Francesco Merloni

Administrative Functions and Judicial Review. A Rereading of the Constitution

  • Abstract

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Numerous novelties recently introduced, both at the constitutional and ordinary legislation level, make it possible today to reread the Constitution in a 'rich' way. The Constitution expresses - through the new formulation of some of its provisions or the progressive interpretation thereof or through innovative legislation - values and principles that place at the centre the protection of the fundamental rights of the citizen with which the exercise of administrative 'power' must come to grips. On the constitutional plane, the new features that must be considered most significant are the regulation of amministrative functions (Art. 118 and related articles, all introduced by Constitutional Law No. 3 of 2001) and the new discipline under Art. 111 regarding due process ('cross-examination of litigants on an equal footing,' 'third-party and impartial judge'). The most important novelty on the plane of ordinary legislation is certainly the new regulation contained in the Administrative Trial Code. There are two positions expressed in administrative law doctrine with regard to these novelties: one that tends to consider concluded the long process of adjustment of the regulation to constitutional principles, considering the superseding of the authoritarian foundation of administrative power an accomplished fact; and a second that instead considers this process yet to be realized since it ought to guarantee full protection of the citizenry vis-à-vis public administrations, with particular attention to the matter of the independence of the administrative judge. The author discusses these different positions with reference to three orders of considerations: the theory of administrative power in light of constitutional norms on functions; the full and effective jurisdictional protection vis-à-vis the administration; the utility of the notion

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