Administrative Law, On the “reduction” of the administrative discretion (also technical), Council of State, VI, Judgment of 25.02.2019 n. 1321
Administrative discretion – Reduction – Effects – Consequence
The administrative discretion (also technical) can be progressively “reduced” due to the effect:
a) on the “substantial” level, of the self-constraints deriving from the unraveling of the administrative action, marked by the increasing use of secondary and tertiary sources that often pose themselves as rigid parameters to unify the exercise of the concrete administrative function (even if originally characterized in discretionary terms);
b) on the “procedural” level of judicial mechanisms which, by urging the administration to carry out any evaluation remaining on the matter at issue, allow the investigation to be focused, through successive approximations, on the whole case of power (think of the combination of ordinances) propulsive and motives added against the act of exercising power, but also to pre-investigations and the rule of judgment based on the burden of proof), concentrating in a single jurisdictional episode all that cognition activity that had to be completed in the first place of compliance.
The consummation of discretion can also be the result of the irreconcilable “fracture” of the relationship of trust between the administration and the citizen, deriving from a repeated, captive, equivocal, contradictory action, therefore detrimental to the canon of good administration and the custody of private individuals on correctness. public authorities.
In the presence of such an eventuality, the administration is prevented from returning to decide unfavorably to the administration also in relation to the profiles not yet examined (in this case, in which the administrative judge had annulled the refusal of attainment three times. …, the Council of State considered that the scope of technical discretion remitted to the Administration had progressively reduced to “emptying” completely, and consequently ordered the Ministry of …) (1).
(1) In some cases – states the sentence – it may happen that the obstinacy of the administrative bodies to reiterate the annulled statutes integrates an evasion (overt or covert) of the sentence: in this case must admit the possibility, for the judge of compliance, to syndicate also on aspects not affected by the sentence.
But even in an event such as the one in question – in which the alternation of three different Commissions does not allow to recognize in the new defect of illegitimacy a clear symptom of the intention not to implement the sentence -, the succession of three adjudication judgments has however the effect of “emptying” the administration of its discretionary power.
With the clarification that the court is, in this case, a constraint on the administrative discretion operating as a “fact” and not as an “act”.
Source Administrative Justice
