----- Original Message ----- From: Emanuele Boscolo \u0026lt;leleboscolo@libero.it>
Date: Monday ', May 21, 2007 0:06
Subject: Boscolo Ad. plen. 1 / 2007
A: "'Chiara.Colosimo'" \u0026lt;chiara.colosimo@unimi.it>
> I enclose a plenary meeting of 2007, which specifies
> rules that
> exceptional, such as standing on appeal in
> on
> scenic appeal permission (which is the theme
> Prof.
> Reindeer us entertained in Padua) shall not be fettered
> interpretation by analogy.
> In my opinion, this ruling requires us to reflect on the profound
> differences that mark the specialty - even before the strain
> unit
> administrative law - in matters like the environment,
the> landscape,
> health.
> The rules specific to these sectors are increasingly inesportabili
> by
> analog in the general administrative law?
>
> Thanks. Emanuele Boscolo
>
>
>
>
>
> ITALIAN REPUBLIC
>
> IN THE NAME OF THE ITALIAN PEOPLE
>
>
> N. 1 / 2007
>
> Reg.Dec.
>
> N. 22 Reg.Ric.
>
> YEAR 2006
>
> The Council of State in the courts,
Gathering> Plenary has
> gives the following
>
> DECISION
>
> on appeal n . 22/2006
the plenary session> (writing to
> NRG 10135/2005), proposed by the authorities' ENERGY
> ELECTRICAL AND
> GAS, in its legal representative in charge
> represented and
> legal defense Avvocatura general rule, in the offices
> which is legally domiciled in Rome, Via dei Portuguese
> No 12;
>
> against
>
> the NATIONAL ASSOCIATION OF INDUSTRIAL GAS (Anigas) in
> person
> legal representative in office, represented and defended in court
> by ' Maurizio Zoppolato lawyer, at which studies are electively
> based in Rome, Via del Matte, No 72;
>
> and against
>
> - ENERGY Spa, in its legal representative in charge;
>
> - Monestirolo Associated Architects;
>
> not in court;
>
> with the cross-appeal
>
> of CONSUMER PROTECTION ASSOCIATION (ADICONSUM) in the person of
> legalerappresentante in office, represented legal defense
> Advocate Stefano Crisci and address for service at the
> Carnelutti study in Rome, Paris Street, No 11;
>
> and the measures to oppose
>
> - of Canturina SALE SERVICES Srl Sig
> representative office, represented and defense in court by
> lawyers Claudio Bonora, Paul and Diego Vaiano Vaiano and elected
> domiciled at the study of them in Rome, Tiber
> March, No 3;
>
> - ENERXENIA of SPA and Aspem GAS LTD, in the person of their
> legal representatives in office, represented and defended in a court
> by Claudio Bonora, Paul and Diego Vaiano Vaiano and
> address for service in the office of the latter in Rome,
> Lungotevere Marzio, No 3;
>
> to cancel
>
> The decision of the Regional Administrative Court
Lombardy, Milan branch, n. 3716 of 6 October 2005;
>
> Given the appeal;
>
> seen the entry of appearance in court dell'ANIGAS;
>
> since the notice of appeal ' ADICONSUM;
>
> seen acts of intervention Canturina Services Sales
> Srl,
> Enerxenia Aspem Spa and Gas Ltd;
>
> views of the pleadings filed by the parties in support of their
> defenses;
>
> view the partial decision - ordinance of this Council (Section
> Sixth) No 3408/2006, dated June 6, 2006, by which the cause, following
> primary found inadmissible the appeal was
> examination called the plenary session of the legal section
> Council of State ;
>
> speaker at the public hearing on November 13, 2006 the
> Adviser Pier
> Luigi Lodi; heard, the parties, the lawyers of the State Fabio
> Tortorae Giacomo Aiello, lawyers Zoppolato, Crisci , and Scoca
> Resta,
for> delegation Att. Paul Vaiano;
>
> view that was deposited on the device
> pronunciation, which
> following the submission of its reasons;
>
> seen all the acts of the case;
>
> thought and reasoned as follows:
>
> FACT
>
> 1. - RIGHT
>
> 1. - This appeal was brought by Adiconsum for saltum
> to the State Council on the assumption of the cause injury to the
> interessidei consumers, the decision of the TAR that
> annulled the decision
> No 248/20044 of that authority to limit the
> incrementidelle rates for supplies of natural gas.
