Administrative, Administrative procedure, Conference of services, Dissent expressed by an administration in charge of the protection of sensitive interests, Overcoming of dissent by the administrative administration, Necessary remission of the matter to the Council of Ministers, Cass. Civ., Sec. Un., Judgment n. 9338 of 16 April 2018
The Joint Sections of the Supreme Court are ruling in order to overcome the dissent expressed in the conference of services by the administrations responsible for the protection of sensitive interests
In the event of dissent expressed by an administration responsible for the protection of a sensitive interest, the list of which is the landscape, the mechanism provided for by the 3rd paragraph of art. 14-quater of the l. n. 241/90 prevents the services conference from proceeding further and makes it necessary, if the administrative authority intends to pursue the overcoming of dissent, the referral of the decision to the Council of Ministers (1).
(1) I. – In the sentence in the epigraph the Joint Sections of the Court of Cassation, pronouncing in the appeal for a ruling by the Superior Court of Public Waters, deal with the provisions related to the functioning of the services conference, with specific reference to the role that in this procedural form it assumes the dissent of the administrations responsible for the protection of sensitive interests (such as environmental, landscape-territorial, historical-artistic heritage, protection of health and public safety) and how to overcome this dissent.
The pronunciation in review refers to the discipline dictated by art. 14-quater of the law n. 241 of 1990 (entitled “Effects of the dissent expressed in the services conference”), in the text resulting from art. 49 of the Decree-Law of 31 May 2010, n. 78, in turn made the subject of modifications by the decree-law May 13, 2011, n. 70 and 18 October 2012, n. 179.
As is known, the entire discipline of the service conference was subsequently reviewed by Legislative Decree 30 June 2016, n. 127; currently, the discipline of “Remedies for dissenting administrations” is contained in the new text of art. 14-quinquies of the law n. 241 of 1990, while the current art. 14-quater of the same law concerns the “Decision of the services conference”.
The legislation in force concerning the overcoming of the dissent expressed, in the service conference, by sensitive authorities (as in the new article 14-quinquies, cited above), establishes a procedural mechanism in part different from that in precedence provided for by art. 14-quater (old text), the last one dealing with the Sections joined in the sentence in question.
This does not mean that, apart from the specific mechanisms of procedural technique, both in the (old) art. 14-quater as in that of the (new) art. 14-quinquies the overcoming of dissent in the matter of sensitive interests passes through a structuring of the procedure that sees a shift outside the conference of the formulation of a share of the decision and the consequent involvement of the Council of Ministers, which is the main profile the sentence of the joint Sections examined here is dealt with.
Source Administrative Justice
