Demolition order: no conflict of interest if the deed is restricted

Conflict of interest, definition

Although there is not, within the regulatory framework just mentioned, a univocal definition that analytically provides for all the hypotheses and constituent elements of the case, conflict of interest is usually defined as the legal condition that occurs when, within a public administration, the carrying out of a specific activity is entrusted to an official who is at the same time the holder of personal or third party interests, the possible satisfaction of which necessarily implies a reduction in the satisfaction of the functionalized interest.

Operating in a conflict of interest means acting despite the existence or even potential of such a situation(2). To be significant, it is sufficient for the conflict of interest to be only potential, in the sense that it must be concretely ascertained that it exists(3), but proof is not required that there has been an actual abuse of powers or that the administrative activity has actually been influenced(4).

The consequences of failure to abstain

In terms of the legal consequences of failure to comply with this obligation, it is believed that the official’s failure to abstain entails procedural illegitimacy which affects the legitimacy of the final act, unless it is rigorously demonstrated that the incompatibility situation of the official has in no way influenced the content of the measure making it diverge from the purpose of public interest(5).

The restricted nature of the provision excludes conflict of interest

Despite the breadth of the notion, according to the TAR Campania, Naples, section. VIII, sentence. 3 April 2026, n. 2242, a hypothesis of conflict of interest cannot be recognized in the case of a dutiful and constrained activity, such as that of adopting a demolition order, devoid of the connotation of discretion that could induce or in any case facilitate the pursuit of an interest of the person who adopted it or, even more, a precise desire to harm the private individual.

The limited nature of the power exercised leads to this conclusion. And indeed, the art. 31 of Presidential Decree 380/2001, requires “the manager”, in the presence of detected building abuses, to adopt the measures necessary to restore legality. We are, therefore, in the presence of dutiful and constrained powers whose failure to exercise could constitute a hypothesis of liability – administrative, criminal and accounting – borne by the inert official (6).

Similarly, no conflict of interest can be found in the case of the activity carried out by the municipal official which was limited to the conduct of the procedure and the adoption of a strictly bound act, with respect to which there was no residual margin of discretion, in the absence of proof of a concrete personal interest on the part of the official and the presence of a specific personal situation of conflict (7).

Criminal complaint

With particular reference, then, to the relationship between conflict of interest and criminal matters, it must be highlighted that it was deemed non-existent «in the event that the official signing the self-defense provision on a building permit has been the subject of a criminal complaint due to the failure to issue the certificate of usability of the property covered by the building permit, since a situation of actual personal interest cannot be found for the aforementioned official outside the sphere of the Administration in which he operates»(8).

After all, «if the notion of conflict of interest were to be extended to include any criminal complaint (even if unfounded) against the deciding party, the risk of complete paralysis in the administrative activity of the offices would be likely, especially in small municipalities, such as the defendant. Without considering the possibility that the complainant, in this way, could easily avoid having his/her requests decided by unwelcome subjects in any capacity, thus affecting the exercise of public power».

Notes

(1) Council of State, comm. spec., n. 667 of 2019, on the outline of ANAC guidelines regarding conflicts of interest in the awarding of public contracts.
(2) Council of State, sec. V, sent. 9 July 2015, n. 3443.
(3) TAR Abruzzo, Pescara, sec. I, heard. 7 July 2025, n. 270.
(4) Council of State, opinion 667 of 2019: “it is sufficient that two conflicting economic interests exist: the functionalized one and that, of any nature, of the agent. The conflict of interest therefore does not consist in behaviors harmful to the functionalized interest, but in a legal or factual condition from which a risk of such behaviors arises, a risk of damage. Being in conflict and actually abusing one’s position are two distinct aspects”, also specifying that the conflict of interest is configured, in particular, “as a legal condition that occurs when, within a public administration, the carrying out of a specific activity is entrusted to an official who simultaneously holds personal or third party interests, the possible satisfaction of which necessarily implies a reduction in the satisfaction of the functionalized interest”.
(5) Council of State, sec. VI, sentence. March 22, 2022, n. 2069; sent. 18 November 2024, n. 9237.
(6) Similarly, the TAR Valle d’Aosta, sec. a., in the sentence. 25 August 2025, n. 29, stated that there is no conflict of interest in the event that the person in charge of the procedure orders the injunction of the works covered by a construction SCIA and has been the subject of a complaint of forgery by the submitter of the certified report: the existence of such criminal proceedings does not in any way demonstrate the existence of a private interest of the official, such as to influence the decisions taken towards the SCIA.
(7) TAR Sicily, Catania, sec. IV, sentence. 29 October 2025, n. 2391.
(8) TAR Sicily, Palermo, sec. II, sentence. 24 October 2022, n. 2988, recalled by TAR Lombardia, Milan, sec. IV, sentence. 5 December 2024, n. 3482.