Template-type: ReDIF-Article 1.0 Author-Name: Luigi Costato Title: Editoriale. Propriet? collettive, agricoltura e ambiente (e qualche considerazione sul futuro) Abstract: Classification-JEL: Keywords: Note: Pages:5-8 Volume: 2007/1 Year: 2007 Issue:1 File-URL:http://www.francoangeli.it/riviste/Scheda_Rivista.aspx?IDArticolo=30792&Tipo=Articolo PDF File-Format: text/HTML Handle: RePEc:fan:aimaim:v:html10.3280/Aim2007-001001 Number: 1 Template-type: ReDIF-Article 1.0 Author-Name: Paolo Grossi Title: "Un altro modo di possedere" rivisitato Abstract: An Alternative to Private Property revisited (by Paolo Grossi) - ABSTRACT: The author illustrates the reasons and motivations that led him to write An Alternative to Private Property: Collective Property in the Juridical Consciousness of the Nineteenth Century. The book, which was published in 1977, concerns the dispute that took place in the 19th century between historians, philosophers, political scientists, economists and ethnologists on the remote origins of both the individual and collective appropriation of land. The debate also relates to the initial pre-eminence of each of these two models, and the possibility of a collective property next to the dominant tradition of the individual one. The dispute has its own, precise cultural dimension, in which two different models of ownership collide. On one hand, there is the individualistic and proprietary culture of the Romans, which shapes the western legal civilisation by linking itself tightly to different political powers in historical succession. By doing so, it assumes official and, at times, even sacral traits. On the other hand, there is a culture that should not be qualified through historically risky identifications as pre-roman, Germanic, or in any other way, and which is geared to detect diversity and otherness from the first one. In the conscience of the 19th century the juxtaposition of two different models created a dialectic in which the proprietary one, which had moulded the juridical society of the middle classes, was put in a difficult situation. This model affirmed its own precise ideological dimension (an obstinate defence of substantial class interests by mystifying them with a search for historical truth): the struggle against any manifestation of collective assets forms the central nucleus of a defensive, and also offensive, strategy both at the legislative and theoretical level. Classification-JEL: Keywords: Note: Pages:11-20 Volume: 2007/1 Year: 2007 Issue:1 File-URL:http://www.francoangeli.it/riviste/Scheda_Rivista.aspx?IDArticolo=30793&Tipo=Articolo PDF File-Format: text/HTML Handle: RePEc:fan:aimaim:v:html10.3280/Aim2007-001002 Number: 2 Template-type: ReDIF-Article 1.0 Author-Name: Antonio Jannarelli Title: Il dibattito sulla propriet? privata negli anni Trenta del Novecento Abstract: The debate on private property in the 1930s (by Antonio Jannarelli) - ABSTRACT: The Fascist policy to deal with the agrarian question provided, in the Third Decade of the XX Century, an urge to the private law scholarship to reconsider the contents of the right of ownership. On one side there were the legal experts that promoted the shaping of the property right to be oriented under a public policy goal and on the other side there were the scholars who, however accepting limitations by legislation to the powers of landlords defended the position of the property owner as active subject of an absolute relationship. The Art. 832 of 1942? s Civil Code substantially accepted the second thesis, if embodied in a very technical notion. No reference to the social function was declared. The Art. 42 of the Constitution, in a very different political and social context, finally introduced this provision; the rule of law has not allowed the judiciary or the public administration to limit the right of ownership by themselves but made legitimate and in some way mandatory a role of legislators to conform the property rights. The social function has represented, therefore, a new possibility, never fully achieved, to shape the inner structure of the terrible right. Classification-JEL: Keywords: Note: Pages:21-52 Volume: 2007/1 Year: 2007 Issue:1 File-URL:http://www.francoangeli.it/riviste/Scheda_Rivista.aspx?IDArticolo=30794&Tipo=Articolo PDF File-Format: text/HTML Handle: RePEc:fan:aimaim:v:html10.3280/Aim2007-001003 Number: 3 Template-type: ReDIF-Article 1.0 Author-Name: Francesco Adornato Title: Propriet? collettiva e profili ambientali Abstract: The Collective Property and its Environmental Aspects (by Francesco Adornato) - ABSTRACT: The author confronts the theme of the collective property, analysing in particular its environmental aspects. The analysis starts from an exam of common agricultural policies and, specifically, regulation 1782/2003 on the so called mid term reform of the Cap and regulation 1698/2005 on rural development. A new model of statuality founded, on one hand, on policentrism of the sources and, on the other hand, on the principle of subsidiariety and connoted by