This post outlines the main contents of the Chapter Administrative Justice, Regional Courts and Legal Certainty in Italy, in the book edited by Vera Parisio, “Administrative Justice, Regional Courts and Legal Certainty. A Comparative Overview” and published in 2025. As clarified by its title, the Chapter focuses on the Italian system of administrative justice, which is characterized by a complex institutional architecture, whose defining features include the coexistence of ordinary and special jurisdictions, a territorially organized system of regional courts, and a nuanced approach to legal certainty. Following a diachronic analysis concerning the origins of the administrative jurisdiction as a “special” one, as well as its constitutional foundations (para. 1), the Chapter addresses the administrative jurisdiction’s territorial (regional) organization (para. 2). The analysis then questions the concept of legal certainty and the role of judicial precedents in the Italian system of administrative justice (para. 3), also with regard to the influence of (and the possible contrast with) EU law and the CJEU caselaw (para. 4).
The Origins of Administrative Jurisdiction in the Italian System of Administrative Justice
The separateness of administrative jurisdiction from the ordinary one reflects a longstanding tradition in Italy, predating national unification.
Following unification in 1861, a monistic system was briefly introduced by Law no. 224/1865, Annex E, which entrusted ordinary courts with jurisdiction over disputes involving public administration. However, these courts lacked the power to annul unlawful administrative acts, being limited to their disapplication. This deficiency led to the establishment, in 1889, of the Fourth Section of the Council of State, endowed with judicial powers, including the authority to quash administrative acts.
This reform marked the birth of modern administrative justice in Italy and reintroduced a dual system of jurisdiction, which remains a cornerstone of the current legal framework.
Constitutional Foundations and the Dual System
The dualism between ordinary and administrative jurisdiction was later constitutionalized in 1948. Article 103 of the Italian Constitution establishes the key criterion for allocating jurisdiction: the nature of the affected party’s legal position involved in the controversy and bringing the case to court.
Where public authorities exercise authoritative powers (and are therefore authorized by law to act unilaterally, regardless – and even against – the citizens’ will and legal position), individuals hold a “legitimate interest,” and jurisdiction belongs to administrative courts. Conversely, when subjective rights are at stake, jurisdiction lies with ordinary courts, unless specific matters fall within the administrative courts’ “exclusive jurisdiction” – as in the case of administrative silence, the right to access, public services and concessions.
The Constitution also guarantees effectiveness judicial protection. Article 113 provides that protection against administrative acts is always available and cannot be restricted. This principle has been reinforced through legislative and judicial developments, expanding the remedies available before administrative courts, including damages and injunctive relief.
The Administrative Judiciary and its Organisation
The special nature of administrative jurisdiction has important institutional implications. Administrative judges belong to a distinct and autonomous judicial body, governed by specific rules concerning recruitment, career progression, and self-governance.
The Council of Presidency of Administrative Justice (CPGA) performs functions similar to those of the Superior Council of the Judiciary for ordinary courts, overseeing appointments, transfers, and disciplinary matters. However, unlike its counterpart, the CPGA is established by statute rather than directly by the Constitution.
The procedural framework has also evolved significantly. While administrative procedure was long fragmented across various sources, it was eventually codified in the Code of Administrative Judicial Procedure of 2010 (c.p.a.) which provides a coherent and autonomous set of rules governing litigation before administrative courts.
Regional Administrative Courts and Territorial Organisation
A distinctive feature of Italian administrative justice is its territorial organization. Article 125 of the Italian Constitution mandates the establishment of Regional Administrative Tribunals (TARs) in each region, forming the first instance of administrative jurisdiction.
This regional structure reflects Italy’s nature as a regional State. TARs’ territorial jurisdiction is determined by criteria such as the location of the authority issuing the contested act or the territorial effects of that act.
Appeals against TARs’ judgments are brought before the Council of State, which acts as the court of last instance. Empirical data suggests that the relatively low rate of appeals and the high confirmation rate of TARs’ decisions contribute to legal certainty and reflect the quality of first-instance adjudication.
