The limits of appeals to the Court of Cassation against decisions of the Council of State: an analysis of Order no. 30770 of 2025

The delimitation of the boundaries of jurisdiction between the ordinary courts and the administrative courts has always represented one of the most complex and debated issues in our legal system. When a dispute involves the Public Administration and a private citizen, as in the case of the restitution of an occupied area, the correct identification of the competent court is fundamental. With the significant Order no. 30770 of November 22, 2025, the Joint Chambers (Sezioni Unite) of the Court of Cassation have returned to clarify a crucial aspect: how far does the Cassation's review of the legitimacy of the Council of State's decisions extend?

The case: occupation of areas and sales contracts

The matter originates from a dispute between a private individual, M., and the counterparty C. (with the involvement of a public administration), concerning a request for the restitution of an area occupied by the Public Administration. The Council of State had declared a lack of jurisdiction over the restitution claim, on the premise that it could not examine, even incidentally, the validity and effectiveness of a sales contract related to the area in question. An appeal was filed against this decision before the Joint Chambers of the Court of Cassation, invoking Article 111, paragraph 8, of the Constitution, alleging an alleged refusal to exercise jurisdiction by the administrative judge.

External and internal limits: when can the Court of Cassation intervene?

The Joint Chambers rejected the appeal, reiterating a fundamental principle: appeals to the Court of Cassation against judgments of the Council of State are permitted exclusively for reasons relating to jurisdiction (the so-called external limits). This means that the Court of Cassation can only intervene if the administrative judge has invaded the sphere reserved for the legislature or other powers of the State, or if it has denied its own jurisdiction on the erroneous assumption that the matter fell under the purview of the ordinary courts or another special court.

In the case at hand, however, the Council of State's potential error in believing it could not decide incidentally on the validity of the contract does not constitute a refusal of jurisdiction. It is, if anything, an internal error in the proceedings (an error in procedendo), deriving from an incorrect interpretation of Article 8 of the Code of Administrative Procedure (Legislative Decree 104/2010), which regulates the incidental cognizance of the administrative judge. This type of error is not subject to review by the Joint Chambers.

A judgment in which the Council of State has declared a lack of jurisdiction over a claim for the restitution of an area occupied by the public administration, on the premise of being unable to rule incidentally on the issue regarding the validity and effectiveness of a sales contract referring to it, falls outside the review of the Joint Chambers under Art. 111, paragraph 8, of the Constitution, as such a ruling does not constitute a refusal to exercise jurisdiction but, at most, an error in procedendo in the exercise of the administrative judge's jurisdictional power.

Practical implications for the protection of the citizen

This ruling offers important clarifications for legal professionals and citizens who find themselves managing litigation with the Public Administration. The key points emerging from the decision are summarized below:

• Nature of the defect: An error in the application of the rules on incidental cognizance (such as Art. 8 of Legislative Decree 104/2010) constitutes an internal defect of the administrative judgment and not a breach of the external limits of jurisdiction.
• Inadmissibility of the appeal: It is not possible to use the appeal under Art. 111 of the Constitution as a further level of appeal to assert errors of law or procedure committed by the Council of State.
• Stability of decisions: The principle of self-organization and independence of the administrative judge in the interpretation of their own procedural rules is safeguarded.

Conclusions

Order no. 30770 of 2025 of the Joint Chambers strongly reaffirms the principle of the strict interpretation of appeals to the Court of Cassation against judgments of the Council of State. For citizens and businesses, this means that the defense strategy against the Public Administration must be planned with extreme care from the first instance of judgment, as the possibilities of challenging a ruling of the Council of State before the Court of Cassation remain limited to exceptional and strictly defined hypotheses.