(May 17, 2019) On February 6, 2019, the Italian Constitutional Court declared article 54, paragraph 2 of Decree-Law No. 112 of June 25, 2008 unconstitutional because the provision establishes an excessive duration for administrative procedures. In its decision, the Court highlighted that all legal procedures must have a reasonable duration. By declaring this provision unconstitutional, the Court was bringing Italian legislation regulating administrative procedures into compliance with European Union (EU) court decisions. (Decision No. 34 of February 6, 2019, Issued in a Constitutional Legitimacy Case by Incidental Procedure (the Decision), GAZZETTA UFFICIALE [G.U., OFFICIAL GAZETTE], Mar. 13, 2019 (in Italian), G.U. website.)
Background of the Case
The Constitutional Court reviewed a constitutional question raised by the Court of Cassation and multiple appellate courts concerning a provision that affected the timing of administrative processes.
The Constitutional Court performed its review in light of article 117 of the Constitution, which provides that “[l]egislative powers shall be vested in the State and the Regions in compliance with the Constitution and with the constraints deriving from EU legislation and international obligations,” with 17 areas listed in which the State has “exclusive legislative powers.” (CONSTITUTION OF THE ITALIAN REPUBLIC, Dec. 27, 1947, as amended, Italian Senate website (in Italian), English translation as amended through 2012, Comparative Constitutions Project website.)
Reasoning of the Court
The Constitutional Court considered the principle of reasonableness applicable to the duration of administrative procedures established for damages claims against the public administration. (Decision, considerations of law 2.1 para. 1 & 3 para. 8.) If a party were to avail itself of filing all of the available administrative appeals shortly before their expiration date, that would bring about an unreasonable duration of administrative processes that would damage the other party. (Id.)
The Court cited case law from the EU Human Rights Court accepting the admissibility or preferableness of remedies to prevent making the duration of the administrative procedures excessively long. (Id. considerations of law 6.1, para. 1.) To reach its final determination, the Court also mentioned due process of law considerations as guaranteed by the Italian Constitution. (Id. considerations of law 6.4, para. 2.)
Holding of the Court
The Constitutional Court declared the unconstitutionality of the provision, thus bringing Italian legislation regulating administrative procedures into compliance with EU court decisions by providing for their reasonable duration.