The italian administrative jurisdiction

1.) THE ITALIAN ADMINISTRATIVE JURISDICTION IN GENERAL

Italian administrative jurisdiction is an autonomous jurisdiction.

It is separated from the ordinary jurisdiction of the civil courts and the criminal courts.

The reasons for this are based on the history of the state. In the nineteenth century Italy had the monarchy. The king did not want acts of public administration to be examined by judges. Disputes about acts of public administration were therefore attributed to the Council of State, that is, an advisor to the king. Over time, the State Council has been given not only an advisory role, but also a judicial role.

The basic principle has remained that the civil courts are responsible for proceedings in which one sues for the recognition of a right, and the administrative courts are responsible for proceedings in which one sues for the annulment of an administrative act.

The Italian Fundamental Law has recognized the autonomous role of the administrative judiciary, has framed this jurisdiction as an ordinary jurisdiction in its own specialties, and has provided that there should be not one but two decision-making instances. The administrative court as a court of first instance thus finds its own recognition in the Basic Law of 1948.

The Italian administrative courts started their activity in 1971. For certain matters, besides the old attribution principle of the administrative act, new competences of the administrative jurisdiction have been recognized. This relates in particular to proceedings in which it is not examined whether the case involves a legal claim or an administrative act.

These include, for example, proceedings concerning building law, building planning and expropriation or access to documents, the award of public works, services and supplies or compensation for damage caused by an administrative act.

Of course, in this perspective, criminal cases remain attributed to the criminal courts.

There is only a third instance if a lawsuit is filed due to the jurisdiction of the administrative courts. In these cases, the Court of Cassation, i.e. the highest ordinary court, makes the decision.

A plaintiff can opt for a single instance. It can be, with certain exceptions (z.B. In electoral procedures), when making an extraordinary complaint to the President of the Republic. In this alternative procedure, the binding decision is made by the State Council. However, this procedure takes longer and is not often used.

In Italy, there are not only ordinary and administrative judges.

Independent jurisdictions are:

• Jurisdiction of public accounts. It decides regarding the responsibility towards the administration of civil servants and in budgetary matters of the public authorities;
• Fiscal jurisdiction. There are three instances. In the first and second instance, there are honorary judges, i.e. ordinary and administrative judges, lawyers and tax advisors who exercise the office as a second activity. In the third instance, the jurisdiction is attributed to the Court of Cassation.

2.) JURISDICTION OF THE CHAMBERS OF THE ADMINISTRATIVE COURT OF BOLOGNA

The Administrative Court of Bologna has two chambers. In order to give an idea of the subject areas dealt with by the Italian Administrative Courts, the distribution of subjects in the Administrative Court of Bologna between the First and Second Chambers is described as follows:

2.a) RESPONSIBILITIES OF THE FIRST CHAMBER OF THE ADMINISTRATIVE COURT OF BOLOGNA

• Expropriation orders of the State
• Awarding of public works and public supplies;
• University, school education, research, state examination;
• Orders of the Regions;
• Structure and composition of public institutions;
• Infrastructure and transportation of state and regional interest;
• cultural goods and environmental restrictions;
• Environment, health, pollution, waste and reclamation;
• Public employment and competitions for employment (for non-privatized categories z.B. Military, professors, judges);
• Public security and public order;
• Industry and commerce;
• Citizenship, entry and residence in the territory of the State (in this framework, the asylum procedures are excluded because they concern a right attributed to the civil courts)

2.b.) COMPETENCES OF THE SECOND CHAMBER OF THE ADMINISTRATIVE COURT OF BOLOGNA

• Expropriation orders of the regions and the municipalities;
• Procurements involving public services;
• Regional and local elections (for European Parliament elections, only the Administrative Court of Rome has jurisdiction; for national Parliament elections, the Parliament itself has jurisdiction without intervention of a court);
• building permits and building planning;
• Agriculture and forests;
• Public Property;
• Labor and social benefits (within this framework, the administrative courts are attributed the cases in which the administration exercises discretion; the civil courts are attributed the cases in which the administration does not exercise discretion);
• Professional matters

3.) THE SELF-GOVERNMENT: THE PRESIDENTIAL COUNCIL

The independence of the administrative jurisdiction entails the self-governance. The administration is entrusted to an independent body called the Presidential Council, whose acts may be challenged before the Administrative Court.

The members of the Presidential Council are the following:

• the President of the Council of State, who is the President of the Presidential Council;
• 4 judges elected by all the judges of the Council of State;
• 6 judges elected by all the judges of the administrative courts;
• 4 citizens elected by the Parliament, who shall have a connection with politics.

4.) OBLIGATIONS OF THE JUDGES

Regarding the obligations of the judges, the following can be stated:

If, in a decision, a judge does not vote with the majority, he cannot announce his own opinion. However, he has the possibility to leave a note with his own opinion in a sealed envelope in the office. The envelope may be opened only when the judge is called to account in connection with the decision.

The president of the court shall appoint a commission to decide on the granting of legal aid (including attorney's fees) for indigents. This commission is composed of two judges and one lawyer. The judge must exercise this mandate even against his will and without remuneration.

