Judicial review of administrative decisions based on complex technical evaluations. A comparative study between Italy and the United States - Sipotra
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ISSN 1826-3534
5 MAGGIO 2021
Judicial review of administrative
decisions based on complex technical
evaluations. A comparative study
between Italy and the United States
di Filippo Borriello
PhD in Administrative Law
University of Naples Federico IIJudicial review of administrative decisions
based on complex technical evaluations. A
comparative study between Italy and the
United States*
di Filippo Borriello
PhD in Administrative Law
University of Naples Federico II
Abstract [En]: This paper examines the grounds of judicial review of technical discretion used by the independent
administrative authorities, in comparative perspective between Italy and the United States. Firstly, for each legal
system, this article shows the different contexts in which the regulatory authorities were created and the reasons
that led to their establishment. Secondly, the article goes on to analyze, from a doctrine and jurisprudence point of
view, the different intensity of the review of technical discretion specifically referencing these particular
administrative bodies. It will be noted that, in both legal systems, the technical nature of the complex assessments
carried out by independent authorities has led the courts to develop different criteria and set controlling limits
which differ from those generally used by courts. The concluding part of this article aims to highlight that the
Italian and the US legal systems, even if stemming from such different legal traditions, have many elements in
common about the judicial review of complex technical evaluations, despite some inevitable differences.
Abstract [It]: L’articolo analizza in prospettiva comparata tra Italia e Stati Uniti le varie modalità di controllo
giurisdizionale della discrezionalità tecnica esercitata dalle autorità amministrative indipendenti. In primo luogo,
l’articolo mostra i differenti contesti in cui sono state create le prime autorità di regolazione e le ragioni che hanno
portato alla loro istituzione nei due sistemi giuridici posti in comparazione. In secondo luogo, l’articolo si propone
di indagare i vari orientamenti elaborati dalla dottrina e dalla giurisprudenza in riferimento all’individuazione del
grado appropriato di intensità con cui sindacare la discrezionalità tecnica adoperata dalle autorità di regolazione.
In proposito, sarà evidenziato come, in entrambi gli ordinamenti giuridici, la natura tecnica delle valutazioni
complesse svolte dalle autorità indipendenti abbia portato i giudici a sviluppare specifici standard di controllo e a
porre limiti al sindacato giudiziale diversi ed ulteriori rispetto a quelli generalmente applicati. Nella parte finale,
l’articolo si propone di dimostrare come l’ordinamento italiano e quello americano, pur appartenendo a tradizioni
giuridiche così diverse, presentino sul tema in esame numerose analogie, nonostante alcune inevitabili differenze.
Keywords: judicial review; independent authorities; official discretion; complex technical assessments; market
regulation
Parole chiave: sindacato giurisdizionale; autorità indipendenti; discrezionalità amministrativa; valutazioni tecniche
complesse; regolazione dei mercati
Summary: 1. Trains and dollars. The birth of independent regulatory commissions and the paradox of the US
administrative law. 1.1. Deference Era. Once upon a time in America. 2. A fistful of Euro. Technical discretion
and market regulation in the Italian legal system. 2.1. The intensity of the judicial review of complex technical
assessments carried out by the independent administrative authorities. 3. The good, the bad and the ugly: deference,
activism and hard look doctrine. Methods of judicial review in comparative perspective between the US and the
Italian model.
* Articolo sottoposto a referaggio.
1 federalismi.it - ISSN 1826-3534 |n. 12/20211. Trains and dollars. The birth of independent regulatory commissions and the paradox of the US administrative law In Sergio Leone’s masterpiece film “For a few dollars more”, the old prophet, addressing a very young Clint Eastwood, blurts out: «All this was prairie. But lately everybody’s in a hurry, with your damned good-for-nothing trains! Two two two three! Disgusting! One day someone from the railroad comes here to see me and he says, “Prophet, the railway’s gonna go right past your house”. “Ah, is that so?” I said. “Mm-hm, yup that’s right” he says, “All those trains gonna go right past here, and the best thing for you, Prophet, is to sell your land to the company or else we’ll buy Baker’s. He lives next to your place, and I’ll put the tracks there, and that’ll make you go crazy. What do you say, will you sell out to our company, Prophet?” “Oh, is that so?” says I. He was very anxious for me to sell out. You know what I told him about the railroad? You know what I told him he could do with his railroad? You know what my decision about selling was? ». It was around 1828, the time of the construction of the great railway in the United States, which was meant to connect the Atlantic to the Pacific and which deeply impacted the US legal history. The Confederate States began to set up agencies for the construction and management under concession of single sections of the railway or make direct award of these activities to public or private companies. Many of these companies went bankrupt. The Confederate States were, therefore, incapable of managing the administration and control of these companies. So, in 1887 Congress passed the Interstate Commerce Act. The Act brought the construction of the railroad under the state control and established a new agency in the US legal system, the Interstate Commerce Commission, to protect the rights of the less powerful.1 This was the first federal regulatory agency completely independent of the President, with the task of administering the construction of the railway but at the same time acting as a specialized administrative tribunal for all disputes concerning the railway that arose between private companies and confederate administrations or federal administration. The establishment of the Interstate Commerce Commission and later the Federal Trade Commission2 took on a central role in the transition between the Populist Era and the Progressive Era of the US legal system.3 These commissions were created with characteristics of independence or semi-independence 1 The agency was also known as “the poor man’s court”. 2 Established by the Federal Trade Act of 1914, the Federal Trade Commission is defined a body of experts with the power to identify and sanction unfair trade practices. According to the legislator, the FTC was to be independent of executive authority, except in its selection, and free to exercise its judgment without the leave or hindrance of any official or any department of government. 3 The difference between Populist Era and Progressive Era is in J S Lubbers, ‘Administrative Law in the United States’ in R Seerden (ed), Comparative Administrative Law. Administrative Law of the European Union, its Member States and the United States (4th edn, Intersentia 2018) 360. For an in-depth diachronic analysis of the US administrative law, L M Friedman, A History of American Law (3rd edn, Touchstone 2005). 2 federalismi.it - ISSN 1826-3534 |n. 12/2021
