legitimacy for the exercise of power, comes from the constituency that the president has.
Irrespective of the congress. The president has his own popular vote.  double source of
legitimization. Those 2 powers have a different form of legitimization, an autonomous form.
2 different sources of legalization: may happen that the congress and the president have a
different political orientation. But most importantly they are separated. They exercise power
but separated. Hence there is no vote of confidence and no power of dissolution.
In parliamentary executive the voters vote only for the parliament, which will in turn elect
the president and the government.
The US constitution was framed after the influence of French philosophers. Power should be
separated to exercise their authority. No overlapping of power.
The senate and the house of representatives share some power, but essentially, they have
different powers and a different role in the constitutional framework.
(the 2 chambers)
In the US the system is known as the system of checks-and- balances. The powers have their
own province where they exercise their power, but the other chamber can always check.
Congress has legislative power
President has executive power.
Hence the president can release laws, but can make other orders, that have an influence on
the state. Plus, he has a veto power, which can be exercised by him on many different
grounds.
But the congress can overcome the veto, by simply reapprove the law which has been
vetoed by the president. But 2/3 of the congress need to vote for it.
The US senate needs to give advice and consent of the president. Hence, they have the
power to influence the decisions of the president.
The house of representative votes for the budged. They also have the power to impeach the
president, revoke resignation of the president.
The congress is also very powerful.
Congress= formed by the house of representatives and the senate
Senate has an important role in foreign affairs, while the house of representatives in internal
affairs.
The veto power the president is refusing to officially sign the law. But the congress can
overcome the veto by reapproving the law with 2/3 of the congress.
In Italy the head of the state can decide not to approve a law. But he can do this only once,
plus can the parliament reapprove the law only with a small majority. –> hence there is no
real veto power in Italy.
In parliamentary executives the essential political decisions are made by the Government +
the parliament democratic circuit.
The head of state is a neutral power, hence he can’t decide the political direction of a
country/state. It’s only a choice made by the government+ parliament. When the parliament
passes a law, the intervention of the head of the state is limited to cases in which the law is
clearly unconstitutional hence the logic of the veto is to make the parliament to think
twice. But if the parliament is really convinced, than the president can’t do anything more.
In presidential executives the essential political decisions are made by the president + the
congress. Here if there is a law that the president does not like, the president can stop this
law. The congress can still overcome what the president is doing, but they need 2/3.

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Is there something like a government in the US?  YES; the cabinet of the secretaries. (here
they are called ministers) We want to underline their relationship with the president;
In parliamentary executives, ministers because there essential relationship is with the
parliament and not with the president. The parliament not the prime minister can dismiss
ministers.
The US: the electoral college
 It’s the system through which the President is elected.
 270 electoral votes needed out of 538.
 Otherwise the so-called “1824 scenario” (XII Amendment). The great electors are chosen
by popular vote on a state-by-state basis.
 Except for Maine and Nebraska, electors are elected on a "winner-take-all" basis.
 Critical issue: the unfaithful electors.
The US: Caucuses and primaries
 Presidential candidates are selected through:
o primaries, run by state governments;
o Caucuses run by the political parties.
 Primaries can be:
o closed;
o semi-closed;
o open.
 Eleven states - Iowa, New Mexico, North Dakota, Maine, Nevada, Hawaii, Minnesota,
Kansas, Alaska, Wyoming, Colorado and the District of Columbia - use caucuses.
The US: 2016 elections
 The fact that Mr Trump won several key swing states very narrowly, while Mrs Clinton
won big majorities in some states is part of the reason, she was able to get more votes
but still lose the election.
 Twothirds (273 out of 399) of campaign events in the 2016 election were held in only six
states (Florida, North Carolina, Pennsylvania, Ohio, Virginia and Michigan)
iii. Semi-Presidential Executive

FRANCE:
We have the head of state and the prime minister which is the head of the government.
General election: Voters elect the president and the parliament.
Parliament is formed by the national ensemble and the senate.
The president votes the government, which needs the vote of confidence.
The head of government is appointed by the president.

33
Implication of this system: Does the president freely decide who is going to be the head of
government?
It depends from the majority of the parliament. Crucial who has the majority in the
parliament, otherwise the parliament will probably not accept the prime minister elected by
the president.
The head of state is very powerful, but then the head of government is as powerful
balance
But they can produce a situation in which no decisions are made because there is a veto in
both sides.
The elections of the parliament and the president should be at the same time, to reduce the
number of cases in which the political inclinations of the parliament and the president are
different.
Because if they are different probably the president will vote for a head of government,
which will not be accepted by the parliament.
E.g. if the president is right winged and the parliament is left winged:
The parliament is going to approve laws that are not going to be accepted by the president.
Presidents started to use referendums to ask people if they are with him or with the
parliament.  tension between direct and indirect democracy.

Hence, we want general elections at the same time to avoid situations in which the
parliament is against the government. (otherwise conflicts between the majority of the
parliament and the president)
FRANCE
 The present Constitution was enacted in 1958, during the Algerian crisis.
 De Gaulle founded the Fifth Republic with a strong presidency, and he was elected in the
latter role.
 He introduced the direct election of the President of the Republic in 1962 with a
presidential referendum.
 The amendment procedure in breach of the 1958 Constitution.
 However, the Conseil Constitutionnel ruled that since a referendum expressed the will of
the sovereign people there was no breach of the Constitution.

Head of state= De Gaulle; the thought that to solve the crisis, a strong presidential power
was needed. Hence the system was changed to give more power to the president.
Parliamentary executives are generally thought to be inefficient, because we have a very
inefficient decision-making process, especially in the time of crisis.
Hence in France they introduced the semi presidential system, to have a more efficient
decision-making process.
In presidential systems we can easily identify the head of state and the congress. The head
of state and the head of government are the same person.
In parliamentary executive we have head of state, government and parliament, but the head
of state is a neutral power and the government has the executive power.
In semi presidential systems, we have head of state, parliament and government, but both
head of state and government have executive power. Hence both head of the state and
head of the government have power, but head of state is more important.
Macron=head of state
Parliamentary executives are believed to be inefficient, because we need to wait for the
decisions of the parliament.

34
The government always needs to wait for the parliament. Involving the parliament is more
democratic but fare more inefficient.
Hence even parliamentary systems are changing now.
Recap:
Semi- presidential executive:
We have parliament that is linked by a relationship of confidence with the government.
The president appoints the government and can dissolve the parliament.
Most famous example France.

FRANCE: COHABITATION
 Cohabitation occurs when the President is from a different political party than the
majority of the members of parliament.
 Cohabitation occurs because of the duality of the executive.
 Since 1958, France experienced cohabitation three times.
 When in cohabitation the balance of powers changes.
 Constitutional reform of 2000.

President of the republic role was reduced, only the role of the Prime minister was
important.
In other system: The system of Ireland: Net prevalence of the government and the
parliament. The president is only a figure but has no real political meaning.
President of the republic can be elected by the citizens and is only ceremonial.
The key figure is the prime minister with his government.
The more the role of the president is powerful, the more similar we are to a presidential
executive, and the stronger the power of the parliament and the government the nearer we
are to a parliamentary executive.
SUBCLASSIFICATION
1. Semi-presidential systems where the Prime Minister prevails;
2. Semi-presidential systems which are based on a diarchy or clear separation of
competences between the Prime Minster and his government, on one hand, and the
President of the Republic, on the other;
3. Semi-presidential systems where the President plays a central role.

THE BULGARIAN PARADOX

Article 1:
Bulgaria is a republic with a parliamentary form of government.
Article 93
The President is elected directly by the voters for a period of five years by a procedure
established by law.
Very weak power of the president of the republic.
Here the president is elected directly be the voters a characteristic of the semi
presidential executive.
According to many scholars, semi presidential executives need a strong power of the
president of the republic, otherwise if makes no sense.

35
iv. Directorial Executive

Government composed by a number of members that have a fixed term in office and enjoys
no relationship of confidence with the parliament.
Also, the parliament has a fixed term of office.
The government is elected for a mandate and can’t be removed, same for the parliament
which can’t be dissolved.
The government is a legal organ where no one is really the president. Within the
government each member enjoys the same position.
Example of Switzerland: we have a government called federal council. And then we have a
parliament that is formed of 2 houses (1 represents the federation and the other on the
regions, which are the cantons in Switzerland). They elect a parliament for a fixed term of 4
years, and then the parliament elects the federal council for a fixed term of 4 years.
Once it is elected there is no way for the government to induce the federal council to retire,
while there is also no way for the federal council to dissolve the parliament.
If we have a strong majority in the parliament, we can have a political system build up by
this majority.
In Switzerland we have a very important division as regards of the language.
Hence 4 members of the federal council should be people belonging to the German group,2
members should be people belonging to the French group and one member should belong
to the Italian group.
Federal council is made up of 7 members.
We have a constitutional convention which in addition to this rule states that the seats of
the government should be equally divided with respect to the political parties and minorities
have to be represented.
Government representative of the linguistic and political constitution of the state.
System based on compromise.
To solve problems: often referendums: direct democracy
Within every canton this system is exactly replied.
We have a level, called federal level where we have a federal parliament elected by the
people that elects the federal government.
In the cantons we have a cantonal government and a cantonal parliament. In this particular
case the system is even more reinforce. Both are elected by people.

Hence constitutional rule is related to the language group. Besides this rule we have the
constitutional convention (not a written rule, but a rule which is accepted), provides that the
majority of the government is formed by the more represented parties of the parliament.
But the minority should be presented as well.
SWITZERLAND

36
directorial executive (Switzerland) characterize by a government with fix term. The
government is elected and cannot be removed, and the parliament cannot be dissolved. This
form of government has no president of the republic. The head of state is the government
itself. The government is collegial organ where none is freely a president. Each member of
the government enjoys the same importance and the role of direction and representation is
played in term by each member of the government.
SWITZERLAND: government called federal council, and then we have a parliament that is
formed of two houses (one which represent the federation and the other which represent
the state) the people of Switzerland elect the parliament for a flexed term of 4 years and
then the parliament elects the federal council for a fixed term of 4 years. Once the federal
council is elected there no change for the parliament to resign. On the other side while the
federal council is also the head of state there no chance for fed council to dissolve the
parliament. This asset has some problems in term of political variability:
i) if we have a strong majority in parliament can easily take control of the whole
political system by directly electing all the 7 members of the federal council. Due
to this problem the constitution provides a set of rules. In Switzerland we have a
division as regards of linguistic groups. most German, some French and other
Italian. The rule is that 4 members of the federal council (FC) should be people
belonging to the German part, 2 members belonging to the French group and 1
from the Italian group.
ii) The great majority been 4 members will belong to the two main parties and the
other members will belong to other parties. So we can have a government which
both represent the linguistic and the political composition of the state. the
president of the government and the president of Switzerland is a role which is
played by which member of the government high grade of compromise. Political
proposals coming from the government are not approved by the parliament.
There is a great resource of direct democracy REFERENDUM; de-responsibilities
of the government. Stable and durable government.
Within any canton of the federation this system is exactly replayed, we have a
level that we call FEDERAL LEVEL. Where we have a federal parliament elected by
people that elects the federal government. But at the cantonal level we have a
cantonal government and a cantonal parliament. The system is even more
reinforced.
Neo-parliamentary executive

Rather recent system. Was applied only in few countries. Most important country: Israel
(later they stepped back to be a parliamentary state)
This form of government is characterized by a legislative assembly and a prime minister
directly elected by people during general elections.

37
Neo-parliamentary executive (Italian regions and Italian municipal): this system is rather
recent and was applied only in a few countries around the world (ex. Israel)
Election of the members of the assembly and the election of the head of government.
Parliamentary assembly and the executive area linked by relationship of confidence. The
parliament has the power to have the government resign. If the assembly approves the
executive is forced to resign. If this is the case when the executive resigns also the
parliament is automatically resolved.
SIMUL STABUN- SIMUL CADENT if the executive autonomously decides to resign this will
be the only chance for the executive to promote the
If the executive wants new elections to be classed this resignation provoque the dissolution
of the assembly.
No vote of confidence is necessary when the parliament and the executive.
In case of political turmoil there will be very few conveniences for the assembly to
Vote of no confidence by the assembly, will also lead to the dissolution of the assembly.
Session 05: Electoral system
LIST OF CONTENTS
I. Electoral system
A. Majority system
1. Plurality
2. Majority
a) Two round runoff
b) Instant runoff
B. Proportional representation (PR)
1. Methods based on dividers
a) D’Hondt method
b) Sainte-Lugue method
2. Methods based on quota
a) Largest remainder method
II. Italian electoral system
ELECTORAL SYSTEM
The electoral system is the way used by the people to appoint representatives of the state
and public institution.
It can be composed by 3 parts:
- electoral law: includes all legislation that concerns elections
- electoral system: member of any assembly is elected
- electoral formula: mathematic formula used to transform votes into seats in any
assembly.
MAJORITY SYSTEM
Those systems that privilege the majority, have an elective effect on the political system.
We have the election of the candidate that obtains the highest number of preferences.
Based on the concept of district, or constituency.
For a majority system to function, we need the territory of a state divided into a number of
districts or constituencies, where each district corresponds a seat within the
assembly/parliament.
Districts are drawn based on the population. Hence legislators try to make proportional
districts.
UK system is this kind of system.

38
Only the relative majority is sufficient to be elected for the post in the parliament.

 The candidate who obtains the majority of the votes wins.

 Majority systems are usually connected to uninominal districts.
 Majority systems have a selective effect on the political system.
 We can distinguish to main majority systems:
o a. Plurality
o b. Majority
Plurality
It is also called First Past the Post (FPTP). Candidates are elected with just a relative
majority.
 It is the system adopted in the UK.
 It is possible to have a «wrong winner» like in the US with the plurality system?
 Under the UK's multiparty system, in the most extreme case you could comfortably
win the popular vote but get no seats in the House of Commons by coming second in
every constituency.
 What is more common is to see is a party winning a majority in Parliament with as
little as 35% or 36% of the popular vote, as Labor did in 2005 and the Conservatives
in 2015. In the 1950s and 1960s, winning parties averaged about 47%.
 And we can see the same kind of thing happening with the vote share of smaller
parties. In 2005, the Liberal Democrats received 22% of the votes but only won 62
seats, which was less than 10% of the seats in the House of Commons.
 In the 2015 election, UKIP won 3.9 million votes out of a total of around 30 million
votes cast nationally, but only ended up with 1 MP.
PLURALITY can have different problems:
Case of wrong winner: the sum of the votes could be less than the sum of the votes of the
party who win the elections. The winning party may get very few votes in the district in
which it lost. We can have a party that have a high number of votes but in proportion a low
number of seats in the parliament.
Correction of the plurality system:
In France we have a 2-round system with a threshold of 12.5%.
We have a connection between parties that are excluded and are send to the second round
we can have coalitions (hidden or unhidden). In this system there can’t be a winner in the
first round. In the elections for Macron, in order to avoid a victory of the socialist party,
many parties that were excluded where given to the party of Macron.
With the alternative vote, we ask the voter to whom should go his vote if his first party can
be elected.
hence people themselves choose the other party.
How can we correct this problem? We can use a majority system

The USA is a majority system.

