Italy

QUESTIONNAIRE

FIRST PART : Do the rights granted by the Charter of Fundamental rights of the EU lead us to a common European procedure before the administration and the administrative courts ?
Introduction
The provisions in the Charter are primarily addressed to the EU institutions and bodies but, according to article 51.1 they should be applied by the Member states when they are implementing Union law.
Through the Treaty of Lisbon the Charter, proclaimed in Nice 7 December 2000, is legally binding to the same extent as the Treaties (article 6.1 in the EU Treaty).
You will find the Charter in the Official Journal, 2010/C 83/02 .

The text of the Charter is available in the internet under :
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:0389:0403:EN:PDF

European Parliament’s explanation, with all the links :

http://www.europarl.europa.eu/charter/default_en.htm

Another very interesting website about this Charter :

http://www.eucharter.org/home.php?page_id=1
It is also useful to read the “updated Explanations relating to the text of the Charter”. You can find them under http://register.consilium.europa.eu/pdf/en/03/cv00/cv00828-re01.en03.pdf . In its preamble it says that the explanations are “a valuable tool of interpretation intended to clarify the provisions of the Charter”. Among other things there are references to a lot of case law from the ECJ where the principles now laid down in the Charter were developed.
General questions
To what extent do you apply EU law
Very much To some extent Not at all
To what extent do you set aside rules of domestic law, if necessary, to give full effect to EU law ?
Very much To some extent Not at all
Can you give examples if appropriate ?
Do you apply EU law even if neither of the parties in a case before you has relied on EU law ?
Yes No

Article 41 Right to good administration
41.2 a The right of every person to be heard before an individual measure is taken.
Is this right guaranteed in the procedural law for the administration/and the administrative courts/ in your country ?
Yes.
If so, is this a right only “on demand” or is it an obligation for the administration to give the individual this opportunity ?
It is an obligation.

41.2.b The right of every person to have access to his or her file
Is this right guaranteed in the administrative procedural law in your country ?
In Italy the right of every person to have access to his or her file is guaranteed : usually the administration must deliver the final decision with the preparatory act/acts which the decision is based on, but the person can have the whole file, if he/she asks for it.
41.2.c The obligation of the administration to give reasons for its decisions
Is there such an obligation in your country ? Can you describe how long such reasons may be – a few lines or several pages ?
Yes. In our country there is the obligation of the administration to give reasons for its decisions.
The relative length changes and it depends on the type of the decision.
Article 47 Right to an effective remedy and to a fair trial
47.1 The right to an effective remedy before a tribunal
This first paragraph is based on Article 13 of the European convention on Human Rights, ECHR but the right is more extensive than in the ECHR as the remedy must be before a court, not only a “national authority”.
Are there time limits for the administration to decide upon an application of a party ? Yes.
If this is the case, how long is this period of time (if it depends on the kind of case, please give some examples).
Normally the administration should decide upon an application of a party in 30 days, but longer time limits are provided for in case of more complex procedure (e.g., for a permission for a wind farm the administration may decide in 180 days)
Is there a legal remedy if the administration fails to decide within that time limit ?
Yes. The legal remedy is named “claim against silence” and brings to condemn the administration to issue the decision.

Has your country guaranteed the remedy before a court for everyone whose rights and freedoms guaranteed by the law of the Union are violated ?
Yes.

Is it necessary to appeal to a higher administrative authority before a party is entitled to appeal to a court ? Please give the number of instances within the administrative law suit.
No.
The instances within the administrative law suit are 2 : before the Regional Administrative Tribunal (T.A.R.)- 1st instance- and the Council of State – supreme administrative Court.

47.2 The right to a fair hearing
This second paragraph corresponds to Article 6.1 of the ECHR but the right to a fair hearing is not confined to disputes related to civil law rights and obligations. Thus, this right is also more extensive than in the ECHR.
Does your country fulfill this obligation regarding the application of EC Law ?
The procedures are accomplished mainly on a written basis, but also oral hearings take place (usually only once, before the decision), especially to allow lawyers to illustrate their arguments before the decision.

