“Fundamental” legitimate interests or “simple” legitimate interests?
.pdf (Italiano)

How to Cite

Grüner, G. (2024). “Fundamental” legitimate interests or “simple” legitimate interests?. P.A. Persona E Amministrazione, 13(2), 159–210. Retrieved from https://journals.uniurb.it/index.php/pea/article/view/4579

Abstract

The Author aims to understand whether the term “fundamental” legitimate interests, which is starting to be used by doctrine (but not by jurisprudence), can express – in the current regulatory state – a legal concept different from that of “simple” legitimate interest. The Author starts from the identification of which subjective legal situations could embody the “fundamental” legitimate interests, and focuses on the inevitable critical issues concerning the division of jurisdiction in relation to the related disputes. In particular, it is noted that, although the trend inaugurated by the ruling of the Constitutional Court n. 204 of 2004 could open the doors to the recognition of the legal concept of “fundamental” legitimate interests, even more so if read in light of the recent jurisprudence of the Constitutional Court on the subject of restrictive administrative measures adopted during the pandemic, there are still two obstacles to its acceptance. Firstly, the jurisprudence of the United Sections of the Supreme Court of Cassation, which, through the revitalization of dating back – and questionable – theories (that of the so-called “non-degradable” rights and that according to which binding administrative acts always correspond only to subjective rights), includes the subjective legal situations under consideration, precisely, in the context of subjective rights. Secondly, certain choices made by the legislator, who directly entrusts public law disputes to ordinary jurisdiction in the context of which “fundamental” legitimate interests could well come into consideration. The Author criticizes these approaches, but, at the same time, notes that the term “fundamental” legitimate interests could perhaps be superfluous. In conclusion, the Author argues for a valorization of the real defense scope of the “simple” legitimate interest.

.pdf (Italiano)
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