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Paolo Franceschetti
Editorial No. 7 / 8 July / August 2007 the monthly supplement AltalexMese
www. altalexmese.it
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One of the funniest scenes of all the Italian comedy films, in my opinion, is that the battleship Potemkin is the second tragic Fantozzi. The powerful
Professor Maria Guidobaldo Riccardelli was a fanatical lover of art cinema. Once a week, forcing employees and families in terrifying visions of the classics of cinema. Fantozzi has seen in twenty years and revised: "Dies Irae" by Carl Theodor Dreyer, 6 hours, "Man of Aran" by Flaherty, 9 time, but especially the most classic of classics, "The Battleship Potemkin", 18 coils, for an unknown number of hours, of which Professor Riccardelli had a rare copy staff. (1)
The day of the match England Italy Fantozzi is sitting in an armchair with fried, beer and burp free to enjoy the show, but gets a call from the director: the evening employees of the company were forced to go see the movie the battleship Potemkin.
After watching the debate ... boring film shoot. The surveyor Filini makes a cautious comment on the emotions felt in looking at the wheelchair down the stairs, while others are more comments of praise. But having forced employees to miss the match is the straw that breaks the camel; Fantozzi not had enough of hypocrisy and takes the stage to tell her: "The Battleship Potemkin is a XXXXXX crazy."
followed 92 minutes of applause.
What does the film Fantozzi with the Bank of Italy we will see shortly.
***** This issue is summed up one of the many judgments on in-house. The CDS has reiterated once again, on the basis of European directives, which a local government agency that services should be entrusted to an outside firm can do, as long as it maintains a controlling stake. In particular determined that
1) the administration must exert on the subject of a control similar to that exercised over its own departments;
2) the subject must carry out most of its activity in favor of the public membership.
The ruling reaffirms a principle of law right, namely that a public service, if such can not be given indiscriminately to private.
These days, however, I am preparing the third edition of my manual of administrative law and studying the question of the legal nature of the Bank of Italy accounts I do not add up.
If I wrote the first two editions fact that the Bank of Italy is a public (and the rest of the public nature of the institution was also reaffirmed by the Supreme Court in 2006), despite being privatized, because it has a public purpose and a system of public, lately I have changed his mind. 95 per cent of the shares is in fact in the hands of private banks . (2)
This means that the Bank's profits go to private parties. Worse, it means the Bank of Italy, who should supervise the banks, is in the hands of self supervised. A little 'how to Riina as head of the Public Prosecutor in Palermo.
I'm going to better control the law and, after a long time, I can figure it out; only a portion of those profits go to the state ... (3) It seems to me absurd
the same in the sense that, even in the absurd assumption that the state law was intended for 90 percent of profits, it seems nonsensical that the operation of a Central Bank is entrusted to private parties. And we're talking about private individuals who are "banks", not deeds of charity, or associations such as Catholic Action.
Okay, I think ... but at least there will be a mechanism of control by the state. For example, the appointment and dismissal of the Governor will be controlled by the state. But no. Article 17 of the Statute of the Bank of Italy said that before the appointment or withdrawal by the President of the Board must be the opinion of the Supreme Council of the Bank of Italy. In reality, the rule is not clear if that opinion is binding or not, but in reality there is only one cryptic sentence, which says that this opinion was issued "for the resolution of the Council of Ministers." Embee, I wonder ... what does it mean "purpose"? E 'binding or not ...?
on an article in a magazine I learned that the legal opinion is binding, but "the correctness of the decision is ensured by the mechanism of collective opinion."
to clarify things and deepen the system of institutional checks take an essay on the Bank of Italy, and I read that "the laws provide for apparatus of authority in each other and with specific and exclusive powers set up patterns of collaboration and coordination of activities planned and strictly governed by law ".
that the author might as well write "I'm sorry, but the system of checks does not know why it annoys me to take the trouble to read it."
Instead of administrative law on the Treaty of Sabino Cassese, the author has a better idea. He wrote that "there is a general principle of autonomy in determining the ways (both general and specific) to achieve the goals assigned to the Bank into the credit. In other words, is given to the Bank the power to limit itself, determined not only the general criteria, but also the principles and guidelines address of his business. " In other words: the Bank of Italy, and it's shareholders, Banco San Paolo, Banca Intesa, Assicurazioni Generali, etc.. they do what they like, Oh, yes, because they have "the power of self-restraint." A legal term, seemingly harmless, which is the equivalent slang expression "do what it wants."
But the disturbing part comes when I realize that politics monetary policy is still secret, because the DM October 13, 1995, No 561, Article 2 has the secret to all acts of economic and monetary policy of the Bank of Italy.
I read here and there and to discover that the shareholders of the Bank of Italy have been disclosed to the public only in 2005, after he took the weekly "Famiglia Cristiana". Because before they were "reserved".
In fact, neither the Digest of journalistic discipline, nor the Treaty of administrative law Sabino Cassese, or other texts mentioning the shareholders of the Bank of Italy saying what the actual corporate structure.
It seems to me absurd.
Then call a person very dear to me. I can not call a friend, given the distance of age between us, but it was the person who throughout his life has given me the best advice. E 'university teacher, and wise enough to always given me the right advice for the publication of manuals, etc. to address the university competitions. Expose the problem to this person, considering the contradictory expectations of a small service such as a marina should be subject to certain guarantees, such guarantees and vanish completely when the service that the private entity must ensure the service is even of 'issuing currency, that is one of the services are absolutely essential and inalienable part of a state that wishes to call itself such.