from the executive power and marked an evolution in the US public law, leading to the birth of the Regulatory State.4 Scholars5 categorize these independent authorities under the model of the administrative tribunals, as they have administrative powers (they issue regulations and codes of conduct and apply sanctions) but also quasi-judicial powers (they resolve disputes). Independent authorities enjoy, especially, broad discretion.6 And so begins a long history in the United States of establishing specialized administrative tribunals that have characteristics very similar to the UK administrative tribunals.7 They’re not courts in the strict sense of the word but administrative bodies, whose activity is also expression of self-protection (the power to take decisions to protect its own position) and not of judicial power. At the beginning of the twentieth century, the number of administrative tribunals increased. They were all established through Congress statutes, with the precise intention of creating highly specialized quasi- judicial bodies. Indeed, Congress understood that the economic life was becoming so complex8 that it required a federal administration with extensive technical expertise in sensitive areas. The public authority could no longer be entirely subordinate to the President but must be made up of both departments that report directly to the President and a set of independent authorities.9 Expertise was a key issue. These authorities were called upon to carry out a number of tasks that required technical capabilities, competence, and professionalism for which there would be no political control. 4 L Schultz Bressman, E L Rubin, K M Stack, The Regulatory State (Wolters Kluwer 2013); S Rose-Ackerman, ‘The Regulatory State’ in M Rosenfeld, A. Sajó (eds), The Oxford handbook of comparative constitutional law (Oxford University Press 2012) 671; L McDonald’s, ‘The rule of law in the new regulatory state’ (2004) 33 Common Law World Review 197. 5 P Cane, Administrative tribunals and adjudication (Hart 2009); J Bell, M Elliot, J N E Varuhas (eds), Public law adjudications in common law systems (Hart 2016). 6 The role of discretion is to allow the public authority to choose between various options, all of which are legitimate. Indeed, when the public authority enjoys wide discretion, it takes the decision making a choice based on the weighting of primary public interest with secondary public or private interests. In other words, discretionary decisions can be taken after a judgment of careful balance between different interests worthy of protection. Discretion may concern: finding facts; settling the standards; giving meaning to vague legal terms; applying the standards to the facts. The literature on the role of discretion in the US administrative law is vast. Among the classical references, R M Cooper, ‘Administrative justice and the role of discretion’ (1938) The Yale Law Journal 577; D J Gallican, Discretionary powers (Oxford University Press 1986). According to the author (21-22), the role of discretion is to settle the reasons and standards according to which the power is to be exercised, and apply them in the making of specific decisions. This means that the official has to decide to some substantial degree what the policies and standards are to be, the strategies for achieving them, and their application in specific cases, subject to whatever guidance may derive from the surrounding network of constraining principles. 7 F Pugliese, ‘Sui tribunali amministrativi in Inghilterra’ (1973) Diritto e Società 481. 8 According to M D’Alberti, ‘Autorità indipendenti’ Enciclopedia Giuridica (1995), this complexity is the effect of rapid industrialization, technological innovation and massive urbanization. 9 For a comprehensive analysis about the creation and operation of federal independent regulatory agencies, M J Breger, G J Edles, Independent agencies in the United States: law, structure, and politics (Oxford University Press 2015). 3 federalismi.it - ISSN 1826-3534 |n. 12/2021
Furthermore, according to Congress, the powers of these independent authorities were not to derive from common law and were not to be controlled according to the typical remedies of common law. The regulatory authorities were to be endowed with quasi-judicial powers. Since administrative tribunals were statutory, that is established by specific acts of Congress, they did not have to respect general rules on administrative proceedings. Each proceeding was ruled under specific statute, especially regarding the right to be heard and the rules of participation. A breach in the legal order had been opened. Congress understood that it was necessary to increase the legislative activity, introducing federal regulation in the many subjects in which it was absent or incomplete.10 Is the phenomenon generally known as «statutorification».11 Federal legislation gradually increases, so much so that scholars use the phrase «orgy of statute making»12 to identify this phenomenon of regulatory overproduction. It is the US legal order’s paradox: in the early twentieth century, in a common law order, Congress begins to intensify the lawmaking to affirm its centrality in the system. Thus, a new federal legislative system is born, much more complex, which inevitably compresses the legislative power of the confederate States. 1.1. Deference Era. Once upon a time in America We are in a historical era characterized by the attempt by Congress to change the US administrative system, an attempt to which the courts respond in a very conservative way. Indeed, the first conflicts between the new regulatory commissions and the courts soon arose. According to the judges, the common law tradition prohibited these independent authorities from having jurisdiction over trade, private property and commercial rights.13 In other words, the jurisprudence held that the new regulatory commissions could not escape the control of the judges. Furthermore, the courts are opposed to this regulatory overproduction. According to the judges, there was no need for a broad federal regulation, which compresses contractual freedom and private property. Rather, it would have been appropriate to 10 R L Rabin ‘Federal regulation in historical perspective’ (1986) 38 Stanford Law Review 1189; S G Breyer, R B Stewart, C R Sunstein Administrative law and regulatory policy (Aspen 2006). 11 G Calabresi, A common law for the age of statutes (Harvard University Press 1982). On the statutorification see also M H Bernstein, Regulating business by independent commission (Princeton University Press 1955); G Calabresi, A common law for the age of statutes (Harvard University Press 1982). 12 G Gilmore, The ages of American law (Yale University Press 1977) 95. 13 G Napolitano, ‘I grandi sistemi del diritto amministrativo’ in G Napolitano (ed), Diritto amministrativo comparato (Giuffrè 2007) 47, states that the issue of the relationship between delegated legislation, administrative adjudication e judicial review is typical of the US administrative law and derives from the constitutional principle of the separation of powers. 4 federalismi.it - ISSN 1826-3534 |n. 12/2021
