Tourism Enterprise and Cultural Heritage protection, as a legal for valorization of the Territory and of the Person by Francesco Torchia Tourism Enterprise and Cultural Heritage protection, as a legal instrument for valorization of the Territory and of the Person Francesco Torchia University of Calabria International Journal of Tourism, Travel and Hospitality Law PRE-PRINT

1 FRANCESCO TORCHIA TOURISM ENTERPRISE AND CULTURAL HERITAGE PROTECTION, AS A LEGAL INSTRUMENT FOR VALORISATION OF THE TERRITORY AND OF THE PERSON Key Words: Protection, cultural heritage, development of the territory, legal instruments, property’s social function; common goods. 1. Foreword The well-known Latin brocardo, according to which: "Leges bonae ex malis moribus pro creantur" (from the existence of bad morals in society, arises the need for good laws)1, turns out to be, more than ever, current in relation to the subject matter of this investigation. And this, because the theme of common goods and, consequently, that of the conservation, the protection and the fruition of our immense environmental and cultural heritage (material or immaterial) does not seem to have yet found (although it is, now, debated for years) strategies capable of combining some (only apparent) oxymorons, as such as: "protection and enjoyment", "awareness and promotion", "social welfare and economic development", "tourism and landscape", "tourism and cultural heritage", in a perspective of social, cultural and economic growth and long-term well-being, in the function of a more equitable, healthy and harmonious society for all. From this the purpose of this survey, which is to verify whether, and to what extent, our current regulatory system, provided for the protection of cultural heritage, is suitable to represent a valid and useful legal instrument for the enhancement of the territory and the person. 1. Cultural identity and the notion of "historical and historical heritage. In order to give an answer to the preceding question, it is good, however, to try to define, first of all, the concept of "cultural identity". 1 The brocard is attributed to Ambrose Theodosius Macrobius (5th century AD) philosopher, writer, astronomy scholar and supporter of geocentric theory

FRANCESCO TORCHIA 2 And this, assuming as a starting point the concept of "identity" (which, in its typical sense, recalls that set of characteristics that make the individual unique and unmistakable)2 as well as placing the "cultural identity" in relation to the notion of "historical and artistic heritage", without neglecting, finally, that identity is not immutable, but is transformed with growth and social changes. It follows that, as some of the doctrine argues3, to identify the concept, it is not enough (even if it is necessary) to refer only to the definition of cultural good. In a perspective of protection, in fact, cultural goods are often understood (in a reductive way) as a mere aggregate monetary value and subjected to a plurality of variables, so that the order operates a selection, assuming as criterion their historical and/or aesthetic value. And this, according to the definition that the "Franceschini study commission" has proposed (since 1964), considering the "cultural heritage" as a material testimony with the value of civilization, or like any good of historical and artistic interest (monuments, archaeological heritage, archives, books, landscape-environmental heritage), as well as artistic works produced by man, belonging to culture and the community, of which they are historical evidence and object of aesthetic education. It follows that goods, which become part of the cultural heritage, express irreproducible and unrepeatable values of society (of which they are an emanation), have strong aesthetic and expressive connotations and are recognized as economic value. In addition, over time, cultural goods have found (especially in public international law) other classifications, including, in particular, the Convention on the Protection of Cultural Property in Armed Conflict, adopted in The Hague on 14/5/1954, and in the Convention for 2 Cfr. P TERENZI, Identità, in S. BELARDINELLI, L. ALLODI (a cura di), Sociologia della cultura, Milano, pp. 89-104. 3 Cf. E. A. IMPARATO, Identità culturale e territorio tra Costituzione e politiche regionali, Milan, 2010, p. 37, which recalls in note S. PUGLIATTI, Beni (Teoria generale), in Enc. dir., Milano, 1959, p. 174, M.S. GIANNINI, I beni culturali, in Riv. trim. dir. pubbl. 1976, p. 5 and ss. , V. CERULLI IRELLI, Beni culturali, diritti collettivo e proprietà pubblica, in Scritti in onore di Massimo Severo Giannini, Milano, 1988, p. 139, P. CARPENTIERI, La nozione giuridica di paesaggio, in Riv. trim. dir. pubbl. 2004, p.367. In particular, according to the author, it is necessary to look at: "for the purpose of identifying the concept of cultural identity - the cultural interest, in the broad sense that includes, as will be seen, the promotion of the material and spiritual progress of the community".

