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The Administrative Jurisdiction in Italy: The Path Toward a Speciality to Serve Full Protection of Rights Against Public Authority

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The Changing Administrative Law of an EU Member State

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Abstract

This essay analyses the evolution of the administrative justice in Italy by remarking the change, begun in the end of the last century and improved with the entry into force of the 2010 Code of Administrative Trial, toward a system of full protection of rights and interests harmed by the public power. A relevant stage of such evolution is also the dialogue established with the European Court of Human Rights and the European Court of Justice: the resulting dialectic between different systems, indeed, may lead to re-interpret and update in a critical sense the traditional speciality of the public administration and its judge.

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Notes

  1. 1.

    Nigro (1983), p. 21.

  2. 2.

    Romagnosi (1814), p. 19.

  3. 3.

    Declared unconstitutional by the sentences of the Constitutional Court 22.3.1967, No. 30, and 20.4.1968, No. 33.

  4. 4.

    García de Enterría (2010), p. 45.

  5. 5.

    See para. 1 of the Report to the special Committee provided by the General Assembly of the Council of State on June 30th 1946.

  6. 6.

    Romano (1932), p. 4.

  7. 7.

    Conceived by the Council of State since its General Assembly held on May 3rd 1960, No. 8, in Giur. it., 1960, III, 257.

  8. 8.

    Typically those regarding the economic claims of the public servants, analysed since Council of State, Section V., 1.12.1939, n. 795, in Giur. it., 1940, II, 37.

  9. 9.

    Starting from the sentence of Constitutional Court on 28.6.1985, No. 190, in Foro it., 1985, I, 1881.

  10. 10.

    García de Enterría (2010), p. 55.

  11. 11.

    The first directive on review procedures (Directive n. 89/665/CEE) already aimed that reviews ought to be taken “effectively and, in particular, as rapidly as possible” (Article 1) and imposed to Member States to provide comprehensive measures, including urgent and interim ones, “with the aim of correcting the alleged infringement or preventing further damage to the interests concerned”, up to the invalidation of unlawful decisions and the award of damages (Article 2).

  12. 12.

    As it has happened with Article 13 of Legislative Act February 19th 1992, No. 142. As courts have noted, “in this way it is admitted for the first time in the Italian law the right to compensation deriving from administrative acts which violate legitimate interests (as interests of competitors within a public tender offer normally are)” (see Cass., S.U., 10.11.1993, No. 11077, in Foro it., 1994, I, 3138.

  13. 13.

    As set out in Article 3 of Legislative Act July 21st 2000, No. 205, amending the Article 21, para. 7, of the Legislative Act No. 1034/1971. A similar trend had already been anticipated by the UE case law, with the decisions of the Court of Justice Case 19.6.1990, Factortame, and Case 21.2.1991, Zuckerfabrik Südertihmarschen AG.

  14. 14.

    As effect of Articles 33 and 34 of the Legislative Decree March 31st 1998, No. 80.

  15. 15.

    As set out by Article 35 of the previously cited L.D. No. 80/1998.

  16. 16.

    As pointed out by these important decisions: Const. Court, 6.7.2004, No. 204, in Foro it., 2004, I, 2594, and Const. Court, 11.5.2006, No. 191, ivi, 2006, I, 1625.

  17. 17.

    See Cass., S.U., 22.7.1999, n. 500, in Foro it., 1999, I, 2487, which has admitted the compensation of damages deriving from unlawful administrative acts, considered as such to be violating legitimate interests.

  18. 18.

    See Cass., S.U., 23.12.2008, No. 30254, in Foro it., 2009, I, 731, which has rejected the theory stating that the award of damages must be conditional upon the prior invalidation of the administrative act. Such theory was held up by Council of State (General Assembly) 22.10.2007, No. 12, in Foro it., 2008, III, 1, on the assumption of an indefectible “nature of appeal of the action before the administrative court, which has the authority (…) not only to annul the act, but also to conform the administrative action in order to ensure a satisfactory and lawfully balance between the two interests at stake”.

  19. 19.

    As it can be read in Cass., S.U., No. 30254/2008.

  20. 20.

    As it can be read in Cass., S.U., 9.10.2008, No. 24883, in Foro it., 2009, I, 806, on the implicit judgement over the question regarding jurisdiction.