get back to common law.14 However, the common law showed some limits. As noted by scholars,15 most of the judicial remedies for reviewing agencies’ decisions consisted of actions typical of the common law model (mandamus, certiorari, declaration, prohibition). Some statutes had tried to overcome this problem, providing that it was not the courts to deal with the work of the new agencies through the old common law remedies and attributing quasi-judicial powers to the independent agencies.16 Already at the end of the nineteenth century, scholars began a heated debate about the relationship between independent authorities and courts.17 According to some scholars, it was necessary to overcome the legal uncertainty that arises when the courts want to decide definitively, using common law remedies, issues already decided by agencies (for instance, when is also possible to lodge an administrative or non- judicial appeal to the agency against the decision). The premise was as follows: there’s no way that an independent authority affirms new legal principles and rules and then the courts still use the common law old standards of review. Consequently, scholars soon approached the question of compatibility of independent authorities with the overall design of the Constitution.18 As mentioned above, in the US legal system regulatory independent authorities are not judges but sui generis administrative bodies. Therefore, according to some scholars, these administrative bodies would be covered by Article 2 of the US Constitution. Actually, since Article 2 does not concern the public authority in its entirety but only the Presidential Administration, that is the part of the administration headed by the US President, according to other scholars the independent authorities are more appropriately placed between the Article 2 and the Article 3: they are not courts, and therefore do not fall within the system of judicial power referred to in Article 3; they belong to the executive power but are not expression of the presidential executive power, so they do not even fall under Article 2, because these agencies are not subordinate to the President. For this reason, it is believed that these administrative bodies have created a new balancing of constitutional powers. Indeed, the establishment of independent authorities was necessary at the end of the nineteenth century precisely to overcome the limits of the courts, which did not have the appropriate technical expertise to ensure constitutional rights and interests of all parties concerned in 14 For a detailed analysis of the guidelines of the Supreme Court on this point, L H Tribe, American constitutional law (The Foundation Press 1978) 427ff. 15 E Freund, ‘Private claims against the State’ (1893) 8 Political Science Quarterly 625; E Freund, ‘The law of Administration in America’ (1894) 9 Political Science Quarterly 403. 16 On this point, D De Pretis, ‘La giustizia amministrativa’ in G Napolitano (ed), Diritto amministrativo comparato (Giuffrè 2007) 291-293. 17 The scholarly debate on this point can be read in W C Chase, The American law school and the rise of administrative government (University of Wisconsin Press 1982). 18 Independent authorities have even been considered as a kind of “headless fourth branch of government”. On this point, P L Strauss ‘The place of agencies in government: separation of powers and the fourth branch’ (1984) 84 Columbia Law Journal 578. 5 federalismi.it - ISSN 1826-3534 |n. 12/2021
specific sectors of the legal order.19 Lastly, other scholars believe that the creation of the independent authorities does not violate the separation of powers principle but rather strengthens it.20 We are at the height of the Progressive Era. The next step will be the New Deal Era, in the mid-twenties, when Roosevelt, following the disasters of the Great Depression, will initiate a series of administrative reforms to address the widespread economic crisis.21 New independent agencies were established, with functions of market regulation and social rights protection (better working conditions and higher wages). The federal State becomes «administrative State»22 but has yet to find a balance with the judiciary. The reaction of the courts to the regulatory power attributed to these new agencies is becoming increasingly harsh.23 Indeed, the social legislation was formed on the basis of the non-delegation doctrine. This was the theory according to which the agencies could complete legislation through rulemaking, that is, with their own regulatory activity consisting in issue regulations, guidelines, codes of conduct and best practices, provided that the statutes gave a general legislative framework. The Supreme Court ruled that it was the competence of Congress – and not the agencies – to comprehensively regulate delicate issues (freedom of enterprise, contracts and employment relationship) of the capitalist system.24 In the thirties, if the courts had a hostile approach to the New Deal reforms, most scholars instead supported the Roosevelt administrative reform process.25 According to this part of the doctrine, the administrative State required a downsizing of the role of the courts. The reason for this downsizing laid precisely in the technical nature of the independent authorities, set up to meet the need for experts in numerous areas of the law. Furthermore, it was considered appropriate for the courts to show deference to the discretionary powers and the ability of independent authorities to rule on complex issues thanks to the expertise they had. 19 J M Landis, The administrative process (Yale University Press 1938) 24, underlines «the need for the expertness» in regulation. 20 J Dickinson Administrative justice and the supremacy of law (Harvard University Press 1927). 21 On the New Deal administrative reforms, J O Freedman, ‘Expertise and the administrative process’ 28 (1976) 3 Administrative Law Review 363. 22 The administrative State is based precisely on the extensive use of agencies with high technical expertise. This new deal administrative system is perfectly described in D Waldo, Administrative State. A study of the political theory of American public administration (Ronald Press Company 1948). 23 This period, which will last into the 1930s, is also known as Lochner Era. In Lochner v. New York, 198 U.S. 45 (1905), the court struck down a law decreeing maximum hours for workers in a bakery; in Coppage v. Kansas, 236 U.S. 1 (1915), the court struck down a law that forbade employment contracts conditioning an employee’s employment on his not becoming or remaining a member of a labor union; in Adkins v. Children’s Hospital, 261 U.S. 523 (1923), the court struck down a minimum wage law. 24 Panama Refining Co. v. Ryan, 293 U.S. 388 (1935); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935). 25 R Hofstadter, The age of reform (Knopf 1955). 6 federalismi.it - ISSN 1826-3534 |n. 12/2021
Another part of the doctrine, much more conservative, criticized the administrative State, defined as «administrative absolutism».26 Furthermore, some scholars believed that Roosevelt’s administrative reforms were compressing the traditional liberal and capitalist American model and, therefore, that administrative law was betraying the original approach of the regulatory State. The described scholarly debate leads to a change in the case law guideline. Indeed, in the thirties and forties, the Supreme Court changed its conservative approach and became more respectful of the limits of jurisdiction. The lower courts showed deference in reviewing complex technical assessments made by independent authorities.27 The idea prevails that the complex technical assessments can be scrutinized “outside only”, that is without going into the merits of administrative decision taken by the regulatory agencies.28 In details, according to the Supreme Court,29 judges must not retrace the administrative proceeding carried out by the regulatory agencies but must limit themselves to assessing its formal fairness, that is, the compliance with the due process principle and the right to be heard.30 We are at the height of the «deference Era».31 Administrative State and judicial deference are closely related. Indeed, the administrative State needs judges who respect the jurisdiction’s limits. Courts no longer have to use traditional common law remedies but the those provided for in the statutes to control the agencies’ work. At this time, however, the judicial review is limited to errors of law and does not also concern errors of fact. Also in order to limit the regulatory activity of the independent authorities,32 the Administrative Procedure Act was enacted in 1946. The APA forms the basis for modern administrative procedure at the federal level and is applicable to all agencies.33 Institutional framework was mature for a full affirmation of the independent authorities and other regulatory agencies were therefore established in several market sectors. At the same time, however, some 26 R Pound, Administrative law: its growth, procedure and significance (University of Pittsburgh Press 1942). On this point, E B McLean ‘Roscoe Pound on the dangers of administrative absolutism’ (1981) 4 Il Politico 601; M J Horwitz La trasformazione del diritto americano (Il Mulino 2004) 47ff. 27 This case law guideline will last throughout the twentieth century and will culminate in the leading case Chevron, which we will return to shortly. 