There is a branch of jurisprudence which has solid grounds to deem that the notion of full jurisdiction, as the ECHR intends it, is likely to consider the Administrative Court as fully substitutive of the Public Administration (even, in extreme cases, in the event of activities implying a high degree of political-discretionary powers). Other branches, on the contrary, according to the jurisprudence of the EU Court of Justice, especially about antitrust and public tenders, maintain that the jurisdiction of the Administrative Court is limited by the administrative discretionary powers and that therefore its control – although full under the viewpoint of the access to the facts – may not be considered as completely substitutive. Such dichotomy also refers to another issue, raised by the Italian Code of Administrative Process, that, with a great innovation vis-à-vis to the past, acknowledges that when the Courts ascertain that there is no longer any material discretionary power, though in abstract terms provided for by the law, they can decide the claim fully replacing the public authority. The boundary of this possibility and its potential, if any, are at all events made uncertain by the conflict existing between a certain view of the principle of separation of powers and the request for protection that persons claim constitutionally. The notion of discretionary power, however, is still subject to multiple interpretations and therefore turns out to be vague and difficult to be applied in practice. It is therefore reintroduced, in a form adjourned by the European jurisprudence, the traditional and grounding theme of the administrative law as special branch, i.e. the nature and capability of penetration of the Court’s controlling powers on discretionary administrative measures. The book presents the results of an in-depth study currently in progress, carried out over the years - jointly or individually depending on the case - by various scholars who, in the context of their research and from the view time to time required by those, have dealt with the issue of control in full jurisdiction and its impact on national theoretical and jurisprudential categories. The reflection of the scholars, however, as well as the comparison that these have over time exchanged with each other, has benefited from the dialogue offered by the meeting held in Naples on March 9, 2018 at the Pegaso Università Telematica.
Il volume riordina, in un unico luogo di discussione, differenti prospettive e aspirazioni sul tema della pienezza del sindacato giurisdizionale sui provvedimenti amministrativi. Il confronto prende spunto dalla giurisprudenza della Corte Europea dei Diritti Umani in materia di controllo in full jurisdiction sull’azione amministrativa, quale occasione per rinverdire il dialogo – invero mai sopito – sulle categorie dogmatiche tradizionali della discrezionalità (anche tecnica) e del merito amministrativo. Si ripropone, in tal modo, nella veste aggiornata dalla giurisprudenza europea, il tema tradizionale - e, per molti versi, fondativo della stessa specialità amministrativa - della natura e della penetratività dei poteri di controllo dei giudici sui provvedimenti amministrativi opinabili.
Il controllo di full jurisdiction sui provvedimenti amministrativi
Giliberti B
2019-01-01
Abstract
There is a branch of jurisprudence which has solid grounds to deem that the notion of full jurisdiction, as the ECHR intends it, is likely to consider the Administrative Court as fully substitutive of the Public Administration (even, in extreme cases, in the event of activities implying a high degree of political-discretionary powers). Other branches, on the contrary, according to the jurisprudence of the EU Court of Justice, especially about antitrust and public tenders, maintain that the jurisdiction of the Administrative Court is limited by the administrative discretionary powers and that therefore its control – although full under the viewpoint of the access to the facts – may not be considered as completely substitutive. Such dichotomy also refers to another issue, raised by the Italian Code of Administrative Process, that, with a great innovation vis-à-vis to the past, acknowledges that when the Courts ascertain that there is no longer any material discretionary power, though in abstract terms provided for by the law, they can decide the claim fully replacing the public authority. The boundary of this possibility and its potential, if any, are at all events made uncertain by the conflict existing between a certain view of the principle of separation of powers and the request for protection that persons claim constitutionally. The notion of discretionary power, however, is still subject to multiple interpretations and therefore turns out to be vague and difficult to be applied in practice. It is therefore reintroduced, in a form adjourned by the European jurisprudence, the traditional and grounding theme of the administrative law as special branch, i.e. the nature and capability of penetration of the Court’s controlling powers on discretionary administrative measures. The book presents the results of an in-depth study currently in progress, carried out over the years - jointly or individually depending on the case - by various scholars who, in the context of their research and from the view time to time required by those, have dealt with the issue of control in full jurisdiction and its impact on national theoretical and jurisprudential categories. The reflection of the scholars, however, as well as the comparison that these have over time exchanged with each other, has benefited from the dialogue offered by the meeting held in Naples on March 9, 2018 at the Pegaso Università Telematica.I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