The election of the president is not a direct one but is based on delegates. This delegate is
nothing more than members of an assembly. While this assembly only works to elect the
president once every 4 years, the USA runs a presidential election.
Each state is given a fixed number of delegates by the law. The number of delegates should
be linked to the population of the state.
This delegate is elected by the means of a block vote.
Example OHIO: can have 5 delegates.

39
We have Trump and Clinton. But we are not giving vote to them, but we are giving votes to a
list of delegates, that pledged in the electoral college to vote for one of the 2.
If one of the 2 gets one more vote, than he takes all the delegates of the state.
Problem here is that the US is a system based on 2 main parties, but we have also other
parties running with 5 delegates each. We have votes for all this party.
It can happen that one of the 2 gets a majority of delegates, even if he gets a minority of the
votes.
Block votes like this are a distortion of the system, because they can subvert the democratic
will of the people.
Who decides how the districts are drawn?
 the legislator of the electoral law.
By redrawing the districts, you can subvert the result of the election.
By doing this you can already shape the outcome of the next elections Gerrymandering
I redraw the electoral districts in order to change the next elections.
If we have key states, the drawing of the districts is quite stable.
Majority
We can correct the problem of the plurality majority system by using the majority system.
We can have a way of correcting the problem of fewer representation.
Instead of having 3 guys A, B, C running for the post and obtaining the post by just one vote
more than the others.
Here we want that the post is obtained by majority.
Hence the party needs to have 50%+1 number of votes.
Could be that no party has this number of votes.  we have 2 answers

1) To be elected candidates need an absolute majority of the votes.

2) Problem: What happens if no candidate obtains an absolute majority in the first round?
3) Answer:
a) Two Round Runoff (see France);
b) Instant Runoff/Alternative
Vote/Preferential Voting (see Australia).
Two Round Runoff
 Premise: Nobody obtains the absolute majority of the votes in the first round.
 Therefore:
(1) All candidates who obtain a percentage of votes over the threshold (12.5% in
France for legislative election) will go to a runoff election (or second ballot).
(2) Another possibility is just for the two most voted candidates to go to a runoff
election (see France for presidential election).
In both rounds of an election conducted using runoff voting, the voter simply marks an "X"
beside his/her favorite candidate. If no candidate has an absolute majority of votes (i.e.
more than half) in the first round, then the two candidates with the most votes proceed to a
second round, from which all others are excluded. In the second round, because there are
only two candidates, and absent a tie vote, one candidate will achieve an absolute majority.
In the second round, each voter is entirely free to change the candidate he or she votes for,
even if his preferred candidate has not yet been eliminated but he has merely changed his
mind.

Instant runoff
Electors must express preferences for all the candidates.

40
A candidate wins the seat if obtains an absolute majority after the first preferences of all the
candidates have been counted for the first time.
It’s not a two-round system, but one round system.
 If nobody obtains the absolute majority of the votes in
the first round....
 ...then the candidate with the fewest votes is eliminated.
 Ballots assigned to the eliminated candidate are recounted and assigned to those of
the remaining candidates who rank next in order of preference on each ballot.
 This process continues until one candidate wins by obtaining more than half the
votes

MAJORITY: are those system that privilege the majority and have a selective effect on the
political system in general, need to be based on the concept of district or constituency.
Each district or constituency correspond a seat within parliament. Representation depends
on the population of the district.
Only a relative majority is sufficient to be elected for a seat in the parliament.
MAJORITY SYSTEM-pure majority system. Instead of having 3 parties for example and
obtaining the post for just one vote more than the others.
It should be 50%+1 of votes. If we have 3 or more candidates not all will obtain 50+1 votes.
Therefore (1) all the candidates who obtain a percentage of votes over the threshold will go
to a turnoff election. (2) another possibility is just for the two most voted candidates to go
for the election.
The candidate who win the second run wins the seat in parliament.
PROPORTIONAL REPRESENTATION
 The number of seats assigned to each list is proportional to the votes obtained.
 Usually these systems are connected to multi-seat constituencies.
 PR methods:
a) methods based on dividers;
b) methods based on quota.
Method based on dividers
Two main methods based on dividers:
A. D’Hondt method: I divide the number of votes by a sequence of dividers. I get a set of
results, which is list from high to low, and then I take the highest numbers.
System is generally very proportional. The number of seats is quite coherent with the
number of votes they obtained. This allows also small parties to be represented in the
parliament.
B. Sainte-Laguë method: We will divide the number of votes by a sequence of odd dividers.
This has the effect of giving a very high distribution of seats to the party with the highest
votes and a very flat distribution for the other parties.
The proportional effects are increased.
Methods based on quota
b. The most common method based on quota is:
A. the largest remainder method:

41
  it requires the numbers of votes for each party to be divided by a quota representing
the number of votes required for a seat.
 The result for each party will usually consist of an integer part plus a fractional
remainder.
 Each party is first allocated a number of seats equal to their integer.
I. Hare Quota; (tot votes/tot seats)
II. Dropp Quota; (1+tot votes/(1+tot seats))
III. Hagenbach-Bischoff Quota; (tot votes/1+ tot seats)
IV. Imperiali Quota (tot votes/2+tot seats)

 This will generally leave some seats unallocated: the parties are then ranked on the
basis of the fractional remainders, and the parties with the largest remainders are
each allocated one additional seat until all the seats have been allocated.
ITALIAN ELECTORAL SYSTEM
 In Italy the electoral system of Parliament is not provided for by the Constitution but
is governed by ordinary laws.
 As for the system actually adopted, from 1948 to 1993, it was markedly proportional.
 The most significant attempt to introduce majoritarian reforms was in 1953.
 A clear-cut reform of the electoral system was made in 1993, following a direct
popular referendum to repeal the norms of the Unified Electoral Law that provided
for proportional election of Senators.
 The result was the adoption of a new electoral system which was substantially cast as
a majority system, under which 75% of total seats were to be assigned.
 The remaining 25% were instead to be assigned using PR.
 In December 2005, Parliament carried out a subsequent new reform of the electoral
system, this time towards PR.
 The new law (nicknamed Porcellum) provides for a proportional system based on
block lists, to be compiled by the leaders of the various parties.
 There are majoritarian correctives as well, specifically, a premium of extra seats for
the coalition that obtains the greatest number of votes.
 The Constitutional Court in 2014 struck down the premium.
 In 2015, the Italian Parliament passed a new electoral law, nicknamed Italicum, just
for the Lower House.
 The new law provides for:
o a two-round system based on party-list proportional representation,
o a majority bonus and a 3% election threshold.
 Candidates run for election in 100 multi- member constituencies (+1 for Italians
abroad)
 with open lists, except for a single candidate chosen by each party who is the first to
be elected
 Gender balance is promoted by requiring that, in each district, head of lists of either
sex for the same party should not exceed 50% of the total; additionally, candidates in
all lists must be in a sequence alternating by gender.
 At the first round, electors are allowed to express two preferences. If two preference
votes are expressed, they must be of a different sex: otherwise, the second
preference is discarded.
 First round:

42
 o only parties passing a 3% minimum threshold are assigned seats;
o if the party receiving the majority of the votes passes a 40% threshold, it is
attributed a minimum of 340 seats (54%);
o the remaining 277 seats are allocated to the other parties using PR, and no
second round takes place.
 Second round:
o if no party has been able to pass the 40% threshold, a second round takes
place two weeks after the first one;
o the party winning the second round is attributed 340 seats, and the remaining
277 seats are allocated to the other parties using PR, according to the results
of the first round.
 Allocation of seats:
o follows the largest remainder method;
o each party receives a certain number of seats depending on its national
result;
o theseseatsarethenprojectedontothe100 constituencies and attributed to the
candidates of that constituency, starting from the head of list and then
o according to the number of preference votes.
 But now, two main problems:
o the constitutional reform was rejected on the 4th December. Therefore, we
still have an elective Senate;
o The Constitutional Court struck down the second round provided for in the
Italicum.
 What electoral law(s) do we have now? Two:
o the modified Italicum for the Lower House
o the Consultellum for the Senate.
 The modified Italicum, a PR system with a majority premium.
o What changes:
 No more second round.
o What is maintained:
 The premium of extra seats;
 The thresholds;
 Open lists, except the head of the list; ➢100 constituencies;
 Preferences;
 Gender quota;
 How seats are allocated.
 The Consultellum
o PR system;
o No premium of extra seats; One preference;
o Open lists;
o Thresholds:
 8% for the lists (3% in the list in within a coalition)
 20% for coalition
o 20 constituencies (+1 for Italians abroad).
 Rosatellum bis:
o Chamber of Deputies
 232 seats FPTP
 386 seats PR (LRM)

43
  12 seats Italians abroad
o Senate
 109 seats FPTP
 200 seats PR (LRM)
 6 seats Italians abroad
 Rosatellum bis:
o The thresholds:
 3% on a national basis for the parties
 10% on a national basis for coalitions
o In each PR constituency no more than 6-7 seats (small)
o In PR constituencies blocked lists
o Single ballot paper, thus no split vote
o Gender balance (60% max)

Parliamentary form of government, a rationalized parliamentary form of government.

Was grounded on a proportional electoral system, which establish stable executive.
Proportional representation gives us a parliament very divided and populated by different
political forces which have to find an agreement.
During the first republic until 1993, average government last 2,5 years.
Reinforce the majority which should support the government and correct the effect of
proportional electoral system.
in 1993 a mixed system was introduced MATTARELLUM, based on 75% on a majority
system
PORCELLUM A new electoral system had to be established after 2016, we got to the actual
electoral system approved in 2017. A mixed electoral system. ROSATELLUM-bis, it comes
from the name of Rosati, the drafter.
(64% proportional, 36% base on the majority formula)
Has we got the house of deputies we have 231 deputies elected with the proportional
system and 115 with the majority formula

FROM THE BOOK

The structure “perfect bicameralism”
The Italian constitution of 1948 endowed parliament with a position of primary importance.
Title 1 of part 2 is “Parliament” (beginning of the frame of government)
The parliament is the most direct connected with popular sovereignty as the representatives
are directly elected by citizens.
The constitution is characterized by limitations on the executive power in the advantage of
the power.
A peculiar characteristic is a BICAMERAL STRUCTURE: chamber of deputies and senate form
the parliament of the Italian republic.
The advantage of UNICAMERAL PARLIAMENT is the great efficiency, wile bicameralism
allows:
- greater preventions of possible abuses of a single chamber
- favors the of more seriously thought-out decisions and permits the representation of
groups having common interests.
PERFECT BICAMERALISM the two chambers present similarities in both structure and
function
IMPERFECT BICAMERALISM differences on composition or power or function.

44
Distinguishing features of the chamber of deputies and the senate
 Only the senate is elected on a regional basis. However, they don’t represent the
regions
 Every region must have at least 7 senators, except for Molise which has 2 and Valle
d’Aosta which has 1
 ACTIVE ELETTORATE: right to elect a member of the assembly. For the chamber of
deputies, you must reach the age of majority, while for the senate you must be over
25
 PASSIVE ELECTORATE: right to be elected:
o To become a deputy, you must be over 25
o To become a senator, you must be over 40
 Number of members: 2:1 ratio. There are 630 deputies and 315 senators. There also
are the senators for life (5 members named by the president of the republic among
citizens having particular merit) and senator for life by right (former president of the
republic after stepping down from their presidential position)
 Both have a fixed term of 5 years, however before 1963 (deputies 5y and senators
6y)
Electoral system, incompatibility, inelectibility and checks on power
Electoral system formality trough which members of parliament are elected
There are two macro categories:
 Proportional system assignment of seats in proportion with votes obtained
 Majoritarian system assignment of seats to the party that won
The proportional system is more a faithful representation, while the majoritarian system is
more stable
Size of constituency:
 UNINOMINAL: one candidate is elected
 PLURINOMINAL: 10-30 candidates are elected
In Italy the electoral system of parliament is provided by ordinary laws
1947 proportional system
1993 political crisis. A referendum was held, and a new electoral system was introduced:
MATTARELLUM:
 75% majoritarian system seats assigned to the winning party
 25% proportional
2005 PORCELLUM: proportional system which provides a premium of extra seats to the
party who won the relative majority
It was declared unconstitutional due to the length of the blocked lists and to the premium
2017 ROSATELLUM BIS:
 60% proportional
 40% majoritarian
The Italian constitution refers to ordinary legislation to govern in case of
 INELEGIBILITY situation which prevent the election of a citizen as deputy or senator
 INCOMPATIBILITY a deputy or senator has to choose between the parliamentary
position or the previous position or office.
The status of member of parliament
each MP has special guarantees:
 PROHIBITION AGAINST IMPERATIVE MANDATES:
o Representation is not tied to geographical areas
o Serves to separate the political mandate from the private one
45
 o In the event of disputes between the party and the MP. The party can only
expel the MP, however it can interfere with the representative relation that
the MP is carrying out
 PARLIAMENTARY IMMUNITY
o Immunity against persecutions: MPs have the right to freely express their
opinions and votes
o Prohibition to subject MP to personal house research, to be arrested without
the prior authorization of the house of chamber.
Parliament’s autonomous powers
Perfect bicameralism means independence of each of the two chambers as regard to check
on power procedures.
o Regulatory autonomy each chamber shall adapt its own standing order by majority
vote of its member
o Financial autonomy the chambers separately and independently prepares and
approve its own budget
o Self-rule everything happening inside parliamentary building is subject to the sole
jurisdiction of the chamber or of the senate.
Internal organization of the chamber of parliament
Each chamber elects among its members a speaker and a speaker’s office. They must be
elected by a qualified majority.
Chamber of deputies’ speaker: must also preside over parliament in joint session
Speaker of senate: substitute the president of the republic in case he is not able to perform
his duties
PARLIAMENTARY GROUPS organizations that brings together MPs based on their different
political affiliation. Mixed groups for those who don’t want to join one of the established
groups
COMMISSION parliamentary groups that have different functions. The most important is
express provision for the constitution. They must be composed in a way that reflects the
existing ratios among parliamentary groups. They can be permanent or temporary.
COMMITTEES for example committee of rules, which is present in both assemblies and
has the task of interpreting standing orders in the event.
Joint session of parliament
Sometime the two chambers meet in a joint session presided by the speaker or the chamber
of deputies and it sits in palazzo Montecitorio, the home of the chamber of deputies.
Parliament meet in joint session to exercise electoral power, criminal procedures and
powers of scrutiny.
The function of the parliament
the primary function of the parliament to legislate. However, it also has monitoring and
controlling powers.
In Italy there is a parliamentary form of government, hence the executive must have the
express confidence of both chambers.
Session 06: Introduction to the EU Institutions and Law

What is the EU: European Union is a union of democratic and free states. It is an
international organization. It is a subject of public international law. Which are subjects of
public international law? International organizations and states.
We are moving from domestic legal orders to international legal orders. The players are
sovereign states and those international organizations.

