Wladimiro Gasparri

Violation of the Formal Rules between the Invalidity of Acts and Compensatory Liability: A Comparison

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In the regards of the discretionary power of the administration, legal discourse continues to ponder what ought to be the perspective of the confrontation involving norm, administrative will and individual will; what ought to be the rules (formal and substantive) concerning the elaboration of decisions and about the consequences of failure to observe them. In this context, the author first reconstructs the discipline of the formal and procedural rules regulating the administrative decision-making process in the French, German, Spanish, English and EU systems, then proceeding to examine the treatment reserved to administrative acts departing from the applicable normative scheme solely due to legal flaws. This analysis offers a way to reflect on one of the issues currently at the heart of the debate among Italian administrative law scholars: the relation between form and substance beginning from the normative provision contained in Art. 21-"octies bis"(2) of Law No. 241/1990. Under this profile, an analysis of some of the major European legal systems - including that of the EU - highlights how the set-up of the discipline of the rules of form and procedure fluctuates, on the one hand pivoting on the conceptual relation between the scheme of the power and that of the relation; and, on the other hand, between form and substance, which characterises - and perhaps always has - the very essence of legal power, and that leads to reflecting on what is the place of the rules on form in forming the content of administrative decision. Above and beyond the variable geometry of legal and procedural flaws, and the differences detectable with reference to their specific treatment, the common trait that emerges consists of the fact that the evaluation of the importance of the flaw in any event ought to be based on an analysis of the actual case in point. Finally, the author tackles the theme of the relation between constitutive protection and compensatory protection in the event of violation of the formal rules, where the analysis brings to light how failure to impugn the act, rather than constituting a factor of preclusion of trial involving a claim for compensation for damages reveals, in these systems, a perspective of a purely substantive nature, that is to say how culpable behaviour that prevents compensation for the damages that impugnment would likely have avoided, while it is neutral with reference to damages that would have been produced in any case, i.e. concerning which said omissive behaviour is etiologically neutral.

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