Sulla (non) annullabilità, per vizi di forma, del provvedimento amministrativo. Contributo di metodo

Cotza, Paolo

2023-01-01

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Abstract

It starts from the traditional automatism between ‘illegitimacy’ and ‘voidability’ and from a first jurisprudential reversal in favor of an approach to administrative action, more attentive to: the substance of the relationship than the formal requirements of the act; the principle of reasonableness as a competitor with the principle of guarantee. Except for the certain, reasoned resistance to accept the idea of ‘non-disabling’ vices. Hence, a re-framing of the problem on the logical-juridical level, with the involvement, first of all, of the institution of discretion in the light of the ‘protocols of understanding’: the latter, epistemologically updated (so as to justify the replacement of ‘concepts-substance’ with ‘concepts-function’); the first (as a practical judgment), related to the circular scheme of ‘comprehension-application’ (so as to overcome the selfstyled antithesis with respect to the category of bindingness) and attributable to a consequentialist normative scheme, ‘structurally’ distinct from the hypothetical-casuistic one as it is more sensitive to the repercussions that can be derived than to an order made up of acceptable predictability. Added to this has been a re-consideration of judicial review: no longer founded within the confines of the assessment of the fact conducted by the administration; as well as the coherence of the reasoning, having regard to the accuracy and reliability of the procedural parameters adopted; but extended to the sphere of ‘merit’, in accordance with the principle of effectiveness of protection and when this finds a favourable support in the (multi-)polarity of the reference discipline. Thus, the administrative judge can assess illegitimate, not only the choice based on inaccuracies-unreliability or otherwise unreasonable, but also the one (among a multiplicity of reasonable solutions, fully proposed) that proves to be less ‘rewarding’ with respect to the problem of balancing interests faced by the administration. In this way, the ‘result’ can become a parameter for the review of the administrative judge (interms of greater or lesser compliance with the concrete public interest) and the related judgment on the legitimacy (or not) of an administrative act (in the formal sense) in which the outcome is summarized. Hence, some innovative conclusions both in the interpretation of the relevant discipline contained in the General Law on Administrative Procedure and Activities, and in the ‘critical reading’ of the relevant jurisprudential ‘formant’.