Sull’abolizione pretoria dell’art. 34, co. 3, c.p.a. ovvero dell’irrisarcibilità del danno per lesione del diritto all’istruzione

The author comments two recent rulings of the Administrative Tribunal of Milan. Judges declared the application of two students against their suspension from school inadmissible, since the two later failed to pass the year and did not contest the failure deed. The Tribunal affirmed that the two had no interest in seeing annulled the suspension, since they can no more pass the year. The article explains the reasons below the ruling. First, it is based on a misconception of the right to education: judgements confuse the right to be instructed – which is a fundamental right, enforceable against the State – with a demand to pass examinations – which does not exist in the case. Secondly, the article examines the main orientations of national case law about the application of article 34.3 of the Code of administrative procedure. This law authorizes the judge to declare the unlawfulness of an administrative deed, even when its annulment has become useless for the applicant. This can be done, when the applicant conserves an “interest of compensatory nature”. National judges offered a variety of interpretations of such disposition. The author divides them in three main groups. A first orientation claims that the power can be triggered by the judge ex officio, on its own initiative. Such conclusion is criticized because it violates the principle of binding correspondence between what the parties demanded with their action and what the judge rules (art. 112 of Code of civil procedure). A second orientation, on the other hand, allows the activation of mechanism set by art. 34, solely if the applicant had already introduced an action for damages. This interpretation cannot be accepted, as it results in a judicial repeal of the art. 34.3. If an action for damages had already been brought, then the provision of art. 34 is useless, as the applicant still has a functional remedy at his disposal. Art. 34 comes to usefulness, instead, when the action for annulment should be declared inadmissible due to lack of interest in acting and the attendant has not yet brought an action for damages. Still, he can obtain the declaration of unlawfulness of the administration deed, which he could take advantage of in a future compensatory action. For such reasons, the article embraces a third solution. Art. 34 should be triggered only upon request of the interested party, to comply with general principles of administrative trial. Nonetheless, the judge should summarily evaluate the reasonableness of the demand, in order to avoid judgements not supported by an effective interest in acting of the proponent