Legitimate interest is one of the key concepts of Italian administrative law and it can be found only inside the Italian legal environment. But, at a smarter look, it has not only a value for juridical studies, but it has been and could still be a relevant and profitable indicator of political and social values, which can be found in the legal system. Thus, it becomes a token far more powerful than subjective right, which is only an element of legal theory. Legitimate interest is, in fact, a way of building and imagining the relationships between Public Administrations and citizens and of shaping the maximum extent of liberties that Italian law system has time by time granted to its subjects. From this point of view, we can say that the clearer the definition of the legitimate interest is, the more legitimacy is granted to the legal environment. So, it is not surprising that today crisis has put the traditional concept of legitimate interest at question. To prove this hypothesis, the paper describes the historical and theoretical evolution of the notion, which has gone through four major steps. The first one is characterized by a negation of any juridical value to the interests, that a subject can have towards an administrative body; during the second one, legitimate interest is born, whose life could be at this stage only jurisdictional; the Republican Constitution marks the start of the third period, in which the legitimate interest gains a full statute; the forth one, which we are still going through, is characterized by the weakening of State legitimacy, as a result of the EU integration, and of a turbulent normative evolution, and thus makes questions spread about the lasting utility of the notion of legitimate interest. Nowadays, this figure is used not only to give protection to citizens (that is its traditional goal), but also to try to give again legitimacy to some public interests, even at a jurisdictional stage. This aim is fully new and can let us speculate about a possible new life of legitimate interest.
Table of Contents:
1. The scope of the paper
2. Legitimate interest and its history
2.1 The aftermath of Reunification
2.2 The post Unitarian time
2.3 The Republican Constitution
2.4 The actual phase
3. Current scope of legitimate interest: is it a notion still worth?
1. The scope of the paper
This paper aims at giving a critical view about legitimate interest, whose definition is still not clear among scholars [1-4].
In spite of this, this concept is the basis of Italian administrative law and it is totally peculiar. In fact, this notion can be found only inside Italian legal system and it has no match in other legal environments, where administrative law can be found. (The Spanish Constitution, which was inspired by some Italian scholars, mentions legitimate interest at art.
24, which echoes the same disposition in the Italian Constitution. Anyway, the notion does not have the same importance that it has in the Italian law system). So, the idea embodies genuine historical and national concepts and it can be so used not only from a legal perspective, but from a broader one.
In fact, it can give precious hints even to social scientists, whose main interest concerns public power building and its justification rather than how State works and acts as a juridical subject. This perspective of studying the notion of legitimate interest is quite new and it can let us meet two goals: the first one is stressing a difference with subjective right, that is only a notion of general legal theory and positive law, the second one is contributing to the debate about legitimate interest underlining the attention on the role that this concept has had not only in legal studies but also in political studies.
So legitimate interest becomes an effective way of checking public powers legitimacy and the extent of freedom that has been granted time by time to legal subjects in the Italian legal system.
To fulfil these two goals, an historical sketch of the evolution of legitimate interest will follow [4-9; Romano A. (2010), Interesse legittimo e ordinamento amministrativo, www.ius- publicum.it; Patroni Griffi F. (2010), Riflessioni sul sistema delle tutele nel processo amministrativo riformato, link].
2. Legitimate interest and its history
The study of legitimate interest is considered among Italian scholars one of the most difficult problems in administrative subjects; in fact, it has been ironically said that this theme is one the most troubling ones and its difficulties equate the ones of studying the birth of the universe and how human mind works. This position is quite extreme, but it helps us to gain the consciousness of the importance of the matter.
In this paper, we will set aside the general approach to the problem, which is used in Italian legal studies, that describes the notion of legitimate interest as a way of identifying the judge of a group of controversies. This approach in fact has a major flaw: it turns a theoretical notion only to a practical purpose and it is the consequence of the absence in the Italian law system of a positive definition of legitimate interest, whose elaboration was left to scholars and judges.
Giving the fact that no positive definition could be found, a majoritarian approach to the problem was to identify the kind of trials where legitimate interest was relevant and then to sketch its notion. This perspective of analysis – it is intuitive – suffers from a logical inversion: in fact, the notion of legitimate interest should be cleared before identifying the controversies in which it is relevant, rather than vice versa. So, this theoretical scheme will be set aside.
On the other hand, it is here suggested that a more profitable approach is an historical one, focused on whether the element of protection embodied in the legitimate interest was a public one or a private one and on what extent of protection was granted to this element.
According to this view, we can generally identify four steps in the configuration of legitimate interest.
It can be said that we are in front of four different concepts, rather than of the evolution of the same juridical object. In fact, during the four stages we are going to identify, legitimate interest goes through a deep metamorphosis rather than a linear evolution. It can be noted that every re-configuration of the notion is, stage by stage, the immediate consequence of the reshaping of the relationships between public powers and private subjects.
