The article critically examines the traditional opinion shared by most of the scholars as well as by the prevailing jurisprudence of Corte di Cassazione according to which administrative decisions to apply administrative fines would be of a non properly-discretionary and therefore non-authoritative nature, coming to the conclusion that, by contrast, these decisions, entailing ordinary public interests assessments, are properly discretionary as to the determination of the amount of the fine and, in certain cases (for example, the antitrust fines) also in relation to the decision whether or not applying the fine. In this connection, the article examines also the position of the legal system of the European Union as to the discretionary nature of administrative fines to be applied by the European Commission as well as by national authorities. Finally, the article shows that by now the systematic concerns that are likely to be at the base of this traditional opinion have no anymore reason to exist thanks to the jurisprudence of the European Court of Human Rights, according to which administrative fines are to be categorized as criminal sanctions for the purpose of art. 6 of ECHR and therefore the judicial review needs to comply with the standard of the so called full jurisdiction in any case, regardless of the discretionary and authoritative or, respectively, non-discretionary and non-authoritative nature of the administrative fines.
Discrezionalità ed autoritatività nelle sanzioni amministrative pecuniarie, tra tradizionali preoccupazioni di sistema e nuove prospettive di diritto europeo / F. Goisis. - In: RIVISTA ITALIANA DI DIRITTO PUBBLICO COMUNITARIO. - ISSN 1121-404X. - 1(2013).
Discrezionalità ed autoritatività nelle sanzioni amministrative pecuniarie, tra tradizionali preoccupazioni di sistema e nuove prospettive di diritto europeo
F. GoisisPrimo
2013
Abstract
The article critically examines the traditional opinion shared by most of the scholars as well as by the prevailing jurisprudence of Corte di Cassazione according to which administrative decisions to apply administrative fines would be of a non properly-discretionary and therefore non-authoritative nature, coming to the conclusion that, by contrast, these decisions, entailing ordinary public interests assessments, are properly discretionary as to the determination of the amount of the fine and, in certain cases (for example, the antitrust fines) also in relation to the decision whether or not applying the fine. In this connection, the article examines also the position of the legal system of the European Union as to the discretionary nature of administrative fines to be applied by the European Commission as well as by national authorities. Finally, the article shows that by now the systematic concerns that are likely to be at the base of this traditional opinion have no anymore reason to exist thanks to the jurisprudence of the European Court of Human Rights, according to which administrative fines are to be categorized as criminal sanctions for the purpose of art. 6 of ECHR and therefore the judicial review needs to comply with the standard of the so called full jurisdiction in any case, regardless of the discretionary and authoritative or, respectively, non-discretionary and non-authoritative nature of the administrative fines.File | Dimensione | Formato | |
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