territorial specificity emerges from these regulations, and allows the designing of agricultural policies that are more articulated and adherent to the needs of the member states. It is precisely with regards to this new approach of the Common agricultural policy that we can appreciate the strategic role that, in a dimension of eco-compatible development, collective properties, and in particular forestal ones, can have (see article 49 regulation no 1698/2005). At a national level, the productive and environmental recovery of collective properties (in this new context of sustainable development and social cohesion) finds constitutional support in articles 43 and 44 of the constitution. These can be interpreted innovatively and coherenty with both national and community law. On the other hand, the new formulation of article 2135 of the civil code eliminates all doubt about the possibility for the agricultural entrepreneur to undertake activities aimed at the provision of services through the prevalent use of the enterprise?s equipment or resources normally employed in the agricultural activity exercised. Article 39 of regulation 1698/2005 specifies that agro-environmental payments can be made also to other land managers, as well as farmers, when this is justified by the achievement of environmental objectives. In conclusion, it is codified that communities that own collective lands can provide, in a lucrative way, environmental services. Communities that own collective lands conveniently usable as woodlands and permanent farmlands through the representative authority of its inhabitants and in one of the juridical forms identified by the current rules, receive from community law, in accordance with their own national discipline, instruments and support (prescriptive and financial) to start new processes of development. Classification-JEL: Keywords: Note: Pages:53-64 Volume: 2007/1 Year: 2007 Issue:1 File-URL:http://www.francoangeli.it/riviste/Scheda_Rivista.aspx?IDArticolo=30795&Tipo=Articolo PDF File-Format: text/HTML Handle: RePEc:fan:aimaim:v:html10.3280/Aim2007-001004 Number: 4 Template-type: ReDIF-Article 1.0 Author-Name: Carlo Alberto Graziani Title: Propriet? della terra e sviluppo rurale Abstract: Land ownership and rural development (by Carlo Alberto Graziani) - ABSTRACT: Starting from the consideration that for the first time the pair land-agriculture has been broken, as it has been confirmed by the formulation of article 2135 of the civil code on agricultural enterprises, and that by now there exist two types of agriculture, one that takes care of the land and another one that attacks or even dispenses with it, the author claims that only the first type of agriculture is coherent with the European policy of support to rural development (regulation CE no 1698/2005). He also claims that in order to pursue the objectives of this policy, the land must stop being a mere factor of production and become a value in its own right and, as such, an object that needs to be preserved. Consequently, the central hinge around which the agricultural phenomenon revolves can no longer be offered by the agricultural enterprise. But is it possible, the author wonders, to conceive the land irrespective of its productive function, which is not just structural data but also complies with the dominant interpretation of article 44 of the costitution? Following in the footsteps of Giuseppe Capograssi he replies that it is impossible to reduce our relationship with the land to a mere economic experience. Such an irreducibility can be found in some cases, that share as a common denominator the conservation function and an extraneousness from the economicistic dimension; for those cases, the author hypotesises the category of environmental property. However, contrary to this the history of property and the place of this institution in the constitution seem to demonstrate that the property constitutes an exclusively economic category. This obstacle can be overcome by reflecting on the significance of the tenure, one of the two classical powers that form the content of the property rights (article 832 of the civil code): there are legally relevant forms of tenure that do not imply economic usage. It is precisely in the cases analysed above that the landlord establishes a relationship of tenure with the land as such, as an object on an ideal plane, managing thus to satisfy his deep need to be in communion with nature. In conclusion, the jurist must realise the pervasivity assumed today by the ideal dimension, and hence the necessity for new and more complex approaches. Moreover, with regards to the ownership of land, such a dimension opens the article 44 of the costitution to the possibility of new and attractive interpretations. Classification-JEL: Keywords: Note: Pages:65-94 Volume: 2007/1 Year: 2007 Issue:1 File-URL:http://www.francoangeli.it/riviste/Scheda_Rivista.aspx?IDArticolo=30796&Tipo=Articolo PDF File-Format: text/HTML Handle: RePEc:fan:aimaim:v:html10.3280/Aim2007-001005 Number: 5 