Il nuovo parere precontenzioso vincolante ANAC: la tutela giustiziale nei confronti della pubblica amministrazione tra procedimento e processo

The essay focuses on the new pre-litigation advice of ANAC (i.e. italian public procurement Authority), from the genesis since the recent evolutions. The analysis of this non-judicial remedy offered the chance to reflect on the more general issue of the differences between administrative procedure and judicial review. Starting from the contributions of traditional scholars about administrative appeal and contentious procedure, the essay identifies formal features that structurally characterize a "process" and, according to the prospective chosen, these elements have been combined with a functional analysis. After this survey, the new binding pre-litigation advice of ANAC is identified with the category of“administrative decision”and this conclusion brings specific results in terms of rules applicables. However the essay emphasizes that the notion of “process” has different meanings in each field of law and needs to be verified (for instance, in the light of EU law or ECHR).