28 Courts can review agencies’ work “from inside” only when fundamental rights are at stake. 29 NLRB v. Jones & Laughlin Steel Co., 301 U.S. 1 (1937); United States v. Darby, 312 U.S. 100 (1941); Wickard v. Filburn, 317 U.S. 111 (1942). 30 According to C R Sunstein, ‘Two conceptions of procedural fairness’ (2006) 2 Social Research 619, in the US administrative law there are two conceptions of procedural fairness: the first one places a high premium on the application of general rules; the second one emphasizes the value of individualized treatment, highly attentive to the facts of the particular circumstances. 31 R E Schiller, ‘The era of deference: courts, expertise, and the emergence of new deal administrative law’ (2007) 106 Michigan Law Review 399. 32 L Casini, E Chiti, ‘L’organizzazione’ in G Napolitano (ed), Diritto amministrativo comparato (Giuffrè 2007) 87. 33 The literature on the APA is vast. Notably, W Gellhorn ‘The administrative procedure act: the beginnings’ (1986) 72 Virginia Law Review 219. 7 federalismi.it - ISSN 1826-3534 |n. 12/2021
standards of judicial review of agencies’ work were re-evaluated. Throughout the nineteenth century and during the first twenty years of the twentieth, the US courts had never used the reasonableness standard to review the agencies’ work, preferring to use the old common law remedies. Indeed, the reasonableness standard was foreign to the older tradition of the UK common law,34 both to the original principle of natural justice and to the ultra vires doctrine. Things start to change in the 1960s, when there was a new increase of Congress legislation. In details, in 1964, with the enactment of the Civil Rights Act, the Civil Rights Era begins. The Act expands the set of federal remedies to ensure the social rights of consumers, employees and savers. However, the statutory rules cannot regulate all these social issues in details. Therefore, Congress delegates to the agencies the adoption of rules necessary for the implementation and enforcement of the new post-Roosevelt social legislation.35 Two problems then arise: firstly, the question of the judicial protection of these new social rights and, secondly, the intensity of the judicial control. Following the development of federal regulation in the economy and the strengthening of civil rights, courts change their approach and the Supreme Court became an ally of the federal administration. The new judicial review system is based on the APA, which also establishes (§ 706) the standards that courts must use to review the agencies’ work: unreasonableness (assessed according to the arbitrary and capricious test), abuse of discretion, breaches of legal rules (including procedural rules), breaches of constitutional rights, lack of a proper preliminary investigation, insufficiency and inconsistency in the statement of reasons, manifest factual mistake36 (assessed according to the substantial evidence test). The possibility for the judge to directly ascertain the facts marks a turning point for a more intense judicial control.37 Thanks to the APA, the US courts no longer need the common law remedies and natural justice principle to review the independent authorities’ work but can exercise a control of its lawfulness, applying the general discipline on administrative proceedings that provides also 34 One of the first applications of the reasonableness test was in the leading case Associated Provincial Picture House Ltd v. Wednesbury Corp. (1948) 1 KB 223. 35 After a long development of the case law, in Mistretta v. United States, 488 U.S. 361 (1989), the Supreme Court found an Act to be valid because, although Congress cannot generally delegate its legislative power to another branch, the non- delegation doctrine does not prevent Congress from obtaining assistance from coordinate branches. The court ruled that when authorizing an agency to regulate or otherwise implement the law, Congress must lay down by legislative act an intelligible principle to which the person or body authorized to act is directed to conform. 36 According to B Marchetti Pubblica amministrazione e corti negli Stati Uniti. Il judicial review sulle administrative agencies (Cedam 2005) 204, in practice the difference between question of fact and question of law is sometimes not very clear and, beyond the existence of mixed questions of facts and laws, the closeness of issues relating to the interpretation of a given rule and its application to the concrete case is evident. 37 S Lavrijssen ‘An analysis of the constitutional position of the US independent agencies’ in R Caranta, M Andenas, D Fairgrieve (eds), Independent administrative authorities (British Institute of International and Comparative Law 2004) 39, notes that, especially when the regulatory authorities act according to the notice and comment procedure provided by the APA, the courts «have been scrutinizing the agencies’ statement of facts and reasons more thoroughly. Therefore, it seems the ‘arbitrary and capricious’ and the ‘substantial evidence’ tests have converged». 8 federalismi.it - ISSN 1826-3534 |n. 12/2021
some rules on the grounds of review and judicial remedies. In the sixties and seventies, therefore, there is a greater activism of the lower courts.38 However, starting from the eighties, with a clear overruling, the Supreme Court seem to return to having a deference approach in Chevron.39 And yet this is a return to deference that is only apparent and, in any case, not definitive. Nowadays,40 indeed, there is a continuous swing of the US jurisprudence, divided between deference41 (especially of the Supreme Court) and hard look42 approach (especially of the lower courts) to the independent authorities’ technical assessments. 2. A fistful of Euro. Technical discretion and market regulation in the Italian legal system In the Italian legal order, only in the last quarter of the twentieth century, the decline of the interventionist State model and the widespread belief in the need for a free market and free competition led to the creation of the first independent administrative authorities.43 The birth of the regulatory State and the liberalization process of several public services44 entailed the need to ensure the proper functioning of the market. Market regulation started to get considered as a new public function.45 Indeed, when the 38 Goldberg v. Kelly, 397 U.S. 254 (1970); Sierra Club v. Morton, 443 U.S. 55 (1979); Citizens to preserve Overton Park Inc. v. Volpe, 401 U.S. 402 (1971). 