Origin and Protection of Individual Rights Against Public Power: Rethinking the “delegitimation” theory in the Italian Judicial Review Proceedings

Abstract

The article aims to call for a re-thinking of a cultural perspective that is widely shared in italian administrative law studies. Despite the traditional statement of the “subjectivity” of the Italian system, a very wide current of thought considers that the judge’s task here is not simply that of reaching a conviction through an objective comparison (in the sense of impartial) between the claims made by the plaintiff and the administration’s defensive arguments, but above all to give effect to the “will” of the administrative law to secure “subjective public rights”, i.e. the legislator’s intention to give legal relevance to the material individual interest, who enters the judgement through the qualification and “protection” granted by the same rules governing the challenged decision-making process. This subjectivist re-founding, which restores to the judgement the characteristics of an activity instrumental to the guarantee of a substantial subjective situation (the legitimate interest), has been the harbinger of notable progress at the level of the effects of the judgement and of the same restorative functionality of the Italian system of administrative justice. However, it has also operated from the point of view of limiting access to protection, paradoxically bringing back into vogue in the jurisprudential experience the old classification of the administrative judgement as a typical example of litigation with objective content, in the sense of being intended for the protection of a public interest. It is common ground, in fact, that the judge, before deciding on the validity of the contested measure, must be scrupulously aware, before deciding on the validity of the challenged decision, that only the holders of “protected” interests and therefore “qualified” by the rules governing the exercise of the power have standing to bring an action. The others are automatically “downgraded” to quivis de populo, with very rare exceptions, which only demonstrate the great confusion and the risk of continuous discrimination that originate from the panorama described above. The arguments presented in the article are linked to this element, in the context of the practical criterion, endorsed by a part of the doctrine and constantly used by jurisprudence, with which it is ascertained, in each individual case, whether the plaintiff has standing because of being the “owner” of the action, or whether he acts for a mere factual interest, not protected by the system, destined to be opposed, in court, by a ruling of “obstructive” inadmissibility (art. 35 c.p.a.). The contribution does not deal with the issue of so-called diffuse interests (i.e. “group litigation” or similar), which is also considered crucial, but is distinct: in fact, the procedural juncture in which the judge must resolve issues pertaining to the “coagulation” of an interest in the hands of the plaintiff, or topics related to the “representative” nature of the collective subject that has taken legal action for the annulment of the act, is different. The problem focused by this essay takes shape in a completely different situation, which takes place when the protection of interests is refused, despite the subjective right is “qualified”, because the rules protecting the appellant’s right are not the same as those that the appellant places as the basis of his application, i.e. the rules from the violation of which the appellant deduces the invalidity of the challenged decision.