3 the Protection of Intangible Cultural Heritage, adopted in Paris on 17 October 2003, which aims to: 1) safeguard intangible cultural heritage; 2) ensure respect for the intangible cultural heritage of the communities, groups and individuals concerned; 3) raise awareness - at local, national and international level - the importance of intangible cultural heritage and ensuring that it is mutually appreciated; 4) promoting international cooperation and support. Hence the definition of intangible cultural heritage, understood as: "the practices, representations, expressions, knowledge, know-how - as well as the tools, objects, artefacts and cultural spaces associated with them - that communities, groups and in some cases individuals recognize as part of their cultural heritage"4 Under the Convention, however, it must be made clear that this heritage is susceptible to protection,provided that it is compatible with existing international human rights instruments and with the requirements of mutual respect between communities,groups and individuals, and with sustainable development5 Concept of sustainable development, however, in the sense developed in 1987 by the World Commission on Environment and Development (Brundtland Commission), according to which: "Sustainable development, far from being a definitive condition of harmony, is rather a process of change such that the exploitation of resources, the direction of investment, the orientation of technological development and institutional changes are made consistent with future needs as well as with current ones". The document drawn up by the Commission, in fact, places great emphasis on the protection of the needs of all individuals, with a view to universal legitimacy and the aspiration to better living conditions, and stresses the need and importance of wider citizen participation: "Sustainable development requires meeting the fundamental needs of all and extending to all the possibility of implementing their aspirations for a better life (...) Meeting essential needs requires not only a new era of economic growth for nations in the majority of the inhabitants are poor but also the guarantee that these poor have their fair share of the resources necessary to support this growth. Such equity should be supported both by political systems 4 Art. 2 Convention for the Protection of Intangible Cultural Heritage, adopted in Paris on 17 October 2003 5 Cfr. L. BOBBIO (a cura di), Le politiche dei beni culturali in Europa, Bologna,1992

FRANCESCO TORCHIA 4 that ensure the effective participation of citizens in the decisionmaking process and by greater democracy in international choices". Hence the statement that sustainability revolves around three fundamental components: 1) economic sustainability, understood as the ability to generate income and work for the livelihood of the population; 2) social sustainability, understood as the ability to guarantee conditions of human well-being (safety, health, education, democracy, participation, justice), equally distributed by class and gender; 3) environmental sustainability, understood as the ability to maintain the quality and reproducibility of natural resources. Acting responsibly, therefore, means respecting a system of shared rules, which orients the individual towards critical and rational behavior on many aspects of everyday life such as: 1) waste management, 2) compliance with the rules and principles of common living, 3) protection of the environment, 4) conservation and rational use of the resources of a territory. As a result, sustainable development requires, first of all, an awareness of the citizens, who must guide their daily lives, so much so that the lack of rules (and/or the difficulty in applying them and enforcing them) can lead to illegal behaviour,which often tend to activate mechanisms of development not oriented to the common good, but to economic gain and/or personal power 6 In our legal system, however, the definition of intangible cultural heritage, to which reference should be made, is that contained in art. 10 of the Code of Cultural Heritage and Landscape (successor to the Bottai law of 1939), issued on 22/1/2004 (d. lgs. n. 42), according to 6 On the concept of sustainable development, ex multis, v. REINHARD MOHN PRIZE, in BERTELSMANN STIFTUNG (edited by), Winning Strategies for a Sustainable Future, 2013, Gütersloh, 2013; E. TIEZZI, N. MARCHETTINI, What is sustainable development? , Donzelli Editore, 1999, pp. 45-46; L. DAVICO, Sustainable development. The social dimensions, Rome, 2004; T. LUZZATI E G. GUCCIARDI, La sostenibilità delle regioni italiane: la classifica IRTA, Pisa, 2013; C. L. TROCINO, References and addresses for the urban and environmental sustainability of the study area: Da Tortora ad Amantea, di E. COSTA, C. ODDI, D. PASSARELLI, Rome, 2001; WOLFGANG SACHS, Dictionary of Development, Italian edition edited by A. TAROZZI, translation by M. GIOVAGNOLI, Turin, 1998; A. MAFFIOTTI and others, Environmental sustainability of development"Arpa Piemonte 2002, http:/// /publications-2/publications-year-2002/pdf-sustainability-environmental development; P. CASSOLA, Sustainable Tourism and protected natural areas. Concepts, tools and actions, Pisa, 2005.

5 which cultural goods are: "immovable and movable property belonging to the State, to the Regions, to other local public bodies, as well as to any other public body and institution and to private non-profitmaking legal persons, including ecclesiastical entities civilly recognized, of artistic, historical, archaeological or ethno-anthropological interest", as well as: "the collections of museums, picture galleries, galleries and other exhibition sites of the State, the regions, other local authorities and any other public body and institution; b) the archives and individual documents of the State, the regions, other local and regional authorities, as well as any other public body or institution; c) the library collections of libraries in the State, the regions, other local and regional public authorities and any other public body or institution, with the exception of the collections that perform the functions of the libraries indicated in article 47, paragraph 2, of the decree of the President of the Republic 24 July 1977, n. 616" and property owned by private persons if declared as such by the local superintendents with a special declaration and not explicitly excluded by the appropriate procedure. In this context, the ratio of the Code is, according to some, exclusively to regulate the commercial exploitation of cultural goods (reserving it to supervisors and authorised individuals, subject to payment of a fee) to better finance its conservation and management 7. Having said this, however, it cannot be denied that in the Italian legal system it is also possible to configure an interest in "cultural identity" without being forced to identify it only and exclusively in material goods 8. Environmental goods, in fact, can also be considered (latu sensu) "cultural goods", which is why the notion of landscape is also capable of assuming cultural value, as well as, consequently, the interest in landscape is able to express cultural values, when it recalls the relationship between a given community and the territory. Nor, on the other hand, is it useful to object that the Italian legal system seems to protect the interest in cultural identity only with the 7 Cf. A. ROSSARI and R. TOGNI (edited by),Towards a management of cultural heritage as a public service: legislative activity and cultural debate from the unitary state to the regions (1860-1977), Milan, 1978; B. DENTE (edited by) Public policies in Italy, Bologna, 1990. 8 Cf. E. A. IMPARATO, Cultural identity and territory between Constitution and regional policies, cit., p. 37.