39 Chevron, U.S.A., Inc. v. National Resources Defence Council, 467 U.S. 837 (1984). This is the leading case about deference. The Supreme Court establishes criteria and limits of the judicial review of independent authorities’ work. In detail, when the legislator delegates an agency to regulate some issues or there is an indeterminate legal concept, the judge cannot substitute his own interpretation of law with a reasonable interpretation made directly by the agency. Therefore, the court must consider, firstly, the legal rule at the basis of agency’s decision; and, secondly, if the agency has assessed the rule as sufficiently clear or a legal concept not indeterminate. If the agency claims to have applied a clear provision of law to the specific case, then the court can review an error of law. If, instead, the agency declares that the legal interpretation is vague and, therefore, has given its own interpretation, then the judge must limit himself to assessing the reasonableness of this interpretation. There is therefore a downsizing of the judicial review of the error of law. About Chevron, R J May ‘Defining Deference Down, Again: Independent Agencies, Chevron Deference, and Fox’ (2010) 62 Administrative Law Review 433. 40 Analytically reviews the most recent US case law on the judicial control of administrative discretion J C Reitz ‘Judicial deference to the administration in the United States’, in G Zhu (ed) Deference to the administration in judicial review. Comparative perspectives (Springer 2019) 417. 41 Perez v. Mortgage Bankers Association, 575 U.S. 92 (2015); City of Arlington, Texas, et al. v. Federal Communications Commission et al., 569 U.S. 290 (2016). 42 Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm Mutual Automobile Insurance Company, 463 U.S. 29 (1983); Marsch v. Oregon Natural Resources Council, 490 U.S. 360 (1989); Christensen v. Harris County, 529 U.S. 576 (2000); United States v. Mead Corporation, 533 U.S. 218 (2001); Encino Motocars, LLC v. Navarro, 136 S. Ct. 2117 (2016). On the hard look doctrine, C R Sunstein ‘In defense of the hard look: judicial activism and administrative law’ (1984) 7 Harvard Journal of Law and Public Policy 51; P M Garry ‘Judicial review and the hard look doctrine’ (2006) 7 Nevada Law Journal 151. 43 Set up by Law No. 216/1974, the Commissione Nazionale per le Società e la Borsa (Financial Markets and Stok Exchange Commission) is the public authority responsible for regulating the Italian financial markets. 44 R Spagnuolo Vigorita, La liberalizzazione delle telecomunicazioni: dal monopolio alla concorrenza regolata (Editoriale Scientifica 1998) 8, states that the liberalization policy and the comprehensive privatization of public services arose from the need to implement principles and rules developed at Community level. 45 C Iannello, ‘Autorità indipendenti e politiche neoliberali’ in C Iannello (ed), Le autorità indipendenti tra funzione regolativa e judicial review (Edizioni Scientifiche Italiane 2018) 3. 9 federalismi.it - ISSN 1826-3534 |n. 12/2021
private economic initiative develops with great intensity, there is a greater need for a state regulation – neutral and independent of the political majority – to protect general interests46. The number of independent authorities then increased especially during the nineties,47 «as a way to break the link between the politicians and the administrative decision makers».48 As for the position in the institutional framework, only after a long and heated debate,49 doctrine and jurisprudence recognized the administrative nature of the independent authorities and their compatibility with the Constitution and the separation of power principle. Independent authorities carry out, on the basis of a transfer of functions established by several institutive laws,50 specific tasks of the State. In detail, they have regulatory,51 sanctioning,52 supervisory and quasi-judicial53 powers. Above all, regulatory authorities carry out statutory interpretation activity with a high technical level,54 in strategic55 and particularly sensitive56 sectors, to guarantee the fundamental rights of consumers and companies operating in the market.57 These complex technical assessments involve the use of specialized knowledge and are characterized by questionability and uncertainty. In other words, technical discretion58 occurs 46 According to M A Sandulli, ‘Il problema della legittimazione ad agire in giudizio da parte delle autorità indipendenti’ (2013) in 17, the independent authorities, unlike the other public administrations responsible for the care of a particular public interests, have the main function of regulating certain sectors in a neutral manner and ensuring compliance with the rules that also govern them “from the outside”; and, to this end, they are placed in a position of equidistance from all interests at stake, both private and particular public ones. 47 Consider, for instance, the Autorità Garante della Concorrenza e del Mercato (Antitrust Authority) set up by Law No. 287/1990 and the Autorità per le Garanzie nelle Comunicazioni (Communications Authority) set up by Law No. 249/1997. 48 R Caranta, ‘Independent administrative authorities’ in R Caranta, M Andenas, D Fairgrieve (eds), Independent administrative authorities (British Institute of International and Comparative Law 2004) 95. 49 This debate can be read in F Borriello ‘Il potere di rateizzazione del pagamento della sanzione pecuniaria esercitato dalle Autorità indipendenti. Tra giurisdizione di merito e riduzione della discrezionalità amministrativa’ (2020) Diritto, Mercato, Tecnologia 8-12. 50 Council of State, Section VI, 30 May 2014, n. 2818, in . 51 G De Minico, ‘Il potere regolativo delle autorità indipendenti’ in C Iannello (ed), Le autorità indipendenti tra funzione regolativa e judicial review (Edizioni Scientifiche Italiane 2018) 37. 52 I Golia, ‘Poteri sanzionatori tra autorità amministrative e giudici’ in C Iannello (ed), Le autorità indipendenti tra funzione regolativa e judicial review (Edizioni Scientifiche Italiane 2018) 205; M A Sandulli, Le sanzioni amministrative pecuniarie. Principi sostanziali e procedimentali (Jovene 1983). 53 G Della Cananea, ‘La funzione giustiziale delle autorità indipendenti’ in M P Chiti, F Mastragostino (eds), Forme alternative di risoluzione delle controversie con la pubblica amministrazione ed effettività della tutela (Il Mulino 2009) 61. 54 P Salvatore, Il controllo del giudice amministrativo sulla discrezionalità tecnica e, in particolare, sugli atti delle autorità indipendenti (Giuffrè 2009) 31. 55 For instance, competition, communications, personal data, energy, public procurement. 56 F Caringella, ‘Il controllo giurisdizionale su atti e comportamenti dell’Autorità Antitrust’ Il controllo del giudice amministrativo sulla discrezionalità tecnica e, in particolare, sugli atti delle autorità indipendenti (Giuffrè 2009) 160. 57 G Taglianetti, ‘I limiti del sindacato giurisdizionale amministrativo sulle valutazioni tecniche complesse delle autorità indipendenti: punti fermi e perduranti incertezze’ (2012) 11 Il Foro Amministrativo C.d.S. 2817, qualifies the interests at stake – managed by the independent authorities – as “sensitive” due to their constitutional significance and their growing social importance. 58 The literature on technical discretion is vast. See, among the newest, S Torricelli, ‘Per un modello generale di sindacato sulle valutazioni tecniche: il curioso caso degli atti delle autorità indipendenti’ (2020) 1 Dir. amm. 97. For an historical 10 federalismi.it - ISSN 1826-3534 |n. 12/2021
