ITALY Law and Practice Contributed by: Filippo Pacciani and Antonio D’Arcangelo, Legance
tions acting in accordance with civil law rules (referred to as “exclusive jurisdiction” ). In such cases, administrative jurisdiction exists regard - less of whether the decision made by the Public Administration is of a public or private nature. 3. Nature of the Decision 3.1 Challenging Primary Legislation Generally speaking, provisions of primary leg - islation cannot be directly challenged before administrative courts. However, in the context of challenges brought against Administrative Decisions, the claimant may argue that the provision of primary legisla - tion underpinning the challenged Administrative Decision is contrary to the Italian Constitution or to European Union (EU) law. In the first case, the claimant may request the administrative court (or the court may decide ex officio) to refer the matter to the Constitutional Court, which has the authority to declare a provi - sion of national law unconstitutional. In the second case, the claimant may request the administrative court (or the court may decide ex officio) not to apply the provision of primary legislation that conflicts with EU law, or to refer the matter to the Court of Justice of the Europe - an Union. According to Article 267 of the Treaty on the Functioning of the European Union, the Court of Justice will determine the correct inter - pretation of EU law and assess the compatibility of the national law in question with EU law. 3.2 Challenging Secondary Legislation A challenge to secondary legislation (administra - tive in nature) can be brought only if such legisla -
tion has direct and immediate harmful effects on the claimant. 3.3 Government Decisions Affecting Sole Individuals Individuals may bring a challenge to govern - ment decisions that affect them by following the ordinary rules of judgment before administrative courts. 3.4 Agreements Between Private Entities and Public Bodies Any agreement between Public Administra - tions and private parties having as its object works, services or supplies is governed by the Public Contracts Code (Legislative Decree No. 36/2023). A distinction must be made between (a) the selecting phase (in most cases, a tender proce - dure) aimed at awarding such contracts, which falls under the jurisdiction of administrative courts, and (b) the execution of the contract, which falls under the jurisdiction of civil courts. 3.5 Challenging Decisions Without Legal Effect As a general rule, Administrative Decisions can be challenged before administrative courts only to the extent that they have direct harmful effects on the claimant. Opinions, circulars or guidelines may not have direct harmful effects on the affected party. However, in certain circumstances – depend - ing on the contents of such acts – they may be harmful and, therefore, subject to appeal. For example, case law relating to certain opinions or guidelines issued by the National Anti-Corrup - tion Authority (ANAC) has established that such decisions can harm recipients by imposing spe -
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