Foreword. The ruling 16751/2006 sections together.
By 2978/05, the Bank of Italy sentence was ordered to return to a city (the plaintiff) the sum of € 87.00 as compensation for the damage resulting from the subtraction of the seigniorage income. In that case, the magistrate of Lecce stressed that the Bank of Italy in the period 1996-2003 had misappropriated a sum of 5 billion euro, and how this amount corresponded to the average of 87 € for every citizen resident in Italy at 31.12.2003
The Bank of Italy, against that ruling, appealed to the Supreme Court.
On July 21, 2006 with the sentence no 16751 the SS.UU. Civil Court of Cassation upheld the action claiming that the Bank of Italy, " the claim of the citizen against the institution of issue is beyond the scope of jurisdiction, whether that of the ordinary courts, is the administrative judge, as the court not for it to review the way in which the State exerts its sovereign functions, among which are unquestionably including monetary policy, accession to international treaties and participation in supranational bodies: funzioni in rapporto alle quali non è dato configurare una situazione di interesse protetto a che gli atti in cui esse si manifestano assumano o non assumano un determinato contenuto”.
Per comprendere tali sentenze, ed il problema da esse sollevato, si devono preliminarmente esaminare tre questioni:
1. cosa si intenda per signoraggio;
2. la natura giuridica e il funzionamento della Banca d’Italia;
3. la natura e le funzioni della BCE;
Questione 1: Il signoraggio
L'espressione risale ai secoli scorsi when the movement was mainly made of precious metal coins (gold and silver). Every citizen could ask its sovereign coniargli currencies with gold bullion and silver brought to the mint. The king, placing his likeness on the coin, guaranteed value (given by the quantity and purity of the metal in it). In exchange for this guarantee restrained themselves a certain amount of metal: the exercise of this sovereign power was called seigniorage.
Seigniorage, therefore, suggested (and partly still indicates) the gain of the state to issue the currency.
If at first the value of money was given by the quantity and purity in it, with the advent of paper money value of the ticket was secured by the gold reserve of the State, or the tickets were convertible into gold.
On July 22, 1944, the states of the world, formed the Bretton Woods International Monetary Fund and decided a new monetary system: all currencies were convertible into dollars, but the dollar was convertible into gold. In other words, had created a kind of indirect gold reserve.
All countries of the world are, therefore, dollar reserves to ensure their currency.
What were the consequences?
To ensure a balanced system, and the demand for U.S. dollar advanced by countries that sought to ensure their currency, the United States they printed more dollars than needed for its, previous, internal circulation.
In 1970 OPEC, that is, the oil producers' cartel, not only raised the price of crude, but claims that this was paid in gold rather than in dollars.
The dollar reserves that had been trying to change gold, gold should have been found in the vaults of Fort Knox in USA. Unfortunately, just at that moment, it was discovered that gold was not enough and did not cover the value of dollars circulating around the world.
The gold reserves in the world (measured at 1975) do not exceed 200,000 tons, while to cover all the coins in circulation they would have occurred 75 million. Which means that each coin had a cover value equal to 0.3% in gold.
On 15 August 1971, Nixon announced at Camp David with the unilateral decision to suspend the convertibility of the dollar into gold.
Since then, the countries continue to print paper money without any guarantee.
In other words: gold reserves no longer existed, and then the money became a virtual value only and not pegged to gold, as it had been for centuries.
Question Two: The Bank of Italy. Legal status and functioning.
In Italy, since 1936 thanks to the Banking Act (RDL 12.03.1936 375, converted into Law 441 of 03.07.1938) and the subsequent "Regulations", approved by Royal Decree 1067 of 11:06:36, the Bank of Italy, turned into a public institution, exercising a monopoly function issuance of paper money (not including coins whose sole responsibility is reserved to the State Treasury).
So far it seems that the sovereign power to issue currency, having been delegated to a public institution, continues to belong to the State and the State always go the so-called seigniorage income. But it is not.