>
> It should be pointed out that the Adiconsum is included in the list of
> consumer groups and users' level
> national activities in the Ministry of
> productive
> application art. 137, paragraph 1, of Legislative Decree No. 6
> settembre2005 No 206 (Consumer Code). The Association
> word, then, to
> meaning of art. 139, is entitled "to act to protect
> the collective interests of consumers and users" in
> of the matters governed by the Code of consumption, besides the
> matters concerning the pursuit of television broadcasting and
> advertising of medicinal products for human use.
>
> The Code specifies and delimits, then, art. 140, paragraph 1,
> actions
> that the associations identified by the Ministry shall be entitled to
> taken before the ordinary courts, to protect
interest> group of consumers and users, requiring: a) the
> Inhibition acts and conduct prejudicial b) the adoption of
> measures to
> correct or eliminate the harmful effects of violations;
> c) the publication of measures in the national press to
> for
> help to correct or eliminate the harmful effects of
> violations.
>
> of Section 11 with respect to the shares other than
> submit before the ordinary courts, it is stated
> only
that> "This is without prejudice to the exclusive jurisdiction of the court
> administrative
> public services ...".
>
> 2. - From this framework shows that all'Adiconsum as
> other similar bodies, has actually been given a
> journalistic task of some importance, since through
> interventidi consumer protection associations in question
> contribute to
> concrete affirmation of the principle of legality in the large and delicate
> the consumer sector, being able to take independent initiatives
> proceedings in the manner and form specified by the rules
> mentioned and
> assuming not only, as the mere "complainant" any
> abused to the detriment of consumers and users (see Cons . State
> Sec. VI, February 3, 2005, n. 280).
>
> legislation to protect consumers, however, as the
> case, attribute to the associations which
>
is a> kind of general supervisory power over events relating to
> , consumption, and in specie, public services since there are,
for> example, a legally protected their position in order to
> acquisition of records and documents for inspection intended to review
> directly in a blanket and indiscriminate, the
> svolgimentodelle activity and the level of efficiency of
> public services
> address (see Cons. State, Sec. VI, 10 February 2006, n. 555).
>
> With respect to any action before the Judge
> administration, it should be noted that Article. 140, paragraph 11, of
> Code of
> consumption gives no special provision and
makes no> possibility of derogation to the general principles applicable in the process
> administration.
>
> 3. - Given, therefore, noted the voluntary and
> spontaneous initiatives of the same associations, the number
> indeterminate and fluctuating associations included in the list
> ministerial, the manner in which the initiatives themselves must
> take place, and the limited extension of the actions
> experiment, application of the said Code of consumption,
> possible that
> similar entities are currently classified as "litisconsorti
> needed", since real counterparties in the case of
> actions relating to acts or administrative measures adversely
> provisions assumptions favorable to consumers and users.
>
> This does not affect, of course, the legislative initiatives
> eventualmentefinalizzate to give the similar associations
> that as
> actual "litisconsorti necessary" to enable more
> penetranteopera protection of different categories of users, with
> the provision of a
> obligation to summon (possibly through public proclamations) of
> such associations in all the cases of consumer,
> obbligoche, it should be stressed, does not appear instead deduced from
> legislation today
> current .
>
> On the other hand, as it is expected that the associations in question
> can always bring actions for annulment of acts
> amministrativiritenuti injurious (within decadenziale
> commencing, as a rule,
> by publication - under Article 2.
of RD 17> agosto1907 No
> 642 - it is not the direct recipients of these bodies acts
> themselves), it is also the possibility for such peaceful
> bodies in
> case of an appeal by other parties regarding
> provvedimentiamministrativi considered favorable to consumers
> and users of
> explain intervention "to opponendum" to support, in fact, the
> maintenance of the challenged determinations, with a view
> salvaguardiadell'interesse collective objective.