46
How was the EU established?  by means of treaties.
Treaties are instrument of negotiable and contractual public international law.
It sees sovereign states as parties of an agreement, that sign a contract.
We have to imagine that sovereign states (main players) established an international
organization—The EU, that became a subject of public international law.
Over the years the EU evolved and became later. But the evolution was not that short.
 We need to start in 1952: some states established the European community of coal
and steel.
We had to establish this kind of relationship. So, we have 2 raw materials that were
the basics of the conflicts that have evolved during the year, for the control of coal
mines on the borders.
The very first community was established on the idea of two French politicians.
 In 1957: they noticed that the community brought a lot of benefits. So, they
established two more communities.
Euratom: the European community of atomic energy.
The second is the European economic community. The EEC or also called the CEE.
The dream was to establish a single market for any good and services within this
country.
This 3 communities were at the time independent from each other. They only have
limited competencies. Their institutional structure was based on 3 subjects.
1) High authority: composed by independent members from the different states.
One member from each member state.
2) Parliamentary assembly. Not directly elected by people but composed by
representatives of each of the communities.
3) Council of ministers.
This system proved to be substantially well designed.
 In 1973 three more states decided to join the union.
 In 1981 we have the subsequent: Greece
 1986: Spain and Portugal join
 Meanwhile member states noticed that having a member of each state for one of the
3 positions above had no sense.
 Hence we came to have just one high authority, just one parliamentary and one
council for each community. Hence, we have one high authority for the community
of atomic energy.
 In 1985 we have a very important agreement. The Schengen -Agreement. Initially it
was not part of the treaties of the EU, but it was an autonomous treaty of which the
UK and Ireland are excluded from. The agreement was the removal of the border
controls and the borders of each state.
 If we have no border control we can have faster transports and save money.
 In 1989 we have the unification of Germany
 In 1990 we have the formal unification of Germany in form of the EU; hence also
eastern Germany became part of the EU.
 In 1992 we have the another treaty. The treaty of Maastricht
 In this treaty the three communities finally were marched in just one community.
That was the European community EU
 The EU was based on the so called three pillars.

47
 1) The community pillar that was the merger of the previous communities. For the
community pillar we have the involvement of the parliament and the council of
minister for decision making. Votes of council and parliament were involved.
2) The second was the CFSP common frame and security policy (today; then it was
related to defense)
3) JHA; this pillar differs in decision making process. Justice and home affairs.
For the other 2 pillars only the intergovernmental decisions count excluding the council and
the parliament.
But during the years the parliament was very enforced to also have influence on the other
pillars, that after a while the pillars disappeared.
The last country was Romania in 2013 to join.

Brexit: they want to still have free trade.

What is the difference between a customs union and free trade?
A single market is basically a set of common rules also political and technical rules. Economic
rules etc. that determines the functioning of the market.
The parties belonging to the single market should be harmonized in order to have similar
rules.
A customs union is something different. It deals with tariffs. If we have a group of states,
there will be no costs on the border when the states belong to the customs union. But there
is something more. If goods that come from another state into the custom union, on every
point of entrance they will have to pay the same cost/ they have to pay the same duties.
The free trade agreement is an agreement that establishes an area where states can trade
freely in relation to goods coming from one state and going to another.
Why the UK wants to sign a free trade contract but does not want to remain in the customs
union? Because if I am part of the customs union it regards also good that can enter. If I
belong to the union, I have to apply the same customs rules and have to collect duties not
for me but for the whole customs union.
In free trade agreement we only talk about goods that are produced in the country. Hence
goods from Taiwan that are imported in the EU can’t be brought to the UK (after Brexit)
without paying another tariff. The UK wants to take back control on its customs unit and
they want to reestablish their own relationship with other countries.

Session 06: Introduction to the EU Institutions and Law

LIST OF CONTENT
1. EU Countries and Enlargement Process EU Institutional Structure
2. EU Legal Sources
a. primary sources of law
b. secondary sources of law
3. Enforcement of EU law
HISTORY
What is the EU: European Union is a union of democratic and free states. It is an
international organization. It is a subject of public international law. Which are subjects of
public international law? International organizations and states.
We are moving from domestic legal orders to international legal orders. The players are
sovereign states and those international organizations.
How was the EU established?  by means of treaties.

48
Treaties are instrument of negotiable and contractual public international law.
It sees sovereign states as parties of an agreement, that sign a contract.
We have to imagine that sovereign states (main players) established an international
organization—The EU, that became a subject of public international law.
Over the years the EU evolved and became later. But the evolution was not that short.
 We need to start in 1952: some states established the European community of coal
and steel.
We had to establish this kind of relationship. So we have 2 raw materials that were
the basics of the conflicts that have evolved during the year, for the control of coal
mines on the borders.
The very first community was established on the idea of two French politicians.
 In 1957: they noticed that the community brought a lot of benefits. So, they
established two more communities.
Euratom: the European community of atomic energy.
The second is the European economic community. The EEC or also called the CEE.
The dream was to establish a single market for any good and services within this
country.
This 3 communities were at the time independent from each other. They only have
limited competencies. Their institutional structure was based on 3 subjects.
4) High authority: composed by independent members from the different states.
One member from each member state.
5) Parliamentary assembly. Not directly elected by people but composed by
representatives of each of the communities.
6) Council of ministers.
This system proved to be substantially well designed.
 In 1973 three more states decided to join the union.
 In 1981 we have the subsequent: Greece
 1986: Spain and Portugal join
 Meanwhile member states noticed that having a member of each state for one of the
3 positions above had no sense.
 Hence, we came to have just one high authority, just one parliamentary and one
council for each community. Hence, we have one high authority for the community
of atomic energy.
 In 1985 we have a very important agreement. The Schengen -Agreement. Initially it
was not part of the treaties of the EU, but it was an autonomous treaty of which the
UK and Ireland are excluded from. The agreement was the removal of the border
controls and the borders of each state.
 If we have no border control, we can have faster transports and save money.
 In 1989 we have the unification of Germany
 In 1990 we have the formal unification of Germany in form of the EU; hence also
eastern Germany became part of the EU.
 In 1992 we have another treaty. The treaty of Maastricht
 In this treaty the three communities finally were marched in just one community.
That was the European community EU
 The EU was based on the so called three pillars.
4) The community pillar that was the merger of the previous communities. For the
community pillar we have the involvement of the parliament and the council of
minister for decision making. Votes of council and parliament were involved.
49
 5) The second was the CFSP common frame and security policy (today; then it was
related to defense)
6) JHA; this pillar differs in decision making process. Justice and home affairs.
For the other 2 pillars only, the intergovernmental decisions count excluding the council and
the parliament.
But during the years the parliament was very enforced to also have influence on the other
pillars, that after a while the pillars disappeared.
The last country was Romania in 2013 to join.

Brexit: they want to still have free trade.

What is the difference between a customs union and free trade?
A single market is basically a set of common rules also political and technical rules. Economic
rules etc. that determines the functioning of the market.
The parties belonging to the single market should be harmonized in order to have similar
rules.
A customs union is something different. It deals with tariffs. If we have a group of states,
there will be no costs on the border when the states belong to the customs union. But there
is something more. If goods that come from another state into the custom union, on every
point of entrance they will have to pay the same cost/ they have to pay the same duties.
The free trade agreement is an agreement that establishes an area where states can trade
freely in relation to goods coming from one state and going to another.
Why the UK wants to sign a free trade contract but does not want to remain in the customs
union? Because if I am part of the customs union it regards also good that can enter. If I
belong to the union, I have to apply the same customs rules and have to collect duties not
for me but for the whole customs union.
In free trade agreement we only talk about goods that are produced in the country. Hence
goods from Taiwan that are imported in the EU can’t be brought to the UK (after Brexit)
without paying another tariff. The UK wants to take back control on its customs unit and
they want to reestablish their own relationship with other countries.

In the EU there are three key players at the institutional level:

 The European Parliament - voice of the people Antonio Tajani, President. Legislator
of EU
 The European Council voice of the Member States Donald Tusk, President. At the top
of the institutional structure it is a matter of competence since the EU council is
competent on establish the general laws
 The European Commission promoting the common interest Jean-Claude Juncker,
President. Executive branch of the EU

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EUROPEAN COUNCIL
Role: Defines the general political direction and priorities of the European Union
Members: Heads of state or government of EU countries, European Commission President,
High Representative for Foreign Affairs & Security Policy
President: Donald Tusk
Established in: 1974 (informal forum), 1992 (formal status), 2009 (official EU institution)
Location: Brussels (Belgium)
Website: European Council
The European Council brings together EU leaders to set the EU's political agenda.
It represents the highest level of political cooperation between EU countries.

One of the EU's 7 official institutions, the Council takes the form of (usually quarterly)
summit meetings between EU leaders, chaired by a permanent president.

What does the European Council do?

Decides on the EU's overall direction and political priorities – but does
not pass laws.
Deals with complex or sensitive issues that cannot be resolved at lower levels of
intergovernmental cooperation
Sets the EU's common foreign & security policy, taking
into account EU strategic interests and defence implications
Nominates and appoints candidates to certain high-profile EU level roles, such as the ECB
and the Commission
On each issue, the European Council can:
ask the European Commission to make a proposal to address it.
pass it on to the Council of the EU to deal with Composition
The European Council is made up of the heads of state or government of all EU countries,
the European Commission President and the High Representative for Foreign Affairs &
Security Policy.
It is convened and chaired by its President, who is elected by the European Council itself for
a once-renewable two-and-a-half-year term. The President represents the
EU to the outside world.
How does the European Council work?
It usually meets 4 times a year – but the President can convene additional meetings to
address urgent issues.
It generally decides issues by consensus – but by unanimity or qualified majority in some
cases. Only the heads of state/government can vote.

EUROPEAN PARLIAMENT
Role: Directly-elected EU body with legislative, supervisory, and budgetary responsibilities
Members: 751 MEPs (Members of the European Parliament)
President: Antonio Tajani
Established in: 1952 as Common Assembly of the European Coal and Steel Community, 1962
as European Parliament, first direct elections in 1979
Location: Strasbourg (France), Brussels (Belgium), Luxembourg

The European Parliament is the EU's law-making body. It is directly elected by EU voters
every 5 years. The last elections were in May 2014.

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What does the Parliament do?
The Parliament has 3 main roles:
 Legislative:
o Passing EU laws, together with the Council of the EU, based on European
Commission proposals
o Deciding on international agreements
o Deciding on enlargements
o Reviewing the Commission's work programme and asking it to propose
legislation
 Supervisory
o Democratic scrutiny of all EU institutions
o Electing the Commission President and approving the Commission as a body.
Possibility of voting a motion of censure, obliging the Commission to resign
o Granting discharge, i.e. approving the way EU budgets have been spent
o Examining citizens' petitions and setting up inquiries
o Discussing monetary policy with the European Central Bank
o Questioning Commission and Council
o Election observations
 Budgetary
o Establishing the EU budget, together with the Council
o Approving the EU's long-term budget, the "Multiannual Financial Framework"
Composition
The number of MEPs for each country is roughly proportionate to its population, but this is
by degressive proportionality: no country can have fewer than 6 or more than 96 MEPs and
the total number cannot exceed 751 (750 plus the President). MEPs are grouped by political
affiliation, not by nationality.

The President represents Parliament to other EU institutions and the outside world and gives
the final go-ahead to the EU budget.
How does the Parliament work?
Parliament's work comprises two main stages:
Committees - to prepare legislation.
The Parliament numbers 20 committees and two subcommittees, each handling a particular
policy area. The committees examine proposals for legislation, and MEPs and political
groups can put forward amendments or propose to reject a bill. These issues are also
debated within the political groups.
Plenary sessions – to pass legislation.
This is when all the MEPs gather in the chamber to give a final vote on the proposed
legislation and the proposed amendments. Normally held in Strasbourg for four days a
month, but sometimes there are additional sessions in Brussels.

COUNCIL OF MINISTERS
Role: Voice of EU member governments, adopting EU laws and coordinating EU policies
Members: Government ministers from each EU country, according to the policy area to be
discussed
President: Each EU country holds the presidency on a 6-month rotating basis
Established in: 1958 (as Council of the European Economic Community)
Location: Brussels (Belgium)

52
Website: Council of the EU
In the Council, government ministers from each EU country meet to discuss, amend and
adopt laws, and coordinate policies. The ministers have the authority to commit their
governments to the actions agreed on in the meetings.

Together with the European Parliament, the Council is the main decision-making body of the
EU.
Not to be confused with:
European Council - quarterly summits, where EU leaders meet to set the broad direction of
EU policy making
Council of Europe - not an EU body at all.
What does the Council do?
 Negotiates and adopts EU laws, together with the European Parliament, based on
proposals from the European Commission
 Coordinates EU countries' policies
 Develops the EU's foreign & security policy, based on European Council guidelines
 Concludes agreements between the EU and other countries or international
organisations
 Adopts the annual EU budget - jointly with the European Parliament.
Composition
There are no fixed members of the EU Council. Instead, the Council meets in 10 different
configurations, each corresponding to the policy area being discussed. Depending on the
configuration, each country sends their minister responsible for that policy area.
For example, when the Council meeting on economic and financial affairs (the "Ecofin
Council") is held, it is attended by each country's finance minister.
Who chairs the meetings?
The Foreign Affairs Council has a permanent chairperson - the EU High Representative for
Foreign Affairs and Security Policy. All other Council meetings are chaired by the relevant
minister of the country holding the rotating EU presidency.

For example, any Environment Council meeting in the period when Estonia holds the
presidency will be chaired by the Estonian environment minister.
Overall consistency is ensured by the General Affairs Council - which is supported by the
Permanent Representatives Committee. This is composed of EU countries' Permanent
Representatives to the EU, who are, in effect, national ambassadors to the EU.
Eurozone countries
Eurozone countries coordinate their economic policy through the Eurogroup, which consists
of their economy and finance ministers. It meets the day before Economic & Financial Affairs
Council meetings. Agreements reached in Eurogroup gatherings are formally decided upon
in the Council the next day, with only ministers of Eurozone countries voting on those issues.
How does the Council work?
All discussions & votes take place in public.
To be passed, decisions usually require a qualified majority:
55% of countries (with 28 current members, this means 16 countries)
representing at least 65 % of total EU population.
To block a decision, at least 4 countries are needed (representing at least 35% of total EU
population)

53
Exception - sensitive topics like foreign policy and taxation require a unanimous vote (all
countries in favour).
Simple majority is required for procedural & administrative issues
EUROPEAN COMMISSION
Role: Promotes the general interest of the EU by proposing and enforcing legislation as well
as by implementing policies and the EU budget
Members: A team or 'College' of Commissioners, 1 from each EU country
President: Jean-Claude Juncker
Year established: 1958
Location: Brussels (Belgium)
Website: European Commission
The European Commission is the EU's politically independent executive arm. It is alone
responsible for drawing up proposals for new European legislation, and it implements the
decisions of the European Parliament and the Council of the EU.

What does the Commission do?

