Contributo alla decisione sulle questioni di (difetto di) giurisdizione nel processo amministrativo

Abstract

«It is a general rule of the rule of law that every public body first verifies the existence of the power that it is going to exercise». Therefore, «the administrative judge, at any stage and level of a trial, has the power and duty to verify whether the conditions exist to which the law subordinates the possibility that he issues a decision on the merits». In accordance with these general statements, «according to the principle of legality in jurisdictional matters, which requires that the Judge exercises only the powers that the law confers on him, the Judge who does not have (hypothetically) jurisdiction cannot take any measure, except to rule negatively in limine on the jurisdiction itself». In particular, the ex officio detection of the (relative) lack of jurisdiction (id est, due to erroneous identification of the judge), throughout the course of the first-instance trial, is peacefully understood, by administrative jurisprudence, as the exercise not of a mere faculty, but of an obligation (of course, when the jurisdictional authority seized becomes aware of it). So much so that: in the absence of this, a defect in the sentence is integrated, which becomes a reason for appeal; correlatively, the summoned party (whether or not he has appeared in the first instance judgment), when he finds that the question of jurisdiction has not been raised (or, in any case, correctly decided) in the sentence, can raise it as a reason for appeal.