JUS

This article discusses the landmark judgments of the European Court of Justice of 16 February 2022 in the cases Hungary and Poland v. Parliament and Council. The judgments, which originated from two actions for annulment  against the so-called Conditionality Regulation, bring about three important doctrinal novelties. First, they confirm the general validity of the so-called “horizontal conditionality”. Secondly, they affirm the existence of an “identity of  the Union”. Thirdly, they recognize full legal nature to the values set out in Art. 2 TEU. Alongside these welcome developments, however, the judgments present some problematic aspects. This article argues that, following the Court’s rulings, the institutions will encounter several hurdles when implementing the Conditionality Regulation. So much so that this innovative piece of legislation might be at risk of losing its effet utile.

In the essay the Author traces the history of Italian trade union legislation underlining the fact that, although labour law has been able to develop in an area characterized by the freedom of association typical of private law, benefiting from it in the perspective of establishing contractual relations with employers’ associations, the powers and functions attributed to trade unions (and political parties) are of such importance that it is not illogical to think of  a heteronomous intervention aimed at conforming their action.

Social formations are an expression of the personalist principle: the basis of their constitutional recognition stems from it. The person, in fact, performs his/her personality in the social formations, thus the protection of rights extends to the social formations and, at the same time, is guaranteed in and even by social formations. The article proposes to emphasise the political relevance of social formations - in particular parties and trade unions -, namely  their essentiality for the model of democracy enshrined in the Italian Constitution. This model is grounded on the support of the economic and social, even before political, participation of citizens-workers. For these reasons, it is  expected that a legislative intervention guarantee a democratic internal order for parties and trade unions.

The article moves from a recent judgment issued by the Court of Cassation, concerning derivative contracts and their impact on the Italian legal system. In explaining its decision, the Court of Cassation utilizes the concept of  consideration (‘causa’), but the outcome does not persuade definitely. So, the judgment gives reasons for reflecting on the concept of consideration (‘causa’) and its potential applications in the Italian law, also in the light of its  relationships with other legal systems, where these contracts are widely known.

The paper deals with the doctrine of consideration by examining the main aspects and the known rules in which it is divided. The Author refers that sceptics might suggest that consideration could be abolished because it should be  sufficient that the parties had an intent to create legal relations. Relatedly, it is said that consideration is merely evidence of such an intent. However, both points are not accepted in England. The traditional view is that an element of  bargain, a requested detriment, or requested conferring of a benefit, is an additional requirement, which requires concrete proof and without which a claim for breach of a promise is invalid (unless the promise was made by deed). In  short, a gratuitous promise, even one which the parties expressly declare to be legally binding, is a legal nullity unless the promise is formalised as a deed. The giving of nominal consideration dispenses with a deed. But such  nominal consideration involves invocation by the parties of the general rule of consideration. That rule can be expressed as the principle that only bargains (as distinct from donative and gratuitous promises) are legally enforceable, unless the special formal instrument of a deed has been used.

The article aims to clarify the concept of ‘consideration’ in the scope of public law, as applied to the wide range of so called self-redress or self-protection powers. Given their logical and legal foundation, these powers should be  regarded as defined by a ‘mixed consideration’ or a mixed essence: what justifies and gives direction to the ex officio annulment of an administrative deed is both the same public interest underlying the first deed itself combined with a judicial purpose, which characterizes self-redress powers in the general system of Feliciano Benvenuti.

The Author starts from the term ‘causa’ in order to see how it has been considered in civil trial history – from causa petendi, under the Roman Law – and to determine the substantial basis of the civil action, when it is brought into  trial, namely the claim’s reason proposed against the opponent. The Author goes beyond the traditional argument supporting causa petendi as an essential component for legal claim’s identification.

The essay focuses on some aspects of the relation between the notion of “cause (causality, causation)” and law. The preliminary distinction among the concept of “cause” and other categories (i.e. “beginning” and “origin”) allows to  highlight three patterns of causality: the deterministic model (including its fundamental projection on Kelsen’s legal theory), the probabilistic framework and, finally, the theoretical outlook based on the uncertainty of the scientific  knowledge. The analysis of these schemes as well as of their legal corollaries highlights the inescapable conceptual circle among the notion of “cause” and other elements (such as the adoption of conceptual paradigms and the  relevance of the social context) and, at a philosophical-legal level, shows the logical and operational plausibility of a “pragmatic” idea of causality.

[A. TRAVI] B. Sordi, Diritto pubblico e diritto privato. Una genealogia storica, Il Mulino, Bologna 2020 - [G. VETTORI] A. Nicolussi, Le obbligazioni, Wolters Kluver, Padova 2021