when the examination of facts and relevant situations in administrative proceeding requires the use of technical and scientific expertise, which however does not guarantee an unambiguous and objective result.59 2.1. The intensity of the judicial review of complex technical assessments carried out by the independent administrative authorities The assignment of wide regulatory and discretionary powers to the independent authorities has highlighted, since their establishment, the need to provide for enhanced procedural guarantees, including the right to be heard60 and other participation rights,61 also considering the social function of the market.62 In the early nineties, this idea contributed to the entry into force of the Italian general administrative law Act.63 Considering that also the independent authorities, in exercising their powers and despite the wide discretion they have in most cases, are required to respect the general principles of administrative action64 laid down in the Law No. 241/1990, Italian courts had a wider opportunity to check the formal correctness of the proceeding followed by the authorities, similarly to what happened in the United States since the entry into force of the APA. With the exception of the possibility to control the fairness of procedure, in the past the Italian administrative judge could not exercise any control of complex technical assessments, reserved to the public authorities.65 frame of the traditional Italian reconstruction of the administrative technical discretion see D De Pretis, Valutazione amministrativa e discrezionalità tecnica (Cedam 1995); S Cassese, ‘Valutazioni tecniche della pubblica amministrazione’ in S Cassese (ed), Dizionario di diritto pubblico (Giuffrè 2006) 6176; R Caranta, B Marchetti, ‘Judicial review of regulatory decisions in Italy; changing the formula and keeping the substance?’ in O Essens, A Gerbrandy, S Lavrijssen (eds), National courts and the standard of review in competition law and economic regulation (Europa Law Publishing 2009) 150-153. 59 B G Mattarella, ‘Discrezionalità amministrativa’ in S Cassese (ed), Dizionario di diritto pubblico (Giuffrè 2006) 2000. 60 M Clarich, ‘Garanzia del contraddittorio nel procedimento innanzi alle Autorità amministrative indipendenti’ (2003) accessed 13 September 2020. 61 M Ramajoli, ‘Procedimento regolatorio e partecipazione’ in E Bruti Liberati, F Donati (eds), La regolazione dei servizi di interesse economico generale (Giappichelli 2010) 189; S Del Gatto, ‘La partecipazione ai procedimenti di regolazione delle Autorità indipendenti’ (2010) 9 Giornale di diritto amministrativo 947. 62 R Manfrellotti, Autorità indipendenti e funzione sociale del mercato. Programmazione della concorrenza e modelli di tutela giurisdizionale (Giappichelli 2012). 63 Law No. 241/1990. 64 Salvatore (n 51) 31. 65 As underlined by F Liguori, ‘Il sindacato debole sulle valutazioni riservate delle amministrazioni indipendenti’ (2003) 6 Giornale di diritto amministrativo 603, in the past the judicial deference was justified by affirming that, through the technical evaluations, some constitutional interests were protected (Council of State, Section VI, 1 October 2002, n. 5156, in ). The Author immediately expressed some perplexities regarding this approach, since the constitutional level of the interests at stake, instead of justifying deference in judicial review, should have involved a more intense scrutiny, precisely because of the rank of interests involved. 11 federalismi.it - ISSN 1826-3534 |n. 12/2021
However, over the years66 it has begun to admit that even the technical-scientific choices could be considered illegitimate, if placed outside any sphere of accuracy or reliability, or where unequivocal technical parameters, established case law or prevailing doctrine on the matter had not been respected. The judicial review, however, must be limited to the reliability of the evaluations carried out by the public authority. According to the Council of State, to ensure the principle of effective judicial protection, the administrative judge can review technical discretion also “intrinsically” (i.e. making use of the same technical knowledge of the specialistic science applied by the independent authority) but he cannot go beyond the scrutiny of logic and reasonableness of administrative decision, otherwise he would infringe the principles of separation of powers.67 Moreover, if the judge’s assessment extends to the opportunity or convenience of the administrative decision or to the merits of questionable technical choices, with the replacement of the judge’s assessment to that of the public authority, there would be an excess of jurisdictional power. It was rightly stressed that the judicial review of technical discretion comes down to a control on the fact- finding.68 But over the year, beyond the intensity of the judicial review, the possibility for the judge to know and ascertain directly the fact was also debated.69 In this regard, part of the doctrine supports the approach of a full judicial review of fact. According to this approach, the judge could replace the public authority in ascertaining the facts relevant to the decision, in compliance with effective judicial protection principle. In support of this approach, this part of the doctrine argues that the public authority does not exercise any discretion in the preliminary investigation aimed at ascertaining the fact and this would allow the judge to exercise a full control. However, especially in the past, some scholars supported the approach of a marginal judicial review of the fact, believing that judges cannot directly ascertain the facts but must limit themselves to assessing the correctness of the preliminary investigation carried out by the public authority. According to this 66 Starting from the landmark judgment Council of State, Section IV, 9 April 1999, n. 601, in . According to F Caporale, ‘L’uso dei mezzi istruttori nel trattamento giurisdizionale della discrezionalità tecnica. Il caso dell’ARERA’ (2020) 2 Rivista Trimestrale di Diritto Pubblico 429, this kind of judicial review is a step towards the effectiveness of legal protection. On this point see also D De Pretis, ‘Discrezionalità tecnica e incisività del controllo giurisdizionale’ (1999) 12 Giornale di Diritto Amministrativo 1180ff; L R Perfetti, ‘Ancora sul sindacato giurisdizionale sulla discrezionalità tecnica’ (2000) 2 Foro Amministrativo 422ff; M Delsignore, ‘Il sindacato del giudice amministrativo sulle valutazioni tecniche: nuovi orientamenti del Consiglio di Stato’ (2000) 1 Diritto Processuale Amministrativo 185ff; P Lazzara, ‘Discrezionalità tecnica e situazioni giuridiche soggettive’ (2000) 1 Diritto Processuale Amministrativo 212ff; A Travi, ‘Nota a Cons. di Stato n. 601/1999’ (2001) 3 Foro italiano 9ff. 67 Only in case of administrative (i.e. not criminal) fines inflicted by the independent authorities, the administrative court has the power to annul the fine or to reduce its amount. 68 F Pinto, ‘Giudice e amministrazione nel sindacato nella discrezionalità tecnica’ in G Leone (ed), Scritti in memoria di Giuseppe Abbamonte (Edizioni scientifiche italiane 2019) 1246. 69 The scholarly debate on this point can be read in R Perfetti, ‘Sul problema dell’ingresso dei fatti nel processo. Il processo amministrativo come retto dal solo principio dispositivo’ in G Leone (ed), Scritti in memoria di Giuseppe Abbamonte (Edizioni scientifiche italiane 2019) 1175. 12 federalismi.it - ISSN 1826-3534 |n. 12/2021
approach, in particular when the administrative decision is based on a technical evaluation made by an
independent authority, the judicial review should be limited exclusively to a check on the reasonableness
of the preliminary investigation to ascertain the relevant facts.
