This work follows a previous study by the same author on the normative powers of the authorities (see this series no. 41, November 1996). Its aim is to analyse the development of case law and legal writings on the subject of the judicial review of administrative action and its discretion, with a particular focus on so-called independent administrative authorities.
The study shows that, from the beginning of administrative case law to the present time, the question of the judicial review of "technical" and administrative discretion has been marked by considerable continuity.
The evidence from the cross-sector analysis is that for all the various fields (urban planning, public calls for tenders, the protection of natural beauty spots, historical remains and works of art, the assessment of public employees' fitness, antitrust activity, banking and financial supervision) the key issues are substantially the same: the existence of a hard core of questions of merit reserved to the public administration; the scope and tools of the judicial review with regard to legitimacy jurisdiction.
The ever growing importance of the regulatory fields entrusted to authorities (from both a quantitative and a qualitative point of view) has increased the importance of the topics linked to the judicial review of administrative action and fostered the introduction of a fast-track trial which allows a swifter resolution of the related lawsuits. At the same time, this phenomenon has not substantially changed the way the administrative judge tackles such issues.
The most significant change in this field can be considered the introduction in 1999-2000 of the court-appointed expert in the fact-finding phase of the administrative trial. Analysis of the case law of the last decade shows that this innovation enhanced the administrative judge's awareness of being entrusted with a power of direct and penetrating control of administrative action and its discretion, with the possibility to assess both the legality and the logical consistency of the administrative measures. This led to a reduction of the area of the questions of merit reserved to the public administration.
The introduction of the court-appointed expert in the administrative trial thus reinforced the case-law trend in favour of direct and penetrating control of administrative discretion, even though the judges have not made intensive use of the new tool.
It is probably too early to make a thorough assessment of the long-term effects on administrative action of this enhanced judicial control. It is nevertheless likely that it will foster a further strengthening of the thoroughness which already distinguishes the fact-finding phase of the authorities' measures.
