Recent decisions of the Italian and European Judges on public consultation process and impact assessment (Report May 2015)


This month “Focus Giurisprudenza” reports on a decision of the Italian Council of State and two judgments of the TAR Lombardia relating to public consultation process. Further, it presents an Opinion of Advocate General of the Court of Justice of the European Union on the use of the impact analysis by the EU legislator.

The Italian Council of State’s decision (sentence n. 3051/2014) reiterated that general principles of participation in proceedings (Italian law no. 241 of 1990) are rules of interpretation even for sectorial discipline in order to satisfy the information and participatory needs. Moreover, with reference to the Independent Authorities, it requires the strengthening of the principle of procedural legality, in other words the provision of enhanced forms of participation of stakeholders in the regulatory process.

The TAR Lombardia (sentences nn. 593 e 594 del 2015) considered as legitimate the postponement of stakeholders’ consultation to the final step in case of a regulatory process characterized by the adoption of several decisions of urgency, since those have a unitary character.

The Opinion of Advocate General, Case C‑507/13, United Kingdom of Great Britain and Northern Ireland v. European Parliament and Council of the European Union highlighted that impact assessments carried out by the Commission are not binding on either the Council or the Parliament, both of which are entitled to make amendments to a Commission proposal. However, the Community institutions, which have adopted the act in question, must be able to show before the Court that in adopting the act they actually exercised their discretion, which presupposes the taking into consideration of all the relevant factors and circumstances of the situation the act was intended to regulate. The Advocate General had proposed that the Court should dismiss the action, meanwhile the United Kingdom decided to withdraw its application. So the Court has ordered the removal from the register.

(Monica Cappelletti)

Credits photoMihaela Bodlovic CC BY 2.0