This blog post outlines the content of the Chapter “The Italian Council of State and its relationship with the legislative power”, published in W. Piatek (ed.), Beyond Adjudication. Exploring the Multifaceted Role of Supreme Administrative Courts, Edward Elgar, 2026. The Chapter addresses the relationship between administrative justice and legislative power, which represents a relatively underexplored topic in Italian legal scholarship. Yet, it is a topic of significant importance, both theoretically and practically, considered that the Italian Council of State operates at the intersection of judicial activity, advisory functions, and normative influence. Following a brief introduction of the Italian system of administrative justice, the Chapter qualifies the Council of State as the Supreme Administrative Court within such system (para. 2). It then addresses the Council of State’s dual nature (para. 3), analysing both its judicial (para. 3.1) and its advisory functions (para. 3.2). The core topic, concerning the relationship between the Council of State and the legislative power is then addressed (para. 4), underlying both formal and informal relationships between the Council of State, the Executive and the Parliament (para. 5).
The Council of State in the Italian System of Administrative Justice
The Council of State stands at the apex of the Italian system of administrative justice. Its origins date back to the late 19th century, when a judicial section was added to its pre-existing advisory structure. This development marked the emergence of a dual system of jurisdiction, distinguishing between ordinary courts and administrative courts.
The Italian Constitution (entered into force in 1948) later consolidated this framework by distinguishing between subjective rights and legitimate interests. Administrative courts, including the Council of State, have jurisdiction over the latter, while ordinary courts handle the former. The administrative judiciary operates on two levels: Regional Administrative Tribunals (TARs) act as first-instance courts, while the Council of State serves as the appellate and final authority, ensuring consistency in legal interpretation.
A Dual Nature: Judicial and Advisory Functions
A defining feature of the Council of State is its dual nature. It performs – through distinct sections – both judicial and advisory functions, making it a unique institution within the Italian constitutional framework.
On the judicial side, the Council of State reviews decisions issued by TARs, providing a comprehensive re-examination of cases. Its judgments typically replace those of lower courts, and it plays a crucial role in ensuring uniform application of administrative law.
On the advisory side, the Council acts as a legal consultant to the Government, in conformity with Article 100 of the Italian Constitution. It issues opinions on a wide range of administrative and normative acts, contributing to the quality and coherence of public decision-making.
Advisory Functions and their Normative Impact
The advisory functions of the Council of State are particularly relevant in relation to legislative and regulatory powers. The Government is required to seek its opinion on various acts, including draft regulations, consolidated texts, and often legislative decrees.
Although these opinions are formally non-binding, they carry considerable weight in practice. The Council does not merely assess legality but also provides technical guidance, helping to refine legislative drafting and prevent future disputes.
In the case of consolidated texts, the Council contributes to organizing and rationalizing existing legislation. Regarding legislative decrees, its involvement is often based on established practice or specific statutory provisions, even though the Constitution does not mandate it.
The Council of State in the Legislative Process
The Italian Constitution does not assign a direct role to the Council of State in the ordinary legislative process. It is not involved in parliamentary lawmaking procedures nor in the adoption of law-decree.
Its influence is instead undeniable in the context of legislative decrees (i.e. legislative acts issued by the Executive on the basis of a parliamentary delegation enacted by law). In these cases, the Council of State participates in the preparatory phase by providing opinions on draft texts prepared by the Government under parliamentary delegation.
In certain circumstances, the Council’s role becomes more direct. It may in fact be formally tasked with the drafting of legislative proposals (i.e. bills to be later submitted by the Executive to Parliament), blurring the line between advisory activity and normative production. This involvement, though not constant, represents a significant channel of influence over legislative acts.
Special Commissions and the Drafting of Legislation
One of the most significant expressions of the Council of State’s influence is its participation in special commissions tasked with drafting legislative texts. These commissions typically include State councilors, administrative judges, and external experts.
A notable example is the Code of Administrative Procedure enacted in 2010, which unified and modernized procedural rules. Similarly, the recent reform of public contracts was drafted with the Council’s direct involvement. More precisely, the Code was enacted based on a delegation law which allowed the Government to delegate the drafting of the new Code to the Council of State. A Special Commission, composed of State counsellors, administrative judges of first instance, as well as other external experts, was established for that purpose. Once the draft Code was finalised, competent parliamentary commissions also expressed their opinions. Finally, the Government adopted the Code through legislative decree no. 104/2010, which introduced some amendments to the bill drafted by the Special Commission.
This approach offers clear advantages, particularly in terms of technical expertise and efficiency. However, it has also attracted criticism. Some argue that it reflects an elitist or self-referential model of lawmaking, potentially limiting transparency and democratic participation.
Formal and Informal Relations with Government and Parliament
Beyond formal procedures, the Council of State exerts influence through informal channels. Its institutional authority, grounded in the legal expertise of its members, enhances the impact of its opinions.
There are also structural links with the executive branch. For instance, some State councilors are appointed by the Government, and others may serve in high-level administrative roles within ministries. These connections can strengthen cooperation but may also raise concerns about independence (as stigmatized by the ECtHR in the famous Procola case).
The relationship with Parliament is more indirect but still relevant. In the case of legislative decrees, parliamentary committees often issue opinions after the Council of State has contributed to the drafting process. This creates a form of mediated dialogue among institutions involved in lawmaking.
Separation of Powers and Judicial Independence
The Council of State’s involvement in normative activities raises important questions regarding the separation of powers. The coexistence of judicial and advisory roles within the same institution may appear problematic, particularly when the Council contributes to drafting rules that it may later be called upon to interpret.
However, the Italian legal system provides safeguards to address these concerns. These include the internal separation between consultative and judicial sections, as well as rules requiring judges to abstain from cases in which they previously acted as advisors.
Judicial independence is another key issue. While the Constitution guarantees the autonomy of administrative courts, the Council’s connections with the executive branch may affect perceptions of impartiality and independence. This is especially relevant given the dual nature of its functions. Notwithstanding a recent constitutional reform proposal concerning the organization of the ordinary jurisdiction (finally rejected by referendum), these issues have not been addressed.
Posted by Dr. Leonardo Parona, Associate Professor of Administrative Law at Roma Tre University