Other questions
Are the administrative courts in your country confined to decide only on the legality of the case or can they also look into the “appropriateness” or “suitability” of the administrative decisions ?
The administrative judge controls not only the legality of the challenged decision of the administration, but also verifies whether the discretion used by the authority is in adherence with the spirit of the law (control involving “détournement de povoir” and “excès de povoir”and then including the “appropriateness” or “suitability” of the administrative decisions, too).

Is the administrative court entitled to control the question of fact ? To what extent (just whether the grounds given by the administration are reasonable, or full cognition, including the hearing if witnesses and experts by the court) ?
Yes.
Even if the administrative court controls only whether the grounds given by the administration are reasonable, within this competence it can verify the fact and hear witnesses or experts. Anyway a sworn evidence rarely occurs.
Do administrative courts rely on experts working for the administration (on expertises that have already been delivered during the procedure before the administration) or do they nominate own experts (in order to control the experts who worked for the administration) ?
The court can nominate experts of its own and can choose between specialized civil servants or independent experts, too.
Architects and engineers (e.g., for cases concerning country plans or building permission), business/fiscal consultants, doctors (for professional damages to civil servants) are more often nominated by the court.
In general the costs of all these experts are immediately covered by the plaintiff. In the final decision the party that loses the case is condemned to pay definitively or to recover these costs.

Can the administrative court replace the administrative decisions with their own decisions or is it only a “cassation” ?
The judge is not allowed to take a decision in the place of the administrative authority in the ordinary procedure, but only in the special one for the enforcement of the judgment.
It is called “giudizio di ottemperanza” and is similar to the German “Verpflichtungsklage”. Herein the judge is allowed to give injunctions to the administration and take a decision in the place of the administrative authority (through a delegate, too), in case the administration should not voluntarily execute the judgments.

Is there a “two party system” before the administrative courts in your country, that is, are the individual and the administration regarded as two opposing parties ?
Yes.

Is the administrative court limited to the arguments put forward by the “parties” or can the court look independently on the facts ?
The administrative court is limited to the arguments put forward by the “parties”, but in these limits it can look independently on the facts, when it suspects that the representation in the challenged act does not correspond to the reality.

SECOND PART : Draft recommendation of the Council of Europe on the independence, efficiency and responsibilities of judges

FOREWORD

The process of drafting a new Recommendation on the independence,
effectiveness and responsibilities of judges by the Council of Europe,
reactivated in 2008, will end soon. This draft Recommendation is listed on
the agenda of the next plenary meeting of CDCJ (European Committee on legal
co-operation - Comité européen de coopération juridique) to be finalized
(11-14 October 2010), and then forwarded for adoption by the Committee of
Ministers of the Council of Europe in November 2010.

An introduction about this topic will be presented during our plenary
meeting, in three parts :

 Why the Council of Europe decided to write a new Recommendation on the
independence, efficiency and role of judges (The former had been adopted by
the Committee of Ministers on 13 October 1994) ?

 How this new Recommendation had been elaborated ?

 What is its content (a short presentation) ?

The objective of the questionnaire is to prepare the debates in subgroups
(one or two about this topic) and then a synthesis of our views.

The plan of questionnaire is the same as that of the draft recommendation,
which is structured in 8 chapters, and 72 points or paragraphs (The text of
this last version with an explanatory memorandum, dated 30 June 2010, is
sent by the same email).

It’s not useful and we would need more than two days meeting to comment or analyse all the points. But we would like to receive from each country represented in Beaulieu sur Mer and for each chapter, answers about the questions follow : what are the main points and the main interrogations for your country, which principles will have the biggest impact on national rules, which points of the new recommendation ought to be clarified, are there ambiguities or some topics missing… ?