Template-type: ReDIF-Article 1.0 Author-Name: Carlo Desideri Title: Propriet? e ambiente Abstract: Ownership and Environment (by Carlo Desideri) - ABSTRACT: In the Italian system the landscape bond has been used with respect to land property with the aim of protecting beauties of nature, as well as zones and lands of particular environmental interest. Today, however, the bond seems to be an uncertain instrument in both its premises and content, scarcely effective on a practical plane. The discipline of protected areas is more adequate and complete for the pursuit of environmental ends, since it allows public management services to exercise pre-emption rights, even if with some limits. Although not unheard of, in Italy the acquisition of buildings and lands for conservation and management by specialised private or public dedicated entities (amongst the most important and well-known cases in Europe: the National Trust in Great Britain and the Conservatoire de l?espace littoral in France) is limited to a few cases, while it is well established in other countries. This model represents a particular phenomenon of protection and enjoyment of the acquired lands and sites that cannot be described with the concept of property and which we propose to call environmental management Classification-JEL: Keywords: Note: Pages:95-117 Volume: 2007/1 Year: 2007 Issue:1 File-URL:http://www.francoangeli.it/riviste/Scheda_Rivista.aspx?IDArticolo=30797&Tipo=Articolo PDF File-Format: text/HTML Handle: RePEc:fan:aimaim:v:html10.3280/Aim2007-001006 Number: 6 Template-type: ReDIF-Article 1.0 Author-Name: Federico Spantigati Title: La terra e il suo regime giuridico Abstract: The Land and its juridical regime (by Federico Spantigati) - ABSTRACT: The author analyses and compares the juridical regime of land in the two different models of the homogeneous society and pluralistic society. The juridical regime of land corresponds to appropriation in the homogeneous society: the land is an individual good managed by a subject to which it belongs and which decides its use. In the pluralistic society the land is a collective good, managed by the community in which the land is situated. In the homogeneous society the efficacy of the law depends on the use of strength, or rather power, and the institution of land property is created in order to give decisive powers to the interest of the landlord. In the pluralistic society, on the other hand, the efficacy of the law depends on the compatibility of the objectives, that is the pluralism of interests, which need themselves to be mitigated. Consequently, land management is an institution the result of which is unpredictable a priori: each interest has its own objective (money, nature, aesthetics, historical tradition, quality of products etc.) and the mitigation of the objectives does not depend on a single interest but is the product of dynamics which are not determined a priori. Today the power to use land is limited and functionalised: the efficacy of different behaviours is not produced by a single will, either individual or collective, but by the combined interventions of the different interests that compare objectives and behaviours. The juridical regulation produced by the mitigation of the plurality of interests is not based on the attribution of juridical tutelage, given by private law, to everyone?s objectives. Rather, it is based on the dynamics of their actions and their relationship with the power apparatus. According to the author, there exist structures of political power that can already intervene efficiently to establish a juridical regime of land use on their territory, by using powers exercised de facto by municipalities, mountain communities, park authorities, assets for public use, and citizen associations of collective interests. An illustration is provided by the 5 Terre, a community with a land management policy in which both land property and private activities concur. The community has an apparatus of public power in which the powers of the park and the remit of the municipalities are perfectly integrated, mitigating the presence of the objectives of different interests. The park of the 5 Terre is not an example that can be generalised, but it provides a model according to which the system can be modified. Classification-JEL: Keywords: Note: Pages:119-136 Volume: 2007/1 Year: 2007 Issue:1 File-URL:http://www.francoangeli.it/riviste/Scheda_Rivista.aspx?IDArticolo=30798&Tipo=Articolo PDF File-Format: text/HTML Handle: RePEc:fan:aimaim:v:html10.3280/Aim2007-001007 Number: 7 Template-type: ReDIF-Article 1.0 Author-Name: Roberto Henke Title: La nuova politica agricola comunitaria tra multifunzionalit? e territorio Abstract: The new common agricultural policy between multi-functionality and territory (di Roberto Henke) - ABSTRACT: The new common agricultural policy (CAP) represents a turning point in the way in which both the primary sector and rural areas are supported: on one hand market policies CAP?s so called first pillar become more and more