FRANCESCO TORCHIA 6 norms on linguistic and confessional minorities. In response to that objection, the doctrine cited observes that in such cases: "The identity interest is important as a factor that delimits parts - minorities, in fact - to which are granted, by reason and in order to protect their specialties, special treatments and not as an expression of a "feeling of cultural identity"referred to the space and living conditions of a community" 9. Consequently, in the constitutional values cited, the protection of identity with respect to that of the territory/landscape assumes only indirect character. Given the above, we must recognize, again, that to some it often does not seem possible to identify an unambiguous definition of the concept of "cultural identity", also because of the plurality of meanings, which assumes the term "culture". And this, because with this term, in general, it is customary to recall (in a purely anthropological sense) a system of knowledge, opinions, beliefs, customs and behaviors of a given human group, or, again, a historical heritage, which (as a whole) defines the relationships within the social group and those with the outside world 10 As proof of this, consider that, according to UNESCO: "culture can currently be considered as the set of distinctive spiritual and material, intellectual and affective traits that characterize a society or a social group. It includes, in addition to arts and letters, lifestyles, fundamental human rights, systems of values, traditions and beliefs, and that culture gives man the ability to reflect on himself. It is she who makes us specifically human, rational, critical and ethically engaged. Through her we discern values and make choices. Through it man expresses himself, becomes aware of himself, recognizes himself as an 9 Cf. art. 6 and 8 Cost. In particular, art. 6 reads: "the Republic protects with special rules the linguistic minorities", while, according to art.8 : "all religious confessions are equally free before the law. Religious confessions other than the Catholic have the right to organize themselves according to their own statutes, as they do not conflict with the Italian legal order. Their relations with the State are regulated by law on the basis of agreements with the relevant representations". 10 Cfr. A. L. KROEBER, CLYDE KLUCKHORN, Cultura. A Critical Review of Concepts and Definitions, Cambridge, Massachusetts, Published by the Museum, 1952 e U. HANNERZ, La complessità Culturale, Bologna, 1998.

7 unfinished project, questions his own achievements, tirelessly seeks new meanings and creates works that transcend him." 11. However, in view of this definition, there is a high risk, in the second part of the doctrine, of confusing the elements relating to the notion of "cultural identity" with those relating to the concept of the "human person"12. Even so, however, there is no doubt that our constitutional provision, with art. 9 (placed in the context of the Fundamental Principles), combines the concept of "Landscape" with that of "Historical and Artistic Heritage"13, with this wanting to signify the need for a unified protection of values of a purely cultural character14, so it is clear that even the very definition of "cultural identity" it cannot go beyond the necessary consideration of the close relationship between the constitutional value of the protection of the landscape and of the historical and artistic heritage and the constitutional value of the protection and development of the person, both as an individual and in social formations15. A relationship that ultimately leads to consider the concept of "cultural identity" as one of the many natural fields of expansion of the rights of the person, which, for this very reason, takes on a dynamic meaning, having to take into account the needs, which places the socio-economic development of the country. In this sense, however, it would seem to have expressed (albeit within certain limits) even our legislator who, with the latest draft of the Code of Cultural Heritage, in the part relating to the protection and enhancement of the landscape, has dictated the rule in art. 131, which reads: "1. Landscape means the expressive territory of identity, whose character derives from the action of natural, human factors and their 11 Cf. C. BORTOLOTTO (edited by), The intangible heritage according to UNESCO: analysis and perspectives, Rome: Istituto Poligrafico e Zecca dello Stato, 2008; World Conference on Cultural Policies; Mexico, 1982 12 Cf. E. A. IMPARATO, Cultural identity and territory between Constitution and regional policies, cit., p. 41, which, on the point, recalls in note J.M. PONTIER, Les données juridiques de l'identité culturelle, in Rev. dr. publ. n. 5/2000, p. 1274 and ss. 13 Art. 9 Cost.: "The Republic promotes the development of culture and scientific and technical research [cfr. art. 33, 34]. It protects the landscape and the historical and artistic heritage of the nation." 14 Cf. E. A. IMPARATO, Cultural identity and territory between Constitution and regional policies, cit., p. 45. 15 On the role of the Person as value, cf. P. PERLINGIERI, The Current Order and its Values, Naples, 2006, p. 289.

