Studio Legale Pavan Website

The Italian Code of administrative procedure (C.P.A.) allows to file a claim to the court which has already delivered a decision, in order to have it executed (so-called “giudizio di ottemperanza”). According to article 114, paragraph 4, of the C.P.A., the requested court may either specify the content of the administrative order to be issued by the public administration, or issue itself the administrative order in question.

Doctrine and jurisprudence had tried to clarify the restrictions on the administrative judge when substituting for the public administration, that is to say whether the administrative judge is allowed to take decisions which are within the competence of the public administration.

With judgment 30th September 2016, no. 19475, the “Sezioni Unite” of the Italian Court of Cassation stated that, in the “giudizio di ottemperanza”, an administrative court may decide instead of the public administration without going beyond the external limits of the competence of the administrative judge.

For example, in the case under the scrutiny of the Court of Cassation, the “Consiglio di Stato” gave a  researcher the position of director and, in doing so, created one position instead of the previous two.

Therefore, the dispute regarding the respect for the discretion of the public administration is now settled, in the sense that, in the “giudizio di ottemperanza”, the administrative court is allowed a certain freedom of action.