a form of income support conditional on farmers? behaviours; on the other hand, rural development establishes itself as a second pillar of agricultural policies by focusing increasingly on the support of agriculture?s secondary functions and the diversification of rural areas. In this paper we analyse the main strengths and weaknesses of the new CAP with particular attention to two aspects: its interior coherence, with respect to the financial equilibrium between the pillars representing its core structure, and its external coherence, that is CAP?s relationship with policies of cohesion and the structural intervention of the European Union. Classification-JEL: Keywords: Note: Pages:137-159 Volume: 2007/1 Year: 2007 Issue:1 File-URL:http://www.francoangeli.it/riviste/Scheda_Rivista.aspx?IDArticolo=30799&Tipo=Articolo PDF File-Format: text/HTML Handle: RePEc:fan:aimaim:v:html10.3280/Aim2007-001008 Number: 8 Template-type: ReDIF-Article 1.0 Author-Name: Giuseppe Ferrara Title: Il trattamento fiscale del Rup previsto dal regolamento CE n. 1782/2003 Abstract: The tax treatment of the SPS introduced under Council Regulation no 1782 (by Giuseppe Ferrara) - ABSTRACT: The tax office has recently pronounced on the tax treatment applicable, for the agricultural entrepreneur, to the single payment scheme introduced under Council Regulation no 1782/2003. It has also pronounced on the compensation for the conveyance of the subsidies and the so-called admissible hectares, as well as on the lease of the entitlement to the latter. In particular the tax office believes that such sums, whether acquired by the agricultural entrepreneur or by a simple firm, would always be included in the agricultural income and thus would not be autonomously taxable. If they were allocated to commercial firms, they would constitute positive components of the business income deriving from them. On the other hand, we believe that the SPS received by either the individual entrepreneur or the simple firm for the mere maintenance of the admissible land in good agricultural and environmental conditions can be autonomously taxed in its entirety since it is considered a different income (article 67 t.u.i.r.). We have reached the same conclusion also with respect to the lease of the entitlement to subsidies and the so-called admissible hectares. We believe, however, that such sums cannot be levied when the income of the agricultural entreprise is classified as business income. In our opinion, this leads to the need for a normative intervention aimed to standardise, partially here, the tax treatment of the agricultural enterprise, in whichever way it is exercised, and thus the tax regime of the agricultural or business income to which it is subjected. Classification-JEL: Keywords: Note: Pages:161-178 Volume: 2007/1 Year: 2007 Issue:1 File-URL:http://www.francoangeli.it/riviste/Scheda_Rivista.aspx?IDArticolo=30800&Tipo=Articolo PDF File-Format: text/HTML Handle: RePEc:fan:aimaim:v:html10.3280/Aim2007-001009 Number: 9 Template-type: ReDIF-Article 1.0 Author-Name: Susanna Visser Title: La protezione delle indicazioni geografiche e delle denominazioni d'origine dei prodotti agroalimentari a seguito del rapporto del "Panel" dell'Organizzazione mondiale del commercio Abstract: The protection of geographical indications and designations of origin for agricultural products and foodstuffs after the adoption of the WTO?s Panel Report (by Susanna Visser) - ABSTRACT: This article aims to analyze the new European Community discipline on the protection of designations of origin and geographical indications for agricultural products and foodstuffs, which entered into force after the adoption of the WTO?s Panel Report known as EC Geographical Indications. The Panel as known was asked to determine whether the (now repealed) regulation (EC) 2081/92 was in compliance with the TRIPs and GATT 1994 agreements, or not. After a general overview of the GI?s topic, the article analyzes the main issues of the Panel Report; afterwards, the new regulation (EC) 510/2006 that repeals and substitutes the regulation (EC) 2081/92 is discussed in a somewhat more detailed manner; all the main amendments to the previous discipline are analyzed, with a special focus on the protection of geographical indications and designation of origin of products coming from third countries outside the European Community. In the last part of the essay, the effect of the WTO rules into the European Community is considered. Though according to the constant opinion of the ECJ WTO rules have no direct effect in the European Community law system, European Community had to adequate its discipline to the Panel?s findings and conclusions, in order to avoid countermeasures (known as retaliation) provided by the DSU. Classification-JEL: Keywords: Note: Pages:179-204 Volume: 2007/1 Year: 2007 Issue:1 File-URL:http://www.francoangeli.it/riviste/Scheda_Rivista.aspx?IDArticolo=30801&Tipo=Articolo PDF File-Format: text/HTML Handle: RePEc:fan:aimaim:v:html10.3280/Aim2007-001010 Number: 10