Having clarified this introductory point, we can add that legitimate interest has taken four different configurations, during these following historical periods:
a. the aftermath of Unification, in which the key year is the 1865;
b. the post Unitarian time, from 1889 to 1947;
c. the birth of the Republican Italy Constitution, from 1948 to approximately 1990;
d. the actual and still lasting phase.
Before summarizing the features of the legitimate interest in each of these four periods, we can stress two other preliminary factors.
The first one: institutional context could have no immediate influence over legitimate interest configuration. In fact, the notion of legitimate interest was the same during the liberal era and the fascist dictatorship. It can be here suggested that the way of shaping public powers legitimacy was the same during this period, no matter how the institutional context was changed. In fact, during this time sovereignty had not as its unique source democratic will, but it had its roots both over dynastic reasons and a small élite consensus or over fascist party influence about institutions. According to these configurations, State and its apparatus were the roots and the sources of the rights granted to the subjects: this is the fil rouge of the whole period. So as a result, there was not a clear and full protection of individual positions, both in the liberal regime than in the dictatorship; in these years legitimate interest had only a minor role, and it concerned the way of achieving public interest rather than protecting citizens life.
At the same way, during the Constitutional era there can be found two different notions of legitimate interests, even if the institutional setting did not go through radical changes. This can be justified taking into account that another contemporary modification can be spotted. It was about the extent of protection of the legitimate interest, which was influenced by the EU legal environment. To summarize, we can say that in this period legitimate interest at first became a full juridical position related to the public interest and then got the same protection of the subjective right. So, what started to be taken into consideration was no more public interest, but the fulfilment of citizens’ expectation about public powers juridical operations.
This is now the main purpose of legitimate interest.
The second one: the life of legitimate interest can be sketched as an ascending figure. In fact, the first stage was characterized by its negation, the second one by its acknowledgement as a procedural position, the third one by the weak recognition of it as a substantive position limited by public interest, the fourth one by the equality of its protection to the subjective right. So, we can argue that the notion of legitimate interest has as its natural counterpart the notion of public interest. The clearest the latter is, the weaker the second is; this general assumption has a direct consequence on private protection. If public interest is strong, legitimate interest protection is weak; on the other hand, if public interest becomes something extremely complex to identify, legitimate interest gets a full protection.
2.1 The aftermath of Reunification
The first period is characterised by the belief that law could solve every contrast between State and private citizens and clearly identify the general interest. In this perspective, if there was a liberty, it could not be challenged by a power; on the other hand, if there was a public power, there could not be a genuine private position to be protected. So, the only thing that could receive a jurisdictional protection, was a right (civil or political); all the other relationships with public powers were thought to be matter of mere interests, which could not be deferred to law Courts and could instead be solved by Administration itself.
As a result, one of the first legislative measures in the aftermath of the Reunification is the abolition of the judges that were established in pre-Unitarian States, whose competence was to judge the controversies between citizens and public Administrations according to the French model. This happened with the E annex to the Reunification law in 1865. Mere interest – it was said in Italian Parliament by P. S. Mancini – are no relevant for the legal world; so, citizens could only submit, as far as contrasts with an Administration were concerned.
This view was in debt with the principle of powers separation, which was accepted in an extremist version, following the Belgian model. According to first Italian law makers, the separation between executive and judiciary power was to be so strict that no judge could put in question any choice made by Administration through administrative acts, a part the ones that were about a true subjective right. In all the other cases, there could not be detected a position which was worth of procedural protection, but a simple interest. Given the fact that in this period the protection was granted mainly to property, if you received a fine from a public body, you could start a trial. Instead, judicial protection was not possible, if you asked for an authorization and it was denied. In these cases, the only way of protection for a citizen was asking another administrative body to review a previous decision. This system gave no warranty of independence and it was not effective; in fact, the review requests were mostly rejected. The ideology below this scheme was that political and administrative choices could not be questioned by judiciary power and the definition of public interest made by law was to be concretized by administrative bodies without the chance of intervention by a judge. It reflected a strong belief in Parliament ability to detect what was public interest and relied on the assumption that Government had only a servant role to the choices made by law.
Furthermore, it implied that Parliament represented a small élite of voters, whose belief was that Administration must have limited number of tasks to be fulfilled.