FRANCESCO TORCHIA 8 interrelations. 2. This Code protects the landscape with regard to those aspects and characteristics which constitute a material and visible representation of national identity, as an expression of cultural values." and again:"4. The protection of the landscape, for the purposes of this Code, is aimed at recognising, safeguarding and, where necessary, recovering the cultural values it expresses. The subjects referred to in paragraph 6, if they intervene on the landscape, ensure the preservation of its peculiar aspects and characteristics. 5. The enhancement of the landscape contributes to promoting the development of culture." and finally: "6. The State, the regions, other local and regional public authorities and all persons acting in a public capacity on the national territory, inform their activities to the principles of conscious use of the territory and safeguarding the landscape characteristics and the creation of new integrated and coherent landscape values, meeting quality and sustainability criteria."16. Of this same opinion is, then, also the jurisprudence of our Court of Cassation and, even earlier, that of the Constitutional Court17, provided that the United Sections of the Court of Cassation, indicate the essential lines for the identification of a new relationship between private and public goods, when they highlight "the essential data of the centrality of the person (and its interests)" and "the interpretative need to "look" to the theme of public goods beyond a purely patrimonial vision - owner to land to a personal perspective - collectivistic", with the awareness that "disquisting public (or state-owned) assets in terms of dichotomy alone - private means, in a partial way, limiting oneself to the mere identification of the ownership of the assets, leaving aside the unavoidable fact of their classification by virtue of their function and of the related interests to these linked assets". From this 16 On the point, however, E. A. IMPARATO, Cultural identity and territory between Constitution and regional policies,cit. p.77 expresses its perplexities, when it states that:"the cultural identity of the community as an expression also of the landscape and, as such, to be protected seems to take second place. Moreover, it is no coincidence that the novella disposition, introduced in the general part of the Code with the amendments and additions of 2008, imposes a limitation on the determination of precisely the "expressions of collective cultural identity"These are considered to be subject to codecystic protection only "if they are represented by material evidence and the conditions for the applicability of Article 10 are met"(art.7bis), that is, for the adoption of the norm mail to specific individuation of the cultural assets stricto sensu, with good peace of the landscape assets." 17 Cfr. Corte Cost., 18 luglio 2014, n. 210, in Foro it., 2014, I, c. 2651; Cass. Civ., Sez. Un., 16 febbraio 2011, n. 3811, in Riv. giur. ed., 2011, I, p. 419.

9 derives " the idea of a necessary functionality of public goods, with the consequent conviction that the good is public not so much for the circumstance of falling into one of the abstract categories of the code, but rather to be a source of benefit for the community"18. To complete this argued logical/legal path, in fact, our Supreme Court (more closely regarding the subject of the investigation) states that: "the system of protection of the landscape, the environment or the historical and artistic heritage justifies the affirmation of restrictions on the use of the ownership of the assets linked in the light of the constitutional balance between the interests at stake, which sees some of the faculties of recessive dominical law facing the needs of safeguarding cultural and environmental values, in the implementation of the social function of property"19. Delineated, so, the concept of "cultural identity" - albeit limited only to the purposes that are relevant for the present work - it is useful to specify, still, that authoritative doctrine claims that the cultural good must be studied by making use of the classic instruments of the patrimonial right of goods such as: ownership (static moment of legal situations), power of enjoyment, power of disposition and power of control (exercise of legal situations). This, however, without neglecting that the "property" of the cultural good is instrumental to the realization of the human person as an individual and in social formation. The claims that: "the universal good or identity - that is to say, it helps to qualify the stage of civilization of a people or of an existence - is an a-spatial good, which is indeed the object of legal relations, but at the same time represents the contribution of individual persons (Leonardo, Michelangelo, Leopardi, etc.) to the advancement of civilization and the approach to civilization", which is why cultural goods serve "the material and spiritual progress of the community (...) ie to a complex purpose that takes direction especially from the provisions 18 Cfr. Cass. Civ., Sez. Un., 18 febbraio 2011, n. 3939 19 Cfr. Cass. Civ., sez. I, 27 November 2013, n. 26496, who, in recalling Cass. Civ, sez. I, 19 July 2002, n.10542; Corte Cost., 27 June 1974, n.202 and Corte Cost. 9 May 1968, n.56, points out that the system of withdrawal of dominical law with regard to the need to safeguard cultural and environmental values, in implementation of the social function of property,"also does not conflict with the European Convention on Human Rights, which, while informed of the necessary proportionality between the public interest pursued and the protection of private property, does not exclude the sacrifice of opportunities for economic exploitationproperty for the protection of landscape and environmental interests".

FRANCESCO TORCHIA 10 of Articles. 2 and 3 cost. and in any case transcends the purely economic aspects of individual and collective well-being", they make sense, in fact, only if one keeps in mind the peculiar ownership function of cultural heritage. 2. Social function of Cultural Heritage According to the legal and jurisprudential framework, as outlined above, it is now necessary to question the content that the "social function" of the cultural heritage can assume, without any pretense (albeit minimal) of exhaustiveness, given the wide debate, which has recorded the intervention of authoritative and numerous doctrine on the general theme of the "social function of property". The social function of property, in fact, according to a first reconstruction, would consist in limiting the property of the individual to the benefit of the collective interest20. And this is the most widespread and commonly accepted21 notion of social function, since the functionalization of property does not concern the dominical powers, but their limitation22, with a clear weakening of the right of the owner, to the advantage of the possibility to limit the property in the presence of interventions conformative of the content of the right in function of the social interest. Moreover, finding its source directly in the Constitution, the social function would allow the correct interpretation of "norms or regulatory complexes otherwise considered exceptional"23. And this, even if Pugliatti, in partial integration of the notion of social function as a limit, believed that it consisted in the synthesis that "cemented" between them all the transformations suffered by property, as designed by nineteenth-century codifications, by special legislation over time24. Another doctrine, however, considers that the social function is a "mechanism activated by the game of personal interest", being aimed 20 Cf. S. RODOTÀ, Il terribile diritto, Bologna, 1990, p. 326. 21 Cf. R. SACCO, The Property, Turin, 1968, p. 78. 22 Cf. N. IRTI, Property and Business, Naples, 1965, p. 10. 23 Cf. P. PERLINGERI, Civil law in constitutional legality according to the Italian Community system of sources, Naples, 2006, p. 888. 24 Cf. S. PUGLIATTI, Property and Properties in Id. Property in the New Law, Milan, 1954, p. 278.