QUESTIONS

First and foremost we must say that the system of administrative Justice in Italy respects generally the principles expressed by the new recommendation. Naturally as the goals of the recommendation are very general the rules for its implementation can be very different in the States. For this reason we are not going to report these national rules in detail, but we shall highlight only the points where the standards fixed by Council of Europe are not fulfilled or they represent new elements that our legal system does not know or points that could have a big impact on national rules.

Chapter I – General aspects : paragraphs 1 to 10

Scope of the recommendation : paragraphs 1 and 2
Judicial independence and the level at which it should be safeguarded : paragraphs 3 to 10

In Italy the independence of judges is safeguarded by the independence of the judiciary and is not subject to any improper influence. The Constitution enshrines expressly and directly only the independence of the civil and penal (ordinary) judge but it leaves the task of ruling the safeguard of the administrative judge in charge of the law.
It depends on historical reason : when the constitution was written (in 1946-1947), the administrative judge was not considered a normal judge but just the evolution of a government’s adviser, as the Council of State had been established for this goal.
For the same historical reasons it is disputed whether the task of advice that the Council of State carries out also today can compromise independence of the administrative judges.

Chapter II - External independence : paragraphs 11 to 21

In our tribunals there no spokesperson. Generally information is given by the president, sometimes through a written press release. We think that a judge, after a special training, plays the role of spokesperson may be useful because it allows the tribunals to give objective and exact information to the journalists without the risk of improper contacts with them.
Anyway every year a report concerning the activity of the court during the previous year is prepared by the President of the Council of State and by the Presidents of Regional Administrative Tribunals, each within his competence, and is read in public on the occasion of the opening ceremony of the judiciary year at the presence of the authorities attending the ceremony. The reports are not addressed to any particular body but are made public through their reading in public and are often published on the intranet web-site of the administrative justice, accessible to the public .Statistics on the affairs entered, pending, settled during the previous year are a part of the report.
On the public confidence and the methods for its measure we are very sceptic. The public opinion, newspapers and politicians are not seriously interested in the justice but only to criticize some judgements (e.g. on the elections’ results) or to search scandals in our tribunals. However criticism of judges, judicial decisions and judicial conduct in the press is frequent for penal judges, but rare for administrative judges and it mainly concerns delays in process and sometimes the general possibility for an administrative judge to be an advisor for the Government. This last case could affect the public perception of the independence and impartiality of the judge, in the opinions of many administrative judges, but the issue is strongly discussed, even if the majority thinks that this function cannot be banned but should be restricted on the basis of objective and clear criteria.

Chapter III - Internal independence : paragraphs 22 to 25

Chapter IV - Councils for the Judiciary : paragraphs 26 to 29

The Councils for the Judiciary is named “Council of Presidency for administrative Justice”. It is made up of the President of the Council of State, 4 external members appointed by the Parliament and 10 members elected among the judges.

Chapter V - Independence, efficiency and resources : paragraphs 30 to 43

Resources : paragraph 33 to 38

Vis-a-vis the high number of pending cases we have few judges and clerks. For example, the number of the whole back-up staff (including clerks, secretaries …) working for the administrative jurisdictions amounts to 897 ; therefore the resulting average number is 1 administrative judge/2 assistants. Besides there are no legal assistants.
This number of judges would be able to decide about 70.000 cases every year and at the same time to eliminate the backlog of about 500.000 old cases.
The situation has become worse this year, because about 40 judges (upon about 450) decided to retire earlier after the sparing measures against the financial and economic crisis.
Also the buildings are often inadequate. Instead the technical means at the disposal are sufficient. Particularly the project called “data processing trial” is going to be accomplished.
It is clear that efficiency means first of all the delivery of quality decisions within a reasonable time following fair consideration of the issues and it is well know that the European Court of Human Rights has systematically condemned Italy for the unreasonable length of trials.
Nevertheless the single judges cannot be called as responsible because the backlog is not due to their insufficient efforts, but to an underestimation of the number of cases in future and of the need of judges and support staff.
This mistake comes from the law 6th December 1971 n° 1034, that has established the Regional Administrative Tribunals.
In this Section the par. 34* is not clear for us. Especially we believe it would be convenient to clarify which may be its practical consequences.

