Giulia Mannucci

Of the Validation of the Administrative Measure

  • Abstract

Informations and abstract


The subject of the writing is the instrument of ratification as a paradigmatic example of the capacity of resistance of traditional institutions, built around the idea of the supremacy of the public administration, to the changed relation between authority and freedom. In its classic reconstruction ratification is understood as a highly discretionary power, corollary of the supremacy of the public interest: it is a privilege that allows the administration to make mistakes and to correct them unilaterally with retroactive effect without having to bear the weight of the consequences produced in the sphere of the private individuals involved. This idea still survives today, showing itself to be impervious to change and to criticism, to the point of having been faithfully proposed again at the time of interpretation of the rules provided for under section IV-bis of the law on procedure. The author intends to bring into question this conception of validation, proposing a re-examination of the institution from an evolutionary viewpoint with the intent to define the essential features of the rectifying instrument, taking into account the new role of the administration as the provider of services and benefits to the citizenry. In this perspective the author intends to single out a criterion of compatibility between the general favour with regard to ratification and the safeguarding of the subjective positions that may be compromised by its exercise. The analysis focuses on three profiles. The first concerns the terms of the relation between ratification and formal flaws: the formal flaw category is reconstrued in light of the distinction, sanctioned by Art. 21(2)-octies between mere formalities and substantive formalities. On this basis the characteristics are singled out that distinguish the validation of the other instruments with a rectifying result and delimit the objective ambit thereof. The second profile pertains to the protection of the private positions affected by its exercise; the theme pertaining to the procedural and temporal dimension of ratification is dealt with by comparing similar common-law institutions. The third profile regards its admissibility in course of judgement.

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