Commentary on Judgment No. 18643 of 2024: Limits of Administrative Review in the Water Sector
The recent ordinance No. 18643 of 2024, issued by the Superior Court of Public Waters, offers an important reflection on the limits of judicial review concerning administrative measures in the water sector. This specific case involved a dispute regarding the regional resolution that established the amount of electricity to be ceded free of charge by a hydroelectric concessionaire. The court's ordinance clarifies how the scope of review is limited to ascertaining defects related to the exercise of public function.
The Limits of the Superior Court of Public Waters' Review
The Court has established that its review is limited to verifying the legality of administrative measures, particularly concerning defects of abuse of power and the reasonableness of the choices made. This approach aims to ensure a balance between the autonomy of public administration and judicial control. Essentially, the court does not delve into evaluating the merits of the choices but focuses on their congruence with public objectives and the needs to be managed.
- Ascertainment of defects in the exercise of public function.
- Verification of the reasonableness and proportionality of choices.
- Limitation to the exclusion of merits-based reasons.
The scope of the Superior Court of Public Waters' review, when called upon to rule in a single instance on the legality of challenged administrative measures, is limited to ascertaining defects related to the exercise of public function (including those indicated by symptomatic figures of abuse of power), and therefore pertains to verifying the reasonableness and proportionality of the choice in relation to the objective, without extending to merits-based reasons. It must halt not only before hypotheses of equivalent choices but also before less reliable ones, provided they are congruent with the objective to be achieved and the needs to be managed. (In this case, the Supreme Court affirmed the jurisdiction of the TSAP, pursuant to Article 143, paragraph 1, letter a), of Royal Decree No. 1775 of 1933, Consolidated Text on Waters, with regard to the claim aimed at ascertaining the illegality of a regional resolution determining the amount of electricity that the holder of a large hydroelectric concession was obliged to cede free of charge to the region, pursuant to Article 31 of Regional Law of Lombardy No. 23 of 2019).
Implications for the Water Sector
This judgment highlights the importance of judicial review that, while limited, must ensure compliance with the principles of good administration and the protection of public interests. For concessionaires and operators in the hydroelectric sector, the court's decision represents a clear signal regarding the need to operate within the bounds of the law and to respect regional resolutions.
Conclusions
In conclusion, ordinance No. 18643 of 2024 fits into an increasingly attentive legal context regarding the limits of judicial review on administrative measures. A court's ability to assess the legality of choices without entering into their merits represents a fundamental balance for the functioning of public administration. The implications of this judgment extend beyond the specific case, influencing future decisions and operational methods in the water sector.