My friend - bigger than me and certainly more experienced than me - he said: Paul, sorry but you surprised? Dear boy, you see you're still young and naive .... You still have to fully understand the system ...
See Article 2621 of the Civil Code. Punishable by a sentence of up to two years in prison who commits the crime of false accounting (that in theory could also be punished by one day). And consider that in any case punishable offense, if the amount stolen does not exceed ten percent. That is to say: If you have a company with a capital 1000 million euro, you can steal up to 100 million. If the sum is greater, however, watch out, bitchy, because we could also punish you (if it does not take a prescription) with a terrible pain for a few days in prison with parole.
I'm angry and I said, "but that excuse has to do this the norm? I'm talking about something else. "
Let me finish ... young and impetuous boy - said my friend - now go and look under the punishing theft. For article 624 bis who came into your house and you have stolen some time ago with all the video recorder dvd Allie McBeal he gets at least a year, and up to six years. While what you stole his wallet from his pocket, as petty theft, you pluck at least one year, although there was nothing in the portfolio, except for a ATM card that you've blocked a few minutes later.
short, stealing 100 million euro is not a crime. Steal your DVD collection or an empty wallet it definitely is.
Well, the policy is the same. The municipality must outsource a marina must follow certain strict rules, and this is right. If the state should be entrusted to private service issuing currency and control of banking, makes him who he likes, without giving him any control.
But this is absurd, I say. Also because all the manuals say that peaceful is a public body and it also tells the Supreme Court in 2006. Why do not you say no?
three reasons Paul. First because it's not easy to give too much publicity to the thing. Imagine that until 2004 the shareholders of the Bank was not even made public .
Second, because the issue is complex and not easy to deal with . Third
because people who write manuals of administrative law, like you, you misled by what he writes and then the dominant legal culture is an unwitting accomplice of a system of disinformation .
In short, the third edition of my manual will correct this "special".
For now, it is an editorial, I can write freely what I think on the legal nature of this institution, without too many constraints. After detailed study and after careful study of comparative law, I would say that a reading of the legislation that regulates constitutionally the central bank can lead to the conclusion that:
the composition of the Bank of Italy is a "unconstitutional" crazy .
Proposed final de jure condendo
Re perpensa Melius, I have a duty to make a speech on this objective power cramp one of the banks. Ultimately it is not just jump to conclusions and suspect that this power is misused to pursue their own ends, rather than public ones.
Then, as a good lawyer, I wondered what the rationale of such a law and I phoned my friend above.
E 'soon told.
The rationale lies in the presumption of legitimacy of the behavior of banks. And in the need to simplify the system of controls, giving the same bank the power to limit itself, simplifying the procedures regarding the state, exempting the State from the onerous task to monitor, inspect, test, punish, etc..
Besides an organizational and legal form similar approach has been applied to parliament, where thanks to the mechanism of immunity and the prohibition of interception, the judiciary has no more control over individual MPs, and therefore the legality of the conduct of Members senators and is guaranteed, of course, by this power of self-restraint, with results that are visible to all: 24 MPs convicted criminals who continue to pass laws that violate their own, dozens of lawyers that are directly or indirectly to those who are in power, who legislate on matters of interest of their clients, the majority of citizens who struggle to make ends meet, but parliament is autoaumenta salary per capita discussing pensions, retirement age, etc.. but the MP is retiring after two and a half years, and so on.
This suggests an alternative organizational model, de jure amnesty will apply to all entities, and in order not to violate the principle of equality provided for in Article 3 of the Constitution to all citizens.
For the public sector, should apply a rule similar to that of the Bank of Italy. Total independence.
As citizens, we could abolish the prison, and the abolition of police controls on the public, giving everyone the "power of self-restraint."
The state would save billions. The police would not risk more lives on the roads. It would be more responsible citizens in public life.
For more complex cases, such as the Mafia, in which there is suspicion that a citizen convicted of a crime does not take too autoarrestarsi impartiality of the decision is appropriate to include at least a small correction: the arrest, require the binding opinion of the family of the arrest, where the impartiality of the decision will be ensured by a collegiate decision.
Finally, with this system, you will be able to fully implement the principle of equality referred to in Article 3 of the Constitution, equalizing each subject, public or private, to the same legal system, and submitting it to the same organizational form of the Bank of Italy (and parliament) by giving each "the power of self-restraint, not predetermining only the general criteria, but also the principles and guidelines address of his business. "
__________________
(1) In fact the title mentioned in the film was changed from that reality in a more ironic "Battleship Kotiomkin" the real film, The Battleship Potemkin (1925), it takes an infinite number of hours, as claimed by Paul Village in the film, but has a normal lasting around 70 minutes, if I remember correctly.
(2 ) To be precise, the central bank's shareholding structure is as follows:
Intesa (27.2%), BNL
(2.83%),
Group Sao Paulo (17.23% )
Monte dei Paschi di Siena (2.50%), Capitalia Group
(11.15%) The Group
Fondiaria (2%) Gruppo Unicredito
(10.97%)
Premafin Group (2%) Assicurazioni Generali
(6.33%)
Cassa di Risparmio di Firenze (1.85%)
INPS (5%)
RAS \u200b\u200b(1.33%)
Carige Bank (3.96%) Private
(5.65%)
( 3) For the record, up to 20 percent of the profits can be set aside in reserves. Another 20 percent can be allocated to special reserves. The remaining sum of money is transferred to the state (Article 39 of the Statute).
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