The incidental legality review of regulations in Italy

This article discusses the legality review of secondary rules in Italy. In the era of the vast administrative state there are numerous situations in which some activities are covered by rules emanating from government, departments of state or other governmental agencies. They are like a delegate is invited to stand in the shoes of the legislature. Governmental rules have two-fold nature. Regulations, on the one hand, are sources of law similar to primary legislation. On the other hand, secondary rules are administrative instruments that supplement the executive power, that is, they are an inherent feature of public authority. The twofold nature affects the legality review. Secondary rules may not be reviewed by the Constitutional Court. Although regulations are legislative instruments, their administrative set-up plays a key role in the application of procedural rules. Indeed, the judicial review of secondary rules is up to administrative courts, which can intervene mainly after a regulation is challenged. Because of this flexibility, administrative judicial proceedings are suitable for challenging regulations on account of the hybrid nature of regulations, which are halfway between legislative instruments and tools inherent in the exercise of public authority. The aim of this article is to demonstrate how administrative law courts seized with the review of regulations. The judicial review by administrative courts appears to be quite similar to that of the Constitutional Court, as it is modeled after an objective approach to jurisdiction. Judges must disapply regulations that infringe laws and they can adjust themselves to and admit of innovative approaches.