As recently recalled by TAR Campania, Naples, section. IV, in the sentence. 2 April 2024, n. 2152jurisprudence has long drawn the opinion that the proceedings of exercise of the power of self-decision-making through second degree measures, concerning previous expansion measures issued to the private sector (think, for example, of the building permit), they impose thefulfillment of the burden of prior notification of initiation of the procedure prescribed by the art. 7 of Law 7 August 1990, n. 241; and this in consideration of the evident consolidation of the subjective position of the recipient of the broadening measure, determined by its release, which produced in him a trust, worthy of protection, in the legitimacy of the favorable provision obtained and in the consequent lawfulness of the exercise of the activities or the faculties and rights that the first degree broadening provision enables him to exercise, constituting its scope.
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The general rule in the case of withdrawal of an extension provision issued to the private individual
In relation to the provisions expressing the decision-making self-protection of the Public Administration, it is the direction of the jurisprudence is undisputedwho preaches the need for forwarding to the private individual engraved by it, of the initiation communication pursuant to art. 7 of Law no. 241/1990. It has been stated that “as is known, where – as in the present case – we are dealing with procedures aimed at adopting second degree measures for self-defense withdrawal (revocation or cancellation) of previous favorable administrative acts, administrative jurisprudence is consolidated in recognizing prior communication referred to in the art. 7 of ln 241/1990 the value of the general principle of the administrative action, without prejudice (only) to the existence of particular reasons of urgency adequately explained in the motivation of the final provision, reasons of urgency in this case in no way highlighted”(1).
The appeal judge ruled in the same way, stating, in broad terms, regardless of the object of the self-defense provisionThat “The acts of self-defense and withdrawal must be preceded by the communication of initiation of the procedure pursuant to art. 7, ln 241 of 1990, in order to allow, through the establishment of cross-examination with the interested parties, their effective protection in the context of the administrative procedure and, at the same time, to provide the administration, with the representation of facts and proposition of observations by the private individual, elements of knowledge useful or indispensable for the exercise of discretionary power, based on a thoughtful evaluation of the concrete and current public interest in the removal of the act; this principle meets a exception in the event that the interested party has nevertheless become aware of events connoting the opening of proceedings against himso as to allow the objective of the communication to be considered concretely achieved“(2).
More recently it has been stated that “The prior communication of initiation of the procedure required by art. 7, ln 241/1990 represents a general principle of administrative action, aimed at guaranteeing the establishment of a procedural debate between the interested parties in relation to all aspects that will be relevant for the purposes of the final decision. This notice takes on greater importance precisely in cases in which the exercise of the power of self-defense can be found through the adoption of a measure to cancel a favorable administrative act previously issued.”(3).
The principle applied to the self-defense withdrawal of building permits
This exegesis was also stated with regard to the self-defense cancellation of building permits, specifying that:
- “AND the self-defence cancellation measure of a building permit is illegitimate if the start of the relevant proceedings has not been communicatedsince the cancellation causes harm to the owner of the property and, therefore, the latter must be able to participate”(4);
- with specific reference tocancellation of the SCIA,”AND illegitimate the self-protection cancellation of the trail adopted without prior notification of initiation of the procedure, imposed by art. 7, ln 241 of 1990, which represents a general principle of administrative action, aimed at guaranteeing the establishment of a procedural debate between the interested parties in relation to all aspects that will be relevant for the purposes of the final decision. This notice takes on greater importance precisely in cases in which the exercise of the power of self-defense can be found through the adoption of a measure to cancel a favorable administrative act previously issued.”(5).
Well, in the wake of the resigned orientation, the Neapolitan judges reiterated that in the case of proceedings aimed at adopting second degree withdrawal measures by way of decision-making self-protection (they take the form and substance of revocation or annulment) of previous incremental measures, including building permits, must be attached to the prior communication of initiation of the procedure required by the art. 7 of Law no. 241/1990 the nature of the general principle of the impending administrative action obliterable only in the existence of particular reasons of urgency adequately expressed in the motivation of the final provision. In fact, the owner of the property subject to the second degree provision cannot be denied a qualified interest in participating in the relevant proceeding already in the initial phase, following notice of initiation of the proceeding pursuant to art. 7, as well as in the preliminary and decision-making phase in compliance with the provisions of the art. 10 of Law no. 241/1990 which allows the private recipient of the communication – or come anyway aliunde aware of the procedure – of present observations and briefs that the administration has the obligation to evaluatewhere relevant.
The second step: the evaluation of the interested party's observations
Indeed, the participatory guarantee, triggered by the sending of the initiation communication pursuant to art. 7 of Law no. 241/1990, it must then be concretized because of the consequential obligation of the administration of examine and evaluate the observations that the private individual produces within the second degree proceedings in progress, making use of the faculty for this purpose provided for by the art. 10, the same law which constitutes the offshoot and/or development of the procedural guarantee set up by the art. 7 through the sanction of the obligation to forward the initiation communication.
On this point the jurisprudence is clear, having established that “The obligation of the Public Administration to examine the briefs and defense documents presented by the interested parties during the procedural process, pursuant to articles. 10 and 10 bis of ln 241/1990, presupposes the necessary motivational statement which essentially makes the reason for the failure to adapt the administrative action to the participatory deductions of private individuals perceptible, although in the face of procedural counter-deductions from the interested party, the provision is unfavorable to this can legitimately be based on a synthetic motivation, as an analytical refutation of the observations is not required. Also there submission of the briefs after the assigned deadline does not exempt the PA from evaluating the contributionseven late, provided that they occurred before the adoption of the measure”(6).
In even more effective terms, it was established that “The failure of the Public Administration to carefully evaluate the observations of the private individual in procedural and provisional terms is an omission which determines the violation of the obligation established by the art. 10, l. 7 August 1990, n. 241, which is precisely to adequately evaluate the memories produced by the interested party during the proceedings, where they are relevant”(7).
The appeal judge also establishes an obligation to promptly evaluate the pleadings and procedural observations submitted by the private individual within the administrative proceedings – whether first or second degree – having ruled that “From the combined reading of the art. 10 lett. b) of law 7 August 1990, n. 241 and art. 3 of the same law, it emerges that, if the private individual presents observations during the procedure, the Administration has the obligation, especially where such observations are detailed and documented, to specifically take a position on the findings formulated by the recipient of the provision”(8).
In the case examined by the Neapolitan judges, concerning theself-defense cancellation of a SCIAit was declared theillegitimacy of the measure adopted without the prior due evaluation of the observations sent by the interested party via certified e-mail to the Manager and the RUP of the Municipality's one-stop building office.
Note
(1) TAR Sicily, Catania, sec. I, heard. 4 April 2022, n. 959; Council of State, sec. II, sentence. 7 September 2020, n. 5392; TAR Campania, Naples, section. IV, sentence. 2 August 2019, n. 4246.
(2) Council of State, sec. V, sent. 22 July 2019, n. 5168.
(3) TAR Campania, Naples, sec. VII, sentence. 4 April 2022, n. 2293.
(4) TAR Campania, Salerno, sec. II, sentence. 24 October 2022, n. 2789.
(5) TAR Campania, Salerno, sec. I, heard. 13 April 2021, n. 877.
(6) TAR Campania, Naples, sec. V, sent. 3 February 2020, n. 494.
(7) TAR Marche, section. I, heard. 3 June 2017, n. 418.
(8) Council of State, sec. VI, sentence. 10 December 2012, n. 6299.
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