Proposes new laws
The Commission is the sole EU institution tabling laws for adoption by the Parliament and
the Council that:
 protect the interests of the EU and its citizens on issues that can't be dealt with
effectively at national level;
 get technical details right by consulting experts and the public.
Manages EU policies & allocates EU funding
 Sets EU spending priorities, together with the Council and Parliament.
 Draws up annual budgets for approval by the Parliament and Council.
 Supervises how the money is spent, under scrutiny by the Court of Auditors.
Enforces EU law
Together with the Court of Justice, ensures that EU law is properly applied in all the member
countries.
Represents the EU internationally
 Speaks on behalf of all EU countries in international bodies, in particular in areas of
trade policy and humanitarian aid.
 Negotiates international agreements for the EU.
Composition
Political leadership is provided by a team of 28 Commissioners (one from each EU country) –
led by the Commission President, who decides who is responsible for which policy area.
The College of Commissioners includes the President of the Commission, his seven Vice-
Presidents, including the First Vice-President, and the High-Representative of the Union for
Foreign Policy and Security Policy and 20 Commissioners in charge of portfolios.
The day-to-day running of Commission business is performed by its staff (lawyers,
economists, etc.), organised into departments known as Directorates-General (DGs), each
responsible for a specific policy area.
Appointing the President
The candidate is put forward by national leaders in the European Council, taking account of
the results of the European Parliament elections. He or she needs the support of a majority
of members of the European Parliament in order to be elected.
Selecting the team

54
The Presidential candidate selects potential Vice-Presidents and Commissioners based on
suggestions from the EU countries. The list of nominees has to be approved by national
leaders in the European Council.
Each nominee appears before the European Parliament to explain their vision and answer
questions. Parliament then votes on whether to accept the nominees as a team. Finally, they
are appointed by the European Council, by a qualified majority.
How does the Commission work?
Strategic planning
The President defines the policy direction for the Commission, which enables the
Commissioners together to decide strategic objectives, and produce the annual work
programme.
Collective decision making
Decisions are taken based on collective responsibility. All Commissioners are equal in the
decision-making process and equally accountable for these decisions. They do not have any
individual decision-making powers, except when authorized in certain situations.
The Vice-Presidents act on behalf of the President and coordinate work in their area of
responsibility, together with several Commissioners. Priority projects are defined to help
ensure that the College works together in a close and flexible manner.
Commissioners support Vice-Presidents in submitting proposals to the College. In general,
decisions are made by consensus, but votes can also take place. In this case, decisions are
taken by simple majority, where every Commissioner has one vote.
The relevant Directorate-General (headed by a Director-General, answerable to the relevant
Commissioner) then takes up the subject. This is usually done in the form of draft legislative
proposals.
These are then resubmitted to the Commissioners for adoption at their weekly meeting,
after which they become official, and are sent to the Council and the Parliament for the next
stage in the EU legislative process.

COURT OF JUSTICE
Role: Ensuring EU law is interpreted and applied the same in every EU country; ensuring
countries and EU institutions abide by EU law.
Members:
Court of Justice: 1 judge from each EU country, plus 11 advocates general
General Court: 47 judges. In 2019 this will be increased to 56 (2 judges from each EU
country).
Established in: 1952
Location: Luxembourg
The Court of Justice of the European Union (CJEU) interprets EU law to make sure it is
applied in the same way in all EU countries, and settles legal disputes between national
governments and EU institutions.

It can also, in certain circumstances, be used by individuals, companies or organisations to

take action against an EU institution, if they feel it has somehow infringed their rights.

What does the CJEU do?

The CJEU gives rulings on cases brought before it. The most common types of case are:
interpreting the law (preliminary rulings) – national courts of EU countries are required to
ensure EU law is properly applied, but courts in different countries might interpret it

55
differently. If a national court is in doubt about the interpretation or validity of an EU law, it
can ask the Court for clarification. The same mechanism can be used to determine whether a
national law or practice is compatible with EU law.
enforcing the law (infringement proceedings) – this type of case is taken against a national
government for failing to comply with EU law. Can be started by the European Commission
or another EU country. If the country is found to be at fault, it must put things right at once,
or risk a second case being brought, which may result in a fine.
annulling EU legal acts (actions for annulment) – if an EU act is believed to violate EU
treaties or fundamental rights, the Court can be asked to annul it – by an EU government,
the Council of the EU, the European Commission or (in some cases) the European
Parliament.
Private individuals can also ask the Court to annul an EU act that directly concerns them.
ensuring the EU takes action (actions for failure to act) – the Parliament, Council and
Commission must make certain decisions under certain circumstances. If they don't, EU
governments, other EU institutions or (under certain conditions) individuals or companies
can complain to the Court.
sanctioning EU institutions (actions for damages) – any person or company who has had
their interests harmed as a result of the action or inaction of the EU or its staff can take
action against them through the Court.
Composition
The CJEU is divided into 2 courts:
Court of Justice – deals with requests for preliminary rulings from national courts, certain
actions for annulment and appeals.
General Court – rules on actions for annulment brought by individuals, companies and, in
some cases, EU governments. In practice, this means that this court deals mainly with
competition law, State aid, trade, agriculture, trademarks.
Each judge and advocate general are appointed for a renewable 6-year term, jointly by
national governments. In each Court, the judges select a President who serves a renewable
term of 3 years.
How does the CJEU work?
In the Court of Justice, each case is assigned 1 judge (the "judge-rapporteur") and 1 advocate
general. Cases are processed in 2 stages:
Written stage
The parties give written statements to the Court - and observations can also be submitted by
national authorities, EU institutions and sometimes private individuals.
All of this is summarised by the judge-rapporteur and then discussed at the Court's general
meeting, which decides:
How many judges will deal with the case: 3, 5 or 15 judges (the whole Court), depending on
the importance and complexity of the case. Most cases are dealt with by 5 judges, and it is
very rare for the whole Court to hear the case.
Whether a hearing (oral stage) needs to be held and whether an official opinion from the
advocate general is necessary.
Oral stage – a public hearing
Lawyers from both sides can put their case to the judges and advocate general, who can
question them.
If the Court has decided an Opinion of the advocate general is necessary, this is given some
weeks after the hearing.
The judges then deliberate and give their verdict.

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General Court procedure is similar, except that most cases are heard by 3 judges and there
are no advocates general.

COURT OF AUDITOR
Role: To check EU funds are collected and used correctly and help improve EU financial
management.
President: Klaus-Heiner Lehne
Members: 1 from each EU country
Established in: 1977
Location: Luxembourg
Website: European Court of Auditors
As the EU's independent external auditor, the European Court of Auditors (ECA) looks after
the interests of EU taxpayers. It does not have legal powers, but works to improve the
European Commission's management of the EU budget and reports on EU finances.
What does the ECA do?
 Audits EU revenue & expenditure, to check EU funds are correctly raised, spent,
achieve value for money and accounted for.
 Checks any person or organisation handling EU funds – including spot checks in EU
institutions (especially the Commission), EU countries and countries receiving EU aid.
 Writes up findings and recommendations in audit reports, for the European
Commission and national governments.
 Reports suspected fraud, corruption or other illegal activity to the European Anti-
Fraud Office (OLAF)
 Produces an annual report for the European Parliament and Council of the EU, which
the Parliament examines before deciding whether to approve the Commission's
handling of the EU budget.
 Gives its expert opinion to EU policymakers on how EU finances could be better
managed and made more accountable to citizens.
Also publishes opinions on preparatory legislation that will impact EU financial management,
as well as position papers, reviews and ad hoc publications on EU public finance issues.
To be effective, the Court must be independent of the institutions and bodies it audits. To
this end, it is free to decide on:
what it will audit, how to do this, how & when to present its findings
The Court's audit work focuses mainly on the European Commission – the main body
responsible for implementing the EU budget. But it also works closely with national
authorities, because the Commission manages most EU funds (around 80%) jointly with
them.
Composition
Court members are appointed by the Council, after consulting the Parliament, for renewable
6-year terms. They choose one of their number as President for a 3-year term (also
renewable).
How does the ECA work?
It carries out 3 types of audit:
Financial audits – checking that accounts accurately present the financial position, results
and cash flow for the year.
Compliance audits – checking that financial transactions follow the rules.
Performance audits – checking that the EU funds achieve its goals with the fewest possible
resources and in the most economical manner.

57
The Court is divided into audit groups called 'chambers'. They prepare reports & opinions for
the Court members to adopt, thus making them official.

ECONOMIC AND SOCIAL COMMITTEE

Role: Advisory body representing workers' and employers' organisations and other interest
groups
President: Luca Jahier
Members: 350 from all EU countries
Established in: 1957
Location: Brussels (Belgium)
Website: European Economic and Social Committee
The European Economic and Social Committee (EESC) is an EU advisory body comprising
representatives of workers' and employers' organisations and other interest groups. It issues
opinions on EU issues to the European Commission, the Council of the EU and the European
Parliament, thus acting as a bridge between the EU's decision-making institutions and EU
citizens.

What does the EESC do?

It gives the interest groups a formal say on EU legislative proposals. Its 3 key tasks are to:
 ensure that EU policy and law are geared to economic and social conditions, by
seeking a consensus that serves the common good
 promote a participatory EU by giving workers' and employers' organisations and
other interest groups a voice and securing dialogue with them
 promote the values of European integration, and advance the cause of participatory
democracy and civil society organisations.
Composition
EESC members represent the 2 sides of industry and social interest groups from across
Europe. They are nominated by national governments and appointed by the Council of the
EU for renewable 5-year terms. The number of members per country depends on that
country's population.
The EESC elects its President and 2 Vice-Presidents for two-and-a-half-year terms. Members
belong to one of 3 groups:
 employers
 workers
 other interest groups (e.g. farmers, consumers).
How does the EESC work?
The EESC is consulted by the European Parliament, the Council of the EU and the European
Commission on a variety of subjects. It also issues opinions on its own initiative.
Members work for the EU, independently of their governments. They meet 9 times a year.
Opinions are adopted by a simple majority vote.
Meetings are prepared by the EESC's specialised sections and the consultative commission
on industrial change. The EESC's specialist think-tanks (known as 'observatories') and the
Europe 2020 steering committee track the progress of EU strategies.
The EESC keeps in touch with regional and national economic and social councils throughout
the EU - mainly to share information and discuss particular issues.
EUROPEAN COMMITTEE OF THE REGIONS
Role: Advisory body representing Europe's regional and local authorities
President:Karl-Heinz Lambertz (PES)

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Members: 350 from all EU countries
Established in: 1994
Location: Brussels (Belgium)
Website: European Committee of the Regions
The European Committee of the Regions (CoR) is an EU advisory body composed of locally
and regionally elected representatives coming from all 28 Member States. Through the CoR
they are able to share their opinion on EU legislation that directly impact regions and cities.
What does the CoR do?
The CoR gives regions and cities a formal say in EU law-making ensuring that the position
and needs of regional and local authorities are respected.
 The European Commission, the Council of the EU and the European Parliament must
consult the CoR when drawing up legislation on matters concerning local and
regional government such as health, education, employment, social policy, economic
and social cohesion, transport, energy and climate change;
 If this is not done, the CoR can bring a case before the Court of Justice;
 Once the CoR receives a legislative proposal, it prepares and adopts an opinion and
circulates it the relevant EU institutions;
 The CoR also issues opinions on its own initiative.
Composition
The CoR members are elected representatives serving in local or regional authorities. Each
country nominates members of its choice who are appointed for a renewable five-year
terms by the Council of the EU. The number of members per country depends on the size of
that country's population.
Members from one country form the National delegation which reflects the political,
geographical, regional and local balance of their country.
Each member can also choose to be part of a political group in the CoR. Currently there are
five political groups reflecting a range of political affiliations: European People's Party (EPP),
Party of European Socialists (PES), Group of the Alliance of Liberals and Democrats for
Europe (ALDE), European Alliance Group (EA) and European Conservatives and Reformists
Group (ECR). Members can also choose to not be part of a politically party if they so wish
(non-aligned).
The CoR appoints a president from among its members for a two-and-a-half-year term.
How does the CoR work?
The CoR appoints a rapporteur (one of its members) who consults stakeholders and
prepares the opinion. The text is discussed and adopted by the CoR commission in charge of
the policy area concerned. The opinion is then presented to all members in plenary session
who vote to amend and adopt it. Finally, the opinion is shared and communicated to all
relevant EU institutions.

There are up to 6 plenary sessions per year, adopting opinions that cover 50 to 80 EU
legislative projects.
EUROPEAN INVESTMENT BANK
Role: provides funding for projects that help to achieve EU aims, both within and outside the
EU
President: Werner Hoyer
Board of Directors: comprises one director per EU country, plus one from the European
Commission
Founded in: 1958

59
Location: Luxembourg
Website: European Investment Bank
The European Investment Bank (EIB) is jointly owned by the EU countries. It seeks to:
 boost Europe's potential in terms of jobs & growth
 support action to mitigate climate change
 promote EU policies outside the EU.
What the EIB does?
The Bank borrows money on capital markets and lends it on favourable terms to projects
that support EU objectives. About 90 % of loans are made within the EU. None of the money
comes from the EU budget.
The EIB provides 3 main types of products and services:
 Lending – about 90 % of its total financial commitment. The Bank lends to clients of
all sizes to support growth and jobs, and this support often helps to attract other
investors.
 'Blending' - allowing clients to combine EIB financing with additional investment.
 Advising and technical assistance - maximising value for money.
The EIB makes loans above EUR 25 million directly. Where smaller loans are involved, it
opens credit lines for financial institutions that then lend funds to creditors.
Composition
All EU countries are shareholders in the EIB. Decisions are taken by the following bodies:
 the Board of Governors, comprising ministers (mostly finance ministers) from all EU
countries. It defines general lending policy.
 the Board of Directors, chaired by the EIB President, which comprises 28 members
appointed by the EU countries and one appointed by the European Commission. It
approves lending and borrowing operations.
 the Management Committee, the Bank's executive body, which handles day-to-day
business.
 The Audit Committee checks that EIB operations are conducted in a proper manner.
The Bank's departments implement management decisions.
How does the EIB work?
It makes borrowing and lending decisions, based on the merits of each project and the
opportunities offered by financial markets. Within the EU, it has specific lending priorities.
Outside the EU, it supports the EU development and cooperation policies worldwide.
As an independent body, the Bank takes its own borrowing and lending decisions. It
cooperates with other EU institutions, especially the European Commission, the European
Parliament, and the Council of the EU.
EUROPEAN CENTRAL BANK
Role: To manage the euro, keep prices stable and conduct EU economic & monetary policy
President: Mario Draghi
Members: ECB President and Vice-President and governors of national central banks from all
EU countries
Established in: 1998
Location: Frankfurt (Germany)
Website: European Central Bank
The European Central Bank (ECB) manages the euro and frames and implements EU
economic & monetary policy. Its main aim is to keep prices stable, thereby supporting
economic growth and job creation.
What does the ECB do?