Other scholars divide the judicial review process of administrative decisions based on technical
evaluations into three stages, namely: the ascertainment of the facts, the assessment of the facts from a
legal perspective and the interpretation of vague legal terms and undetermined legal concepts (such as
the definition of the relevant market and the abuse of a dominant position). According to this more
recent scholarly approach, Italian courts can carry out a full review on the ascertainment of the facts and
on the interpretation of vague legal terms only. In other cases, courts must limit themselves to verifying
whether the public authority has identified legally relevant facts through a correct and complete
70
preliminary investigation based on due diligence and on the duty to state reasons. At times, courts
cannot exercise a full review, on the one hand, due to the difficulty in concretely differentiating between
ascertainment and assessment of the fact; on the other hand, due to insufficient or inconsistent reason
given in the administrative decision.
The jurisprudence has recently taken a clear position on the intensity of control of the complex technical
assessments71 made by the independent authorities,72 overcoming the doubts raised by doctrine. Indeed,
70 G Cocozza, ‘Autorità amministrative indipendenti e ruolo della motivazione come fondamento dei poteri ad esse
conferite’ (2020) 4 Amministrativ@mente 431.
71 Court of Cassation, 20 January 2014, n. 1013, in (2014) Giustizia Civile Massimario, according to which judicial review
of Antitrust Authority’s decisions involves the direct ascertainment of the facts underlying the contested decision. On
this leading case, B Giliberti, ‘Sulla pienezza del sindacato giurisdizionale sugli atti amministrativi. Annotazioni a Corte
di Cassazione, Sezioni Unite, 20 gennaio 2014, n. 1013’ (2014) 3 Diritto Processuale Amministrativo 1057; L Galli, ‘Il
sindacato giurisdizionale sulla discrezionalità tecnica: pienezza e bilanciamento del controllo’ (2014) 3 Diritto
Processuale Amministrativo 1028, n 57; L Giani, ‘Giudice amministrativo e cognizione del fatto (Il pensiero di Antonio
Romano)’ (2014) 3 Diritto Amministrativo 535; F Goisis, ‘La full jurisdiction nel contesto della giustizia amministrativa:
concetto, funzione e nodi irrisolti’ (2015) 2 Diritto Processuale Amministrativo 546; G Sigismondi, ‘Il sindacato sulle
valutazioni tecniche nella pratica delle corti’ (2015) 2 Rivista Trimestrale di Diritto Pubblico 705; V Di Capua, ‘I poteri
della CONSOB sulle offerte pubbliche di acquisto e di scambio tra legislazione e giurisprudenza. Il caso dei bonds
argentini’ (2015) 4 Foro Amministrativo 1287, n 50; B Giliberti, ‘Public e private enforcement nell’art. 9, co. 1 della
direttiva antitrust/1042014. Il coordinamento delle tutele: accertamento amministrativo e risarcimento dei danni nei
rapporti privatistici’ (2016) 1 Rivista Italiana di Diritto Pubblico Comunitario 77, n 87; A Preto, B Carotti, ‘Il sindacato
giurisdizionale sulle autorità indipendenti: il caso dell’AGCOM’ (2016) 1 Rivista Trimestrale di Diritto Pubblico 123; G
Greco, ‘L’accertamento delle violazioni del diritto della concorrenza e il sindacato del giudice amministrativo’ (2016) 5
Rivista Italiana di Diritto Pubblico Comunitario 999, n 4; M Delsignore, ‘I controversi limiti del sindacato sulle sanzioni
AGCM: molto rumore per nulla?’ (2020) 3 Diritto Processuale Amministrativo 740. More recently, Council of State,
Section VI, 30 January 2020, n. 780, in ; Council of State, Section VI, 5 August 2019,
n. 5562, in ivi; TAR Lazio, Roma, Section II, 20 April 2017, n 4754, in (2018) 11 Foro Amministrativo 2004.
72 Consider, for instance, the decisions by which the Antitrust Authority ascertains anti-competitive practices. In this
particular area, the legislator on all essential points followed, in terms of substance, the course charted by the Court of
Cassation (n 70). Indeed, Article 7(1) of the Legislative Decree no. 3/2017 states that judicial review involves the direct
ascertainment of the facts underlying the Authority’s decision with which an infringement of competition law was
ascertained. The rule also provides that judicial control extends to technical profiles that do not present an objective
margin of reliability and whose examination is necessary to judge the lawfulness of the decision. Scholars expressed
doubts about the true scope of this provision. According to M Delsignore, ‘Le regole di convivenza della sanzione
13 federalismi.it - ISSN 1826-3534 |n. 12/2021the Council of State – after getting passed several lexical disagreements concerning the difference between weak and de novo (strong) judicial review – ruled the possibility for the administrative judge to directly ascertain the disputed facts73 and scrutinize the decision making process carried out by the public authority.74 However, the Council of State ruled that the judge (although on the outcome of “intrinsic” scrutiny) cannot always be entitled to substitute its own assessment of the facts to that of the public authority, when it comes to a complex evaluation on a questionable technical problem (in particular, on the so-called «contextualization»75 of vague and imprecise legal terms and their comparison with the established facts). If this is the case, the judge’s scrutiny should be limited to verifying whether the complex technical evaluation made by the public authority is plausible, reasonable and proportional in the light of the technique, the appropriate science and all the relevant facts. Such a kind of judicial review, in any case non-substitute, has been defined «of greater technical reliability».76 amministrativa’ (2017) 2 Diritto Amministrativo 235, n 35, the law, instead of allowing more intense judicial control, would seem to limit it. On this point see also B Giliberti, ‘Accertamento amministrativo e risarcimento del danno nell’art. 9, co. 1 della Direttiva antitrust 104/2014’ (2015) 1 AIDA 154; F Goisis, ‘Il canone della full jurisdiction, tra proteiformità e disconoscimento della discrezionalità tecnica come merito. Riflessioni critiche sull’art. 7, co. 1, d.lgs. 19 gennaio 2017, n. 3’ (2018) P.A. Persona e Amministrazione 199ff; F Cintioli, ‘Giusto processo, sindacato sulle decisioni Antitrust e accertamento dei fatti (dopo l’effetto vincolante dell’art. 7, d. lg. 19 gennaio 2017, n. 3)’ (2018) Diritto Processuale Amministrativo 1207ff; M Lipari, ‘Il sindacato pieno del giudice amministrativo sulle sanzioni secondo i principi della CEDU e del diritto UE. Il recepimento della direttiva n. 2014/104/EU sul private enforcement (decreto legislativo n. 3/2017): le valutazioni tecniche opinabili riservate all’AGCM’ (2018) 8 Federalismi; G Greco, ‘Monismo e dualismo nel sistema di giustizia amministrativa: l’influenza del diritto dell’Unione Europea’ (2019) 1 Rivista Italiana di Diritto Pubblico Comunitario 135; A Maltoni, ‘La Corte di Giustizia ascrive gli illeciti antitrust nella categoria dei gravi illeciti professionali nonostante le “ritrosie” manifestate da una parte della giurisprudenza amministrativa’ (2019) 6 Rivista Italiana di Diritto Pubblico Comunitario 792; F Goisis, ‘L’efficacia di accertamento autonomo del provvedimento AGCM: profili sostanziali e processuali’ (2020) 1 Diritto Processuale Amministrativo 45. 