11 at encouraging savings and initiatives and representing the "result of the individual desire for profit"25. It follows that, according to this theory, a social function would be configurable only regarding productive goods, the failure to use of which would be detrimental to the community. This place, it does not seem, however, to doubt that with the concept of social function, outlined by art. 42, co. 2, Cost., the legislature intended to delimit the notion of property under art.832 c.c. And this, because the owner is no longer allowed to enjoy and dispose, in an absolute way, of the property that belongs to him, but combining these powers with the obligation of social solidarity. The social function is, therefore, a characteristic connatural to the property, place that the,Cost. "does not provide exceptions to the rule of the function of private property"26. In particular, certain hypotheses of conformate ownership are found in the ownership of cultural property and in land ownership, understood with reference to both agricultural property (the functionalization of which emerges from Article 44 Cost. and from the numerous laws governing the subject), both urban, in relation to which we think of building regulations, which may prohibit the owner from constructing or which require the adoption of certain criteria in so doing, or to the rules protecting the tenant of buildings, irrespective of the residential use of the property. As regards, however, the law U.E. and its relationship with property, it should be noted that, both in the Schuman Declaration of 1950, both in art. 83 of the ECSC Treaty and in art. TFEU 345 states that "the Treaties do not in any way affect the existing system of property ownership in the Member States". Hence the argument that the rule would appear to state the neutrality of the EU with respect to ownership. Such neutrality, however, is not absolute. Think, in this regard, to what makes it possible to obtain the principle of subsidiarity, in the light of art. 3 of TEU. Under this principle, in fact, the institutions can intervene when certain objectives can be achieved in a more profitable way at European level, rather than at national level, and these objec- 25 Cf. R. SACCO, op. cit. , p. 77 26 Cf. P. PERLINGERI, op. cit. p. 899 and A. JANNELLI, La proprietà costituzionale, Naples, 1980, p. 26.

FRANCESCO TORCHIA 12 tives are determined by art. 3 TEU, by virtue of which the Union must promote the well-being of peoples, sustainable development, the fight against social exclusion, trade and the protection of human rights. It follows that, in view of the general nature of the objectives, the possibility of subsidiary intervention is extended to all sectors, including ownership. In addition, pursuant to art. 6 of the TEU, art. Article 17 of the Charter of Fundamental Rights of the EU has the same value as the Treaties and this rule recognises that every person "has the right to own, use, dispose of and bequeath the property he has legally acquired. No one shall be deprived of his or her property except in the public interest, in the cases and in the manner provided for by law, and against payment of fair compensation in good time for the loss of the property. The use of goods may be regulated by law within the limits imposed by the general interest. Intellectual property is protected". Thanks to this rule, Property is no longer treated with reference to economic relations27, but between freedoms, so that it is plausible "an obvious and immediate impact on the very possibility of imagining a social function"28. This, because the social function would be ontologically incompatible with the concept of freedom and fundamental right, consisting in a form of limitation of property. Recognizing, in fact, property as freedom, as well as as as a fundamental right, could lead to the inevitable exclusion of social function, since where property is conceived as one of the ways of being of freedom, "the functional constraint [...] would manifest all its incompatibility with the law"29. However, part of the doctrine objects that even in the German Constitution, property is contemplated among the Grundrechtes (fun- 27 Cf. S. RODOTÀ, The draft European Charter and art. 42 of the Constitution, in M. COMPORTI (edited by), Property in the European Charter of Fundamental Rights, Milan, 2005, p. 159 28 Cf. L. NIVARRA, European property between counter-reform and "passive revolution", in C. SALVI (edited by), Civil law and European and Italian constitutional principles, Turin, 2012, p. 215. 29 Cf. S. RODOTÀ, Critical notes on property, in Rev. trim. dir. and proc. civ. 1960, II, p.1300 et seq. and S. RODOTÀ, item Property, in Novissimo digesto italiano, Torino, 1967, p. 134.

