Cancellation permit to build in amnesty over a year after the release: it is illegitimate

Cancellation in self -protection, how it must be exercised

The judges recalled that the cancellation power must be exercised:

• compliantly with i Principles on self -protectionfirst of all that of the temporaryity of power and adequate explicit of the public interest in forfeiture (2);
• second good faith and fairness former art. 1, paragraph 2-encore of the LN 241/1990, so as not to evade the guaranteed scope of the aforementioned principles, making use of the forfeiture as a surrogate of the power of self -protection to remedy the case of omissions and delays, by the administration, in the feed of the content of the declarations originally made by private individuals, on whose basis the benefits were obtained (permit in amnesty and landscape authorization) then consolidated in the years of the Administration itself.

Consequently, thecancellation after three years It conflicts with the dictation of art. 21-Noniesparagraph 1 of law no. 241/1990, in mind of which “The administrative provision … … I can be canceled ex officio, existed by the reasons of public interest, within a reasonable term, however not more than twelve months from the moment of adoption of the authorization or attribution of economic advantages… and taking into account the interests of the recipients and the counterparties, by the body that issued it, that is, from another organ provided for by the law ..“. And this is in relation to the failure to comply with the laughing term For the adoption of the contested act, to be qualified as a decadent, both in relation to his motivational deficiencies.

The previous jurisprudentials

The judges recalled the constant jurisprudential teaching, according to which:

• must be attributed “a specific pregnancy to the course of time and to the relative assignment that ingested itself in the private person on the stability of the effects favorable judges- there are expansion of the legal sphere, authorizing or attribution of economic advantages- descending from the exercise of public authorities“(3);
• Yes “In the general law on the administrative procedure, a principle of legal civilization, functional to rebalance the immanent asymmetry in the relationship between the authority and the administrators, introducing a temporal limit to the exercise of the administrative review of review (traditionally inexhaustible and, in any case, abstract to non -well -marked limits, since resulting from “elastic” clauses such as: “reasonableness of the term”; specific motivation; interests of the recipients and counter -interesteds and like) in the way to speculate compared to what traditionally connotes the ius agendi of the private individuals, with the ordinary term of forfeiture of 60 days, or 120 days or the extraordinary appeal to the Head of State“(4).

The rules on cancellation

Art. 21-Nonies of law 241/90 marks the introduction of a “new paradigm“In the relations between citizen and public administration; in the framework of a regulation attentive to the values ​​of the transparency and of the certaintythis rule has set a decadent term having the connotation of absolute novelty, as it is functionally and teleologically preordained:

• Not already- as it had always been in the past- to guarantee the unavailability of the documents in the interest of the administration or, as recently, with the term of 120 days referred to in art. 30 of the cod. proc. Amm. For the experiment of the compensation action, in function of the stability of publicity relations and of safeguarding the budget and spending needs (articles 81, 97 and 119, constitutional parameters expressly evoked by the judge of laws in support of the legitimacy of the aforementioned 120 -day term for the request for compensation for damages: C. Const. No. 94/2017);
• but to fix Invicalible limits of foreclosure/consumption of public power in the interest of the affiliatesin order to consolidate the favorable subjective legal situations born from administrative acts, and make them no longer perpetually “claudicants”, as exposed at all times to the power of review of the administration.

Art. 21-Nonies the. 241/90, therefore, redesigns the relationship between public powers and “engraved” private individuals assigning fundamental meaning to the course of timefor legal situations descending from administrative measures, according to protection:

• the assignment of the private individual, whose legal sphere, expanded by administrative power, cannot tolerate a situation of daytime instability;
• of the certainty and stability of legal situations, “tree“Private; on the other hand, on the course of time as a fact that is valid to consume and preclude the exercise of power, even in relations between the administrations, art. 21-nonies represents the pendant of art. 17-encore of the l. 241/90 (on the silence-assent between administrations); how, in fact, stated by the Council of State in the consultative, “a this new general rule (Id estart. 21-Nonies the. 241/90) which reforms the “external” relations of the administration with private individuals, corresponds – introduced by art. 17-bis-a second general rule, which pervades ‘internal’ relationships between administrations“(5).

On closer inspection, moreover, the rule referred to in art. 21-Nonies he enrolls, and is worth specifying the content, in the more general riverbed of the duties of good faith and fairness which must always and in any case inform intersubjective relationships. It is, therefore, a specular rule, in the ratio and in the effects, to that of the opposing of the administrative act, but created, unlike this, in consideration of the needs of certainty and for the protection of the private individual.

Notes

(1) cf. Former MultisCgars, SG, n. 273/2024, precisely reference to the cancellation in self -protection of the building title in amnesty.
(2) Tar Lazio, Rome, section Ii-encoresent. n. 9248/2020.
(3) TAR LOMBARDIA, MILAN, SEZ. I, sent. n. 1637/2018.
(4) TAR Lombardy, Milan, section I, sent. n. 1637/2018.
(5) Council of State, comm. Sp., Par. 13 July 2016, n. 1640.