On 4 and 5 October 2021, the Italian Council of State and ACA-Europe organised the seminar “Law, Courts and guidelines for the public administration” at the European University Institute in Fiesole, Italy.
“Horizontal dialogue” is the leitmotif - le fil rouge – chosen by the Italian Presidency to underpin the organization of the panels and to analyze the most important trends to have emerged from the replies provided by the Member States to the questionnaire. This leitmotiv also guided the two days of work in Fiesole.
The first panel, dedicated to “The method of interpretation of the law and its application by the Courts” made it possible to explore the boundaries between interpretation and legislation in the various Member States.
Nearly all countries have their own criteria, broadly based on law, and they use general principles and general clauses, such as proportionality and necessity to get to the “heart” of the law.The key phrase to emerge from panel was "certainty of the rule", that is, legal certainty. It became clear from the discussion among all the participant Member States that the mission of SACs is not to legislate but to reduce conflicts and foster predictability.
Similarly, it is the need to avoid “a judicial lottery” that is most strongly felt by citizens and enterprises: the loss of the primacy of traditional legislation, accelerated exponentially by the health crisis, caused the Supreme Administrative Courts to reflect on the importance of ensuring the consistency and predictability of the law.
The panel dedicated to “The impact of the decisions of the Supreme Administrative Courts on future developments of administrative activity” dealt with the relationships between the judiciary and the administration.
Generally speaking, the annulment of an administrative act by a judge binds the public administration in the subsequent exercise of power in all Member States.
The very delicate issue dealt with during the panel was the intensity of the judicial review given that it involves, on the one hand, the limits on the judiciary requiring it to respect the discretion of the administration and, on the other, the ability to ensure effective protection of rights and interests, vis-à-vis the public authorities.
The third panel concerned the “Enforcement of decisions”.
The significant difference in the approaches of the Member States with regard to the extent of the obligation subsequent to the judgment, as well as the consequences of non-compliance with a SAC ruling, was highlighted during this panel.
The attention of the panellists and the subsequent lively debate focused on cases in which the Court amended not just a formal defect, but extended its competence to the merits of the case; in such cases the administration should once again exercise its power within the limits indicated by the judge and within the margins of discretion that continue to pertain following the ruling.
Having listened to different points of view and different cases submitted to the Courts, the unanimous conclusion reached was the need to find a way not only to enforce judgments, but in particular the need to protect rights through the control of public powers.
The last panel, concerning “The advisory function of the Supreme Administrative Court and its impact on administrative activity” focused on the type of advice provided by Supreme Administrative Courts mostly on matters of regulation.
The debate concerned the difference between the advice given “in the interest of the public administration” and the advice given “in the interest of law”.
The latter provides for legal scrutiny very similar to the judicial one, even if given “ex ante” and not “ex post”, and borrows the same independence that characterizes the Court pronouncing a judgment.
Conclusions: The panels and the subsequent lively debates contributed to providing for an even deeper insight into the ways Supreme Administrative Courts work, highlighting their differences but also their points of contact.
Our legal systems are very different one from the other, but the “fil rouge” for the judge is often the same: finding the right balance between effectiveness of the protection and the need to respect its boundaries with legislation and the administration.
The Fiesole seminar is another example of the benefits to be gained from continuing and strengthening the practice of horizontal dialogue; it represents a means to mutually learn how to ensure the development of a homogenous approach to scrutinize public powers and to guarantee rights in a territory increasingly indifferent to national borders: an area we call the “common European space”.