To see how this is not true nenessario go on to consider the Statute of the Bank In Italy, its operation and its "anomalies": the First Fault
The main tasks and functions that the Act of 1936 assigns to the Bank of Italy are:
· Institute of issue. (Although, as we shall see later, from 1 January 2002, the Treaty of Maastricht, the issuance of euro banknotes are legal tender in Europe is for the European Central Bank);
· State Provincial Treasury Management;
· Funzione di vigilanza sul sistema creditizio
L’organizzazione interna ricalca sostanzialmente quella che è propria di una società per azioni. Così vi troviamo:
§ un capitale sociale, suddiviso in quote detenute di partecipanti;
§ un consiglio di amministrazione;
§ un collegio sindacale;
§ gli Organi Amministrativi e di Controllo, come occurs in the corporation, shall be appointed by the General Assembly of "participants" in particular the Supreme Council, which shall then appoint from among its members of the Committee, the Governor, the Director General and two Deputy General Managers 1 ;
§ The holders of shares shall meet annually in ordinary general meeting.
Furthermore, the participants, as shareholders of a corporation, they are entitled;
§ for presenting on the basis of management's annual budget (to be submitted for approval of)
§ to share in the management;
§ the fruits from the investment reserve in equity.
This analysis does not take us even to deprive the Bank of Italy the status of public establishments. In fact, as confirmed also by the Supreme Court, an institution is defined as public, though privatized, has a public purpose and a system of public controls. But the Bank of Italy meets these requirements?
The end resultthing That as it is an issuing bank, the problem are the controls by the state in substance that does not exist. This is because the administration and control of the Bank of Italy shall be appointed by the General Assembly of the participants (95% of which are private). The government may only approve the appointment, or revocation of certain positions, but approval by the Government has no effect on the validity of the appointment. In a nutshell it is as well not exist.
In conclusion, the Bank of Italy is a private entity, structured as a limited company, which is responsible, under monopoly, the state function of emission of paper money, without verification by the State.
II Anomaly
The Bank of Italy we have said is for 95% in private hands. They are:
| 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%) | Gruppo Premafin (2%) |
| Assicurazioni Generali (6,33%) | Cassa di Risparmio di Firenze (1,85%) |
| INPS (5%) | RAS (1,33%) |
| Banca Carige (3,96%) | privati (5,65%) |
Dall’analisi dei soci ci rendiamo conto that only 5% of capital is the INPS, which is a public company 2 . So the Bank of Italy and 95% in the hands of private banks. But here it is evident the second strong anomaly. In fact, we said that the Banking Act of 1936 to the Bank of Italy was given the task of supervising banks. Now, banks are the owners of the Bank should monitor on them and, through boards of directors, appoint governors and directors, which means, in other words than the control controlled controllers, and not vice versa.
III Malfunction
covers the art. 54 3 and 56 4 of Title IV (BUDGET, REVENUES, EXPENSES AND LOSSES AND RESERVES) Here's why:
According art. 54 share of the profits to be allocated to the State corresponds to approximately 50% of the net annual budget, less the 40% set aside in reserves and 10% of the shares allocated to participants.
Article. 56 further provides that a share, in respect of the fruity the same reserves, be distributed to participants in the capital (as resolved by the year).
analyze facts in the consequences of these rules. As the CTU prepared by the expert in Case No. 2978/05 of the magistrate of Lecce, in the proceedings on seigniorage, the provision of the fruits of reserves (and the allocation of some of these participants) leads to increase (and a curtailment) of game reserves in which the negative income and, therefore, the result of exercise is in the balance sheet net of this post.
Additions to reserves generate wealth and fruits for the exclusive benefit of the shareholders Social Institute and, conversely, represent an income of jurisdiction to the state.
addition, the proportion of reserves allocated annually to participants ( established fee in full autonomy by the Board of Directors of the Bank of Italy) , pursuant to art. 56 of the Statute, it is often significantly higher than the share of profits allocated to the state (for example, in 2003 net of provisions to reserves, has been paid a dividend per unit fee of around 300% value thereof. dividends all went to private (banks) and are the public debt). So is
clear that the Bank of Italy to fulfill the purposes that should be public in full autonomy and independence, portraying profits and fruits that divides between the 'participants' private.
