VALUTAZIONI TECNICHE E FULL JURISDICTION NEGLI ATTI DELLE AUTORITA' AMMINISTRATIVE INDIPENDENTI

The purpose of the paper is to analyze the current tolerability of the traditional limitation that the Italian administrative jurisprudence imposes on itself when reviewing the legitimacy of administrative acts. This is a classic issue of the Italian administrative law, to be review today in the light of the jurisprudence of the European Court of Human Rights, which would demand a "full jurisdiction" on administrative acts considered substantially criminal by the Court: this is the case of sanctions of the Independent Administrative Authorities, which, because of their severity, would evoke the broader protections provided by the criminal law. The substantialist approach of the ECHR is thus an opportunity to critically review the admissibility of a jurisprudential review traditionally "external" and "weak," bounded to the pronouncement of illegitimacy when the act expresses pure or technical Public discretion. The paper goes through a deep analisis of the concept of full jurisdiction and its relationship to the principle of separation of the powers of the State, and then analyzes the approach of national jurisprudence in parallel with that of the ECHR when reviewing "discretion" and "technical discretion." Finally, the focus is on the technical discretion that characterizes sanctioning powers of the Independent Administrative Authorities, as it is in fact the best way for assessing the possibility of extending the judgement to a "greater reliability" of the technical solutions chosen by the independent Authority. This way was defined since the State Council’s ruling no. 601 of 1999, which, for the first time, supported a judicial review of the reliability of the technical criterion used by the administration, and finds today a new reason of attention in the Italian Legislative Decree no. 3 of 2017 and in the Council of State ruling of 2019 in the case "Avastin-Lucentis".