Commentary on Judgment No. 18559 of 2024: Jurisdictional Overreach and Merits Review

The recent order No. 18559 of July 8, 2024, by the Council of State offers relevant insights into the issue of jurisdictional overreach. In particular, the judgment clarifies how the administrative judge must conduct a review of the legality of administrative measures without exceeding the limits of the merits, a fundamental principle to ensure the balance between the powers of the administration and the role of the judge.

The Regulatory Context

The case examined concerns the challenge of a negative opinion relating to the regularization of building non-conformities. The United Sections of the Council of State reiterated that any jurisdictional overreach, under Article 111, paragraph 8, of the Constitution, occurs only when the judge substitutes the administration in the assessment of merits. The judgment emphasizes that the judge's review must be limited to the legality of the challenged measure, respecting the regulatory framework and the rural character of the site in question.

The Ruling's Maxim

Jurisdictional overreach, in the form of encroachment into the sphere of merits, under Article 111, paragraph 8, of the Constitution, is only conceivable when the investigation conducted by the administrative judge, exceeding the limits of the review of legality of the challenged measure, becomes instrumental to a direct and concrete assessment of the appropriateness and convenience of the act, or when the final decision, even while respecting the formula of annulment, expresses the will of the judicial body to substitute itself for that of the administration, with the judge proceeding to a review of merits with a ruling having the substantive content and enforceability of the substituted measure, without prejudice to further actions by the administrative authority. (In this case, relating to the challenge of a negative opinion on the regularization of building non-conformities, the United Sections excluded that the Council of State had encroached upon the sphere of attribution of the administrative authority, as the judge had limited himself to confirming the legality of the challenged administrative act, taking into account the regulatory framework and the rural character of the site, without substituting himself for the Public Administration in merits assessments on the compatibility of the work with the requirements of archaeological and landscape protection).

Practical Implications of the Judgment

This judgment provides important guidance for legal professionals and public administrations, clarifying that the administrative judge cannot substitute the administration in the assessment of merits. This implies that decisions regarding building regularization must be well-reasoned and cannot be challenged based on purely opportunistic or subjective considerations.

• Respect for review limits: the judge must refrain from making assessments that go beyond legality.
• Importance of reasoning: administrative decisions must be well-reasoned to avoid challenges.
• Balance of powers: respecting the attributions between administration and jurisdiction is fundamental for the proper functioning of the rule of law.