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Checklist: preliminary checks before filing an appeal against administrative silence
2 min read · Editorial oversight: Avv. Federico Papa
Use this checklist in the final phase, just before signing or filing the application with the T.A.R., to ensure compliance with Articles 31 and 117 c.p.a. These checks aim to prevent procedural objections, such as time-barring of the action or inadmissibility due to lack of service.
In brief
Appeals against silence (silenzio-inadempimento) must comply with procedural requirements under Articles 31 and 117 c.p.a. The legal action is subject to a one-year forfeiture deadline from the expiration of the administrative procedure. Notification to at least one counter-interested party is mandatory for admissibility. The Public Administration must maintain a legal obligation to act under Art. 2 of Law 241/1990. This procedure is inapplicable in cases of express decisions, tacit consent, or deemed refusal. The T.A.R. cannot substitute its judgment for discretionary powers or review merits involving unexercised administrative discretion.
- 1.
Classification of administrative silence
Related practical guide: How to draft an appeal against administrative silence with AIVerify that the silence constitutes a failure to act (silenzio-inadempimento) rather than a deemed refusal or tacit consent. If a tacit measure of acceptance or refusal exists, the appeal under Art. 117 c.p.a. is inadmissible.
- 2.
Check the one-year time limit
Verify that no more than one year has elapsed since the expiry of the deadline for concluding the administrative procedure. Exceeding this time limit results in the forfeiture of the right of action pursuant to Art. 31 c.p.a.
- 3.
Service on at least one counter-interested party
Ensure that the appeal has been served on at least one counter-interested party. Failure to serve renders the appeal inadmissible under Art. 117, paragraph 1, c.p.a.
- 4.
Persistence of the obligation to act
Confirm that the Public Administration remains under a legal obligation to act under Art. 2 of Law 241/1990. In the absence of a duty to act, the court cannot declare the inertia unlawful.
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5.Limits on reviewing the merits of the claim
Verify that you have not requested the court to rule on the merits of the claim where discretionary powers have not yet been exercised. Such a claim would be inadmissible, as the court cannot substitute itself for the administration.
- 6.
Indication of the competent T.A.R.
Check the correct identification of the competent T.A.R. and the accuracy of the details regarding the parties and counsel. Errors in this section may cause irregularities in filing or in the proper initiation of proceedings.
- 7.
Persistence of interest to act
Ensure that the administration has not issued a late decision prior to filing. If the decision has been issued, the legal interest in appealing against silence ceases to exist.
- 8.
Signature and attachments
Verify the lawyer's digital signature and the completeness of all attachments cited in the document. The absence of proof of service or signature prevents the appeal from producing procedural effects.
Frequently asked questions
What happens if the appeal is filed after the one-year deadline set by Art. 31 c.p.a.?
The appeal will be declared inadmissible due to the expiration of the statutory time limit to take action.
Can the silence procedure be used if the P.A. has already expressly denied the request?
No. In the event of an express decision, the measure must be challenged within ordinary deadlines, and the procedure under Art. 117 c.p.a. cannot be used.
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