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 1

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. 1

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 . 9-10/4/2019 3

• Non-ability to qualify for University teaching – Tar Lazio 1 Decision n. 11423 of 2014 : - manifest inconsistency between the positive evaluation of the Commission and the denial of ability to qualification; - upholds the appeal; orders re-examination of the candidate by a new commission .- - 9-10/4/2019 4

Non-ability to qualify for University teaching – 2 nd Commission -In 2016 the new Commission judged the appellant's publications "acceptable” and confirmed the negative judgement - Enforcement action to Tar Lazio 9-10/4/2019 5

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 6

Non-ability to qualify for University teaching – 3 rd Commission Appointed a new Commission: - the candidate revaluated - publications judged "limited” → ability to qualify denied Appeal to TAR Lazio 9-10/4/2019 7

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 8

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? 9

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 commissions” : given by the two previous first two times, judgments "good" and "acceptable"; the third time, evaluation of an absolutely negative sign, "limited“ ; 2. reasoning lacking of adequate motivational support. 10 9-10/4/2019

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 15

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 15

 Many thanks for Your attention !! 9-10/4/2019 13