Le Sezioni Unite della Suprema Court, exceeding the previous guidance of interpretation, argued for the admissibility of opinion regarding compliance with the implementation of the Decree of the President of Sicily Region made the extraordinary appeal, the arguments by the Court - carried out with respect to the extraordinary appeal to the Head of State , means of redress which the Court points out the similarity to the extraordinary appeal to the President of the Sicilian Region, and therefore this application - are based on an analysis of recent regulatory reform (art. 69, l. 18 June 2009, n . and 69 Articles. 112 and 113, Leg. July 2, 2010, No. 104, Code of the administrative process) and the need to ensure the effective rights with regard to this appeal.
The question
The factual situation which led to the decision under review arises from a decision of the Council of Administrative Justice for the Sicilian Region for the rise of compliance with a decree of the President of the Region .
The assessment of compliance (Art. 27, No. 4, Royal Decree No. 1054 of 1924), the Court points out, is the executive instrument designed to ensure the effectiveness and satisfattività of administrative jurisdiction, constitutional elements necessary for full implementation the right of defense. The remedies Judgement of compliance has been linked, by way of exclusive jurisdiction.
The applicant has argued to the Supreme Court in this connection that the act which it was sought and obtained compliance (Decree of the President of Sicily Region issued an extraordinary appeal on) is administrative in nature and not a court, being thus removed from the special form of cognition, which judgment of compliance, attributed to the administrative courts.
Analogy between extraordinary appeal to the President of the Sicilian Region and extraordinary appeal to the Head of State
As mentioned, the Supreme Court notes, first, as the rules of procedure of decision-President of the Sicilian Region made the extraordinary appeal is based on that of the extraordinary appeal to the Head of State, in particular, illustrate the Judges in line with the established line of decisions of legality, the 'analogy of the proceedings in an identity of nature and function.
Therefore, the arguments that may take place on the decision of the Head of State made the extraordinary appeal may apply by reason of the analogy of nature and function, the decision of the President of Sicily Region, whose discipline is based on that dictated by the extraordinary appeal the Head of State.
The traditional approach to the admissibility of the proceedings of compliance with the extraordinary appeal to the Head of State
The remedies of the proceedings of compliance has been linked, by way of exclusive jurisdiction, only the judgments have become final, in fact, are punishable by execution by the court for compliance.
Therefore, according to the traditional approach of the Court of legitimacy, underlined the nature of an administrative act of the decision made at an extraordinary appeal, the assessment of compliance with regard to the extraordinary appeal the Head of State would not be admissible. Therefore, any inert behavior against the government would be permissible only in respect of the opinion implied default.
Sections together with sentence # 15,978 in 2001, reiterated that position, ruling out that the decisions with which they have decided to extraordinary challenges can have a judicial nature, so that these can not be treated as res judicata and that, therefore, are not subject to implemented through review of compliance.
The argument of the Court
Now Judges show that two major stories have been no laws that, in fact, affected deeply about the key considerations to justify the traditional approach and described according to which "the decision on appeal is configured as an extraordinary measure which, although not formal judicial review, is capable of protection through the assessment of compliance "
- art. 69, l. June 18, 2009, No 69 (arrangements for economic development, competitiveness as well as for civil proceedings);
- Articles. Leg 112 and 113. July 2, 2010, No 104 (Code of the administrative process).
Le modifiche apportate dall’art. 69 della legge n. 69 del 2009 sono tali da eliminare alcune determinanti differenze del procedimento per il ricorso straordinario rispetto a quello giurisdizionale (il primo comma introduce una norma che prevede che la sezione del Consiglio di Stato, chiamata ad esprimere il parere sul ricorso straordinario, ne sospende l’espressione ed attiva l’incidente di costituzionalità “ai sensi e per gli effetti di cui agli art. 23 e seguenti della legge 11 marzo 1953, n. 87” se ritiene che il ricorso non possa essere deciso indipendentemente dalla risoluzione di una questione di legittimità costituzionale che non risulti manifestamente infondata; il secondo comma elimina la possibilità that the Ministry in formulating the draft presidential decree, departs from the opinion expressed by the State Council after submission of its proposal to the Council of Ministers, which confirms that the final measure, which concludes the proceedings is a purely declarative proceedings).
Therefore, the Court argues in the light of these provisions, although the presidential decree does not become a judicial act, shall be assimilated to this content, and this is reflected in the need to identify ways of ensuring protection under terms of effectiveness, an adequate remedy against the failure of the pa
How the innovations in the new Code of administrative process, the Court observes that the decision on extraordinary appeal to the Head of State, made under the compulsory and binding opinion of the State Council, is placed in the situation referred to in subparagraph b), second subparagraph art. 112, Legislative Decree no. 104, 2010, article entitled "general provisions on assessment of compliance" and that the application for compliance is proposed under Article. 113, paragraph 1, Legislative Decree no. 104, 2010, before the same Council of State, in which, therefore, identifies "the judge who issued the warrant of which is compliance."
The ruling under review collega tale nuovo impianto normativo all’esigenza di effettività di tutela avverso l’inadempimento della p.a.: dall’“assimilazione” del rimedio straordinario a quello giurisdizionale, pur nella diversità formale del procedimento e dell’atto conclusivo, discende, infatti, “l’esigenza di assicurare ad entrambi i rimedi una tutela effettiva del tutto simile”, in quanto “una volta che si riconoscano poteri decisori, su determinate controversie, formalmente diversi, ma analoghi, rispetto a quelli della giurisdizione, infrangerebbe la coerenza del sistema una regolamentazione affatto inidonea alla tutela effettiva dei diritti e tale da condurre, in spregio al dettato dell'art. 2 Cost., paragraph 1 and Art. 3 of the Constitution, to create a weak protection. "
Therefore, the court concluded, is in harmony with that intention legis counted among the "measures" the administrative judge, subject to compliance with the decision on the extraordinary appeal, which, however, also responds to the need to implement the principles of the ECHR and the European Union.
The Court's conclusion
The judges, therefore, I conclude that "the evolution of the system then brings the decision to set up special appeal as a measure which, although not formally court, however, is susceptible of protection through the assessment of compliance "interpretation that is fully applicable also with reference to the similar decision made by the President of Sicily Region (and this because of above-mentioned analogy between nature and function of an extraordinary appeal to the Chief State and President of Sicily Region).
Hence the application in proceedings brought before the Court of the rule that "the assessment of compliance is clearly admissible in relation to the decree of the President of the Region which has agreed to the extraordinary appeal" and on the basis to which the Court rejected the ground of appeal and dismissed the appeal.
(From the American Lawyer Media 10.03.2011. Note Giulio Spina)
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