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  Sets the interest rates at which it lends to commercial banks in the eurozone (also
known as the euro area), thus controlling money supply and inflation
 Manages the eurozone's foreign currency reserves and the buying or selling of
currencies to balance exchange rates
 Ensures that financial markets & institutions are well supervised by national
authorities, and that payment systems work well
 Ensures the safety and soundness of the European banking system
 Authorises production of euro banknotes by eurozone countries
 Monitors price trends and assesses risks to price stability.
Composition
The ECB President represents the Bank at high-level EU and international meetings. The ECB
has the 3 following decision-making bodies:
 Governing Council – the main decision-making body.
Consists of the Executive Board (see below) plus the governors of the national central
banks from eurozone countries.
 Executive Board – handles the day-to-day running of the ECB.
Consists of the ECB President and Vice-President and 4 other members appointed for
8-year terms by the leaders of the eurozone countries.
 General Council – has more of an advisory & coordination role.
Consists of the ECB President and Vice-President and the governors of the central
banks from all EU countries.
How does the ECB work?
The ECB works with the national central banks of all EU countries. Together they form the
European System of Central Banks.
It leads cooperation between central banks in the eurozone. This is referred to as the
Eurosystem.
The work of the governing bodies
Governing Council – assesses economic and monetary developments, defines eurozone
monetary policy and fixes the interest rates at which commercial banks can borrow from the
ECB.
Executive Board – implements monetary policy, manages day-to-day operations, prepares
Governing Council meetings and exercises powers delegated to it by the Governing Council.
General Council – contributes to advisory and coordination work and helps to prepare for
new countries joining the euro.

HIGH REPRESENTATIVE OF FOREIGN AFFAIRS

Federica Mogherini
-Double hat: chairs the Foreign Affairs Council meetings + Vice-president of the European
Commission
-Manages the common foreign and security policy
-Head of European External Action Service
PRIMARY LEGAL SOURCES
2009 Treaty of Lisbon
2003 Treaty of Nice
1999 Treaty of Amsterdam
1993 Treaty on European Union - Maastricht Treaty
1987 Single European Act
1958 Treaties of Rome : EEC and EURATOM treaties

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1952 Treaty establishing the European Coal and Steel Community

SECONDARY LEGAL SOURCES

 Regulations: A "regulation" is a binding legislative act. It must be applied in its
entirety across the EU. For example, when the EU wanted to make sure that there
are common safeguards on goods imported from outside the EU, the Council
adopted a regulation.
o Shall have general application.
o It shall be binding in its entirety and directly applicable in all Member States.
 Directives: A "directive" is a legislative act that sets out a goal that all EU countries
must achieve. However, it is up to the individual countries to devise their own laws
on how to reach these goals. One example is the EU consumer rights directive, which
strengthens rights for consumers across the EU, for example by eliminating hidden
charges and costs on the internet and extending the period under which consumers
can withdraw from a sales contract.
o They are binding as to the result to be achieved but leave their
implementation to the discretion of the Member States.
 Decisions: A "decision" is binding on those to whom it is addressed (e.g. an EU
country or an individual company) and is directly applicable. For example, the
Commission issued a decision on the EU participating in the work of various counter-
terrorism organisations. The decision related to these organisations only.
o They are only binding to the person(s) or Member State(s) to which they are
addressed.
ENFORCEMENT OF LAW
The Treaties do not provide for the enforcement of EY law.
 The ECJ provided for it with its case law.
 1963: Case 26/62, Van Gend en Loos
which is the leading case on EU law enforcement
Doctrine of the direct effect
 Doctrine of direct effect:
1) The provision must be sufficiently clear and precisely stated;
2) It must be unconditional or non-dependent;
3) The provision must confer a specific right for the citizen to base his or her claim
on.
 We have to types of direct effect (1976, Defrenne v SABENA):
1) Vertical:
Binding individual to the State;
a. regulations;
b. directives;
c. decisions;
d. treaty provisions.
2) Horizontal:
Binding individual to individual:
a. regulations;
b. decisions;
c. treaty provisions.
 Supremacy of European Law cannot be questioned by national courts but many
higher courts strongly resisted to it (Germany, Italy, France).

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7. System of legal sources
LIST OF CONTENT
1. Introduction
2. Constitutions
3. Acts Having the Force of Law
INTRODUCTION
 Sources of law are constituted by regulations:
o on the production of law
o producing law
 sources of production
 Sources of cognizance.
Sources of production
the idea of sources of production recalls something that introduce something new within a
determinate situation. Are there in order to establish the rules of a specific legal system and
are there to be the only appropriate way to establish such rule.
Distinction Sources of the production any sources of producing law: certain categories of
sources can be both sources of production and of producing law.
Sources of the production: are all the acts and facts that can produce law. They are rules
that have the capacity to reform laws. are those that introduce the rules that are finalized to
identify the procedures that are necessary within a specific legal system in order to produce
law. Like a procedural law. Sources of the production of law tell me what to do in order to
introduce new laws within a specific legal system, they also tell me which sources of law and
which kind of law are proper of that specific legal system and can be legitimately introduced
in that legal system.
Who are the ones that enjoy the power of introduce new laws and which is the procedure
that they have to follow un order to introduce new rules.
If we know completely the rules that allows to produce new law and after categories of law
that can be identified with that specific legal system, we can switch to sources producing
law.
Sources producing law: sources that produce materially new laws within a specific legal
system. Legal rules that are not related to the production of law but are related to any other
fields of legal production of the everyday life of a legal system.
What we know as sources producing laws can be different based on the legal system from
which we come.
Italy: laws passed by the parliament main source of producing law in the Italian legal system
USA: in the USA the first example of source producing law cannot be identify with the
congress/parliament. There the first idea can be a judgement or general court.
The structure and the names of the sources producing law and also the sources of
production of law depends on the legal system that you belong to.
These sources can be depending on the legal system official gazettes, official bulletins,
official collection of acts of parliament. The great majority is now available online
Sources of cognition
Sources of cognizance: they can be defined as the support in which every citizen can read
the laws of a particular legal system at a particular time.
Great majority now a days available on the internet.
Only source that identifies the text of the sources producing law that is enforced an effective
at one particular day.

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Sources producing law are the sources that materially introduce new laws in a specific legal
system.
the only legally binding sources for citizens are the ones written in the sources of
cognizance.

We can introduce a further distinction within the sources of production.

If a source of law is in general, any fact or act that is capable of changing or introducing new
law in the legal system.
Depends on the history of the legal system:
Acts: are written sources of law; called: bills, laws, acts of parliament, regulations etc
depending on the legal system: this are all sources of law that are constituted by an act.
Facts: are unwritten sources of law; also, facts can be regarded as sources of law. They rely
very much on the concept of behavior.
a) Acts are voluntary adopted laws that produce a juridical effect because they satisfy
three conditions:
 Existence: if it is adopted during the exercise of power conferred to a competent
body by law; a legal act exists if there is someone that has the power to adopt that
legal act and that exabits that very power in coherence with law.
 Validity: if the body competent to adopt it followed the rules on procedure and
substance, established by law for the correct exercise of legislative power.
 Efficacy: if it has the requisites to produce its own effects. We have to check when
the law can produce its own effects. To be efficient in needs to be available for every
legal citizen.
We are talking about all the conditions that are established by the sources on the production
of law.
VACATIO LEGIS: in Italy its 15 days, after which the law can produce its own affects.
b) Facts are not produced by the will of a specific body or subject but nevertheless
produce legal effect because the law recognizes that they have the ability to do so.
The most famous one is customary rules.  is composed of 2 elements:
 Objective: repetition; we mean a certain behavior that is repeated, and never
changes; but the consequence of this is a subjective one; behavior that has remained
unchanged over the passage of time
 Subjective: certain social behavior is obligatory and considered to be legally binding.
OPINIO JURIS AC NECESSITATIS
(example: implicit clauses in contracts)
Many international rules, that decide over diplomatic relationships between countries, are
customary rules.
Another major distinction is between:
a. Judicial Precedent:
Decision already rendered in a case analogous to the case to be decided that is considered a
binding precedent: “Case Law”.
Decision already rendered in a case analogous to the case to be decided that is considered a
binding precedent: “Case Law”. Followed in common law systems and derived systems.
Stare decisis is a legal doctrine that obligates courts to follow historical cases when making a
ruling on a similar current or future case. Stare decisis ensures that cases with identical facts
be approached in the same way, unless overruled by the same court or a higher court such
as the US Supreme Court. Simply put, it binds courts to follow legal precedents set
by previous decisions.

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In America we have a hierarchy of courts:
1.supreme court
2.courts of appeals
3.district courts
Is a proceeding that may vary in complexity by which a legislative body draws up a text
containing legal rules.
b. Legislative Act:
Is a proceeding that may vary in complexity by which a legislative body draws up a text
containing legal rules. Something very much common in civil law systems.
Procedure may be different from one stage to another.

Common Law Civil Law

1. Court judgments are considered legal The Courts are considered the “bouche
sources. de la loi”.
2. Judges are often appointed by the executive Judges are selected through a public
branch or by election. examination system.

HIERARCHY OF LEGAL SOURCES

1. Constitutions
2. Primary sources of law
3. Secondary sources of law
4. Customs
CONSTITUTION
 The Constitution is the law of laws, the top legal source.
 Usually a Constitution provides for:
o Frame of government:
 the relation among the institutional bodies;
 he relationships between the institutional bodies and the citizens
o Bill of rights:
 Fundamental rights of citizens

Codified Uncodified
One single document
Long Short
containing the frame of government and the containing only the frame of government
bill of rights
Flexible Rigid
formally equal to ordinary laws, therefore the at the top of the hierarchy of legal sources
Constitution may be modified with an ordinary therefore modifications require a special
law amendment procedure
Voted Octroyée
drafted and voted by a constituent granted by a monarch
assembly/people

 Italian Constitution is:

o codified;
o long;
o voted;

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 o rigid.
 Rigid means there is a special amendments procedure:
o it requires a double vote of each Chamber of Parliament;
o there must be "an interval between the votes of not less than three months";
o it "shall be approved by a qualified majority (which is greater than the majority of
the government) of the members of each Chamber in the second voting";
o there must be the possibility of recourse to the people through a popular
referendum.

Horizontal exception to the principle of separation of powers with regard to law making
Parliament temporary delegates legislative power
 Let’s consider Italy as a case study.
 Two different types of acts having the force of law:
o Legislative decree;
o Law decree.
Legislative Decree
Legislative Decree
Why?
a) to speed up the legislative process;
b) to deal with highly technical issues (e.g.: immigration; taxes; public administration;
etc.).
Who?
the government.
How?
Two phases:
1) Parliament approves a delegation act;
 With respect to content, the Constitution establishes a series of limits:
o A well specified subject matter;
o A time limit for the exercise of legislative power. The government can decide
not to exert its legislative power. In this case, after the time limit, the issue
returns to the Parliament
o Principles and criteria of guidance.
o Power is delegated to the government only.
 Very important to bear in mind:
o These limits not only ensure the validity of the delegation act, but also of the
legislative decree.
o A legislative decree that does not comply with the delegation act is an
indirect violation of art 76 of the Constitution.
o The delegation act may contain further limits set by Parliament.
2) Government issues the legislative decree.
 There are constitutional limits to delegation of legislative power:
o Resolution on the state of war (Art 78);
o Amnesty and pardon (Art 79). The amnesty and pardon law is an entrenched
law and not an ordinary law;
o Ratification of treaties (Art 80). It is the government representatives that sign
treaties. So it would be absurd if Parliament delegated the ratification of the
treaty to the same institution that signed it;
o Budget (Art 81);

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 o Inquiries on matters of public interest (Art 82);
o Conversion of law decrees (Art 77.3). Gabriele Marino Noberasco Introduction
to the Legal System 2 a.y. 2018-2019
Law Decree
Why?
In a situation of necessity and urgency.
Who?
the Government.
c. How?
Two phases:
1) Government issues the law decree;
2) Parliament converts the law decree into a normal statute law.
o Parliament converts the law decree into a normal statute law within 60 days
o The law decree is not converted into law by Parliament it loses all efficacy ex tunc, in
other words, it is as if the law decree was never issued.
Very important to bear in mind:
According to judgment 360/1996 of the Constitutional Court, law decrees that have not
been converted into law cannot be re-issued, unless there is a new situation of necessity and
urgency.

FROM THE BOOK

SOURCES OF LAW DERIVING FROM THE FORMS OF GOVERNAMENT AND FORMS OF STATE
Sources of production and sources related to production
Sources of production: all the acts and facts that can produce law. Rules that have the
capacity to reform laws.
Sources of producing: allow us to identify the origin of the law and indicates
 the competent authority to pass the law (nomen iuris)
 the procedures to be followed
 the criteria
 provide instruments for interpreting a law
In Italy the constitution indicates which sources produce law
Sources of cognizance
Sources that give legal notice about the sources of production.
In Italy new laws are published on the official gazette and they become obligatory to
everyone after a period of 15 days called vacation legis.
Acts and facts
Acts: voluntarily adopted laws that produce legal effect as long as they satisfy three
conditions:
 existence: if it is adopted during the exercise of power conferred to a competent
body by law; a legal act exists if there is someone that has the power to adopt that
legal act and that exabits that very power in coherence with law.
 Validity: if the body competent to adopt it followed the rules on procedure and
substance, established by law for the correct exercise of legislative power.
 Efficacy: if it has the requisites to produce its own effects. We have to check when
the law can produce its own effects. To be efficient in needs to be available for every
legal citizen.
Facts: not produced by the will of a specific body. They can produce a legal effect because
the law recognize that they can do so. They combine two elements:

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  Objective element: behavior that has remained unchanged over time
 Subjective element: perception that a specific social behavior is obligatory and legally
binding
INTERPRETATION
Legal interpretation fills the gap between the wording of legal provision and the actual
norm.
a clear, precise and unequivocal law does not exist.
Authentic interpretations Legislator sometimes attempt to clarify the meaning of a law by
issuing another law to interpret it.
If a sector is not regulated by a law, interpretation allows laws regulating a similar sector to
be extended to it (analogy legis, iuris) ( for example, there is no law on the copyright of the
voice, but the law on copyright of image was extended to the voice)
CONFLICTS AND TECNIQUES OF RISOLUTION
In order to resolve contrast between laws there are different criterias
 CRITERION OF HIERARCHY: laws of different categories might be contradictory.
The law on the lower level is declared illegitimate and then annulated.
 CRITERION OF CHRONOLOGY: laws belonging to the same category yet approved at
different time can be in conflict with each other’s. In this case the older one is
considered replaced with the new one.
the replacement can be
o Expressed: when the new law specified which law must be repealed
o Tacit: when the new law is incompatible with the new one
o Implicit: when the new law regulates the entire policy are which was the
object of suspended law
 CRITERION OF COMPETENCE: conflicts on the same level cannot always be resolved
whit the chronological criteria. It might be that one law is more competent than the
other, the prevailing law is the one that the constitution designated as competent in
that area.
 CRITERION OF SPECIALIZATION: a law of general nature and one of specific nature
can be in contrast. The specific law takes precedent on the general one.
CONSTITUTIONAL STATUATORY LIMIT
CONSTITUTIONAL SOURCES
In the Italian legal system, Constitution, constitutional amendments laws and other
constitutional acts are super-primary sources.
Also, international laws that concern subject matters regulated by constitutional sources are
placed at the maximum hierarchy.
Constitution
The constitution is at the summit of the hierarchy of the legal sources.
 It has maximum innovative capacity (active force)
 Maximum capacity to resist repeals and modifications (passive force)
 It is rigid: it can be modified only within the limit the constitution establishes
 It is long: it both regulates the organization of the state and also recognize and
protect active subjective legal positions or rights
 It is programmatic: it provides general rules and sets objective toward which the
activity of the state must be directed
 It is adaptable: most of the programmers can be modified according to socio-
economic conditions and political institution tendency.
Constitutional amendment laws