So let's recap:
§ the Bank of Italy is a private company, owned by 95% from private
§ the administration and control of the Bank of Italy, as in the corporation, shall be appointed by the General Assembly of "participants" (which 95% are private): in particular, the Council Superiore, che poi provvede a nominare tra i propri componenti il Comitato, il Governatore, il direttore Generale e i due vice Direttori Generali;
§ con la legge 82 del 07.02.1992 varata dal ministro del Tesoro Guido Carli (già governatore della Banca d’Italia), è stata attribuita alla Banca d’Italia la facoltà di variare il tasso ufficiale di sconto senza doverlo più concordare con il Tesoro. Ovvero autonomamente un gruppo di banche private decide per lo Stato italiano il costo del denaro.
§ Annualmente, il Consiglio di Amministrazione, autonomamente elected (by private shareholders), establishes quotas for variables that often produce a higher share of profits to the share of profits that is given to the State
§ such gains (outcome of interest on the loan) the Bank of Italy distributes them among its members who are 95% private
§ profits distributed to private banks constitute a debt owed by the State and are increasing the national debt.
Given the above situation it is clear that monetary sovereignty is exercised by a private company with profit full autonomy in deciding the cost of money 5 .
From these elements may be said that the state, long ago, sold its monetary sovereignty in favor of a private entity (certainly not the public), or the Bank of Italy.
Question Three: The ECB. Nature and functions.
One wonders if anything has changed with the entrance of Italy in Europe.
For a detailed analysis, however, it turns out that almost nothing has changed. The anomalies are even greater. Let's see.
I ° Anomaly
On February 7, 1992 Giulio Andreotti as Prime Minister with Foreign Minister Gianni de Michelis and Treasury Minister Guido Carli (former governor of the Bank of Italy) signed the Treaty of Maastricht 6 .
The European System of Central Banks (ESCB) and the European Central Bank (ECB) have been established by the Treaty of Maastricht .
The ESCB is an organization formed by the ECB and national central banks of EU countries, whose task is to issue the single currency (euro) and to manage monetary policy common with the basic objective of maintaining price stability.
The ECB, the properties of central banks, which are shareholders, is a private entity based in Frankfurt.
addition, art. 107 of the Treaty of Maastricht, the ECB has explicitly subtracted out of control and democratic government by the EU institutions. This forecast means that the ECB is a kind of supranational entity and extraterritorial .
II Anomaly
The NCBs are the sole subscribers to shares of its capital. It's time
Who are the members of the ECB
MEMBERS OF THE EUROPEAN CENTRAL BANK (ECB)
| National Bank of Belgium (2.83%) | Central Bank of Luxembourg (0.17%) |
| National Bank of Denmark (1.72%) | Bank of the Netherlands (4.43%) |
| National Bank Germany (23.40%) | National Bank of Austria (2.30%) |
| Bank of Greece (2.16%) | Bank of Portugal (2.01%) |
| Bank of Spain (8.78%) | Bank of Finland (1.43%) |
| Bank of France (16.52%) | Central Bank of Sweden (2.66%) |
| Central Bank Irish (1.03%) | Bank of England (15.98%) |
| Bank of Italy (14.57%) |
|
As you can see from the diagram there are
among the underwriters of the ECB, three states (Sweden, Denmark and England) that have not adopted the euro as its currency, but which, by virtue of their units, they can affect the monetary policy of the euro countries.
Again, the anomalies now emphasized as it appears, in substance, l’Italia abbia ceduto la sua sovranità monetaria ad un soggetto sovranazionale ed extraterritoriale sottratto ad ogni controllo.
Tale situazione anomala è stata oggetto, da parte di diversi cittadini, di azioni civili e penali contro la Banca d’Italia. Alcune cause sono ancora in corso, altre si sono già concluse. In un caso, un giudice di pace di Lecce, ha dato ragione ad un cittadino, che aveva denunciato questo stato di cose, condannando la Banca d’Italia a restituirgli il c.d. “ reddito da signoraggio” (sentenza n. 2978/05 emessa a Lecce). La sentenza afferma che la Banca d’Italia (che ricordiamo è al 95% in mano a privati) si è appropriata indebitamente di una somma huge, amounting to only € 5 billion between the years 1996-2003 under the heading "seigniorage income."
