ITALY Law and Practice Contributed by: Filippo Pacciani and Antonio D’Arcangelo, Legance
10. Grounds 10.1 Scope of Judicial Review: Merits v Process If the claimant demonstrates the likelihood of serious and irreparable harm resulting from the challenged Administrative Decision before a decision on the merits is issued, they may seek precautionary measures to suspend the effec - tiveness of the challenged Administrative Deci - sion. The court will evaluate such requests at its dis - cretion, either suspending the effectiveness of the challenged Administrative Decision or, as an alternative, scheduling an expedited hearing on the merits. 10.2 Constitutional Challenge The Italian Constitution is written and represents the highest source of Italian law, with which all legislative and administrative acts must comply. Non-conformity of an Administrative Decision with the Italian Constitution results in its illegiti - macy, and administrative courts can annul such decisions as a consequence. As previously mentioned (see 3.1 Challenging Primary Legislation ), in the context of a chal - lenge brought against an Administrative Deci - sion, the claimant may argue that the provision of national law underpinning the challenged Administrative Decision is contrary to the Italian Constitution. If the administrative court accepts this argument, it may refer the matter to the Constitutional Court, which has the authority to declare a provision of national law unconstitu - tional.
10.3 Procedural Errors It is possible to challenge any Administrative Decision on the grounds that the Public Admin - istration, in making such a Decision, failed to follow the relevant procedural rules established by law (which may vary depending on the type of decision). Such violations result in the illegiti - macy of the Administrative Decision due to a violation of law. 10.4 Factual Errors It is possible to bring a challenge on the basis that Public Administration made an error of fact during the decision-making process. Such a flaw renders the Administrative Decision illegitimate Public Administrations must exercise their pow - ers and adopt Administrative Decisions when required by law, even if the content of such decisions is discretionary. If the Public Admin - istration remains inactive, the interested party may challenge the “silence” , claiming its unlaw - fulness. In such cases, the administrative court may order the Public Administration to adopt the act within a specified term. If the Public Admin - istration continues to remain inactive, the court may appoint a commissioner ad acta, who will adopt the act in place of the Public Administra - tion. 10.6 Bias on the grounds of excess of power. 10.5 Abdication or Fettering of Discretion Public Administrations must make unbiased decisions, ensuring that decisions are directed towards achieving the objectives prescribed by law. The exercise of administrative powers that results in Administrative Decisions taken for purposes other than those established by law can be challenged on the grounds of excess of power.
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