2.2 The post Unitarian time
The system described above caused widespread uneasiness. In fact, the majority of the relationships between citizens and Authorities lacked of a jurisdictional protection. So, a movement for a reformation started, thus resulting in the creation of a body where controversies between private and Administration could be solved. In 1889 it was instituted a fourth section in the State Council, whose role was to scrutiny the legality of administrative acts. It was not a judge, but a part of the Administration itself, whose competence was to judge. So, it had a strong connection with the executive power, which is a still lasting and thorny feature in the Italian administrative system. The creation of the fourth section was the birth of the legitimate interest: every citizen now had a right to start a sort of trial in which the legitimacy of public choices was put in question. The heart of this procedure was not the protection of private, but to verify if administrative choices were lawful. If the test gave a negative answer, the solution was to quash the illegal administrative act. So, it can be said that the coherence of an administrative act with a legal model was the scope of the new system; according to this view citizens have the change of starting a procedure where legitimacy of an act is to be confirmed. The model had an objective aim; this means that it was shaped not as a private warranty, but as a warranty and a way of checking the general interest of legality. This was at the time the only element that could find an entrance in the fourth section.
There can be added three more relevant features:
(i) the nature of legitimate interest was not cleared by law. Its definition – according to the traditional way of working of the State Council – was made by scholars and judges. The purpose of these efforts was to identify the boundaries between State Council and civil judges, given the fact that Italy was the only State where this limit was (and is) set upon a difference between juridical situations rather than between the nature of acts or on the relationship between a private and an Administration, as it happens respectively in France and in Germany;
(ii) it has to be pointed out that the new born body proved out to be effective in its action.
In fact, in these years the general categories of administrative acts unlawfulness were created and they survive till now. The State Council was particularly sensitive to give a protection to private needs, in spite of the fact that this element was not intended to get a primary protection;
(iii) the reform was also triggered by the expansion of duties which were deferred to public powers; this process caused a big variety of cases in which there could not be an independent warranty. It is highly remarkable that Italian law makers, who at the time were mostly public law scholars, were capable of detecting the flaws of the solution which was made in 1865 and found an answer in a short time, even it was a complete change of the original model.
In the following years, the State Council was at first recognized as a real judge (1907) and then was given an exclusive jurisdiction on certain matters, such as civil service, thanks to which it could scrutiny both legitimate interests and subjective rights (1923). The model so acquired a new feature, which will lead to a more complete protection of the legitimate interest.
It is to note also that exclusive jurisdiction – whose extension has been growing and growing by years – reserved all the controversies between State and private citizens to a single judge. It could give birth to a different idea of administrative judge as the one to whom all the controversies involving a public body are deferred.
2.3 The Republican Constitution
The Italian Constitution gives to legitimate interest a positive role; in fact, it is mentioned in three articles of the Fundamental Law.
It is important to note that:
(i) according to art. 24, every citizen is endowed with the right to start a trial to protect his legitimate interests and subjective rights;
(ii) according to art. 103, State Council is a special judge, it has a general jurisdiction as far as legitimate interests are concerned and it can have an exclusive jurisdiction on some matters, where subjective rights and legitimate interests are linked;
(iii) according to art. 113, everyone is endowed with the power of reacting against an unlawful administrative act, in order to protect his legitimate interests and subjective rights.
As a result, Italian Constitution gives a deep configuration of administrative justice, which is still built around the notion of legitimate interest. This is a quite unique feature and it is the consequence of the peculiar institutional evolution, which has been summarized above.
Furthermore, and more importantly, Constitution finally equates the legitimate interest to the civil right. This means that these two subjective positions are similar and they both aim at protecting something that belongs to the private citizens. So, from these years on, the scope of legitimate interest can no more be identified as a warranty for public interest, but for private expectations.
We can say that the only difference between legitimate interest and subjective right is in the degree of satisfaction. In fact, subjective right has a full and immediate protection, instead legitimate interested is fully protected but its satisfaction is conditioned by all the limits put by law on public body action. So legitimate interest can be satisfied only if it is verified that there are no legal restraints to its fulfilment. The difference can be explained because the existence of legitimate interest is linked to a public power, which cannot be detected as far as subjective rights are concerned.
So again, public interest becomes relevant in the discourse: it acts now as a limit for legitimate interest.
This shift of its importance can be matched with two polyetiological notations:
(i) the substantive nature of legitimate interest is linked to the newly affirmed source of legitimacy, which Republican Constitution identifies only as popular will. Given the fact that sovereignty can no more be found elsewhere than in Parliament, an independent and anonymous public interest can no more be the object of protection for legitimate interest;
(ii) public administrations have become bodies that serve the community with services rather than only adopt administrative measures.
2.4 The actual phase
Anyway, the Constitutional configuration resulted in two major negative features, that have been modified only in recent years:
(i) any violation to a legitimate interest cannot be the source of a compensation for the private;
(ii) the result of an administrative trial can be only the quashing of an unlawful administrative act and not the acknowledgment about the fact that a private is entitled to get a utility by public bodies.
