Autore
Poli, Gianmarco

Titolo
Il principio di proporzionalità tra regole di validità e regole di comportamento. Il test della pianificazione urbanistica (parte prima)
Periodico
Diritto pubblico
Anno: 2020 - Fascicolo: 2 - Pagina iniziale: 551 - Pagina finale: 594

This work deals with the issue of proportionality and, in a broader sense, with some otherrelated fundamental principles of administrative law, investigating both the role and theoperational function that they generally fulfill in relation to the exercise of public powers(in particular, urban planning), and envisaging what they should, instead, accomplishin an ordinary context where a prominent role is ascribed to the Constitution (whichhas overturned the traditional way of understanding the dualism between individual andpower) and the conceptual paradigm of reference is found under ordinary law. The studywhich has been carried out has shown that, historically, in the field of administrativelaw, the principles of acting as authority (including the principle of proportionality) areconceived as rules of action, intended to guarantee the public interest and aimed at allowingthe administrative judge – through the verification of the validity of the act – to“ directµ the power. This way of understanding the principles differs from the generalparadigm adopted under ordinary law, where the same principles (including the principleof proportionality) are encompassed in general clauses: i.e. elastic rules, which give riseto rules of conduct that are object of further legal obligations. However, although it goeswithout saying that in the field of public law, just like in private law, the rules of principlethat define power belong to the category of the so-called “rules of conductµ, it seemsnecessary to rethink the system of protection based on principles as a way to embrace thepath followed under ordinary law. The result - as it can be seen in the second part of thework - is to leave behind the traditional model, which used to ascribe a prominent role tothe action for annulment and, in order to value the dichotomy between rules of validity and rules of conduct enshrined in private law, and to recognise a new leading role to thecondemnatory action for the fulfilment of the duties of conduct arising from the rules ofprinciple.



SICI: 1721-8985(2020)2<551:IPDPTR>2.0.ZU;2-X
Testo completo: https://www.rivisteweb.it/download/article/10.1438/98083
Testo completo alternativo: https://www.rivisteweb.it/doi/10.1438/98083

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