Meglio il giudice a Berlino (Lussemburgo)? Garanzie difensive e termine per la conclusione dei procedimenti sanzionatori amministrativi nella necessaria prospettiva europea

[Machine translation] The commentary analyzes the decision of the Italian Constitutional Court relating to the regulatory loophole contained in law 689/81 on administrative sanctions, which lacks a deadline for the conclusion of the proceedings all cases not falling within specifically regulated areas (including numerous substantive provisions of the European Union)., The Constitutional Court has essentially declared the incompatibility of such a loophole with various norms of our Constitution, but concluded that the questions submitted by the referring judge are clearly inadmissible, as they are based on obtaining an additive ruling “prevaricating” with respect to the discretionary power of the legislator to identify the reasonable “duration” of the administrative sanctioning procedure., This involves a further indefinite referral of the legal solution to a problem capable of profoundly affecting the fundamental rights of individuals subject to these proceedings and on the functioning of the administration even when it applies EU rules (see environment, food, etc.). Furthermore, the gap in question in the specific conditions described appears to conflict with as many provisions contained in the EU Charter of Fundamental Rights., The comment hypothesizes, therefore, what arguments could lead to a preliminary reference pursuant to art. 267 TFEU to allow a definition of the issue that does not leave citizens currently involved in judicial proceedings of this type unprotected and urges the national legislator to schedule an amendment to the legislation in question as soon as possible. In particular, the profiles of the procedural autonomy of member States and the protection of the fundamental rights of the individual are examined based on the rules of the EU Charter, all with a view to a consistent interpretation of law 689/81 with respect to the constraints of effectiveness, proportionality and dissuasiveness of the sanctioning discipline connected to substantive rules of European Union law or of the possible disapplication of the domestic rule in the part where the regulatory gap examined allows an unjustified and abnormal duration of administrative sanctioning proceedings., This comment analyses the judgment of the Italian Constitutional Court on the regulatory gap in the general law on the procedure for the imposition of administrative penalties (law no. 689 of 1981). This rule does not provide a deadline in the ambit of administrative penalty proceedings, even when the penalty is imposed in accordance with European Union Law., The Italian Constitutional Court stated that the gap mentioned above is not compatible with a number of Constitutional principles and rules, but dismissed the case because the solution would have implied an “addition” to the current structure of the law, which falls within the prerogatives of the Parliament (in particular, the decision related to the maximum duration of an administrative proceeding depends on the discretion of the national Legislator)., As a consequence, the juridical solution to this problem could be postponed “sine die”, with a negative impact on fundamental rights of people subject to these kind of proceedings as well as on the functioning of the public administration which is called to implement EU Law (as it happens, in particular, in the field of food law, environmental law etc.)., Furthermore, the gap in question seems to be in conflict with many different rules of the Charter of Fundamental Rights of the European Union., The comment suggests some juridical issues that could lead to a preliminary referral on the basis of art. 267 TFEU, in order to allow the protection of fundamental rights of the defendant in these proceedings and, at the same time, to force the modification of the Italian Law No. 689 of 1981., In particular the Author analyses the national procedural autonomy and the limit of the protection of fundamental rights on the basis of the EU Charter. The output suggested is the interpretation of the national law in conformity with the European Union Law or, in the cases where this is not possible, the disapplication of the national law in question in order to protect the fundamental rights of the defendant.