Only in 1999 (and by a sentence), it was accepted that legitimate interest could be title for a compensation and only in 2011 the administrative judge was given to power to assign a private a good, thus condemning public Administration to adopt a specific administrative act.
So public interest lost its role in limiting the protection for public interest and its protection became fully democratic.
It is to note that this was the result of the EU – a legal environment where legitimate interest is unknown – influence above national legislation. In fact, this latest development was fostered by the principle of effectiveness, which made Italian legal system weaken the protection granted to public bodies in an attempt of levelling the playground for private in all the Union and to set apart the principle of separation of powers, which had been turned into a privilege for administrative bodies, that could do no wrong and could not be condemned to adopt a specific act, in favour of citizen protection principle.
So, the relationship between private and public bodies could now be defined as equal, even if it is still doubted if the legitimate interest refers directly to a specific good or it deals with an administrative act that enables to get this good [10, 11].
We can add that the evolution was made simpler by the prevision of a general law about administrative procedure, which dates to 1990. This innovation – which was of national origin – shifted the main attention from the administrative act to the administrative procedure, which can be defined as the way public choices are made and justified. Furthermore, it gave the chance of stressing that legitimate interest had a life even before an administrative act is adopted and that the juridical position could find protection during the procedures, when citizens can deposit documents and writings in order to steer the administrative action to a goal that can fulfil their expectations .
The logic in this field of the legal system is so made less authoritarian and finally opens up to take into account citizens’ proposals. The dialogue between public bodies and private subjects has so been identified as legitimate interest key element.
As a result, this new configuration let some scholars to speculate about the legitimate interest as a subjective credit right or as a subjective right inside the administrative legal environment.
The first thesis is problematic, because legitimate interest does not match with an obligation pending on an administrative body, but it matches with a power entitled to a Public administration. It is conceptually hard to imagine a credit right confronting a power.
The second one does not seem to be easy to accept because the structure of legitimate interest cannot be equated to the one of the subjective right: in fact, it does not give his holder freedom or an immediate advantage, but it enables him to confront the administrative power in order to obtain an uncertain advantage.
So, we can sum up that legitimate interest has now a substantive nature that enables the citizens to start a dialogue with a public power in the attempt of getting an advantage from its operations.
3. Current scope of legitimate interest: is it a notion still worth?
It is interesting to note that the success of legitimate interest – which is one of the main characteristic of Italian contemporary legal landscape and found its best example in the promulgation of the Code of administrative trial, which dates to 2010 – is the source of recurrent attempts in late years of its configuration on public bodies, which have been identified as holders of a legitimate interest and able to start a trial to protect it. (It has happened to Independent Administrative Authorities; for instance, Anti-corruption Authority (2018) and Antitrust Authority (2011)). This is an attempt of the Italian law makers to solve the conflicts inside contemporary society through judiciary intervention and to set aside Parliament role, whose ability to interpret social conflicts has weakened. So, in these more recent years, the configuration of legitimate interest is a way of putting in question the notion of public interest itself, whose definition is no more made generally by law but by sentences and case by case by judges. This shift is relevant, because it could give us the chance of asking some questions about the source of the legitimacy of the legal system. From this perspective, the ineffectiveness of traditional political circuits has given legitimate interest a new perspective.
This evolution that has been sketched above is a fact, that cannot be put in question and that deserves study and attention by a variety of disciplines.
It is also a starting point for further questions: is the current configuration of legitimate interest affordable from a juridical perspective? It seems that legitimate interest should have – according to the Italian Constitution – its raison d’étre in protecting citizens from public powers actions. It is difficult to assess the contemporary evolution as coherent with this legal scheme; in fact, it seems that legitimate interest has become a token that public bodies could use to let judiciary power solve the conflicts between Administrations or to enforce a legality or transparency.
These goals are far different from legitimate interest traditional ones and should be deserved to a political decision or to penal justice rather than to administrative courts.
Maybe, legitimate interest has been too stretched in order to serve these purposes; if it has to change further, the definition is not still worth keeping .
On the other hand, it has still a relevant importance as a way of protecting citizens; during its history it has become effective and – mainly thanks to the UE influence on Italian law system – it has now a full warranty.
It should be more profitable to concentrate on this goal and to let aside temptations of turning it in a way of justifying in law courts political choices, that should be still made relying on popular sovereignty.
Contributo selezionato da Filodiritto tra quelli pubblicati nei Proceedings “6th ACADEMOS Conference 2019 – Political and Economic Unrest in the Contemporary Era”
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Contribution selected by Filodiritto among those published in the Proceedings “6th ACADEMOS Conference 2019 – Political and Economic Unrest in the Contemporary Era”
To buy the Proceedings click here.