The Council of State: Judicial Role and Case Law
The Council of State serves as the apex of administrative jurisdiction, ensuring uniform interpretation of administrative law. Its decisions are generally final, subject only to limited review by the Court of Cassation on “grounds of jurisdiction” under Article 111 of the Constitution.
The scope of such review has been controversial. The Court of Cassation attempted to expand it through doctrines such as “excess of judicial power” and “denial of justice.” However, these efforts were decisively curtailed by the Italian Constitutional Court Judgment No. 6/2018, which endorsed a restrictive interpretation of jurisdictional grounds.
This judgment reaffirmed the Council of State’s position as the final arbiter within administrative jurisdiction, limiting external interference and clarifying institutional boundaries. Nonetheless, tensions between supreme courts have contributed to legal uncertainty, prompting discussions on possible reforms.
Legal Certainty and the Role of Precedents
Formally, the Italian legal system does not recognize the doctrine of stare decisis. Article 101 of the Constitution establishes that judges are subject only to the law, not to prior judgments.
However, in practice, precedents — especially those of the Council of State — play a significant persuasive role. Several factors explain this phenomenon. Historically, administrative law has been largely shaped by case law, with courts developing general principles later codified by legislation.
Procedural rules also encourage reliance on precedents. For example, Article 74 of the Code allows simplified judgments based on established case law, while Article 88 permits reasoning by reference to previous decisions.
A special role is played by the Plenary Assembly of the Council of State, which resolves conflicts in case law and issues authoritative interpretations. Although its precedents are not strictly binding, Article 99 of the Code requires sections wishing to depart from them to refer the matter back to the Plenary Assembly, creating a quasi-binding effect.
EU Law and its Impact on Administrative Justice
EU law has profoundly influenced Italian administrative justice, and the importance of EU law is explicitly recognized in Article 1 of the c.p.a., which incorporates a reference to EU principles and the case law of the Court of Justice of the European Union (CJEU).
Although conflicts between national courts and the CJEU tend to raise complex issues, the primacy of EU law is well established within the Italian system of administrative justice, and the Council of State has openly acknowledged that CJEU rulings are binding on all national authorities and courts.
Judicial Conflicts and Recent Case Law
Tensions have emerged regarding the remedies available when national judgments conflict with EU law. Attempts to challenge Council of State decisions before the Court of Cassation on jurisdictional grounds were rejected following both the Constitutional Court’s 2018 ruling and the Randstad Italia case, in which the CJEU confirmed the compatibility of Italian procedural rules with EU law.
Another debated solution concerned the possibility of reopening final judgments (res judicata). However, the CJEU has generally upheld the importance of legal certainty and the stability of judicial decisions, as reaffirmed in the 2022 Hoffmann-La Roche case, limiting the scope for such exceptions.
Instead of reopening final judgments, the primary remedy remains State liability for judicial breaches of EU law, although this solution operates ex post and has limited practical impact.
First Instance Courts and EU Law Compliance
Regional administrative courts (TARs) play a crucial role in ensuring compliance with EU law. Unlike the Council of State’s precedents, CJEU case law is binding on them and must be applied even in the face of conflicting national case law.
TARs are therefore required to disapply national rules or precedents incompatible with EU law and may refer questions to the CJEU for preliminary rulings. Failure to do so may constitute grounds for appeal before the Council of State.
This dynamic reinforces both the flexibility of the system and the uniform application of EU law, contributing to legal certainty from a supranational perspective.
Conclusion
The Italian system of administrative justice reflects a delicate balance between tradition and innovation, national autonomy and European integration. Its dual structure, regional organization, and nuanced approach to precedents contribute to both its complexity and its adaptability.
Legal certainty, while not grounded in a strict doctrine of precedent, emerges from a combination of institutional practices, procedural rules, and the guiding role of higher courts.
Posted by Dr. Leonardo Parona, Associate Professor of Administrative Law at Roma Tre University