Public & Administrative Law 2025 Comparisons

Judicial review of public law decisions is governed by general rules, with certain exceptions relating to particular decision-makers or decisions.

The general rule is that administrative courts assess the legitimacy of any type of decision, act, resolution, regulation, etc issued by public entities (hereinafter referred to as “Public Administrations”) in the exercise of administrative powers (hereinafter referred to as “Administrative Decisions”).

For exceptions, see 2.1 Determining Susceptibility.

Challenges are heard by the regional administrative courts.

Appeals against first-instance judgments are brought before the Council of State (Consiglio di Stato) and, solely in the case of appeals against judgments of the Sicilian administrative court, before the Council of Administrative Justice for the Sicilian Region (Consiglio di giustizia amministrativa per la Regione siciliana).

Judgments issued by the Council of State and the Council of Administrative Justice for the Sicilian Region may be appealed before the Italian Supreme Court (Suprema Corte di Cassazione) on the sole ground of lack of jurisdiction.

Susceptibility to challenges before administrative courts is determined by reference to both the status of the defendant and the nature of the challenged Administrative Decisions.

As previously mentioned, the general rule is that administrative courts exercise their jurisdiction over any Administrative Decisions (see 1.1 General Rules or Specific Regimes?).

However, in the utilities sector, certain decisions made by private entities controlled by Public Administrations are also susceptible of being challenged before administrative courts. The rationale for this exception is that such decisions impact public interests.

Finally, in specific matters provided for by law, administrative courts exercise judicial control over decisions made by Public Administrations acting in accordance with civil law rules (referred to as “exclusive jurisdiction”). In such cases, administrative jurisdiction exists regardless of whether the decision made by the Public Administration is of a public or private nature.

Generally speaking, provisions of primary legislation 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 legislation 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 provision 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 European Union. According to Article 267 of the Treaty on the Functioning of the European Union, the Court of Justice will determine the correct interpretation of EU law and assess the compatibility of the national law in question with EU law.

A challenge to secondary legislation (administrative in nature) can be brought only if such legislation has direct and immediate harmful effects on the claimant.

Individuals may bring a challenge to government decisions that affect them by following the ordinary rules of judgment before administrative courts.

Any agreement between Public Administrations 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 procedure) 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.

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 – depending 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-Corruption Authority (ANAC) has established that such decisions can harm recipients by imposing specific compliance constraints on certain activities, making them susceptible of being challenged.

When a Public Administration acts in accordance with civil law rules (without exercising administrative powers) and engages in commercial activities, any decision or action is only susceptible to challenge before civil courts according the rules of civil law. As previously mentioned, while the awarding of a contract is always an administrative act, the execution of the contract falls under civil law (see 3.4 Agreements Between Private Entities and Public Bodies).

The jurisdiction of administrative courts cannot be ousted by legislation or by contract, as the Italian Constitution guarantees the right of every individual to seek legal remedy before administrative courts against Administrative Decisions.

However, disputes involving rights devolved to administrative court jurisdiction (“exclusive jurisdiction”, see 2.1 Determining Susceptibility) may be deferred by the parties to an arbitration.

To bring a challenge before administrative courts, a claimant must meet the following requirements:

• legal standing, meaning a differentiated and qualified legal position compared to the general community; and
• interest to challenge, defined as the claimant’s benefit in having the Administrative Decision annulled or reformed through the challenge. This must arise from harm to the claimant’s position caused by the challenged administrative measure and must exist both at the time the challenge is brought and until the final decision.

Associations and charities may challenge Administrative Decisions to protect collective interests, provided they meet certain criteria assessed by administrative courts on a case-by-case basis. These criteria include effective representativeness, statutory purposes and stability (rather than occasional activities).

Anyone with an interest connected to a pending administrative claim may intervene in the proceedings. Such an interest arises when the outcome of the challenge (upholding or rejection) could indirectly benefit the intervener. Interventions can support either the claimant (intervention ad adiuvandum) or the defendant (intervention ad opponendum).