The Bank of Italy, against that decision, appealed to the Supreme Court. On July 21, 2006 with the sentence no 16751 the SS.UU. Civil Court of Cassation has upheld an appeal by arguing that the Bank of Italy, " the claim of the citizen against the institution of issue is beyond the scope of jurisdiction, whether that of the ordinary courts, is the administrative judge, as the judge it to review the way in which the State exerts its sovereign functions, among which are unquestionably including monetary policy, accession and participation in international treaties to supranational bodies: duties in relation to which it is set up as a situation of protected interest in the acts in which they occur or fail to assume a particular content. "
In essence, the Supreme Court said that the problem of monetary policy is thus not a court, and therefore, even if this policy from the citizen receives an injury, has no legal protection.
At this point we must ask ourselves these questions.
1) It 'possible that there is a protected interest of the citizen in that the acts performed by the state to assume or not assume a particular content?
2) And if the state nell'esplicare its sovereign functions, violates a right of citizens of causing harm to the population, it is possible that the citizen can not do anything, not even appeal to the courts?
To answer this question we must analyze the problem in the light of the principles laid down by the Constitution.
The Italian Constitution. Basics
Article 1.
" Italy is a democratic republic, founded on work.
The sovereignty belongs to the people and is exercised in the manner and within the limits of the Constitution "
What exactly does it mean? What is meant by "sovereignty belongs to the people " and how is this, constitutionally exercised by the people?
The means by which power may be exercised are different.
One of these is certainly the election of Members of Parliament.
The State is the representative of the people and this representation is regulated by the Constitution. The Constitution introduces a true representation of the people live by the state, in the sense that the state-subject does not act solely on behalf of the people, but also in his name (Vezio Crisafulli). Sovereignty People implies that all functions delegated to the State, through the constitutional instrument of the election shall be exercised solely and exclusively in the interests of the people. In fact, representation, meaning to buy, must be connected to the general [See T. Martines, Constitutional Law, X ed., Milan, 2000, p. 219].
The state, acting as agent, manages the sovereignty making "a series of steps to achieve one goal of others (...)" [S. Pugliatti, The Annual Report to the underlying representation (1929), now in studies on the representation, Milan, 1965, p. 166].
Remembered this, the question to ask is: what happens if the State exercises its functions delegated in the interest of generality, but for contingent interests of a party? There are limits to this representation? And if so, who are guaranteed?
The limits of that legal representation is required by the Constitution and the bodies responsible for this warranty, provided by the Constitution, the first President of the Republic and ultimately the Constitutional Court. E 'to these bodies that the citizen can, and must, ask if the constitutional limits of representation are unlawfully exercised by the State.
If this is so, the question now to ask is: if the ECB and the Bank of Italy, has been illegally or unconstitutionally, exercised the sovereign function of monetary policy? The answer is definitely positive.
Fundamental rights violated are two: the art. And Article 1. 11 of the Constitution.
regard to art. A violation is that the state, delegated by the people to exercise the sovereign function of monetary policy, has sold a subject other than the State: first to the Bank of Italy (owned 95% of individuals) then the ECB (private party, and extraterritorial supra). In the latter case, then, the State also violated Article. 11 of the Constitution which reads:
" Italy repudiates war as an instrument of aggression against the freedom of other peoples and as a means of settling international disputes permits, on an equal footing with other states, to the limitations of sovereignty necessary for an order that ensures peace and justice between nations, promotes and encourages international organizations having such ends.
Article. 11 of the Constitution allows restrictions (not supplies ) only in favor of national sovereignty of other States . But the ECB is not a state or body of other States.
addition, the monetary sovereignty has not been released under conditions of equality (the shares are not equal to the ECB), there is also part of the Bank of England that is not part of the euro and participate in the decisions of monetary policy of our state (and the very high profits from seigniorage income) without which the Italian Government may in any way interfere in the domestic monetary policy. There is therefore a clear difference in treatment, in addition to the benefit of a foreign sovereign state and that the Euro area, just to have a different currency, can potentially have a conflict of interest with monetary policy European Union.