73 Scholars believe that full ascertainment of the fact leads to intensification of judicial review. According to F Liguori, ‘Il sindacato di merito nel giudizio di legittimità’ (2018) 2 P.A. Persona e Amministrazione 231, due to the possibility of ascertaining the fact directly and fully, the judge has the task of defining all the aspects of administrative issues submitted for his examination; in similar terms F Pinto (n 49) 1285 rightly points out that «once the full fact-finding (understood as the use of technical expertise necessary to determine it) has been admitted, it is difficult to limit the judicial review» (my translation). 74 On this point, D De Pretis, ‘Italian administrative law under the influence of european law’ (2010) 1 Italian Journal of Public Law 33, argues that «naturally, a definition of the regimen and an analysis of the defective course of the administrative decision also implies an evaluation of the respect paid to the rules regarding the formation of the public will (volontà pubblica) under which the decision to act was taken by the administrative authority». 75 R Chieppa, ‘Il differente controllo del Giudice amministrativo sulle attività di regolazione e giustiziali delle Autorità amministrative indipendenti’ Il controllo del giudice amministrativo sulla discrezionalità tecnica e, in particolare, sugli atti delle autorità indipendenti (Giuffrè 2009) 59. According to the Author, one of the tasks of the independent authorities is precisely to “contextualize” the rules to be applied, which often contain indeterminate legal concepts. 76 Council of State, Section VI, 15 July 2019, n. 4990, in . P Forte, ‘Full jurisdiction, arte, cultura. Un discusso confine in movimento’ (2018) 2 P.A. Persona e Amministrazione 165, states that the reliability is to be understood as the correct choice of the technical or scientific rules to apply and the accuracy in the cognitive and application process. 14 federalismi.it - ISSN 1826-3534 |n. 12/2021
The case-law of the European Court of Justice on the intensity of review of technical discretion77 (in particular on the complex economic or technical appraisals of EU agencies78) has influenced the described Italian doctrine and jurisprudence.79 The original deferential approach to complex technical evaluations has been generally justified on the one hand with the reason of expertise;80 on the other, with the «basic constitutional principle of the separation of powers. Provided that the objectives and limits laid down in the Treaties for an action of an EU institution or body within the field of an EU policy are respected, the judicial mandate conferred to the Court of Justice does not allow it to encroach upon the ambit of competences of the executive branch in complex technical matters, beyond the case of manifest error of appreciation».81 An example of the aforementioned ECJ’s case law on the complex technical evaluations is the Upjohn case.82 This case was about the intensity of the control of national judges on administrative decisions revoking marketing authorizations. According to the applicant, in view of the complex technical evaluations and the conflicting opinions on the dangerousness of the medicines produced by the pharmaceutical companies, the effective protection of its rights established by the EU law should have led to a full review. The Court rejected this argument, relying essentially on the limited nature of its control in cases where the EU administration carries out complex technical evaluations, i.e. by applying a comparative criterion. The Court ruled that the EU law does not require, in national legal systems, a judicial control of the withdrawal decisions broader than that exercised by the Court in similar cases. In Upjohn, the Court established that in such cases, the Community judicature must restrict itself to examining the accuracy of the findings of fact and law made by the authority concerned and to verifying, 77 M Eliantonio, ‘Deference to the administration in judicial review: the European Union’, in G Zhu (ed) Deference to the administration in judicial review. Comparative perspectives (Springer 2019) 168ff; R Widdershoven, ‘The European Court of Justice and the standard of judicial review’, in J de Poorter et al (eds) Judicial review of administrative discretion in the administrative state (Springer 2019) 39ff. 78 A Volpato, ‘Judicial review of the acts of EU agencies: discretion escaping scrutiny?’ (2019) 1 CERiM Online Papers Series 97; A Volpato, M Eliantonio, ‘The contradictory approach of the CJEU to the judicial review of standards: a love- hate relationship?’, in M Eliantonio, C Cauffman (eds) The legitimacy of standardization as a regulatory technique (Edward Elgar Publishing 2020) 91ff. 79 The Council of State expressly declared its intention to exercise a review tending to a European common model, in which the principle of effective judicial protection is combined with the specific nature of the dispute. According to the Court, the judge has the task of checking – without any limitations – whether the power given to the independent authority has been correctly used (Council of State, Section VI, n. 550/2007, in ). 80 The expertise that the decision-maker has – but the courts don’t have – to review technical complex matters. 81 J L Da Cruz Vilaça, ‘The judgment of the German federal constitutional court and the court of justice of the European union – judicial cooperation or dialogue of the deaf?’ (2020) 3 CERIDAP 9. 82 Judgment of 12 October 1999, Pharmacia & Upjohn SA v. Paranova A/S, C-120/97, EU:C:1999:494. On this point, R Caranta, ‘Tutela giurisdizionale effettiva delle situazioni giuridiche soggettive di origine comunitaria ed incisività del sindacato del giudice nazionale’ (1999) Rivista italiana di diritto pubblico comunitario 503. 15 federalismi.it - ISSN 1826-3534 |n. 12/2021
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