From a procedural perspective, the act of intervention must state the reasons for the intervention, be notified to all parties involved in the pending claim, and be filed with the administrative court no later than 30 days before the public hearing on the merits.

Interveners accept the claim’s current state and degree. Within the proceedings, they may only support the claimant or the defendant, and may not introduce new grounds.

Automatic disclosure/discovery is not required in administrative claims.

As a general rule, parties must provide all evidence available to them that substantiates the facts underpinning the grounds of the claim and any exceptions.

Anyone seeking to assert a right or fact must sufficiently prove their claims in court by submitting the relevant documentation.

In some cases, the administrative court may exercise its investigative powers at its sole discretion to obtain the necessary documentation for resolving the dispute.

However, the court’s investigative powers cannot compensate for a complete failure by the parties to submit evidence.

Unlike civil and criminal proceedings, administrative court proceedings require evidence to be acquired through documents rather than live testimony. Testimonial evidence is also permitted in written form, with witnesses answering questions in writing instead of appearing live before the court.

There is no formal requirement to complete preliminary steps, such as pre-action correspondence, before bringing a challenge before administrative courts.

There is no formal requirement to exhaust any context specific appeals before bringing a challenge before administrative courts.

The time limits for bringing a challenge before administrative courts vary depending on the type of claim.

• Claims for annulment must be filed within 60 days from the date of knowledge of the Administrative Decision. If the Administrative Decision does not provide for individual notification, the 60-day period begins from the date the publication period of that decision has expired. For disputes relating to the awarding of public contracts, the 60-day time limit is reduced to 30 days.
• Claims for damages must be filed within 120 days from the date the event occurred or, if the damage directly results from the Administrative Decision, from the date of knowledge of the decision. If a claim for annulment of an Administrative Decision has been filed, a compensation claim may be made during the same proceedings or, in any case, within 120 days from the final judgment.
• Claims regarding access to documents must be filed within 30 days from the decision denying access. The denial is considered to be implicit if the Public Administration does not make a decision within 30 days of receiving the access request.
• Claims for nullity, applicable in cases of particularly severe flaws in the Administrative Decision (eg, violations of a final judgment), must be filed within 180 days.
• Claims for compliance with a judgment must be filed within ten years from the date of the final judgment.

To initiate a claim, the claimant must demonstrate its legal standing (ie, a differentiated and qualified legal position in relation to the Administrative Decision at issue, as opposed to the general, undifferentiated community) and an interest to challenge (ie, the harm caused to the claimant’s position by the contested Administrative Decision).

Additionally, the claimant must specify, under penalty of inadmissibility, the precise legal grounds for the illegitimacy of the Administrative Decision in the initial challenge.

The claimant must specify, under penalty of inadmissibility, the precise legal grounds in the initial challenge. If new legal grounds arise during the proceedings due to acts or documents previously unknown to the claimant, the appeal may be supplemented with “added grounds” (motivi aggiunti).

Defendants and other parties are not required to present all their defensive arguments in their first act.

All parties may submit supporting documents to the court within 40 days prior to the hearing on the merits (or within 20 days in certain ‘fast track’ proceedings). Additionally, parties may further elaborate on their positions in two defensive briefs to be filed with the court. The deadlines for these briefs are as follows:

• Standard proceedings: 30 days and 20 days prior to the hearing on the merits; and
• ‘Fast track’ proceedings: 15 days and 10 days prior to the hearing on the merits.

Once a claim is issued, it does not undergo a sifting process before proceeding further.

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 effectiveness of the challenged Administrative Decision.

The court will evaluate such requests at its discretion, either suspending the effectiveness of the challenged Administrative Decision or, as an alternative, scheduling an expedited hearing on the merits.

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 effectiveness of the challenged Administrative Decision.

The court will evaluate such requests at its discretion, either suspending the effectiveness of the challenged Administrative Decision or, as an alternative, scheduling an expedited hearing on the merits.