And again. This restriction (not sold) may be made for the sole purpose of ensuring "peace and justice among nations." The purpose of the ECB are to ensure peace and justice between nations, but to establish a monetary policy.
In conclusion: If the constitutional principles we have mentioned have been properly understood, and if the Constitution still has a value, it must be concluded that the transfer of the exercise of monetary sovereignty to the Bank of Italy, the ECB or to any person other than State, violates art. 1 of the Constitution and can not be justified under art. 11 of the Constitution. This leads to the logical consequence that all laws, decrees, acts or anything to that effect are unconstitutional and ineffective for this ex tunc.
It is therefore considered that, in this case, and for the violations mentioned above, should also be invested by the Constitutional Court over the Court of Cassation.
_______________________
1 The Government, as established by law, can only approve the appointment, or revocation of certain positions, but approval by the Government not any way affect the validity of the appointment, at most affect the efficacy.
2 must point out here that until a few months ago the art. 3 of the statute prohibiting the sale of shares to private equity and requires that the BDI had, for the majority, in public hands. Now, thanks to the various cases brought by citizens against other arrangements with the Bank of Italy was purely Italian amended Article 3 of the Statute deleted that annoying phrase that meant that the majority were in public hands
3 ART. 54
Every year should be made to the budget and inventory of assets and liabilities of the Institute. must be well done demo account of profits, expenses and losses of the annual exercise. Profits are profits generated from operations during the year as ordinary as the extraordinary suffering and recoveries on depreciated. The costs include those of ordinary administration, those reserves to supply the metal ones for the issuance of tickets to the carrier and the like, taxes and other charges prescribed by law, and any sums paid to charity or contributions opere di interesse pubblico nei limiti annualmente fissati dal Consiglio superiore.
Alle dette spese devono aggiungersi, per accertare l’ammontare degli utili netti disponibili, anche le sofferenze dell’esercizio, gli occorrenti ammortamenti ed oneri consimili nonché le rate di ammortizzazione delle spese che il Consiglio superiore giudicasse ripartibili in più esercizi.
Gli utili netti, conseguiti secondo il bilancio approvato, dopo di avere da essi prelevata la somma che il Consiglio superiore crederà di stabilire per la graduale costituzione di un fondo di riserva ordinaria fino a concorrenza del 20% degli utili netti, sono assegnati participants, to distribute a dividend of up to a sum equal to 6% of the capital. Col remaining, again on a proposal by the Board of Governors, may consist of any outstanding special funds and reserves through the utilization of an amount not exceeding 20% \u200b\u200bof total net and can be distributed to the participants, in addition to the dividend, a additional amount not more than 4% of the capital. The remaining amount shall be referred to the State, pursuant to art. 3 of Ministerial Decree 31 December 1936 made in implementation of R. September 5, 1935 Decree-Law No 1647. The ordinary reserve, if for any loss or decreased for cushioning for any other reason, shall, except as provided in Art. 56, soon be fully restored.
4 ART. 56
from the fruit annually earned on investment of the reserves, may be proposed by the Board and with the approval of the ordinary, collected and distributed to participants on a pro rata shares of the individual, in addition to the framework laid down 'Art. 54, a sum not exceeding 4% of the reserves themselves, which were approved by the budget in the assembly ordinary year.
5 fact with the law 82 of 07.02.1992 passed by the Treasury Minister Guido Carli (former Governor of the Bank of Italy), was attributed to the Bank 's Italy the right to vary the official discount rate without having to agree more with the Treasury.
6 This treaty introduces the so-called three pillars of the European Union :
1. the "European Community " which brings together all the previous treaties ( CZECH - the European Coal and Steel , Euratom - European Atomic Energy Community and EEC - European Economic Community )
2. the Common Foreign and Security Policy (CFSP) and the Common Foreign Security and Defence Policy (ESDP)
3. Cooperation in justice and home affairs (JHA)
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