EJTN ADMINISTRATIVE LAW TRAINING Brussels, 9-10 April 2019 Changing - - PowerPoint PPT Presentation

EJTN ADMINISTRATIVE LAW TRAINING Brussels, 9-10 April 2019

Changing Administrative Law Procedures in Europe Working Group 1 The scope of Administrative Jurisdiction: control of the Administration vs. Substitution

• Cons. ROSA PERNA

Tar del Lazio - Rome

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EJTN ADMINISTRATIVE LAW TRAINING Brussels, 9-10 April 2019

The scope of Administrative Jurisdiction: control of the Administration vs. Substitution

2. La Macchia against the Ministry of Education: Tar Lazio, III, 13.11.2014 n. 11423, 4.7.2017 n. 7695, 18.4.2018 n. 4283; Council of State, VI, 25.2.2019 n. 1321.

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The topic

Italian recent case: the National Scientific Qualification procedure (ASN) for university teaching. Associate professor since 2001, in 2012 national scientific qualification procedure for the first level (full professor) in Labor law; Publications judged “good" but judgment of non-ability to qualify. Appeal to Tar Lazio

.

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• Non-ability to qualify for University teaching –

Tar Lazio 1 Decision n. 11423 of 2014 :

• manifest

inconsistency between the positive evaluation

• f

the Commission and the denial of ability to qualification;

• upholds the appeal;
• rders re-examination of the candidate by a new commission .-

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Non-ability to qualify for University teaching – 2nd Commission

• In 2016 the new Commission judged the appellant's publications

"acceptable” and confirmed the negative judgement

• Enforcement action to Tar Lazio

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Non-ability to qualify for University teaching – Tar Lazio 2 Decision n. 7695 of 2017:

• refusal based on non-production of a second monograph, instead

subsisting;

• upholds the appeal for compliance

.- 9-10/4/2019

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Non-ability to qualify for University teaching – 3rd Commission

Appointed a new Commission:

• the candidate revaluated
• publications judged "limited”

→ability to qualify denied Appeal to TAR Lazio 9-10/4/2019

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Non-ability to qualify for University teaching – Tar Lazio 3 Decision n. 4283 of 2018:

• res judicata had not been violated;
• the "third" commission was not held to adopt the merit

judgments of the first commission; → Rejects the claim Appeal to the Council of State

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Council of State 25.2.2019 n. 1321

? ? ?

 Which you believe may have been the decision of the

Council of State in this specific case? Why?

 What would your decision be in the case in question?

Why?

 Was the judge entitled to replace the administration’s

technical evaluation and impose by verdict concrete and constitutive obligations on administrative authorities?

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Council of State 25.2.2019 n. 1321

Tar decision overturned

• 1. excess of power "in the marked and unreasonable divergence

between the evaluation object of the present judgment and those given by the two previous commissions”: first two times, judgments "good" and "acceptable"; the third time, evaluation of an absolutely negative sign, "limited“;

• 2. reasoning lacking of adequate motivational support.

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Council of State 25.2.2019 n. 1321 - 2

Not acceptable the result of a “fatiguing alternation between procedure and process” The judge is able to:

• go "beyond" the representation of facts provided by the

proceeding,

• establish proper measures to ensure the execution of final

judgements, even in the cognizance proceedings

• reform the contested decision at any point, in fact and in law

Especially in cases of "progressive reduction of administrative discretion" 9-10/4/2019

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Council of State 25.2.2019 n. 1321 - 3

Here the succession of three res judicata for annulment: effect of "emptying" the administration of its own discretionary power.

Appeal upheld. In executing the present sentence, the Ministry must issue the qualification in question in favour of the appellant

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Many thanks for Your attention !!

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