Private and Public law lesson 12 “Interessi legittimi” and “diritti soggettivi”; the regimes regulating protection against unlawful decisions of public entities - May 16, 2014-

Basic definitions: - “diritto soggettivo”: the citizen is granted with a right to directly obtain a result or satisfy a given interest. The citizen’s right is acknowledged and protected as such, without the intermediation of any public entity (which is essentially subjected to the citizen’s will) - “interesse legittimo”: the citizen’s right to obtain a given result or to satisfy an interest is subject to the cooperation of public entities “Interesse legittimo” and “diritto soggettivo” _________________________________________________

Does EU law impacts on the distinction between “interesse legittimo” and “diritto soggettivo”? Does it provide for any specific definition? “Interesse legittimo” and “diritto soggettivo” _________________________________________________

Protection regime: - “diritto soggettivo”: if the citizen’s right is breached, the citizen is entitled to sue the relevant public entity before the ordinary Courts - “interesse legittimo”: the citizen is entitled to protect his/her right by suing public entities before the “special” administrative Courts (T.A.R.) “Interesse legittimo” and “diritto soggettivo” _________________________________________________

The evolution of the Courts’ approach regarding “interessi legittimi”: - first stage: “interesse legittimo” is a right which is occasionally protected by the law. Such right is only protected to the extent that it is “instrumental” to pursue a public interest - second stage: “interesse legittimo” is a right regulated (and protected) from a procedural point of view only “Interesse legittimo” and “diritto soggettivo” _________________________________________________

- third stage: “interesse legittimo” is the citizens’ general right/expectation that public entities’ activity is legitimate - fourth stage: by virtue of the “interesse legittimo”, citizens are not only entitled to protect their expectation to legitimate performance of the public entities’ activity, but also to satisfy the “underlying” interest. The legislator usually balances: (i) a “primary” public interest; (ii) a “secondary” public interest; and (iii) a “private” interest, which is also considered: public entities and interpreters must, therefore, consider “interesse legittimo” in applying the norm. “Interesse legittimo” and “diritto soggettivo” _________________________________________________

“Interesse legittimo” and “diritto soggettivo” _________________________________________________ The Supreme Court’s decision no. 500/1999 adopts the conclusions reached during the “fourth stage”

“Interesse legittimo” and “diritto soggettivo” _________________________________________________ The Supreme Court’s decision no. 500/1999 adopts the conclusions reached during the “fourth stage” (A) Citizens are entitled to claim invalidity of a public entity decisions, it if conflicts with a “interesse legittimo” (B) Citizens are entitled to claim restoration of damages due to infringement of a “interesse legittimo” (even in absence of a claim for declaration of invalidity of the relevant public decision)

The view taken during the “fourth stage” triggers the following consequences: - the citizen’s interest to satisfy his/her particular interest is considered by the legislator (in issuing the norm) - the law protects a specific interest of citizens (to be identified on a case-by-case basis), which is other than the expectations of the generality of the members of the ‘community’ - “interesse legittimo” does not only include the right to protect the citizens’ expectation to legitimate performance of the public entities’ activity, but also the right to satisfy the ‘underlying’ interest (“bene della vita”) “Interesse legittimo” and “diritto soggettivo” _________________________________________________

(follows) - “interesse legittimo” exists irrespective of any decision or deed by any public entity. However, it ‘arises’ (and becomes practically relevant) when a public entity makes a decision impacting on the citizen’s sphere of interest - the judge must not only evaluate the formal/procedural aspects of deeds of public entities, but, rather, the actual relationships / underlying interests impacted by such deeds (such approach is also confirmed by the legislation on silence-denial of public entities) “Interesse legittimo” and “diritto soggettivo” _________________________________________________

(follows) - “interesse legittimo” is not a “minor right” as opposed to “diritto soggettivo”, but is subject to an equal treatment, although it is protected by different means - “interesse legittimo” is different from “interesse di fatto” and “interesse amministrativamente protetto”, which deal with the merits (use of powers) of the public entities’ activity (and is generally not subject to Court review) “Interesse legittimo” and “diritto soggettivo” _________________________________________________

Discussed figures of “interesse legittimo” - “diritti soggettivi” eroded, transformed into “interessi legittimi” (e.g.: expropriation would trigger the “downgrading” of ownership rights to “interesse legittimo”) - right to gain a “diritto soggettivo”, which is potentially ‘included’ in the “interesse legittimo” (e.g.: right of the owner of a piece of land to set up buildings over it, subject to the relevant public permission) “Interesse legittimo” and “diritto soggettivo” _________________________________________________

Categories of “interesse legittimo” - right to challenge / object to a decision made by a public entity (“interesse oppositivo”) - right to request for a new decision of a public entity (“interesse pretensivo”) The distinction becomes relevant if the burden of proof is considered “Interesse legittimo” and “diritto soggettivo” _________________________________________________

Categories of “interesse legittimo” - right to participate to a proceeding in place within a given public entity (“interesse partecipativo”): e.g., right to have access to a public entity’s internal documents; right to file comments and remarks; right to be generally involved in the evaluation proceeding before the adoption of a final decision (such right is generally contemplated by art. 1 of Law 241/1990) - right to request that a given proceeding is completed / decision is made by the applicable deadline (“interesse procedimentale”): e.g., right to oppose to any obstructionist behavior; right to obtain an express answer to a request filed with a public entity (art. 2 Law 241/90) “Interesse legittimo” and “diritto soggettivo” _________________________________________________

Categories of “interesse legittimo” rights which may be enforced by associations or by a group of individuals (“interessi diffusi”, “interessi superindividuali” and “interessi collettivi”): e.g., rights enforceable in the environmental sector; class actions; rights contemplated by the consumer protection legislation) The group/association does not replace each individual-”member” (art. 81 Code of Civil Procedure). E.g., class action: benefits are gained by the adhering individuals only The entity “representing” individuals must be adequately ‘representative’ (must they formally have legal personality?) The “representing entity” may generally take part in the public proceeding (art. 9 Law 241/90) “Interesse legittimo” and “diritto soggettivo” _________________________________________________

Categories of “interesse legittimo” - “interesse di fatto” - “interessi amministrativamente protetti” “Interesse legittimo” and “diritto soggettivo” _________________________________________________