Abstract

The majority jurisprudence holds that, with regard to the violation of rules on constructions and distances between buildings, there is a regime of «dual protection». According to it, there are two subjective situations for the neighbour: an individual right against the unlawful builder, to be claimed before the civil courts, and a legitimate interest against the public administration, to be claimed before the administrative courts. A recent ruling by the Council of State (no. 8841 of 17 October 2022) affirmed instead that the neighbour’s situation towards the public administration has the same content as the position claimed against the builder, since the «substratum» of individual rights and legitimate interests is the same. It therefore follows that, in a dispute concerning an illegal construction, the neighbour who won the case before the civil court cannot also file a lawsuit before the administrative court. The Council of State’s assertion is surprising, since we are used from the very beginning of the Italian system of administrative justice to drawing a distinction between individual rights and (legitimate) interests, as situations with different objects and guarantees. The uncertain nature of claims against the public administration thus affects also a rather simple case. The article aims at showing that the solution adopted by the Council of State, while original, is not convincing. In particular, an argument will be made that the solution to the problem is not process-related but substantive: under what conditions can a neighbour have a claim against the public administration?