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Constitutional amendment laws are subject to the constitution. The Italian constitution
provides explicit and implicit limits:
 EXPLICIT: are explicitly provided by the constitution, for example art 139: “the
republican form of state may not be changed by way of constitutional amendments
 IMPLICIT: some implicit limits referring to the fundamental principles
The constitution also provides for reinforce constitutional laws to be applied to certain
subject matters that require additional procedures for their approval.
Procedures
Art 138 regulates the procedures for approving constitutional amendment laws and other
constitutional laws.
Four condition must be met in order to make changes:
1. There must be a double vote of each chamber of parliament
2. There must be an interval between the votes of the chambers (not less than 3
moths)
3. It shall be approved by a qualified majority
4. There must be the possibility to resort to a popular referendum
A bill must be submitted, the bill must be approved for the first time by each of the two
chambers
After three moths the second vote must take place.
There are three possible outcomes:
1. The bill is approved by the qualified majority of 2/3 and its promulgated by the
president of the republic
2. The bill is approved by an absolute majority but the qualified majority is not reached
3. The bill is published on the gazzetta for three months
a. The bill is not approved
b. A referendum proposal can be submitted, in which the electorate express its
opinion
i. Subjects eligible to submit a referendum proposal may not chose to
exercise the right and the law is promulgated
ii. The subject eligible to submit a referendum proposal decide to do so,
the outcome of the referendum determine whether the law enter into
force or not.
PRIMARY SOURCES
Primary sources are placed below the constitution in the hierarchy.
Laws that are against the constitution are illegitimate and can be annulled by the
constitution court.
The system of primary sources is closed: all sources at this lever must be expressly provided
for by the constitution.
Ordinary law cannot create sources that compete with each other’s.
A primary source has force of law if it is competent to repeal previous laws at the same level
or previous and consequent acts at a subordinate level.
Ordinary state law
They are subordinate to the constitution. Italian state law is considered the primary source
of law per excellence. However also the regional law is on the same level
Procedure
“legislative power shall be exercised jointly by the two chambers”
Parliamentary standings orders intervene to regulate any aspects of proceedings the
constitution does not specify.

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Who has legislative initiative?
Legislative initiative belongs to the government, to each member of the government and to
those organs to which is conferred by constitutional law.”
In a parliamentary form of government, it belongs to the council of ministers.
 Bills are introduced by a single minister and deliberated by the council of ministers.
 After obtaining the authorization of the president of the republic the bill is submitted
to the parliament
Parliamentary initiative is exercised by a single deputies or senators but can also be
exercised by people, regional councils ecc…
Exercise of legislative initiative
 Legislation is initiated by presenting a proposal bill to either chamber and deputies
and senators must submit a bill to their respective chamber.
 Once the bill has been submitted the speaker assign it to. A parliamentary committee
 The following step is deliberation where bill is examined discussed and voted
 If the bill proceeds, there are three procedures to follow:
o Ordinary procedure
o Debating procedure
o Drafting procedure
Deliberation
 ORDINARY PROCEDURE:
o the committee examines the bill in a reference session
o the committee adopts the base text and reports it to its chamber
o the chamber then discusses the bill and approve it article by article with vote
and a final vote on the complete document
 DEBATING PROCEDURE:
o The bill is debated and approved by the committee
o However, the government can request to debate on the bill with the full
chamber
 DRAFTING PROCEDURE:
o The bill is debated by the full chamber, then it is assigned to a competent
committee to draft its articles
o The chamber then votes on the committee’s drafts
Once the procedure is completed the bill passes to the other chamber for discussion and
vote
When both the chamber has approved the document, the law is declared perfect, the law is
transmitted to the president of the republic.
If the second chamber has amended the text, it must be reapproved by the first chamber.
Integration of effectiveness
A law approved by both chambers is perfect but not effective. It must be presented to the
president of the republic that has to verify the legitimacy.
The president may either promulgate the law within 30 days or send it back to the chamber
and request a new deliberation.
It must be published on the official gazette.
Acts having force of law
Legislative decrees and law decrees are acts having force of law issued by the government
and are considered primary sources of law.
Legislative decrees: the parliament delegate to the government to adopt primary sources of
law

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Law decrees: Adopted in exceptional cases of necessity and urgency
Legislative decrees
The parliament may delegate the council of minister the exercise of legislative power.
The law delegating is subjected to limits of formal and substantive character which are
aimed to contain the government legislative power.
A legislative decree is deliberated by the council of ministers and issued as “legislative
decree”.
As soon as the act is adopted the delegation ends if there in no clauses in the delegation.
law decrees
in exceptional cases of necessity and urgency the government may issue provisional
measures having force of law. It is approved by the council of ministers then passed to the
president of the republic who issue it as a law decree”.
The same day of its publication the government present the law decrees to the parliament
which has to meet in 5 days and covert the law decrees into law within 60 days.
The temporary nature has two consequences:
- any decreed which is not converted into law lose its effects
- once the decree is converted in to law, it does not exist as a decree anymore
Forms of anomalous delegation
There exist atypical and anomalous forms of decrees. For example, special statutes
delegates the government to put into effect special forms of regional autonomy without
limits.
Abrogative referendums
Procedure
 A referendum can be called after the request of at least 500.000 electors or 5
regional council.
 The request is published on the gazette.
 After the publication, there is a three-month period in which the signatures need to
be collected,
 A petition has to be filled
 Once the central office has verified the authenticity of the signatures etc. is petition
is transmitted to the constitutional court
It is forbidden to call referendum on constitutional issues.
 If the referendum is declared admissible the president of the republic issues a decree
that indicates the date for the electoral consultation.
 The quorum needs to be reached (half on the electors must vote)
 If the referendum approves the law, it is published on the official gazette and the law
is approved
Rules of constitutional bodies
The standing order and regulation of the state constitutional bodies are considered primary
sources.
Parliamentary standing order
Each chamber of parliament autonomously adopts its own standing orders.
Approved by the absolute majority of the two chambers.
External control is not needed in order to provide the autonomy.
SECONDARY SOURCES OF LAW
Government regulation:
- executive: make sure that laws or acts having force of law are implemented
- integrative integrates laws and legislative decrees

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- organizational provide rules of functioning and organization for the office of ministers
- independent regulation cover subject matters not regulates by laws
- delegates replacing a law with a secondary source of law
Constitutional justice
1 Introduction
The constitutional justice is an instrument that guarantees:
1. Fundamental rights;
2. Stability of the system.
It is linked with COURTS, which safeguard the constitution.
In democratic states: system in which there is the principle of democracy (democratic
representation)
The constitutional justice may declare null and void (unconstitutional) decisions made by the
majority (i.e. decisions of the parliament: formally the decisions of the people).
In some other situations: courts cannot have such a power and constitutional adjudication
needs to be justified in some way.
EX. UK, Australia, Canada, USA.

UK: still no written constitution

Australia (1900) & Canada (1982): at some point they decided to have a written constitution
but now they still rely on the UK law.
US: written constitution
Clash between the principle of legality and the principle of constitutionality. (since
constitution prevents the parliament from doing what is intended).
Constitutional adjudication is different in Civil and Common law jurisdictions.
1. Introduction
2. Historical Perspective
3. Essential Components of Constitutional Review
4. Models of Constitutional Review
5. Other Functions of Constitutional/Supreme Courts
6. The Italian Constitutional Court
1. Introduction
a. Why does a Legal System need a Supreme/Constitutional Court?
We refer to a Supreme/High Court (courts of general jurisdiction) for Australia, Canada
and UK; and to Constitutional courts which are Specialized courts (since they only
perform constitutional adjudication).
We need courts for 3 main reasons:
- To ensure certainty and equality;
- To ensure the Rule of Law;
- To resolve conflicts between central and decentralized government.

b. Definition of Constitutional Justice, Constitutional Adjudication or Constitutional Review.

When a jurisdictional body compares the Constitution (rigid and codified) with legal
sources which are subordinate to the Constitution and - in case of contrast - declares
them unconstitutional.

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 - The term constitutional justice can be seen as a general term used to define all the
functions that are carried out by a constitutional or supreme court in ensuring
pursuance of the constitution and protection of fundamental and basic rights.
- The term constitutional adjudication has a similar meaning
- The term constitutional review has a more restricted meaning: is related to one
specific function that can be exercised by a constitutional or supreme court (i.e.
comparing the constitution (rigid and codified) with a source of law which is
subordinate to the constitution and declaring it unconstitutional).

Courts make sure that powers respect the constitution, guarantee the principle of equality
and can therefore declare some contents unconstitutional (even if they are the result of the
will of the majority).
EX. Law passed by the council of Lombardy (regional parliament) on the freedom of circulation
for people who are over 65 years and have Italian citizenship. Even if this law was the result of
the will of the majority (democracy) it clearly showed some anti-migrants ideas and
represented a violation of the principle of equality (according to which there should be no
distinction made on race, sex, opinions...) and therefore has been considered
unconstitutional.
Constitution protects minorities against the will of majorities (it is counter-majoritarian).
EX: In UK, which is a case of flexible (not written) constitution, some laws are formally ordinary
but substantially constitutional (Constitutional statutes doctry)
Human Rights Act 1998: formally by the parliament but it is substantially constitutional.
Criminal justice Act 2005: provisions for violation of HRA.
Conflicts between the two may arise because of conflict of implied repealed terms:
1. According to the law, if there is uncertainty whether to apply one law or another, we
should apply the newest (Chronological criterion).
2. But since the first has a constitutional nature (is substantially constitutional) whereas
the second does not, we apply the first one.

Distinction between constitutional statutes from other, in UK:

Thoburn statute: “Constitutional statutes affect both the relation between the state and the
individuals and the exercise of power.” There is not an official list of constitutional statutes
but they are decided by judges. (There is no fixed-parliamentary decision)

Case of 2008 act and 2009 act, whether to apply the first or the second.
If the two are both not partially constitutional: apply the newest since because we assume
that the parliament would have repealed the first
But if the first is substantially constitutional we apply it even if the chronological criterion
would suggest to do differently.
c. How constitutional judges are selected.

The number of judges and the way they are appointed can change from country to country.
There are four main systems to select constitutional judges:

1) Appointment based system;

Judges are nominated (appointed) without any intervention of the legislative body
(Parliament). They are appointed exclusively by the government.

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US CASE: [US: Art. II, sec. 2: “He [the President] … shall nominate, and by and with the Advice
and Consent of the Senate, shall appoint … Judges of the supreme Court”.]
In appointing each judge the President has to follow certain criteria that has the aim of
safeguarding non discrimination.
The President has to consider: geographical origin, gender, religion, race.
Candidates’ political orientation is not taken into consideration.
9 judges sitting in the US Supreme Court, who serve for a life long period (although they are
subject to impeachment): doing so they are protected, have no need to accommodate any
requirement

AUSTRALIAN CASE: 7 judges sitting in the High Court (mandatory retirement at age of 70)
CANADIAN CASE: 9 judges sitting in the Supreme Court (mandatory retirement at age of 75)

GERMAN CASE: 16 judges sitting in the Federal Constitutional Court (term of 12 years that
cannot be renewed)

In italy and in continental EU there aren’t public offices that serve for entire life.
Gender balance and equality in supreme courts is formally taken into consideration but in a
limited way.
READ: [Obergebell vs Hodges (2015)]

2) Election based system;

Parliaments exert greater influence upon the election of constitutional judges in comparison
with the election of judges of regular Courts. In Germany, Belgium and Poland constitutional
judges are appointed exclusively by the legislative body.

[Germany, Art. 94, par. 1:

“(1) The Federal Constitutional Court shall consist of federal judges and other members. Half
the members of the Federal Constitutional Court shall be elected by the Bundestag and half
by the
Bundesrat . ”]

3) Mixed system;

1. Some of the judges are elected (by the legislative body: Parliament);
2. Some of the judges are appointed (by the executive or by the HoS: by non-legislative
bodies). [Austria; Italy; Spain]

Ex. In Italy 15 judges: 5 elected by parliament, 5 by the president and 5 by other judges.
(Elected judges are normally lawyers/ professors of law).

[Austria: Art. 147:

(1) The Constitutional Court consists of a President, a Vice-President, twelve additional
members and six substitute members.
(2) The President, the Vice- President, six additional members and three substitute members
are appointed by the Federal President on the recommendation of the Federal Government;
these members and the substitute members shall be selected from among judges,

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administrative officials, and professors holding a chair in law. The remaining six members and
three substitute members are appointed by the Federal President on the basis of proposals
submitted by the National Council for three members and two substitute members and by the
Federal Council for three members and one substitute member. Three members and two
substitute members must have their domicile outside the Federal capital, Vienna.
Administrative officials on active service who are appointed members or substitute members
shall be exempted, with their pay terminating, from all official duties. This shall not apply to
administrative officials appointed substitute members who for the term of such exemption
have been freed from all activities in the pursuit of which they are bound by instructions”.]

[ Spain : Sec. 159, par. 1:

“The Constitutional Court shall consist of twelve members appointed by the King. Of these,
four shall be nominated by the Congress by a majority of three - fifths of its members, four
shall be nominated by the Senate with the same majority, two shall be nominated by the
Government, and two by the General Council of the Judicial Power.”]

4) Predetermined system:
All judges from the supreme court are from constitutional court. They are not nominated by
judges/ parliament/ president/ government but will be the people who previously were judges
(In IT it is different).
Neither Parliament nor the Government are directly involved in the appointment of
constitutional judges.

[Greece, Art. 100, par. 2:

“ The Court specified in paragraph 1 shall be composed of the President of the Supreme
Administrative Court, the President of the Supreme Civil and Criminal Court and the President
of the Court of Audit, four Councillors of the Supreme Administrative Court and four members
of the Supreme Civil and Criminal Court chosen by lot for a two - year term”.]

22/11/2018
2 Historical perspective

a) Dr Bonham’s Case (1610).

Starting point for constitutional justice even in the US.

He was accused of illegally practicing medicine and subsequently punished with a fine and
imprisoned by the Royal College of Physicians.
Took the case to the court if common pleas presided by Lord Edw. Coke suing for false
imprisonment.
In the end the college had applied the statute in the correct manner but the statute itself was
unreasonable. This led to make the famous statement:

“...it appears in our books, that in many cases, the common law will control Acts of Parliament,
and sometimes adjudge them to be utterly void: for when an act of parliament is against
common right and reason, or repugnant, or impossible to be performed, the common law will
control it, and adjudge such Act to be void.”

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Natural law principles: can be applied instead of legislation; parliament is limited and this limit
is in common law. Parliament cannot violate principles that are within common law. These
principles are inherent, in fact we have human rights and live in society.

?LAW: is it the natural product of the human beings or is it the result of parliament decisions?

What’s new?
- The supremacy of the common law in England;
- The prerogatives of Parliament were derived from and circumscribed by precedent.

b) Marbury vs Madison (1803) case.