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 illegitimacy, and administrative courts can annul such decisions as a consequence.

As previously mentioned (see 3.1 Challenging Primary Legislation), in the context of a challenge brought against an Administrative Decision, 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 unconstitutional.

It is possible to challenge any Administrative Decision on the grounds that the Public Administration, 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 illegitimacy of the Administrative Decision due to a violation of law.

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 on the grounds of excess of power.

Public Administrations must exercise their powers and adopt Administrative Decisions when required by law, even if the content of such decisions is discretionary. If the Public Administration remains inactive, the interested party may challenge the “silence”, claiming its unlawfulness. In such cases, the administrative court may order the Public Administration to adopt the act within a specified term. If the Public Administration continues to remain inactive, the court may appoint a commissioner ad acta, who will adopt the act in place of the Public Administration.

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.

Similarly, impartiality is one of the general principles 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.

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.

Proportionality is one of the general principles governing administrative actions. A breach of this principle allows a claimant to bring a challenge on the grounds of excess of power.

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:

1. misrepresentation and erroneous evaluation 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;
2. misuse of power, which arises when the administration pursues a goal different from the one for which administrative power was granted;
3. illogicality or contradiction of the act, which occurs when the reasoning behind the act is illogical or contains contradictions in its various parts; and
4. unequal treatment, which is evident when different measures are adopted for identical factual situations.

Acts or measures taken by the Government when exercising political (and not administrative) powers cannot be challenged.

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.

A claimant may request interim reliefs from the administrative court to prevent serious and irreparable damage before the issuance of the judgment on the merits.

Interim reliefs may include the suspension of the effects of the challenged acts or any other protective measure, such as prompt scheduling of the hearing on the merits.

The request for interim reliefs is typically included in the act of challenge and is discussed at a special hearing scheduled no earlier than the 20th day after notification of the request (this period is halved in ‘fast track’ proceedings).

In cases of extreme urgency, where even the interim hearing cannot be scheduled in time, the claimant may request the Chief Judge of the administrative court to adopt interim reliefs through a presidential decree without prior discussion between the parties.

Damages caused by the adoption of an illegitimate Administrative Decision may be awarded by the administrative court.

The administrative court does not have the authority to strike out provisions of primary legislation directly.

However, in challenges against administrative measures, claimants may argue that the primary legislation underpinning the measures is contrary to either the Italian Constitution or EU law. See 3.1 Challenging Primary Legislation for further details.

As a general rule, administrative courts cannot adopt Administrative Decisions in place of Public Administrations. However, when annulling a challenged Administrative Decision, courts may establish principles that Public Administrations must follow when readopting the decision.

When the administrative court establishes the unlawfulness of an Administrative Decision, the decision is annulled. Following annulment, the Public Administration must re-exercise its administrative powers while adhering to the principles stated in the judgment.

As a general rule, the losing party is ordered to reimburse the winning party’s legal costs (“loser pays” principle).

In cases of mutual lack of success, absolute novelty of the matter, or changes in the relevant case law, the administrative court may offset legal costs between the parties.

No special rules apply to costs in public interest cases.

There are no special rules regarding wasted costs. However, lawyers may be held liable for damages if they fail to perform their duties with due diligence (Article 1176 of the Civil Code). In such cases, the damaged party must initiate legal proceedings for damages against their lawyer.

Judgments of first-instance administrative courts may be appealed by the losing parties.

Appeals are heard by the Council of State (Consiglio di Stato) or, in the case of appeals against judgments issued by the Sicilian administrative court, by the Council of Administrative Justice for the Sicilian Region (Consiglio di giustizia amministrativa per la Regione siciliana).

No permission is required to appeal.

The appeal does not take the form of a rehearing of the first-instance claim.

Instead, the second-instance court reviews the legality of the first-instance judgment based on the legal grounds invoked by the appellant, without conducting a full rehearing of the facts ex officio.