ITALY Law and Practice Contributed by: Filippo Pacciani and Antonio D’Arcangelo, Legance
10.7 Unequal Treatment Similarly, impartiality is one of the general prin - ciples governing administrative action. A breach of this principle, resulting in unequal treatment of similar situations, allows the claimant to bring a challenge on the grounds of excess of power. 10.8 Human Rights Italy is a signatory to the European Convention on Human Rights and, as stated in Article 6 of the Treaty on the Functioning of the European Union, this Convention holds the same legal value as the treaties of the EU. As a result, individuals may bring challenges before administrative courts, claiming that an Administrative Decision violates the provisions of the European Convention on Human Rights. 10.9 Proportionality Proportionality is one of the general principles governing administrative actions. A breach of this principle allows a claimant to bring a chal - lenge on the grounds of excess of power. 10.10Additional Grounds Typical grounds for a challenge include: • violation of law (primary legislation, Italian Constitution, European law, etc); • lack of competence; and • excess of power, meaning any violations of the general principles of administrative action. In this respect, case law has established some “symptomatic indicators” of excess of power, which serve as indicators of “misuse” of the administration’s discretionary authority. These include: (a) misrepresentation and erroneous evalu - ation of facts, which occurs when the administration considers a non-existent
fact to be real, or attributes an erroneous, illogical or irrational meaning to the facts; (b) misuse of power, which arises when the administration pursues a goal different from the one for which administrative power was granted; (c) illogicality or contradiction of the act, which occurs when the reasoning behind the act is illogical or contains contradic - tions in its various parts; and (d) unequal treatment, which is evident when different measures are adopted for identi - cal factual situations. 10.11Exempt Decisions Acts or measures taken by the Government when exercising political (and not administrative) powers cannot be challenged. 11. Defence 11.1 Timing and Grounds of Defence The defendant must present its grounds of defence no later than in the brief filed 30 clear days before the public hearing on the merits (this period is halved in ‘fast track’ proceedings). There are no common or typical defences. 12. Interim Relief 12.1 Common Forms of Interim Relief A claimant may request interim reliefs from the administrative court to prevent serious and irrep - arable damage before the issuance of the judg - ment on the merits. Interim reliefs may include the suspension of the effects of the challenged acts or any other pro -
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