There is no power recognition to supreme court; no foundation of constitutional justice in the
US law; a law is not declared null/void by the supreme court.

The constitution is the supreme law of the land…therefore laws that are in conflict with the
constitution shall not be applied.
“in declaring in what shall be the supreme law of the land, the constitution itself is first
mentioned; and not the laws of the United States generally but those only which shall be made
in pursuance of the Constitution , have that rank.”
“the particular phraseology of the constitution of the United States confirms and strengthens
the principle, suppose to be essential to all written constitutions that a law repugnant to the
constitution is void;”

The power of constitutional courts deals also with what is null and void. In particular what is
in conflict with the constitution derives from a hierarchy of sources of law and constitutional
judges. There is a logical trend between a rigid constitution (written, cannot be modified
unless a certain procedure is followed) and such a hierarchy.
Constitutional justice needs to be justified.
In 19th century constitutional justice did not exist in continental EU.
CONSTITUTIONAL JUDGES: preserve the constitution, which is rigid, not modified by the will
of the people and which is protected by the hierarchy of the sources of law.

 Principle of legality: The parliament/laws control the system. Public power need to be
exercised according to law therefore rules need to be followed. This is close to the
principle of rule of law. The idea is that all the legal system is covered by rules, there
is no place for the exercise of arbitrary powers.
Fundamental principles cannot be violated even if it is the will of the people.

 Principle of constitutionality: it limits the parliament and therefore limits the will of
the people; it cannot do what is against the constitution.
Statutes are repealed only if the parliament takes responsibility for this.

What’s new?
- Judicial review, even though the idea of a judicial review of legislation was already part
of the thirteen colonies’ juridical culture;
- The competence of all Courts (in this case of the Supreme Court) to verify if a law is in
pursuance, or not, of the Constitution;

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 - If a law is judged to be unconstitutional the judge must eliminate it from the legal
system.

Any court can perform juridical reveal of legislation, this means that the control of the
constitutionality is diffused.
Any court can declare a law unconstitutional and laws can be eliminated from the legal system.

c) The French contradiction

(Rousseau) Judge is the bouche de la loi therefore it would be unconceivable to give judges
the power to strike down legislation. The judge has no power to create laws and modify the
content of legislation but to simply to apply them. There is no place for constitutional
adjudication (this was also the basis for the French Revolution). Each power should not
interfere with the power of authority.
(Montesquieu) The Constitution safeguards the doctrine of separation of powers.

FRENCH SOLUTION: to have a Constitutional Council (not a constitutional court), which is a

sort of political body where former presidents of the French republic take part. When the
French parliament has the law, this may be applied before enforced. The check of
constitutionality of a law is before the law is enforced.

d) Hans Kelsen (Germany and Austria)

“Who shoud be the guardian of the constitution?”

What’s new?
- The Constitution is the law of laws in a legal system conceived as a Stufenbau;
- Guardian of the Constitution should be a “Court-like” body;
- Review should not be a priori (preventative) but a posteriori (repressive);
- If a law is in contrast with the Constitution the Court should strike it down;
- Complaints should only be lodged by constitutional bodies.
The constitutional court is a single body that performs for the reveal of the legislation and
preserves the hierarchy of sources of law and constitutional justice.
In continental Europe it is different than in UK and US.
The control of constitutionality can be triggered only by constitutional bodies (constitutional
courts); no individual complaint; no possibility to appeal to the court and to say that a law is
against the constitution and therefore unconstitutional.
The judiciary power is always separated from the parliament.

The French model has influenced the East EU and the north Africa.

3 Essential components of constitutional review

a. What constitutional body carries out judicial review?

We distinguish:
- Centralized review: Judicial review is carried out exclusively by an ad hoc Court-like
body (usually called Constitutional Court) (AUSTRIA);

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 - Decentralized review: Judicial review is carried out by any judge during regular court
proceedings (US)

b. When is review carried out?

We distinguish:
- Preventative review (a priori): Judicial Review is carried out before the law has come
into effect; (FRA)
[France with reference to statute laws; Italy with reference to regional laws before 2001
amendment.]
- Repressive review (a posteriori): Judicial review is carried out after the law has come
into effect. (US, AUSTRIA)
The difference between the two is that the first is to some extent abstract; you see laws not
applied to a specific case but just theoretically.

c. How can one lodge (place) a constitutional claim?

We distinguish:
- Principaliter (Abstract review): the claim can be lodged independently of the
proceedings in a specific case by:
1) Institutions;
2) individuals;
(preventive control)
(It is not anchored to a specific case or controversy)

- Incidenter (Specific review): Judicial review (question of unconstitutionality) is carried

out during a regular court case.
The constitutional review is performed concretely.
Only claim if you are in a regular proceeding and you think that the law is unconstitutional.

a. What types of decision?

We distinguish four main types of decisions:

- cassation decision:
constitutional or supreme court strikes down the statute law under scrutiny by declaring it
unconstitutional.
Depending on temporal effects, cassation decisions may imply:
- annulment: the decision is retrospective and therefore as if the unconstitutional
statute law never existed; (ex tunc) “ab initio”, since adopted. Any effect the law
produced when it was in force is null-void as well.
- abrogation: the unconstitutional law will cease to have effect from the moment the
decision is delivered. (ex nunc) (this would have an impact only for future applications).

[Annulment: ab initio; Abrogation: prospectively]

- declaratory decision:
It may also be of a preventative character.
The decision per se has no effect, it does not nullify the law, is simply declaratory. It does not
have any concrete legal consequences.

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EX. Law repealed only by the parliament, per se is not repealed by the legal system, because
only the parliament can.
The effect of annulment is from the constitution, which decides the abrogation.
[In the US there is not a real difference between cassation and declaratory decisions;
whereas in IT when a law is said unconstitutional but is not announced yet officially,
there is no implication]

- appellate decision:
The Constitutional Court appeals to the Legislature (explicitly or implicitly, with or without
time limit) to make changes to legislation it deems to be in violation of the Constitution.
Parliament supremacy: Parliament enacts a law and decides when to abrogate-repeal it.
The constitutional court: appeals to the legislation and says that wants to repeal the law
because considered unconstitutional. (if just some parts of it are considered unconstitutional,
not all the law, it is not officially declared unconstitutional. Case of IT)

- interpretative decision.
The Constitutional Court uses its discretionary powers of interpretation to determine whether
a statute is in pursuance or not of the constitution.

EX. A law judged unconstitutional because considered a violation of the principle of equality.
The constitutional court may interpret it in a different sense, may read it in another way and
therefore don’t consider it unconstitutional and don’t declare it null-void

e. With what effects?

There are two types of effects (Note that effects may change depending on whether the law
is declared unconstitutional or not):

- Subjective effect;
Court decision may be “erga omnes”, which means that it is binding for everyone in the
legal system; or “inter partes”, which binds only the parties of the controversy (therefore
the effects don’t cover generally the entire population and the law will still be there in the
legal system and hence in the future)

- Temporal effect;
“Ex tunc”, from the moment when the disputed provision took effect
“Ex nunc”, from the moment when the decision on unconstitutionality was taken.

Constitutional courts may say this decision have effect only on something in particular or
only of a particular period: margin of choice.
Huge impact on legal system.

EX. Electoral law. Declare some provision unconstitutional. Many scholars said: if an
electoral law is unconstitutional and if the decision has an erga omnes effect and ex tunc
effect (from the moment the law was enforced), ---the parliament is unconstitutional.
Parliament elected on the basis of a law, that was then declared unconstitutional, is itself
declared unconstitutional. Does not have sufficient legitimacy. It was the constitutional
court that said my decision does not effect legitimacy of parliament, but, will produce

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 effect from now on. – constitutional court itself specifying declaration of
unconstitutionality. Electoral law considered unconstitutional means need for new
elections. In this case was decided that this was the desired effect to be produced.
4. Models of constitutional review

We can distinguish three different models of constitutional review, that combine the views
seen before:
a. The American model of constitutional review;
(US, Canada, Australia… common law countries)
Judicial Review is carried out:
- by all regular Courts: decentralized review; any judge
- under the regular Court proceedings: incidenter; (case of concrete legal controversy)
- law challenged after it has come into effect: a posteriori.

b. The Austrian model of constitutional review;

Judicial Review is carried out:
- by the specialized ad hoc Constitutional Court: centralized review (only one court is in
charge with the declaration of unconstitutionality;
- under special proceedings: principaliter; abstract (law challenged only in abstract
terms, not when applied);
- after the law has come into effect: a posteriori.(only institutional bodies, not individual
citizens can criticize the law).

c. The Hybrid models of constitutional review. (is the most popular: IT,GER,FRA, SPA)
Judicial Review is carried out:
- by the specialized ad hoc Constitutional Court: centralized review;
- special proceedings or under the regular Court proceedings: incidenter or principaliter;
- always challenged after the law has come into effect: a posteriori.
In continental EU, the only case in which the law is challenged before in came into effect
is in FRA (it is a form of political review).
5 Other functions of constitutional/supreme courts

The essential part of what constitutional courts do is to solve the disputes.

In IT more than 80% of constitutional courts workload is to solve disputes.

We can distinguish some other functions of Constitutional/Supreme Courts:

- Jurisdictional disputes between:
a. Top government bodies (branches of government);
b. State and regional or local entities;
c. Local or regional entities;
d. Courts and other government bodies

- Political Parties:
Decision-making related to matters of unconstitutional acts and activities.
Many declarations if political parties can exercise or not political power; if they are
acting in unconstitutional way and therefore if declaring them unconstitutional. (not
in IT)

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 “Constitutional court can declare the unconstitutionality of organizations, movements
or political parties”.
- Referendum:
Decision-making regarding its conformity to the Constitution.
- Elections:
Decision-making regarding the conformity of proceedings with the Constitution and
Statute Law.
- Confirmation of elected members.
- Capacity for office:
a. President of the Republic;
b. Other State representatives.
- Impeachment:
a. Head of the State;
b. Prime minister
c. Other State representatives.

6 The Italian Constitutional court

Wide number of constitutional justices
model of c j from 1946, before constitution, Italy was not provided with any kind of
constitutional justice.
The model:
Centralized (different from decentralized-diffused)
Only institution that is allowed to perform constitutional justice in Italy is constitutional court.
Ordinary judges are not involved in this system of constitutional justice. Constitutional court
has the final say on constitutionality-unconstitutionality of laws in Italy.
Performs constitutional review posteriori.
Both system in abstracto, and in concreto.
Base of the constitutional review in Italy is Constitution drafted from 1946 and enforced from
1948.

a. Sources
The Italian constitutional court is regulated by:
- Articles 134-137 of the 1948 constitution;
- Constitutional laws (1/1948, 1/1953, 2/1967);
- Statute law 87/1953.

b. Model of constitutional review: Hybrid system:

- Centralized;
- A posteriori;
- Both principalities and incidenter.

c. Functions
- constitutional review of laws and acts having the force of law;
- resolution of jurisdictional disputes
a) between branches of government within the State
consist of disputes between constitutional bodies that do not recognize any superior
power other than theirs and therefore the constitutional court is responsible for their

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 resolution. (in the case of disputes between organs within that branch of government,
the conflicts must be resolved by the constitutional body they belong to).
Object of the dispute can be administrative, judicial or legislative act:
o because one branch of government is exercising a power that belongs to
another branch of government;
o one branch of government challenges the way the other branch of government
has exercised its power because it has adversely affected the claimant in some
way.

b) over the allocation of powers between the State and the Regions;
the claim has to be lodged with the C.C. within 60 days of the publication of the act
that caused the dispute. The C.C. will declare who the competence belongs to, if the
state or the regions, and will annul the disputed act.
(the judgment will only have inter partes effects, whereas the annulment will have
erga omnes effects.)
in the case of disputes of jurisdiction the procedure to be followed is:
 verify whether the claim is admissible or not (i.e. if it has a constitutional tone)
 identify the parties to the dispute
 enter into the merits of the case and resolve the dispute.

- delivers judgments concerning accusations against the president of the republic for
high treason and attempting to overthrow the constitution.
The procedure will take place in parliament in joint session: If the overall majority of
members of parliament vote in favor of impeachment then the proceedings will be
transferred to the C.C. The court will be composed of 31 members (instead of the usual
15) because it shall comprise 16 additional members.
- Power to decide on the admissibility of referendum (Art. 75 Const.).
The function of the court will be to ensure that the referendum request does not
violate one of the limits of admissibility in Art. 75 of the constitution and in the case
law of the constitutional court itself.

d. Composition
The court is composed by 15 judges:
- 5 appointed by the President of the Republic;
- 5 appointed by the Parliament in joint session;
- 5 appointed by the Supreme Courts.

The judges:
- on the court for 9 years,
- cannot be re-elected;
- chosen among lawyers, professors and judges
- to be elected by the parliament in joint session, a candidate to the constitutional court
needs a majority of 2/3 in the first 3 ballots and then 3/5. (this means that
parliamentary minority has a kind of veto power)

Direct performance, constitutional review in abstracto, indirect: in concreto.

These two systems: 1st direct access to court, limited to government and regions, when a
region passes a law, this law is published on official journal of that region and starting from

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that date, the state represented by government, is entitled of period of 16 days to challenge
the law before the constitutional court. Challenge form of ordinary complaint to court, state
ask the court to invalidate it bec violated the constitution, and in case the state asks this kind
of review, it can be performed against any norm of constitution. By contrast also regions can
challenge national laws before constitutional court. Procedure is similar. When laws are
published any region is entitled of 16 days to challenge it, but this power of challenging is
limited to matter of competence. If the court considers that the state legislated in a matter
that violated the constitution, by
Other case (residual) of region challenges law of another region. If any interference with its
law.
For rejection: erga omnes effect
Since has to be removed from legal order, therefore the court declares it invalid: cannot
exist and be valid a law that is against the constitutional rules.
Ex tunc (invalid from day of adoption and not from day of declaration of invalidity)
Only case when judgment has no effect, when legal question settled by a tribunal-court
and cannot be challenged anymore even if declares invalidity. The final decision cannot be
reversed anymore: principle of certainty of final law. Final even if the constitutional court
finds that the law has grounds to be considered invalid.
Exception: criminal cases. IT: Law in 2004, pensions are no more indexed to the cost of life.
e. The proceedings
There are three types of proceedings:
- Incidenter;
The question of unconstitutionality is raised during the course of a court case. i.e. there has
to be a pending court case concerning a concrete controversy. There will be two proceedings:
the main proceedings (to which the original controversy is anchored) and the incidenter
proceedings (related to the question of unconstitutionality). The judge sitting on the ordinary
court is known as the judge a quo whereas the constitutional court to which constitutional
claim is referred to is known as the judge a quem.
There are two requirements: a subjective requirement, i.e. the judge must be part of the
ordinary or administrative judiciary system and the requirement that there has to be a
pending court case during the course of which judicial power is exercised.
The judge a quo has an important role: has to verify that the question of unconstitutionality
is relevant to the case and that it is not clearly unfounded.
It is enough that that judge merely has a doubt and then must send the claim to the
constitutional court.
Whether the law is in breach of constitution; in order to do so any judge should suspend
and ask the court to perform this review and tell the reason why thinks is against the
constitution. Judge to raise the question of unconstitutionality needs to state the relevant
reasons why. What is asked to judge is also to state why is relevant, and provide number
of articles in favor.
Court can reject question of constitutionality and in this case the court will not declare it
is constitutional in fact but will only say it is well founded.
Court can accept, declare it is not well founded, annulling it.
- Principaliter;
- Review of the statutes of the ordinary regions (a third proceeding?).

f. The types of decisions

Three main categories:

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 - Judgment: the court makes a final and unappealable decision thus terminating the
proceedings.
a. Sentenza di rigetto: the law is not violating the constitution
b. Sentenza di accoglimento: law is unconstitutional.
- Orders: takes the procedural decision that does not close the case.
- Decree (not taken collegially like the previous two, but solely by the president of the
constitutional court)

Decisions of the Italian Constitutional Court are:

1. Decision of inadmissibility: when the procedural conditions are not satisfied;
2. Judgment of cceptance, and therefore the law is declared unconstitutional: erga
omnes effects;
3. Judgment of dismissal, and therefore declared not unconstitutional and not in
contrast with the constitution: inter partes effects (i.e. they only bind the parties to
the controversy);
4. Interpretative judgments, i.e. a decision based on the difference between provision
and norm:
- Provision: the written text of the legislative act
- Norm: the meaning given to the provision by the courts through the exercise
of their interpretative powers.
o Of acceptance: law declared unconstitutional (like an ordinary decision of
acceptance) but it does so on the basis of a particular process of reasoning.
o Of dismissal: law not unconstitutional, but the reasoning of the court is based
on the meaning that is to be given to it.

