BL DEMET - Cangelli - 27. Provvedimento. Efficacia

Summary

This lecture delves into the concept of administrative acts in Italian public law, emphasizing their role in the exercise of administrative power. It discusses the legal framework, particularly the 2005 amendments to Legge 241/1990, which introduced protections for private rights and clarified the effectiveness and enforceability of administrative acts. The lecture covers key concepts like the authority of administrative decisions, the legal nature of administrative acts, and the process of self-enforcement (autotutela). It also touches on the conditions under which administrative acts take immediate effect and their potential suspension or limitation.

Takeaways

• 😀 The administrative measure is the act through which public power is exercised, with a strong impact on the legal status of individuals.
• 😀 There has been no exhaustive regulation of administrative measures, although they were discussed extensively in doctrine before the 1990 Law 241.
• 😀 An administrative act is defined as a manifestation of will, judgment, or knowledge by a public administration that affects the legal situations of individuals.
• 😀 The difference between an 'administrative act' and a 'provvedimento amministrativo' lies in the external effects produced and the legal consequences.
• 😀 A provision can produce either favorable or unfavorable effects, such as granting benefits or imposing penalties (e.g., expropriation orders).
• 😀 Key characteristics of administrative provisions include authority, typicity, nominative nature, and resistance to appeal after certain timeframes.
• 😀 The concept of 'autotutela' refers to a public administration's ability to self-enforce or self-correct decisions, without judicial intervention.
• 😀 Administrative acts can either be instantaneously effective or durable, depending on the nature of their effects (e.g., temporary or long-lasting).
• 😀 The law distinguishes between executory (or enforceable) actions and decisional autotutela, which involves revisiting and revising administrative decisions.
• 😀 Article 21 bis of Law 241/1990 introduces specific provisions regarding the limited effectiveness of administrative acts, emphasizing the importance of notification to individuals before enforcing restrictions.
• 😀 Article 21 ter and article 21 quater focus on increasing the protection of private parties by establishing clear guidelines for enforcement and providing additional safeguards for coaction and suspension of administrative provisions.

Q & A

What is the administrative act or 'provvedimento amministrativo'?

An administrative act, or 'provvedimento amministrativo', is the typical act through which public authorities exercise their power. It involves the formal expression of administrative decisions and is the means by which the public interest is managed.

How does the administrative act differ from other administrative actions?

The key difference between an administrative act and other administrative actions is the effect it has on the general legal order and on the subjective legal situations of individuals outside the administration. Administrative acts are typically binding and produce external effects, while other actions, such as internal opinions, may not have these effects.

Why is there a lack of clear legislation on the administrative act?

There is no exhaustive regulation of the administrative act due to the absence of a comprehensive law governing all aspects of it. The Law 241 of 1990 introduced some provisions in 2005 but left many questions open, leading to a reliance on doctrinal elaboration to define its elements.

What are the basic characteristics of an administrative act?

An administrative act typically includes a preamble, a motivational section, the decision (dispositivo), date, and signature. It expresses the will of the administration in a procedural context and can have either positive or negative effects on the legal status of its recipients.

What does 'imperativity' mean in the context of administrative acts?

Imperativity refers to the unilateral nature of the administrative act, meaning it can alter legal situations without the consent of the recipient. This is a defining characteristic of most administrative acts, as opposed to consensual acts like agreements.

What is the difference between 'immediate effectiveness' and 'durable effectiveness' in administrative acts?

'Immediate effectiveness' refers to an act whose effects occur instantly after its issuance. In contrast, 'durable effectiveness' refers to acts that produce ongoing effects over time, such as the granting of long-term permissions or licenses.

How does the concept of 'autotutela' relate to the effectiveness of administrative acts?

Autotutela refers to the ability of the public administration to enforce its own decisions without needing judicial intervention. It is linked to the concept of effectiveness, as some administrative acts can be executed or enforced by the administration itself.

What is the role of 'autotutela esecutiva' in administrative acts?

Autotutela esecutiva allows the public administration to execute its decisions directly, without involving the judiciary. This concept is reflected in the legal framework, particularly in the enforcement of obligations by the administration.

What is the importance of Article 21 bis of Law 241/1990 regarding the effectiveness of administrative acts?

Article 21 bis addresses the effectiveness of administrative acts that limit the legal sphere of private individuals. It introduces safeguards by stipulating that such acts are only effective once communicated to the individual, ensuring protection against unwarranted limitations on their legal rights.

How does Article 21 quater address the suspension of administrative acts?

Article 21 quater allows for the suspension of the effectiveness or execution of an administrative act for serious reasons, but only for a limited period. The suspension must be specified in the act itself and cannot extend beyond the term for annulment, adding a layer of legal certainty and protection for those affected by administrative decisions.