The notice of rejection
The institution of the so -called rejection notice thus has it purpose of making administrations knownin contradictory compared to the reasons assumed by them on the basis of the outcomes of the investigation carried out, those reasonsfactual and legal, of the interested party, which could help to make the competent bodies assume a different final determinationderiving, in fact, from the weighting of all interests in the field and determining a possible reduction of dispute between the parties(3).
The communication provided for by art. 10-encore of the law 7 August 1990, n. 241, is aimed at the establishment of a further phase of procedural contradictorywhich allows the applicant to articulate up to a moment before the negative measure, Further reasons to support their own position of legitimate interest and at the same time allows a useful remediation of the affair to the proceeding administration to which they are provided new elements of evaluation; The Institute of the CD refusal noticearose with the clear intent to enhance the procedural dialectic with a favor of favor for the private individual, ends up ensuring that every moment of the procedure immediately preceding the adoption of the provision is useful to the Administration to reach the Best discretionary choice(4).
Two recent sentences offer us the starting point to investigate the operation of these participatory guarantees.
Omitted communication of the start of the procedure
Must be considered The provision that declares the ineffectiveness of the wake in amnesty that has not been preceded by the sending of the communication in question declares: this omission He precluded the private individual the possibility of representing his observations To overcome the reasons behind the negative provision: this is what highlighted by the Campania Tar, Salerno, section II, in the sent. June 16, 2025, n. 1151.
The judges recalled that art. 10-encore of law no. 241 of 1990, in the procedures at the request of the party, sanctions the duty of the Administration to communicate the reasons that host the acceptance of the application (cd rejection notice), before the formal adoption of the rejection measure. The communication in question has the function of Ensure a comparison Between the proceeding administration and the instant part at the time of the conclusion of the investigation but before the adoption of the negative provision, in order to allow the interested parties to have a further contradictory and to try to overcome, through observations, the obstacles among the administration to accept the application.
The most recent jurisprudence interprets the norm in a rigorous waybelieving that participation in the decision -making and predecision phase assumes a value compared to the formation of the administrative decision which has further value and different from the one that assumes participation in the preliminary phase, so that the failure to provide for the defect of violation of art. 10-encore Among those susceptible to amnesty pursuant to art. 21 octiesparagraph 2, second period, cannot be ascribed to a gap, but to a legislative choice, not amended by the interpreter.
Moreover, to the faculty of the private individual to represent his own considerations on the impedimental reasons proposed by the Administration with the notice of rejection is to counter the obligation for the latter to give account, in the final provision, of the reasons that led her to deviate from the observations as part, thus being highlighted, on the one hand, a specific and reinforced reasoning obligation and, on the other, a limitation of the ius variandi; For this last aspect in the consideration that the administration will not be able towhen issuing the final provision, add new reasons compared to those already proposed with the rejection notice(5).
For consolidated jurisprudence, the communication referred to in art. 10-encore of law no. 241 of 1990 applies also in the sanatorium or building amnesty procedures(6) and is also necessary for the hypothesis of presentation of a wake in amnestywhose procedure ends with a express provision and not through provisional silence (7).
Omitted evaluation of the observations presented by the interested party
A correct application of art. 10-bis of law no. 241 of 1990 requires, not only that the administration fully enunciated in the notice of negative provision the reasons he intends to take the foundation of the refusalbut also that the intactin the final determination (obviously, if still negative), with the arguments aimed at refuting the merits of the observations formulated by the interested party in the context of the predecisory contradictory activated by the procedural fulfillment in question (8).
It is known that the observations of the moments in the event of notice of rejection, in general, do not necessarily be the subject of specific and detailed refutations, but it is clear that they must be at least taken into consideration And this must result from the final provision, under penalty of violation of a basic procedural guarantee recognized by law (9). Consequently, as stated by the Campania Tar, Salerno, section II, in the sent. 25 June 2025, n. 1196, is The behavior of the office is illegitimate which, after receiving some observations from the interested partyin the final measure opposed the same reasons for the notice and he limited himself to declaring that the observations referred to in art. 10-bis of law no. 241/1990, without specifying why the same observations had not been considered relevant for the purposes of the final measure.
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