The Italian Council of State and its relationship with the legislative power

The contribution provides an overview of the relationship between the Italian Council of State and the legislative power in Italy. In the Italian legal system, the role of supreme administrative court is played by the Council of State. However, adjudicating in administrative cases is not the only task of this body, as it can also be directly and indirectly involved in the legislation process. This involvement is coherent with the dual nature of the Council of State: on the one hand, it performs tasks as an administrative court; on the other, it performs advisory functions. This raises questions of how this dualism relates to the concepts of separation of powers and judicial independence. Firstly, as far as the separation of powers is concerned, the core issue lies in the coincidence between the roles of adviser, and sometimes even drafter, of legislative decrees, with the role of judge. Secondly, as far as judicial independence is concerned, it has to be mentioned that the independence of special jurisdictions (and therefore of the Council of State) is mainly conceived and ensured with regard to the exercise of judicial functions, rather than with regard to the advisory ones. Summing up, the relationship between the administrative judiciary and the legislative power in Italy needs constant balance, and the independence of the judiciary has to be examined, taking into account its historical, institutional and constitutional reasons with the connection to the essence of the principle of the separation of powers.