  21. 21.

    See Const. Court 12.3.2007 No. 77, in Foro it., 2007, I, 1009, on translatio iudicii.

  22. 22.

    Cass., S. U., 6.3.2009, No. 5456, in Foro it., 2009, I, 3047.

  23. 23.

    See again, on the wave of a new interpretation of Article 37 CCP pushed for by the cited Cass., S.U., No. 24883/2008, Cass., S.U., No. 5456/2009, cit. This heading has been acknowledged, on the side of administrative law, by the Article 9 of CAT and incisively by Council of State, Section VI, 26.3.2015, No. 1595.

  24. 24.

    See Cass., S.U., 20.10.2016, No. 21260, in Foro it., 2017, I, 966. The principle has been confirmed by Cass., S.U., 19.1.2017, No. 1309, in Foro it., 2017, I, 1277, with regard to the trial on retirement-welfare accounting and, finally, by Council of State (General Assembly), ord. 28.7.2017, No. 4, which has held up the withdrawal of reasoning relying upon a generic concept of “process abuse”.

  25. 25.

    As the Court said in the famous CIR-Fininvest case: Cass., Section III; 17.9.2013, No. 21255, in Rivista di diritto processuale, 2014, p. 26.

  26. 26.

    As stated by Article 44, para. 2, letter b), n. 4, of the Legislative Act June 18th 2009, No. 69; see now the provision of Article 34, para. 1, of CAT.

  27. 27.

    These aspects of the new system of actions are well focused by the decisions of Council of State (General Assembly), 23.3.2011, No. 3, in Corriere giuridico, 2011, 979, and Council of State (General Assembly), 29.7.2011, No. 15, in Foro it., 2011, III, 501. See also Cass., S.U., 9.3.2015, No. 4683, in Urbanistica e appalti, 2015, 787.

  28. 28.

    Council of State, Section IV, 9.1.2014, No. 36.

  29. 29.

    Regulation of administrative proceedings and right to access to administrative documents.

  30. 30.

    In this direction, for instance, some judges have stated that such provision has confirmed previous rulings “aiming to assess the actual interest into the appeal, which is denied whenever the claimant cannot expect a different decision by the public office, even as result of a repetition of the act” (Council of State, Section VI, 16.5.2006, No. 2763).

  31. 31.

    Council of State, Section VI, 2.10.2007, No. 5086, which has wrongly moved from a supposed priority to examine formal lacks capable to affect the whole administrative proceeding, considering the statement that “the administrative trial is subject to the claimed subject-matter principle, being it intended to protect claimant’s rights and interests and not merely to carry out an impartial control over the administration and its alleged mistakes”.

  32. 32.

    As stated, ultimately, by Council of State (General Assembly) 27.4.2015, No. 5, in Giur. it., 2015, 2192.

  33. 33.

    Also conceived by civil courts as a selective criterion of the “most evident, plain and promptest reason to lead to a decision, regardless whether based on proceedings issues or in the merits”, whose enforcement “is able to ease the activities of investigation and drawing of the reasoning” (see Cass., S.U., 12.12.2014, No. 26242, in Foro it., 2015, I, 862, regarding contracts invalidation).

  34. 34.

    Council of State (General Assembly), No. 5/2015, which finally finds the “overcoming of the traditional case-law rule – mainly concerned with a consistent protection of public interest (…) – stating that it is always up to the court to set the order of consideration of appeal grounds, based on their substantive relevance (…) which is not modifiable by the mere request of the plaintiff”.

  35. 35.

    What really matters being “the preclusion of the following progression of the proceeding”, as stated by Council of State, Section VI, 9.6.2005, No. 3043; Council of State, Section V, 2.10.2000, No. 5224.

  36. 36.

    Council of State, Section IV, 28.3.2012, n. 1829, which also excepts the cases where the administration: (a) does not proceed any further, remaining silent before the request of the party; (b) notifies the interested party of the constraining act with adverse opinion, thereby assuming such act as its own.

  37. 37.

    This question is hardly debated among courts, after the 2010 CAT has not confirmed any provision similar to the one set by Article 26, para. 2, of the RAC Act, which imposed to refer back to the relevant authority in case the issue on authority was accepted.

  38. 38.

    See Council of State (General Assembly), No. 5/2015, cit.

