ANNULLAMENTO D'UFFICIO E DISCREZIONALITA' AMMINISTRATIVA

Erika Peroni, The ex officio power to set aside Administration measures and the discretion of the Public Administration This work analyzes the limits of the power of the Public Administration to set aside its measures under Article 21 nonies of the Law August 9th, 1990, no. 241. The principle aim of the work is to verify whether or not the aforesaid provision is consistent with the courts’ precedents and the scholars’ opinion prior to its entrance into force. This analysis concerns the wideness of the Public Administration's discretion while evaluating when the following requirements pursuant to Article 21 nonies of the Law no. 241 are met: the “reasonable term”, the “unlawfulness of the measure”, the “balance of the interests involved”, the “reliance of the recipient in the unlawful measure”, and above all the “public interest to set aside the unlawful measure”. The analysis concerns the value of the petition put forward by private entities to the Public Administration aimed at setting aside its unlawful measures as well as the discretion of the Public Administration in conducting the relevant procedure. Moreover, this study investigates the alignment of the Public Administration’s “duties to set aside” some of its unlawful measures according to the courts’ cases law and scholars’ opinion with the provision under Article 21 nonies of the Law no. 241. More specifically, the analysis focuses on the cases where such “duties to set aside” are mostly discussed, i.e. the so-called “indirect” violations of the Italian Constitution and the EU legislation by Public Administration’s measures. The author’s opinion is that the Public Administration’s power to set aside its unlawful measures is discretionary with the sole exceptions as ruled by the applicable special law provisions. The final part of this work refers to the privates right to claim for the damages compensation in the field of the Public Administration’s power to set aside its measures.