>
> That said it should be noted that where there has been an initiative
> case in the first instance, can not
>
be put> in no doubt that consumer groups may then have
> also active for appeal, but this is to emphasize ,
>
is not> only when those groups themselves have proposed the use
> of first instance but also, in principle, when you are
> limitatead a mere intervention "to opponendum" (on possibility
> the intervener to appeal, see Cons. Member, Ad. Plen.
8> maggio1996, n. 2).
>
> 4. - Given the above should be clarified in advance, again, that if
> now before the plenary session assumes significance
> pregiudizialela issue of timeliness of the appeal
> proposed by Adiconsum,
> because this does not notificataria
the decision at first instance> (essendorimasta unrelated to its review), could
> benefit of the wider
> limit set by art. 327 Code of Civil Procedure, if the same appeal
> results in
> Final permissible.
>
> 5 .- In the present case arises, however, just the problem of
> admissibility of the appeal, since the association
>
will bring> the appellate court was not, and has not
>
participated in> any way, but failed to hold, in first instance.
>
> Like the general principles of procedural and
> reported the legislation on the protection of institutional
> consumers and users, left to the associations of
> field in the manner and with constraints outlined by
> provisions already
> mentioned above, the Plenary Conference believes that the solution of
> problem that can not be in the negative, not
> found no
> positive rule which might be an especially appropriate support for
> making exceptions to general rules of justice
> administration.
>
> 6. - The Board then considers that it can not extend to
> consumer associations the rules applicable in certain
> other areas, such as that relating to the election and the reviews
> on the protection of cultural heritage and landscape, appearing
> agree with the restrictive jurisprudence
>
formed in> regard (see Cons. State, Sec. VI, September 24, 2004, No. 6253;
> 6 June
> 2003, n. 3165).
>
> They are, in fact, special rules, exceptions to the principles
> General and, therefore, unsuitable for application
> Similarly, both
> Article. 83/12 TU for judgments of election approved by
> DPR 16
> May 1960, no 570, and Article. 146, paragraph 11 of the Code
property> Cultural and Landscape, approved by Legislative Decree 22
> gennaio2004 No 42, by which it was expressly
> expanded
> standing to appeal against first instance, even if there
> even those who, while legitimate, did not propose the use
> original, or - is add - has not, however
>
participated in the> first instance.
>
> does not seem in any way a kind of sustainable
> unreasonableness
> these legislative choices, about unequal
treatment in> relation to
> similar situations, with specific reference to wider media
> protection
> recognized for the environment and landscape. As promptly
> stressed in the acts of intervention "to opponendum" mentioned in
> epigraph, when the administrative proceedings brought against a
> landscape authorization, the right to appeal the
> environmental groups - even if no
>
participation in the> first instance - is in fact justified by the danger
> that, otherwise, the authorization Landscaping recognized legitimate
> from the court of first instance may become final resulting
> real opportunity for the owners of buildings or areas
> concerned to implement immediate measures also
> irreversible and irreparable compromise values \u200b\u200b
> landscape.
>
> A similar situation is in no way comparable with the
> case of
> Authority for Electricity and gas expected
> that,
> functions to it is responsible, the Authority may and indeed must,
> exercise their powers regularly and as often as required
> from the market for the establishment of criteria regarding
> Price
> sell gas and electricity.
>
> It follows that any set aside by the courts of a
> resolution in that field can not, in fact, lead
> prejudices
not> be repaired by a new, timely intervention of the Authority as will
> better explained below.
>
> PQM
>
> The Council of State in the courts (Plenary Conference),
> pronouncing definitively on appeal unspecified
> epigraph:
>
> -
take> note of the statement of admissibility
> 's main appeal brought by the Energy Authority
> elettricaed gas, made by the Sixth Chamber
> partial decision -
> No referral order to meeting Plenary 3408/2006;
>
> - says
> inadmissible the cross appeal brought by
> Adiconsum and, consequently, confirms the decision under appeal;
>
> - has
> full compensation for the costs of these
> proceedings between the parties.