5.) SELECTION AND APPOINTMENT OF JUDGES

You have to distinguish between judges of the first instance (administrative courts) and the second instance (Council of State).

Appointment of first-instance judges is based on a merit competition, 4 written exams, and an oral exam.

The 4 written exams are as follows: Civil Law, Administrative Law, Tax Law, and Drafting a Judgment.

Only certain qualified people can apply: ordinary judges, lawyers with 8 years of experience or public administration officials with 5 years of experience.

The commission consists of 5 members:

• a president of a chamber of the Council of State or the president of an administrative court as president of the commission;
• a member of the Council of State;
• A member of an administrative tribunal;
• Two professors at the university.

Each process takes place about every two years, with about 1000 candidates applying on a regular basis. 30 candidates per round are successful.

At the Council of State, there are three different ways of appeal:

• half of the vacancies are filled by administrative judges. The order of appeal is based on the seniority of the administrative law judge;
• one-fourth of the vacancies are appointed at the discretion of the Council of Ministers;
• A quarter of vacancies are filled based on a competition similar to the one for administrative law judges.

Each competition procedure at the Council of State takes place about every year and about 100 candidates apply. About three to four candidates are successful in each round.

Since the competition involves qualified persons, there is no probationary period.

The new administrative judge may not be assigned to any court located in the area of his previous activity for two years.

Judges are generally not allowed to be transferred to another court. This is only permissible in the case of bias, where it is no longer possible to exercise the profession independently.

No judge may remain in the same chamber for more than five years.

6.) THE POSSIBILITY FOR THE JUDGE TO PERFORM OTHER ACTIVITIES

The administrative judge may engage in another activity if he or she receives approval from the presidential council to do so.

Permission may not be granted if the activity would impair the independence and impartiality of the judge or the prestige and image of the administrative judiciary.

If a public administration wants to give an order to an administrative judge, it must not choose the administrative judge, but it must make a request to the presidential council. The Presidential Council assigns each judge based on objective standards. It is often the case that the administration gives the order to a judge and the judge asks the presidential council for approval.

The presidential council of the administrative jurisdiction is traditionally generous compared to that of the ordinary jurisdiction.

7.) DICIPLINARY PROCEEDINGS AND RESPONSIBILITY

The disciplinary sanctions are:

• the warning;
• censorship;
• the loss of seniority;
• the transfer;
• the discharge.

Unfortunately, the premises of the disciplinary proceedings are not well described. Thus, the presidential council has some discretion.

The disciplinary procedure for administrative judges is secret, unlike the disciplinary procedure for ordinary judges.

The law specifies a period of 45 days for the deposit of the judgments.

Nevertheless, the presidential council has decided that a period of 6 months is required for the initiation of disciplinary proceedings.

If it is proved in court that a judgment has caused unjustified damage, the person concerned cannot take action against the judge, but against the state. The prime minister should take legal action against the judge in this case, if the judge caused the damage intentionally or inexcusably.

8.) THE JUDGEMENT OF THE JUDGES

A judge's assessment is made in the following cases:

• when the judge is promoted. This occurs twice: after 4 years since the appointment and after 4 years since the first promotion;
• when the judge becomes a member of the Council of State; this occurs after about 17-18 years since the appointment;
• when the judge is appointed as president of a chamber or court; this occurs about 22-24 years since the appointment;
• When the presidential council gives the judge an additional assignment.

The benchmarks of the evaluation are seniority and irreproachable performance of service.

Impeccable performance of duty includes: meaningful and not repeated tardiness in filing judgments, absence of disciplinary sanctions, absence of a transfer due to bias.

In order for a judge to become a member of the Council of State or President, the judgments that the judge has written are also evaluated.

The daily work is not controlled. The number of judgments and the number of cases attributed to a judge are checked.

In Italy it is possible to work on the files from home, since the process is electronic.

The number of cases attributed to a judge is set by the presidential council for all judges.

The Presidential Council may also establish additional and voluntary programs in which the judge has to write more judgments and for which a certain additional remuneration is paid.

* courtesy of Dr. Marco Morgantini

Mr. Dr. Marco Morgantini earned his law degree from the University of Padua on 16. December 1988. On 28. October 1999, he also earned a specialization degree in public administration studies from the University of Bologna.

After initially working as a municipal secretary for several years, since 1. December 2004 working as an administrative judge first in Catanzaro, then in Venice and currently in Bologna. In addition, as a tax judge in the honorary office of 10. October 2014 to 31. October 2017 had been working.

He has participated in several international two-week exchange experiences and the following in Germany and Austria:

2009: administrative court Frankfurt am Main;

2010: Klagenfurt Administrative Senate;

2012: Kassel Administrative Court;

2015: Administrative Court of Ansbach;

2016: Munich Administrative Court;

2017: Potsdam Administrative Court;

2018: Darmstadt Administrative Court;

2019: Cottbus Administrative Court.

Furthermore, he has participated in the Administrative Court Conferences in Munster (2013) as well as in Darmstadt (2019).

He is a member of the Environmental Group of the European Association of Administrative Judges.