  39. 39.

    Such as those regarding, for instance: appropriate land planning, environmental protection, consumer protection, efficiency of public offices and public concessionaires, competition and economic regulation, electoral rights, gender equality compliance.

  40. 40.

    Council of State, Section V, 9.6.1970, No. 523, in Giur. it., 1970, III, 193. Such selective test, based upon the “housing settlement” of the facing householder, has progressively expanded to include any form of “lasting relationship” with the interested area and, therefore, has been regarded as a flexible assessment relying upon “the nature and the dimension of the building (…), its purpose, its impact on the urban context and the outcomes (…) on the quality of life of those who, being residents, workers or similar”, live in the area (Council of State, Section V, 20.2.2009, No. 1032, with regard to the opening of a mall).

  41. 41.

    Council of State, Section V, 28.7.2015, No. 3711.

  42. 42.

    Council of State, Section IV, 9.1.2014, No. 36.

  43. 43.

    As it has been stated, for instance, by Council of State, Section IV, 7.5.2015, No. 232 and 6.2.2017, No. 491 with regard to the “interest in the regular course of competition, in order not to unlawfully harm the interest of another competitor in the same market”.

  44. 44.

    The reference is to Article 21-bis of the Legislative Act No. 287 on October 10th 1990, as introduced by the Article 35 of the Law Decree No. 201 of December 6th 2011, n. 201 and converted into Legislative Act No. 214 of December 22nd 2011, which empowers the Antitrust Authority to challenge general administrative acts, regulations and other provisions enacted by any public administration when they infringe competition rules. Furthermore, after the abrogation of the so called constraining recommendation set out by Article 211 of the Legislative Decree No. 50 of April 18th 2016 (Public Contracts Code-PCC), a similar instrument is now available to ANAC (Anti-corruption Authority) to challenge public offers for tenders and other provisions infringing the rules on public contracts (see the new Article 211, para. 1-bis and 1-ter, of the PCC, as introduced by Article 52-ter of the Law Decree No. 50 of April 24th 2017, No. 50 converted into Legislative Act No. 96 of June 21st 2017).

  45. 45.

    Council of State, Section V, 30.4.2014, No. 2246, in line with Const. Court, 14.2.2013, No. 20.

  46. 46.

    See ECHR, case 23.6.1981, Le Compte, Van Leuven and De Meyer v. Belgium, para. 61.

  47. 47.

    “Point by point, without ever having to decline jurisdiction when replying to them or ascertaining various facts”, as stated by ECHR, case 17.4.2012, Steininger v. Austria, para. 50.

  48. 48.

    ECHR, II, case 13.2.2003, Chevrol v. France, para. 83.

  49. 49.

    See Cass., S.U., 16.1.2014, No. 774, arguing about a path finally opened by the evolutionary spirit of European law and “marked by the respect of two fundamental principles: fullness of rights protection (…) and proportionality, all aimed to limit the unreviewable administrative discretion”.

  50. 50.

    As said by Cass., S. U., 8.3.2012, No. 3622. Echoes of the mindset that firmly disapproves a model of review against assessments are clearly notable. This mindset is often revealed when jurisdiction issues are under judgement: see, for instance, Cass., S. U., 17.2.2012, No. 2312 and Cass., S. U., 20.1.2014, No. 1013. In the same direction, Council of State, Section VI, 14.8.2013, No. 4174, in Foro it., 2014, III, 173, states that the review over arguable assessments of facts should be limited to symptomatic cases of misuse of powers, “being unnecessary to compare the public interest and the actual interests pursued by the administration”.

  51. 51.

    As clarified since the important decision of Council of State, Section VI, 9.4.1999, No. 601, in Foro it., 2001, III, 9.

  52. 52.

    Council of State, Section VI, 19.1.2016, No. 165, in Giornale dir. amm., 2016, 684.

  53. 53.

    Council of Administrative Justice (CAJ), jurisd. Section, 15.9.2014, No. 541.

  54. 54.

    Council of State, Section IV, 7.4.2014, No. 1625.

  55. 55.

    Council of State, Section IV, 22.1.2013, No. 356.

  56. 56.

    Council of State, (General Assembly), 15.1.2013 n. 2, in Urb. app., 2013, 952.

  57. 57.

    Council of State, Section IV, n. 1625/2014.