>
> Order that this decision is made by the
> administration.
>
> Decided in Rome, in chambers on November 13
> 2006,
> Participants:
>
> Alberto de
> Roberto - Chairman of the Board of
> ; State
>
> Mario Egidio
> Schinaia - President of the Chamber
>
> Paul
> Salvador - President of the Chamber
>
> Raffaele
> Iannotta - President of the Chamber
>
> Sabino
> Light - Director
>
> Raffaele
> Carbone - Director
>
> Luigi
> Maruotti - Director
>
> Carmine
> Fox - Director
>
> Millemaggi Cogley
> Chiarenza - Director
>
> Pier Luigi
> Lodi - Director - Extender.
>
> Gianpiero Paul
> Cirillo - Director
>
> Paul
> Buonvino - Director
>
> Anthony
> Anastasi - Director
>
> President
>
> f.to Alberto de Roberto
>
> Councillor
> Secretary
>
> f.to Pier Luigi Lodi
> f.to Maria Rita Oliva
>
>
>
>
>
>
>
> FILED IN OFFICE
>
>
>
> il..................11/01 / 2007 ...................
>
> (Art. 55, L.27/4/1982, No. 186)
>
> The Manager
>
> f.to Maria Rita Oliva
>
>
>
>
>
>
>
> STATE COUNCIL
>
> In the courts (Plenary Conference)
>
>
>
> Addi ...................................
to copy> this is
> was transmitted
>
>
>
> to
> Ministry ................................ ...............................
> ...............................
>
>
>
> in accordance with art. 87 of the Rules of Procedure August 17, 1907 n.642
>
>
>
>
> Director of the Secretariat
>
> ----- Original Message -----
> ; From: Chiara.Colosimo [mailto: chiara.colosimo @ unimi.it]
> Sent: Tuesday, May 8, 2007 11:39
> A: Chiara.Colosimo; Davide.Galimberti @ beplex.com;
> @ nicolagreco2005 free . com; ile@pisani.net; federico@gaffuri.net;
> sessavalentina@inwind.it; t.iaquinta @ libero.it;
> wanda.mastrojanni @ uninsubria.it; leleboscolo@libero.it;
> mrenna@tiscali.it; matteo.barbera @ uninsubria.it;
> @ maurizio.cafagno uninsubria.it
> Subject: CORRECTION .. . ANALOGY - NEXT MEETING
> Priority: High
>
>
> Sorry, the previous mail was sent before I had
> finished writing.
>
> So ....
>
>
> Hello everyone,
> in reporting that the next meeting will be held on the analogy
> Monday, 21
> May, in time to be determined, I can tell you also that in order to
> enable an easier exchange of ideas and information was
> creatoun blog.
>
> The site is available at www.gruppo-analogia.blogspot.com.
> We will enter all relevant information, references
> Bibliographic and dates of meetings and short reports on them.
> Anyone can enter by sending all communications and reflections
> chiara.colosimo.analogia @ blogger.com and pointing at the
> content object.
>
> You can also send everything to my email address
> (chiara.colosimo @ unimi.it): I will provide the same to enter
> contributions.
>
> Given the remoteness of the next meeting, Prof.
> Cafagno us
> invites everyone to an appointment on-line for next Monday May 14:
> to this date, each of us is invited to find material
> case law (at least two sentences) and submit the post -
> together with an indication of sentences choices - some brief
> useful insights to find a point meeting on these questions
> Preliminary
> 1. Analogy is always reformulation of the standard?
> 2. It 's true or not that the analogy is always extrapolation of principles
> General?
>
> will arrange to quickly insert a brief report on the post
> of yesterday.
>
> Sincerely,
> clear colosimo
>
>
>
0 comments:
Post a Comment