A24-A25: judges, assumptions not comparable to the Morandi bridge

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The Lazio Regional Administrative Court, in the affair of the revocation of the concession of the A24 and A25 motorways in Lazio and Abruzzo to the company Strade dei Parchi Spa of the Toto group, raised the question of constitutional legitimacy for allegedly inconsistent with the law-provision, with which the resolution of the single agreement relating to the concession of motorways, with the constitutional provisions governing the emergency decree, with the principle of reasonableness and good performance of the administrative action and with those which ensure judicial protection.

The decree-law

In particular, in the provision, the administrative judges doubt the legitimacy of recourse to the instrument of the decree-law, failing to recognize the reasons of extraordinary necessity and urgency that justify the activation of this institution which allows the Government to adopt provisional acts under its own responsibility with force of law. For the magistrates, those proposed on this occasion are “prerequisites in no way – the sentence states – comparable, with respect to those which, with regard to the situation that arose in relation to the city of Genoa, following the collapse of the Morandi bridge”, had been «credibly highlighted in the decree law n. 109/2018″.

Termination of the concession

From the second point of view, the “legification” of the administrative determination entailed the subtraction from judicial review of the administrative provisions with which the termination of the concession agreement for the A24 and A25 motorways was ordered. In particular, the superimposition of a legislative act on the administrative provisions which ordered the termination of the concession relationship, or rather the absorption of the latter by an act having the force of law, has made it so that the administrative judge cannot exercise its “natural” function, consisting in the assessment of the legality of the administrative provision, i.e. its conformity to the paradigm of the law.

The ruling states that “as a result of this armoring of the administrative provision by means of a law having the same effect on the permanence of the relationship, a sort of procedural “short circuit” has therefore come to be outlined”. On this point, the TAR explains that the “principle of reserve administration … does not tolerate that an administrative provision is stiffened in the legislative form to the detriment of the need for comparability underlying the principle of generality and abstractness of the law”.

The interference in the jurisdiction

From a third point of view, the legislative intervention, insofar as it prevents judicial review, constitutes an interference in the exercise of jurisdiction, called upon to rule on a dispute whose first act dates back to the beginning of 2022 (this is the appeal against the opening of the procedure for forfeiture of the concession initiated by the Ministry of Infrastructure and Sustainable Mobility against Strada dei Parchi), i.e. at a date prior to the legislative intervention of 7 July 2022.