  58. 58.

    That is, all situations that Council of State, (General Assembly), 9.6.2016, No. 11, in Foro it., 2017, III, 186, has defined—borrowing a concept of private law—as “obligations of means”, so excluding any power of the judge to replace the discretional authority of the administration and reach the result expected by the citizen.

  59. 59.

    Ibid., para. 6.2.4 of the decision reasoning.

  60. 60.

    Council of State, (General Assembly), No. 2/2013, cit.

  61. 61.

    Council of State, Section IV, 31.3.2015, n. 1686.

  62. 62.

    See Council of State, (General Assembly), 20.11.2014, No. 32. In the same direction, see Council of State, Section V, 23.2.2015, No. 863. Tar (RAC) Lombardia, Brescia, 25.6.2015, No. 1240, while analysing the admissibility of testimonial evidence (in a case of denial of the residence permit), has pointed out that it must be strictly necessary in order to prove circumstances not included within the reasons of the act and not otherwise acknowledgeable.

  63. 63.

    Sometimes (as in the case settled by C.G.A.R.S. Section I, 7.11.2017, n. 479) the reasoning is totally vague, so that the initiative for an “indemnity offer”, to be examined by the creditor, is left to the administration. Seemingly this is a replacement of the indispensable role of the court and, moreover, it raises some issues in the compliance stage by requiring further ascertainment. It is not casual that judges address it as a “so called “generic” condemnation (…) regarding the an” (C.G.A.R.S., Section I, 5.6.2016, No. 131). The model is taken from the Article 278 of CCP, but someone seems to overlook that the Article 34, para. 4, of CAT “assumes that the right to damages must be fully ascertained in all its elements and only its measure may be estimated by either the same judgement or, afterwards, through a negotiation to be carried out by the parties in accordance with to the rules set by the court” (Council of State, (General Assembly), 8.10.2009, No. 5; Council of State, Section IV, 25.6.2010, No. 4126).

  64. 64.

    The reference is to the famous judgements of ECHR on 30 may 2000, issued in the cases Belvedere Alberghiera s.r.l. v. Italia and Carbonara e Ventura v. Italia, in Foro it., 2001, IV, 233.

  65. 65.

    This rule, which is hardly contested by both private and public law doctrines, has been created by the judicial decision of Cass., S. U., 26.2.1983, No. 1464, in Foro it., 1983, I, 626.

  66. 66.

    After the rules previously in force were declared unconstitutional by the Const. Court 8.10.2010, No. 293. Now the rules are laid down by the Article 42-bis of the D.P.R. 8.6.2001, No. 327.

  67. 67.

    Reference is to Cass., S. U., 19.1.2015, No. 735, in Foro it., 2015, I, 436.

  68. 68.

    See Council of State, (General Assembly), 9.2.2016, No. 2, in Foro it., 2016, III, 185.

  69. 69.

    See the recent and important decision of Tar (RAC) Calabria, Section Reggio Calabria, 12.5.2017, Np. 438, in Foro it., 2017, III, 415, which has dissociated from the “old trend” as to the cited sentences of Joint Sections No. 735/2015 and General Assembly No. 2/2016, motivating that the “judiciary function would actually become an ancillary instrument in the hands of individuals’ discretion”.

  70. 70.

    Strict tendency enforced since the decision of ECHR, case 8.6.1976, No. 5100/71, Engel e altri v. Paesi Bassi, in Foro it., 1977, IV, 97, and confirmed, more recently, by ECHR, Section II, case 4.3.2014, No. 18640/10, Grande Stevens e a. v. Italia, ivi, 2015, IV, 129.

  71. 71.

    As admitted by Cass., Section I, 30.6.2016, n. 13433, arguing that “a proper application of Convention principles brings not to an indeterminate standardisation” of legal concepts, “but to a wise use of the distinguishing”, even in the view of the “substantive and pragmatic approach arising out from European Court decisions”.

  72. 72.

    Such debate is well remarked by the contrasting positions of Council of State, (General Assembly), 10.11.2008, No. 11, in Foro it., 2009, III, 1, and Council of State, (General Assembly), 7.4.2011, No. 4, ivi, 2011, III, 306,with regard to relevant interests to bring the action.

  73. 73.