* “Judges should be provided with the information they require to enable them to take pertinent procedural decisions where such decisions have resource implications. The power of a judge to make a decision in a particular case should not be solely limited by a requirement to make the most efficient use of resources”.

Alternative dispute resolution : paragraph 39

The ADR exists only for controversies concerning procurement. They are now specifically ruled by an Italian law enacted on 12th April 2006, implementing Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 –coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors – and Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 –on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts-.
In fact, arbitration procedures are commonly used, while the recourse to conciliation procedures and settlements is rare.
Moreover a general, traditional administrative remedy (recourse to the President of Republic) is provided for, but perhaps it cannot be included among the ADR means, because it is actually decided by the Council of State, through a formal, mandatory advice.

Courts’ administration : paragraphs 40 and 41

The Italian Council for the Judiciary (“ Council of Presidency for administrative Justice”) decides on the budgetary allocations, without involving the courts themselves or the judges’ professional organisation. Single judges are not usually involved in courts’ administration Anyway the expenditure of the courts is mostly mandatory (e.g., for wages, for buildings’ upkeep cost).

Assessment : paragraph 42

The Council of Presidency for administrative Justice predetermines guide-lines only on the quantity of work to be done by the administrative judges on a monthly basis and on the time of delivery. When a judge does not fulfil these requirements in a conspicuous and systematic way he undergoes a disciplinary procedure.
Other systems for the assessment of judges are been proposed but they are animatedly discussed because it is obviously difficult to make up other objective criteria, that do not infringe the independence of the judges. Also measures based on a "bonus systems" to accelerate the elimination or the reduction of the backlog with decisions that should overcome the ordinary workload of the single judges has aroused many objections.

International dimension : paragraph 43

The knowledge of EU’s law and European human rights’ Chart is considered important, but international co-operation and relations among judges are seen as optional. Just the accomplishment of the exchange program of the EJTN has found many obstacles, because it takes away judges from their normal work. The undervaluation of the importance and advantages of a better confidence of the law and practices in Europe is very common among us.

Chapter VI - Status of the judge : paragraphs 44 to 58

Selection and career : paragraphs 44 to 48
Assessment : paragraph 58

For the Regional Administrative Tribunals all judges are selected by means of a competitive examination. The admission to the selection requires previous experience as graduated (in law) workers in the public administration or as civil or penal judges or as lawyers.
The judges of Council of State

 partially are selected by competitive examination ;

 partially are appointed by the government among professors of law, senior lawyers, State general managers or directors of other public organisations (bodies), senior judges ;

 partially come from Regional Administrative Tribunals in seniority order, on demand.

The competitive examinations are carried out by a temporary, independent body, whose member are professors and administrative judges. The body is appointed by the President of the Council of State, after hearing the Council of Presidency for administrative Justice.
The promotions of judges are deliberated by the Council of Presidency for administrative Justice ; it appreciates above all the seniority and then the quality of service. The exam of the quality of service and of eventual texts on juridical topics or of organizing ability is deeper in the cases of moving of a judge from T.A.R. to the Council of State and of attribution of tasks as president of chamber, president of T.A.R. and president of the Council of State.
The introduction of other criteria for a more evaluation on merit are been proposed but many doubt its opportunity with regard to the independence of administrative judges.

