Francesco Gaspari – La tutela del diritto fondamentale alla mobilità e le esigenze di contenimento della spesa pubblica tra fallimenti della globalizzazione (e del mercato) e “ritorno alla sovranità”

DIRITTO E POLITICA DEI TRASPORTI (ISSN 2612-5056), II/2020, p. 123-133

Abstract. The protection of the fundamental right of mobility and the need to reduce public spending between
globalization and (market) failures and the “return of sovereignty”. A number of studies and multilevel political agendas foster the idea that mobility should be deemed as a type of service (i.e., the so called Mobility as a Service – MaaS approach) to be provided on the market, like any other type of service or consumer good. However, according to other views, mobility represents a social right, which, similarly to other social rights, shall be deemed “financially conditioned” by budget availability (in line with Article 81 of the Italian Constitution). The paper aims at reviewing this approach, by providing an alternative perspective, focused specifically on the new relationship emerging between local territories and local communities and the concept of mobility as freedom of movement itself. Through this innovative perspective, I will argue that a territory, any territory, which is deemed a social (or intermediate) body, pursuant to article 2 of the Italian Constitution, generates both active and passive subjective legal statuses, which belong to local citizens. The right of mobility can be included amongst those legal positions and must be considered as a fundamental right of a social nature, thus requiring protection. I will further argue that protecting the right of mobility implies respect for human dignity, which is a nonnegotiable principle, to be considered as a principle standing above and beyond constitutional rights, which are by their very nature not capable of being balanced with other principles.