    These are important principles asserted by the ECJ, Grand Section, 5.4.2016, case C-689/13, Puligenica, in Foro it., 2016, IV, 324. An attempt to read such decision rationally and in coordination with national rules has been done by Council of State, (General Assembly), 27.7.2016, n. 19, in Foro it., 2017, III, 309.

  74. 74.

    Such statement has been confirmed also by Council of State, (General Assembly), 25.2.2014, No. 9, in Foro it., 2014, III, 429, which has remarked—even acknowledging the principles stated by ECJ., Section X, 4.7.2013, C-100/12, Fastweb—that “it is not acceptable to validate an exegesis of the rules on conditions of the action that brings to a derogatory jurisdiction of objective scope”.

  75. 75.

    See the recent Council of State, Section V, ord. 6.11.2017, No. 5103, which has acknowledged a conflict of rulings within the same case law and has therefore referred again to the General Assembly the question on whether the judge—within a trial for invalidation of a public tender—must examine the main petition together with the incidental one aiming to exclude the former, “even if other competitors, whose bids have not been challenged, have joined to the public tender and if it is verified that irregularities claimed as grounds of appeal affect only the challenged bids”. The General Assembly, with the decision 11.5.2018, No. 6, has referred the question to ECJ for preliminary ruling.

  76. 76.

    Approved with Legislative Decree No. 50 on April 18th 2016.

  77. 77.

    Council of State Section III 23.11.2016 No. 4994, in Giur. it., 2017, 175. Such procedure has been criticised by authors, economic operators and specialised lawyers. At the beginning it has been deemed compatible with the Directive no. 89/665 and the article 47 of the Charter of Nice, even if under the condition that the administrative acts to be challenged within 30 days must be duly notified and accompanied by a “report of the relevant reasons, being capable to ensure” that the interested recipients become aware of the alleged violation of EU law (ECJ, sect. IV, ord. 14.02.2019, case C-54/18, par. 32). Finally, the procedure has been repealed by the Law Decree No. 32 of April 18th 2019, article 1 (par. 22 and 23), with reference to the trials commenced after the entry into force of the converting Law No. 55 of June 14th, 2019.

  78. 78.

    At least found, since Council of State (General Assembly) 29.1.2003 No. 1, in those “clauses which hinder the admission of the participant to the selection”, such as those concerning the “subjective requisites of candidates”, or those which put “absolutely unintelligible or evidently unproportioned burdens” having regard to the tender, and “substantially imply that the participant cannot access the tender and the proceeding must stop”.

  79. 79.

    In such direction, see for instance Council of State, Section III, 2.5.2017, o. 2014, and Tar (RAC) Lazio, Roma, Section III ter, 13.12.2016 No. 12439.

  80. 80.

    The relevant question has been recently addressed—following to the call for ruling by Council of State, Section III, ord. 7.11.2017, n. 5138—by the General Assembly with its decision No. 4 on 26.04.2018. Such decision, pursuant to general principles on conditions for petition laid down in Articles 24 of Constitution and 100 of CCP (as referred to by Article 39, para. 1, of CAT), has considered preferable the opinion that “the competitor who has applied to participate to the tender is not entitled to challenge those clauses within the public call which do not imply his exclusion, so precluding him with certainty from the participation”.

  81. 81.

    Celebrated in 1965 in the city of Florence and sponsored by the High Patronage of the President of the Republic.

  82. 82.

    Cassese (2017), p. 597.

  83. 83.

    As remarked by the Observatoire des Mutations Institutionalles et Juridiques (OMIJ) de l’Université de Limoges, in the 2007 research entitled La justice administrative en Europe, Presses Universitaires de France, Paris, 2007, 20.

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  1. University of Siena, Siena, Italy

    Gian Domenico Comporti

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  1. University of Florence, Florence, Italy

    Domenico Sorace

  2. University of Florence, Florence, Italy

    Leonardo Ferrara

  3. University of Florence, Florence, Italy

    Ippolito Piazza

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Comporti, G.D. (2021). The Administrative Jurisdiction in Italy: The Path Toward a Speciality to Serve Full Protection of Rights Against Public Authority. In: Sorace, D., Ferrara, L., Piazza, I. (eds) The Changing Administrative Law of an EU Member State. Springer, Cham. https://doi.org/10.1007/978-3-030-50780-0_6

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