13 damental rights) and, nevertheless, no one has ever doubted that it could play a precise social function and was conformable30. It follows that in Italy too property could be considered a fundamental right of an economic nature and, therefore, it cannot be said that its social function has waned, just because European law considers property a fundamental right. Moreover, both the CDFUE and the ECHR, while placing the property in a different position, with respect to our fundamental law, recognize that it is a right that, having recourse to certain conditions, can be compressed by the general interest. So much so that it is the very jurisprudence of the EDU Court that has allowed the Italian Constitutional Court to revise its position on expropriations. In short: "the right of property drawn by the ECHR and the CDFEU and therefore entered into our legal system, has become a human right to which, however, the social function seems to be inherent. Both cards allow the possibility of enjoying one’s own goods, but to the extent that such individual enjoyment does not conflict with the general interest. This is clearly a fundamental sui generis right, which is inevitably conformed, as is clear from its very definition of a right conditional on the public interest."31 In the specific theme of "cultural heritage", it is also useful to recall that, as a result of the recognition of the direct applicability of constitutional values, the same jurisprudence of our Court of Cassation has affirmed that the normative statute of the public property is functional to the promotion of the human personality and to its development in the context of the social State. In particular, clarifying are the judgments, both in United States, of 14 February 2011, n. 3665 and 16 February 2011, n. 381, according to which the provision contained in art. 42, co.1, cost. It attributes an autonomous character to property (whether public or private), justifying the elaboration of a specific substantial regime. The Supreme Court, in fact, ruled that: "by Arts. 2, 9 and 42 cost. in view of their direct applicability, the principle of the protection of human personality and its proper conduct in the context of the welfare state, also in the context of the «landscape»" and, again, that: "Art. 9 cost. in particu- 30 Cf. C. SALVI, Private property and Europe. Right to freedom or social function? , in Rev. crit. dir. priv. 2009, p. 425. 31 Cf. G. MAGRI, What future for the social function of property? Abandon weimar to return to locke? in Bocconi Legal Papers http:///

FRANCESCO TORCHIA 14 lar, provides that the Republic protects «the landscape and the historical and artistic heritage of the nation», with an affirmation, contained in the framework of the fundamental principles, which in recent years has co-Foundation for rich cultural heritage legislation (the reference goes, in particular, to the d.lg. 29 October 1999, n. 490, then repealed, from 1 May 2004, from d.lg. 22 January 2004, n. 42, that it contains the code of the cultural assets and the landscape, whose art. 10 previews a definition of the cultural assets). In turn art. 42 cost. While it focuses mainly on private property, it begins with the significant assertion that the property «is public or private», which is an implicit recognition of a fundamental difference between the two types of property. More recently, also, the reform implemented with l. cost. October 18, 2001, n. 3, which amended Title V of Part Two of the Constitution, has conferred on the exclusive legislative competence of the State the protection of the environment, the ecosystem and cultural heritage (art. 117, com-ma 2, cost.)while it has established the concurrent competence of the State and the Regions for how much it regards the valorization of the cultural and environmental assets (art. 117, codicil 3, cost.); the art. 118, paragraph 3, cost. also provides that State law governs «forms of understanding and coordination in the field of the protection of cultural heritage»". It follows that: "From this normative-constitutional framework, and without prejudice to the «essential» data of the centrality of the person (and of the related interests), to be made effective, as well as with the recognition of inviolable rights, also through «fulfilment of the mandatory duties of political, economic and social solidarity», emerges the interpretative need to «look» at the theme of public goods beyond a purely patrimonial-proprietary vision to arrive at a personal perspective - collectivism". The Court therefore concludes that: "where an immovable property, regardless of ownership, is intrinsic to its characteristics, in particular those of an environmental and landscape nature, intended for the realisation of the welfare state as outlined above, said good is to be considered, outside of the now dated perspective of the Romanesque dominium and of the codicystic property, «common» that is,

15 regardless of the title of ownership, instrumentally linked to the realization of the interests of all citizens"32. 3. Function of recovery, protection and safeguarding of the historical, artistic and cultural heritage, according to an economic analysis of current law If we accept, therefore, that cultural heritage can create a solid basis for the growth of tourism and that tourism is able to guarantee the necessary gain to allow its preservation, it is clear that there can be a strong correlation between tourism and cultural heritage. And this, especially in those places with low capacity, in which the "environmental context", represents a unique irreproducible. In doing so, the environmental, cultural, historical and artistic heritage is able to represent the "best" vector for the transmission of values, of which it is the bearer, in a dimension no longer merely "local" and in full respect of the concept of sustainable tourism33. A tourism, that is, which must be able to offer a service that integrates perfectly with the territory, with the consequence that even areas affected by social, structural and economic problems, thanks to this way of doing sustainable business, can return to being alive. In addition, the tourist becomes the essential part 32 Cf. Court of Cassation, Sec. a. 14 February 2011, No.3665, in Rass. Dir. Civ., 2/2012, p. 524, with comment by G. CARAPEZZA FIGLIA, Property and social function. The problem of common goods in the jurisprudence of the United Sections. In particular, according to the decidedly shared, and shareable, thesis of the author of the comment: "This perspective - ultimately shared by the Sections united in identifying the discipline to be applied to the concrete case - fully responds to the need to enhance the attitude of public property to promote the realization of interests constitutionally relevant. Nevertheless, the need to always anchor the property of the good to the teleological-functional correspondence to the categories of goods positively identified, avoids foreshadowing an uncontrolled enlargement, by way of interpretation, of the goods belonging to the State property, which would ultimately take away from the legislative power, ascribing it to the judicial order, the intensification of forms of state intervention in the economy". 33 According to the "Charter for sustainable travel of the Italian Association of Responsible Tourism - AITR", responsible tourism: "It is a way of travelling that is characterized by the awareness of oneself and of one’s own actions, of the realities of the destination countries, of the possibility of a meditated choice, therefore different. It’s an ethical and conscious journey that meets people, nature with respect and availability. A journey that chooses not to endorse destruction and exploitation, but that is the bearer of universal principles: fairness, sustainability, tolerance."

