Administrative process and public power through the diamond of res iudicata: the overturned asymmetry: Reconsidering Feliciano Benvenuti’s «giudicato amministrativo»

Abstract

The article takes as its starting point the re-reading of Feliciano Benvenuti’s encyclopedic voice to highlight the reversal of perspective. In the essay of the late 1960s, the administrative process still appeared very fragile in relation to the protection of the rights and legitimate interests of private parties and consigned to the sole interest of the public body; in this perspective the res judicata assumed a minimal role, destined to be overwhelmed by the flow of administrative action. Against this disappointing picture of the administrative process, on the other hand, the evolution of public organization and power is felt. Without being decisive elements in the argumentation of Benvenuti’s essay, however, elements emerge - such as the procedure and exclusive jurisdiction - that are susceptible to entirely different considerations in light of the legislation in force.

Examining today's situation, however, the perspective seems to be reversed because positive law presents an administrative process that is substantially suited to the constitutional framework, within which res judicata can be adequately theorized. In contrast, the theory of public power is little developed, except by virtue of a few but valuable contributions by young scholars. Practice and jurisprudence, on the other hand, are definitely lagging behind.

The problem is that there can be no satisfactory theorization of res judicata unless theories of public power and the administrative process are consistent with constitutional and European standards; if even one of these two factors falls behind, the effectiveness of the protection of individual claims is also compromised. Through an examination of the theories proposed in recent decades, the article finds confirmation of the necessary symmetry between power and process and proposes a summary of the declaratory content of the judgment that determines direct effects on the relationship and preclusion of subsequent administrative activity.