Administrative justice, regional courts and legal certainty in Italy

The Italian system of administrative justice, as resulting from tradition, statutory law and the Constitution, is based on a distinction between two judicial orders: the ordinary jurisdiction, and the administrative jurisdiction. To determine whether a case shall be decided by the administrative or by the ordinary judge, the general criterion is that of the nature of the subjective position of the person bringing the case, with legitimate interests belonging to the administrative jurisdiction, and subjective rights belonging to the ordinary one. In Italy, the administrative jurisdiction is articulated into two tiers, with regional administrative courts deciding cases in the first instance and the Council of State adjudicating them in the second and last instance. The rulings of the Council of State can however be appealed to the Court of Cassation for grounds of jurisdiction, an aspect which has generated several uncertainties along the years. In principle, in the Italian system of administrative justice there is no doctrine of stare decisis, nor are inferior courts bound by the precedents of the Council of State. Since the Council of State, through the Plenary assembly, is tasked with ensuring the uniform interpretation of the law within the administrative jurisdiction, it shall however by underlined that the judicial sections of the Council must refer a case to the Plenary assembly if they wish to disregard a previous ruling issued by the Plenary itself. Moreover, inferior courts tend to heavily rely on precedents, although they are under no legal obligation to do so. EU law and the CJEU caselaw have deeply influenced the evolution of administrative justice in Italy. Besides frequently submitting requests for preliminary ruling to the CJEU, administrative judges – in Italy as in the other Member States – are subject to the general obligation to interpret and apply national law consistently with EU law and jurisprudence. Moreover, both the Constitutional Court and the Plenary assembly of the Council of State have recognized that CJEU rulings that apply or interpret EU provisions bear the same force of the EU provisions themselves. CJEU rulings therefore bind administrative judges and prevail over contrasting national law and precedents, which must be eventually disapplied.