Alcune riflessioni sul concetto di “certezza dell’azione amministrativa”

Abstract

This paper examines the notion of «certainty of administrative proceedings».

The latter is an issue little-explored by scholars, despite the key role and importance given to it by the legislator and jurisprudence.

The article gives a new interpretation of the issue, diverging from the traditional view that identifies the notion of certainty with that of predictability.

According to the Author, predictability may well be a prerequisite or condition of certainty, but it does not exhaust the issue. Indeed, certainty of administrative proceedings does not only depend on its predictability and the transparency of decision-making procedures, but also on its degree of stability, that is to say on its attitude of preserving its legal effect over time.

These are two different sides of certainty: the first is achieved through a clear, unvague and transparent predetermination, by the legislator and public authorities, of administrative decisions; the second, through rules and legal instruments aimed at guaranteeing the stability or intangibility of the legal effects produced by such decisions (rules on limitation and prescription periods, res judicata, limits to the exercise of the non-judicial power of reviewing public administration decisions).

Without claiming to be exhaustive on the original meaning of certainty, which obviously involves questions of general theory of law, the article aims to interpret the issue in terms of stability.