Reflection on the remedies (preventive or subsequent) provided by the order to the assumptions of non-execution of the administrative court by the administration

Abstract

In the context of the effectiveness of the judicial protection of the private individual, the contribution examines a delicate and complex issue related to the hypothesis of non-execution of the administrative judgement by the administration, namely the unwillingness of the losing administration to comply with the judgements of the administrative judge. The contribution offers food for thought with regard to possible procedural remedies offered by the legal system to the private individual to prevent ex ante (i.e., already during the cognitive process) the occurrence of such a situation (preventive remedies) or, once the default has occurred, to obtain ex post (once the cognitive process has been concluded) full and effective protection, without overlooking the possible consequences of such conduct (in terms of administrative-accounting responsibility) put in place by the administrative authorities (subsequent remedies). Remedies that go beyond the judgment of compliance or the power exercised by the commissioner ad acta or, albeit of an entirely different nature, the effects of the procedural tool of the astreinte, which certainly remain anchors of salvation that the legislator offers to the private individual, albeit with their undoubted criticalities.

Remedies are not easily usable by the private individual insofar as they are linked to the particularity that connotes the dynamics of the administrative judgement - examined in depth in this contribution - of a strongly impugnatory type that essentially follows those of the substantial dialogue between the private individual and the administration.