PRINCIPIO DELLA DOMANDA E ASSORBIMENTO DEI MOTIVI NEL PROCESSO AMMINISTRATIVO DI LEGITTIMITA'

The research studies whether administrative courts must follow the order of the claims brought forward in administrative complaint (ricorso), as well as the related issue regarding to the possible integration of a claim into another. After a description of the long standing case law disagreement on such matters, resulted in the ruling of the Plenary Chamber (Adunanza plenaria) no. 5/2015, the study will highlight with adequate justification the insufficiency of the preator approach (and, even if in a minor extent, of the scholars’ theories) with respect to, in particular, the case in which the claimant has not brought its claims in a specific order. Without prejudice to the subjective nature of administrative rulings, case law and scholars, although they recognize (as it seems correct) binding attitude to conditional aggregations of grounds, deny any importance to the principle of correspondence between complaints and rulings (principio della domanda) with respect to the ordo procedendi whenever there is not a specific order of complaints brought forward. This research aims at demonstrating the – also in the last instance – in proceedings governed by the “principle of party disposition”, even if it is not acceptable that the first complaint assessed by the court is the one characterized by the most “radical” unlawfulness (solution proposed by the plenary chamber of the Council of State (Consiglio di Stato)), it is also not acceptable to have a prior assessment of the unlawfulness which would result in the most favorable outcome of the claimant (solution preferred in the literature). The only solution that seems to be consistent with the underlying premise is that courts must strictly follow, in the assessment of the claims, the order in which they have been articulated in the complaint.