FRANCESCO TORCHIA 16 of the host community, the protagonist, without which it would not make sense to carry out the project. The tourist enterprise, therefore, should not be understood as a mere means to be used to offer a service by paying a fee (more or less adequate), but as a tool capable of generating widespread economic and social benefits, since the tourist performance becomes valuable, having to understand all the aspects that are part of a quality tourist service, namely: land management, authenticity, redevelopment of the architectural heritage - historical - artistic and balance between materiality and immateriality34. From a normative point of view, however, such a way of "doing tourism business" seems (apparently) to find its own impetus in a measure, dated 8/1/2013, with which the Presidency of the Council of Ministers has regulated the conces-The Commission has decided to grant grants under the "de minimis" aid scheme to business networks between companies operating in the tourism sector. A rule whose rationale is, of course, to recognize forms of tax/contribution incentive (in this case) to economic operators, which achieve the objective of business concentration in the reference territories by reducing, in this way, both the supply chain and the local offer of the tourism sector. Business networks, in fact, find their discipline in art. 3, paragraph 4ter, of Law 9 April 2009, n. 33 (of conversion of the D.L. 10 February 2009), as amended by the D.L. of 31 May 2010, n. 78 converted into Law 30 July 2010, n. 122, in which it is expressly provided that "more entrepreneurs, in order to increase, individually and collectively, their innovative capacity and their competitiveness in the market", can be forced "to cooperate in predetermined forms and areas relevant to the operation of their businesses or to exchange information or services of an industrial, commercial nature, technology or technology or to carry out in common one or more activities falling within the object of one’s own enterprise". However, from the point of view of economic analysis of the law, the methods to be used to assess the efficiency of the abovementioned standard are essentially of three types, namely: paretian efficiency, cost-benefit analysis and the balancing of well-being. Three instru- 34 According to the OMT "Cultural tourism... [as a particular form of sustainable tourism] can encourage the revival of traditions and the restoration of sites and monuments. But unbridled tourism can have the opposite effect... there is a risk that the boom in cultural tourism [involving too many people] may [cause] their own destruction by eroding the same cultures and sites".

17 ments for the choice and drafting of the standard that differ, above all, in the fact that they have a different degree of attention to the individual needs of the subjects targeted by the regulatory measures. So, with specific regard to a regulatory measure (such as the reference one), which aims to encourage the aggregation of tourism operators, in order to create more competitive and more efficient businesses in the tourism sector, of the three instruments highlighted, the most appropriate is the cost/benefit analysis. This is demonstrated by the fact that the rule provides for the payment, under certain conditions, of nonrepayable contributions, in order to improve the efficiency of the tourist market of reference, in which the network of companies will be formed. This is because, using the tool of paretian efficiency, the objective should be to maximise the usefulness of individual enterprises, while, in this case, they are rewarded for their amalgamation, and, instead, using the tool of the balance of wealth, it would tend to create greater wealth, in terms of equitable redistribution of wealth in the tourism market of reference, while the decree aims to make the sector more efficient and not to make it fairer. If, however, the aim of the legislator is the one just mentioned, it is necessary to verify whether, and to what extent, the rule is suitable to achieve it. That is, it is necessary to compare the costs and the benefits, directly connected to the implementation of the programmed strategy, in order to calculate if the differential between the situation ex ante and that ex post involves a benefit or a net cost, intending, however, for benefit not only a "mere" economic and/or financial value, but also a social value. In addition, the tourism sector is a "system" that has peculiarities, since there is not a single sector, but a plurality of sectors, depending on, for example, both the type of natural environment of reference (sea or mountain)whether of the type of social environment of reference (Eastern or Western, Catholic or Muslim), just to name a few. Therefore, the standard cannot fail to take into account the high specificity of the system, in which it will have to be applied and operate. And this, without forgetting that in order to assess the degree of efficiency and effectiveness of the tourist market, (that is, its "value"), it is necessary to evaluate, in particular, the degree of satisfaction of the