Tenure and irremovability : paragraphs 49 to 52

Remuneration : paragraphs 53 to 55

The scheme of the judges remunerations in our country is the same for civil, penal and administrative.
The administrative judges are divided in “referendario” (“référendaire” in French, that corresponds to the judge of the civil Appeal Court), “first referendario”, consigliere (“Conseiller”, that corresponds to the judge of the High Court) and president of a chamber of the Council of State/ president of a T.A.R..
The first before-tax remuneration for the referendario amounts to € 54.677,24, for the first referendario to € 62.315,58, for consigliere to € 99.372,26 and for president to € 124.593,41.
To these sums a special payment (about € 1.000) for judges is added.
The law provides for automatic salary increases, calculated on the average salary increases of all public servants, even if the Italian Association of administrative judges shall often bargain exactly the way of calculation.
The automatic salary increase is accompanied by annual cost-of-living adjustments (today about € 1.000).
After tax the remuneration is actually cut down nearly to 50%.
Systems making judges’ remuneration partially dependent on performance were proposed to accelerate the elimination or the reduction of the backlog with decisions that should overcome the ordinary workload of the single judges. This task should be voluntary and compensated by a "bonus systems". The proposal is discussed and the measure could be regarded as compatible with the judges independence, also because it is temporary and exceptional. Indeed it is imposed by the need to adequate our trials to the “reasonable time” of proceedings defined by the European Court of Human Rights.
Unluckily, after the recent financial and economical crisis, a law for the public finance sparing (Law 30.7.2010 n° 122) was adopted, that hurts hardly our remunerations. It reduces to all civil servants (judges included) the wages which are over € 90.000 before tax ; the lamp sum of over € 90.000 before tax will be paid in 2 or 3 tranches. In the next years this final sum for retired persons will diminish, too.
Only for judges automatic salary increases are blocked until 2013 and reduced until 2015. They will not be recovered in the future. The special payment for judges is cut down to 15%.


Training : paragraph 56 and 57

As the admission to the competitive exam for administrative judges requires a previous experience the initial training is very simple.
In the first period of service an administrative judge must attend a course (on main topics, included European law), usually for a week. In the first three months he/she is followed and helped by a tutor, mostly by the president of his/her chamber, in reading trial acts and in making-up decisions.
In general the initial and the in-service training has been neglected, but perhaps the situation is changing because the Council of Presidency for administrative Justice established recently a special office, even if it has not yet come into operation.

Chapter VII - Duties and responsibilities : paragraphs 59 to 70

Duties : paragraphs 59 to 65

Liability and disciplinary proceedings : paragraphs 66 to 70

Chapter VIII - Ethics of judges : paragraphs 71 to 73

The rules about duties, liability and disciplinary proceedings fulfil the standards recommended.
It is remarkable that it is difficult in this field to draw a borderline between a juridical and ethical duty or a good practice ; for example, following par. 42, just the style of writing could be censured ; similarly Legislative Decree 2.7.2010 n° 104 (new codes on administrative trial) art. 3 provides for that the judge and the parties shall draw up short and clear acts, but naturally the infringements of this rule have no sanction.
Perhaps for this reason the main Italian rule on disciplinary measure is very general and may be interpreted in several senses. It sounds : “The judge, who fails to do his own duty or behaves, in office or outside, in a way that makes him/her unworthy of trust or of esteem that he/she must be held in, or prejudices the prestige of the judicial body, is subject to the sanctions, provided for by law” The investigation on the behaviour and the performance of a single judge follows the rules of the disciplinary proceedings and, following art. 32 of Law 27.4.1982 n° 186, regulating the administrative justice system, rules provided for civil and penal judges are applied to administrative judges as far as disciplinary procedures and sanctions. So when a judge does not behave in a proper way or does not fulfil the requirements concerning the quantity of work to be done and the time of delivery for his/her decisions in a conspicuous and systematic way, he undergoes a disciplinary proceeding.

With reference to par. 64 we should like to add that in practise the judge cannot encourage parties to reach amicable settlements, also because the administration and its civil servants do not want to take any responsibility of this kind upon themselves. This aptitude causes the rise of the pending cases, too. Anyway no procedural rule is set at the specific aim.

Conclusion