5. Manipulative judgments , i.e. constitutional court does not just declare the
challenged provision unconstitutional but it actually modifies or integrates it in some
way:
a)). judgments of partial acceptance: just part of the legislative text is
unconstitutional;
b)). substitutive judgments, instead of simply strike down the law, the
constitutional court actually carries out the “substitution” itself;
c)). additive judgments, the C.C. declares a law to be in violation of the
constitution to the extent that it lacks of a norm (rule) that is constitutionally
necessary and the it “adds” the missing rule to the statute;

6. Exhortative judgments, in which the court temporarily rejects the challenge,

apparently justifying the exemption of those norms from constitutional review, and at
the same time inviting the parliament with a “warming” to change the statute..

The decision taken by the court is a COMPARATIVE JUDGMENT since it compares the
laws that are presumed to be unconstitutional with the provisions of the constitutional
that are presumed to have been violated.
9. Fundamental rights and freedom
LIST OF CONTENTS
1. Introduction
2. Types of Legal Incorporation
3. Generation of Rights

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 4. Basic Rights
INTRODUCTION
 In Mediaeval times it was the social classes and groups rather than the individual that
were protected.
 The most significant product of those times was the Magna Charta (1215), the first
attempt to protect the writ of habeas corpus and freedom of movement and to
circumscribe the power of the Crown. These rights were extended to all individuals.
 The liberal concept of rights began with the English Bill of Rights in 1689.
 With it, the idea that the protection of individual rights is an eminent and non-
renounceable function of State organisation began to impose itself.
 In particular in 1791, just a few years after the approval of the US Constitution
(1787), the first ten amendments (the American Bill of Rights) entered into effect to
protect:
o freedom of religion, press, speech, assembly;
o freedom from excessive fines and forfeitures and from double jeopardy, as
well as the right to bear arms, to be secure and to due process.
 These freedoms were considered pre-existing conditions rather than rights
sanctioned by the Bill of Rights (John Locke).
 In 1789 the Declaration of the Rights of Man and the Citizen was approved in France.
 The French Declaration was fundamentally a declaration of intent.
 In the years following 1789 the French Declaration was replaced by a series of
subsequent Constitutions.
 The French model rapidly circulated throughout Europe.
 After 1848 other constitutions were approved in various countries in Europe and in
all of them the protection of basic rights was paramount, a good example being the
French Constitution of 1848.
 The beginning of the 1900s and the post-World War I period opened with a radically
different international political alignment that called for new solutions in formulating
rights. The most notable example is the German Constitution of 1919.
 After World War II a new phase of constitutionalism began where unalienable rights
formed the principle nucleus of constitutions, emphasising those ethical and social
values on which society is built.
 The aim of any Constitution (written or unwritten) is to strike a balance between an
individual’s freedom to do whatever he/she wants and the legal restrictions imposed
upon that freedom for the protection of society as a whole.
 We have to introduce two more basic concepts:
o What is a right;
When trying to give the definition of ‘right’, it is important to distinguish two
key concepts:
 natural law
 positive law
o Entitlement of rights.
With respect to the entitlement, we can distinguish:
 Universal right (freedom of life, freedom of speech....)
 Special rights (right to maternity linguistic rights)
TYPES OF LEGAL INCORPORATION
There are two types of legal incorporation:

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  Stratification: Magna Carta Libertatum 1215 Petition of Right 1628 Bill of Rights
1689
 Revolution: Déclaration des droits de l’homme et du citoyen 1789 (French revolution)
GENERATION OF RIGHTS
Rights can be classified also according to the generation they belong:
 First generation;
 Second generation;
 Third generation;
 Fourth generation.
First generation
 First generation rights are also called negative freedoms or civil and political rights.
 They are enshrined in the flexible Liberal State Constitutions.
 Let’s have a look at the following Constitutions:
o Albertin Statute of the Kingdom of Sardinia (and then of Italy) of 1848;
o Constitution of Prussia of 1850;
Prussian Constitution-1850
• Art 5: All personal freedoms are guaranteed.
• Art 6: All homes are unassailable.
• Art 9: Property is sacred.
• Art 12: The freedom of religious believes and the formationof religious organizations is
guaranteed.
• Art 20: Science and its instruction are free.
• Art 27: Every Prussian has the right to express free his thoughts verbally, written, printed
and in picture.
• Art 70: Every Prussian has with the age of 25 the right to vote.
Second generation
 Second generation rights are also called positive freedoms or social and economic
rights.
 They are enshrined in the rigid Democratic State Constitutions.
 Let’s have a look at the following Constitutions:
o Weimar Constitution of 1919;
o Constitution of the French Fourth Republic of 1946 (see in particular the
Preamble);
o Constitution of Italy of 1948; d. Basic Law of Germany of 1949.
Italian Constitution – 1948
Article 38 [Welfare]
1. All citizens unable to work and lacking the resources necessary for their existence
shall be entitled to private and social assistance.
2. Workers shall be entitled to adequate insurance for their needs in case of accident,
illness, disability, old age, and involuntary unemployment.
3. Disabled and handicapped persons shall be entitled to education and vocational
training.
4. The responsibilities laid down in this article shall be entrusted to public bodies and
institutions established or supplemented by the State.
Third Generation
 Third generation rights developed during the 70s constitutionalism and they are also
known as new rights.

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  They represent a broad spectrum of situations and include individual rights of a
private nature (the right to one’s image, honour and identity) as well as the
collective or rights of peoples, for example the right to a clean environment or to
peace.
 Let’s have a look at the following Constitutions:
o Constitution of Portugal of 1976;
o Constitution of South Africa of 1996.
Portuguese Constitution - 1976
Article 35 (Use of Data Processing)
1. Without prejudice to the provisions of the law on State secrecy and justice secrecy,
all citizens have the right of access to the data contained in automated data records
and files concerning them as well as the right to be informed of the use for which
they are intended; they are entitled to request that the contents thereof be
corrected and brought up to date.
2. Access to personal data records or files are forbidden for purposes of getting
information relating to third parties as well as for the interconnection of these files,
save in exceptional cases as provided for in the law and in Article 18.
3. Data processing may not be used in regard to information concerning a person's
philosophical or political convictions, party or trade union affiliations, religious
beliefs, or private life, except in the case of non-identifiable data for statistical
purposes.
Fourth Generation
 In recent years, many authors have identified a fourth generation of rights.
 These are distinguished from rights of the previous generations not only because
they have just recently been given the status of rights but also because their
protection is intergenerational. Rights such as those of sustainable development or
connected to new applications of research in biotechnology.
 They do not exhaust themselves in the space of one generation, but on the contrary
are aimed at promoting a responsibility and solidarity in the utilisation of resources
and patrimony of mankind capable of protecting the needs of generations to come.
 Let’s have a look at the following Constitutions:
o Constitution of Argentina of 1998.
Constitution of Argentina -1998
Section 41
 All inhabitants are entitled to the right to a healthy and balanced environment fit for
human development in order that productive activities shall meet present needs
without endangering those of future generations; and shall have the duty to preserve
it. As a first priority, environmental damage shall bring about the obligation to repair
it according to law.
 The authorities shall provide for the protection of this right, the rational use of
natural resources, the preservation of the natural and cultural heritage andof the
biological diversity, and shall also provide for environmental information and
education
BASIC RIGHTS
Basic rights can be classified in:
 Individual rights;
 Rights of the Public Sphere;
 Social rights;

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  Economic rights;
 Political rights.
Individual rights
Basic rights can be classified in:
 Individual rights:
a. Personal Freedom;
Art. 13 Italian Const. «Personal liberty is inviolable.
No one may be detained, inspected, or searched nor otherwise subjected to
any restriction of personal liberty except by order of the Judiciary stating a
reason and only in such cases and in such manner as provided by the law.
In exceptional circumstances and under such conditions of necessity and
urgency as shall conclusively be defined by the law, the police may take
provisional measures that shall be referred within 48 hours to the Judiciary for
validation and which, in default of such validation in the following 48 hours,
shall be revoked and considered null and void. Any act of physical and moral
violence against a person subjected to restriction of personal liberty shall be
punished.
The law shall establish the maximum duration of preventivedetention.»
b. Personal Domicile;
Art. 15 Italian Const.
«Freedom and confidentiality of correspondence and of every other form of
communication is inviolable.
Limitations may only be imposed by judicial decision stating the reasons and
in accordance with the guarantees provided by the law.»
c. Freedom of Correspondence and Information;
d. Freedom of Movement,
e. Residence and Expatriation.
RIGHTS OF THE PUBLIC SPHERE
 Rights of the public sphere
a. Freedom of Assembly;
b. Freedom of Association;
Art. 18 Italian Const.
«Citizens have the right to form associations freely and without
authorization
for those ends that are not forbidden by criminal law.
Secret associations and associations that, even indirectly, pursue political
aims by means of organizations having a military character shall be
forbidden.»
XII Transitional and Final Disposition
«It shall be forbidden to reorganize, under any form whatsoever, the
dissolved Fascist party.
Notwithstanding Article 48, the law has established, for not more than five
years from the implementation of the Constitution, temporary limitations to
the right to vote and eligibility for the leaders responsible for the Fascist
regime.»
c. Freedom of Religion and Creed;
d. Freedom of Expression.
Art. 21 Italian Const.

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 «Anyone has the right to freely express their thoughts in speech, writing, or
any other form of communication.
The press may not be subjected to any authorization or censorship.
Seizure may be permitted only by judicial order stating the reason and only
for offences expressly determined by the law on the press or in case of
violation of the obligation to identify the persons responsible for such
offences.
In such cases, when there is absolute urgency and timely intervention of the
Judiciary is not possible, a periodical may be confiscated by the criminal
police, which shall immediately and in no case later than 24 hours refer the
matter to the Judiciary for validation. In default of such validation in the
following 24 hours, the measure shall be revoked and considered null and
void.
The law may introduce general provisions for the disclosure of financial
sources of periodical publications.
Publications, performances, and other exhibits offensive to public morality
shall be prohibited. Measures of preventive and
repressive measure against such violations shall be established by law.»
SOCIAL RIGHTS
 Social rights:
a. Education;
b. Healthcare;
c. Welfare;
d. Housing
ECONOMIC RIGHTS AND POLITICAL RIGHTS
 Economic rights:
a. Right to Property;
b. Freedom of Enterprise;
c. The Market and Competition;
d. Trade Union Rights.
 Political rights.

FROM THER BOOK

HISTORICAL PERPECTIVE: RIGHTS AND THE EVOLUTION OF CONSTITUTIONALISM
 From 1600 to 1900 human rights developed.
 In 1689 England developed the bill of rights.
 The modern age of constitutional rights opened with the American revolution.
In 1787 there was the approval of the constitution, in 1797 the first ten amendment
entered into effect. The 10-amendment protected freedom as a pre-condition rather
than a right.
 In 1789 the declaration of the rights of men and citizen was approved in France
 In the following years, the French declaration was followed by constitution
 After French Germany, Italy and other European countries started adoption their
constitution.
 The most notable example of German constitution was the Weimar constitution. It
put human rights at the center of the constitution
 After WWII a new phase of constitutionalism begun.
GENERATION OF RIGHTS

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Negative and positive rights are rights that oblige either action (positive rights) or inaction
(negative rights). These obligations may be of either a legal or moral character. The notion of
positive and negative rights may also be applied to liberty rights.
Rights considered negative rights may include civil and political rights such as freedom of
speech, life, private property, freedom from violent crime, freedom of religion, habeas
corpus, a fair trial, and freedom from slavery.

Rights considered positive rights, as initially proposed in 1979 by the Czech jurist Karel
Vasak, may include other civil and political rights such as police protection of person and
property and the right to counsel, as well as economic, social and cultural rights such as
food, housing, public education, employment, national security, military, health care, social
security, internet access, and a minimum standard of living. In the "three generations"
account of human rights, negative rights are often associated with the first generation of
rights, while positive rights are associated with the second and third generations.

INDUVIDUAL RIGHT
Personal freedom
“No one shall be detained, inspected, or researched nor otherwise restricted in one’s
personal liberty”
There are two instruments that protect freedom:
 Statutory limit “personal liberty may not be restricted expect in such cases and in
the manner as the law provide”
 Jurisdictional limit “save by other of the judiciary for which the reason must be
states’”
Restriction of freedom has to be decided by a judge
Personal domicile
Is one of the inviolable rights.
Freedom of domicile delimited by the space a person occupies (a person’s spatial
projection), the so called ius escludendi alios
Domicile is inviolable in the manner laid down by law in conformity with guarantees
prescribed for safeguarding personal freedom.
Freedom of correspondence and personal information
“the liberty and secrecy of correspondence and of every form of communication”
Every form of communication is inviolable.
It is intended in both its active and passive forms, both the sender and the recipient are
entitled to send a receive them without external interference.
The provision excludes the possibility of urgent intervention by the police.
Freedom of movement and expatriation
 “Every citizen shall have the right to travel and reside freely in any part of the
national territory”
 “the republic shall recognize the freedom to emigrate save for such limitations as are
established by laws of common goods”
 Freedom of residence is the freedom to establish in a chosen place for a chosen time
RIGHTS OF PUBLICH SPHERE
Freedom of assembly
It is the citizen right to assemble peacefully” ì, an assembly is lawful when it is peaceful and
unarmed.
There are two types of assemblies:

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  Meetings in public places need to give a prior note to the authorities
 Meeting in private premises (places that people utilize privately even though they are
not the owner)
Freedom of association
“citizens shall have the right to form associations freely without authorization for aims not
forbidden to individuals by criminal laws”
Freedom of religious creeds

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