FRANCESCO TORCHIA 18 tourist, who represents the final product, that the tourist enterprises must produce, in order to be competitive35. It follows that initiatives that, in the field of tourism, are based on projects, that do not have an overall vision and design, risk not pursuing their objective, because they are based only on a part of the elements useful to the analysis of the tourism sector of reference, and, moreover, to collide with the interests or needs of the territory in which they operate. It follows from the foregoing that a reflection on the dynamics of the interests involved in the conduct of business activities in the field of tourism cannot be separated from a careful examination also of the preclusive function of care and protection of the heritage artistic, historical, cultural and environmental. It is, in fact, a function that, as mentioned above, represents the privileged instrument for the implementation of higher values, all the more if you think that tourism is, It is well known that this sector is characterised by the absence of a national legislator and by a lack of homogeneous regional legislation, which is perpetually lagging behind the broad consideration given to this issue in Europe. And this, without considering the growing debate on the category of "common goods", that is the huge number of goods of historical, artistic, environmental and landscape value, of which our territory is rich. Goods that certainly represent the most functional category of any other to satisfy the primary needs of man, because their widespread ownership makes them instrumental to the effective ability to satisfy the fundamental rights and freedoms of every individual, with consequent prevalence of the social function on the title. Hence the risk that the supply of such goods may be incompatible with the pressure, sometimes disproportionate, that they are often destined to bear, so much so that it has been for more than a decade that the doctrine, which deals with studying the relationship between spatial planning and economic development, came to the conclusion 35 Cf. C.C. COSENTINO, The economic analysis of law: Origins and importance of its application to the rules on incentives to tourism companies, in AA.VV. (edited by) F. TORCHIA, The New Frontiers of Tourism between performance, sustainability and forms of hospitality, Rome, 2017, p. 231.

19 that:"freedom [...] finds a limit in the alteration or use of the territory in contrast with its nature of « common good »"36. It follows that, by including in the concept of the "common good" also the portion of physical space in which communities are settled and live, the overall status of the good can only be translated into the aspiration to a functional balance. The relationship between "profitability" and the behaviour of operators is, therefore, a relationship of fundamental importance in the system of the values expressed by our Constitutional Charter in relation to the person, business, the environment and the preservation of our artistic and cultural heritage and, for this reason, it is essential to ensure that the entrepreneurial activity is functional to a sustainable profit, especially in a sector such as tourism. However, for this to be possible, there must first of all be an essential link between market development and safeguarding the artistic and environmental heritage, and that there are general criteria by which to exploit human resources and ensure that the action complies with the technical rules. The principle of preserving the value of the company, in fact, is an expression of the activity carried out and of what it entails in terms of jobs and wealth production. On the other hand, every form of improper behaviour must be inhibited, both because the abuse of the dominant position and the exploitation of the market is a short step and because it is necessary to avoid pursuing the objective of maximising profit. It follows from the above that, in order to discuss correct and sustainable entrepreneurial behaviour (in every sector, including tourism services), it is essential to consider and from interpreting the real needs of society with a prompt and adequate response to the overall situation on which the effects of the produced activity are to be measured. Business activity, therefore, must be carried out in an efficient and orderly manner, all the more so if we consider that the commitment to protect the company as a source of wealth and social welfare can never be lacking. Proof of this is that, by resorting to the need to ensure that a company keeps pace with market changes and adopts appropriate innovative schemes, it can be configured as detrimental to 36 Cf. I.M. MARINO, Territorial planning and economic development, in I.M. MARINO - S. LICCIARDELLO - A. BARONE, Milano, 2004, oggi in I.M. MARINO, Scritti giuridici, (a cura di) A. Barone, Napoli, 2015, Tomo II, 1110.

FRANCESCO TORCHIA 20 the criterion of good organization even a possible inadequate allocation of resources. If it is added that any loss of assets, attributable to reprehensible management behaviour, can also result in actions by the supervisory authorities with the sharing of damages on the community, By thus bringing about a transformation into a social burden of the negative results of bad management, the ethical impact of morally reprehensible behaviour is clear. We must, therefore, avoid serious repercussions, with damage caused by mismanagement (which would also be difficult to punish in order to obtain the possible recovery of the value lost) and, in order to do this, there must be, first of all, an adequate and correct development of the forms and methods of verification and control (both internal and external) of the managerial activity. A control, whose intrinsic ethicity is found in particular in the necessity to render functional the formation of the profit. In other words, it is necessary to set up a model in which solidarity is the prerequisite for overcoming the dichotomy between the free market and social policies, with a view to building a society in which the contractor, in the choice to be made, preference is given (sometimes to the presence of a simple certification mark) to a service for which it agrees to pay a higher price than that applied on the market, because it is a price that also includes the c.d. social and environmental costs of the finished product (the c.d. integral price). Preliminary to any other action is, to this end, the redefinition of the relations between State and market, since it is necessary to create an appropriate and stimulating context and, at the same time, avoid that it is done as in the past, when interventions in the public sector have brought only waste, corruption and inefficiency37. Even more so if we consider that the costs caused by the impoverishment and marginalization of a large part of the world population are increasing day by day. The logic of the market, therefore, alone is not enough, but it 37 In this regard, cf. N. ROOZEN AND F. VAN DER HOFF, Max Havelaar, the adventure of Fair Trade, Feltrinelli, 2003, p.177, where it reads verbatim: "Marginalization is also caused by imperfect competition. The powerful of the market deprive producers of substantial economic value. Farmers depend on buyers to exploit them. Because of the overpowering positions of some subjects in the field of transport, primary processing and exports, the peasant gets only a small part of the world price. The world price in turn constitutes only a fraction of the final consumer price. Apparently, all earn on the sale of coffee, bananas or cotton, except the peasant. These unequal situations are often protected by legislation that favours elites and leaves corruption free."