Annulment

In the context of breach of legitimate expectation, resulting from the annulment of an unlawful administrative act, the Court of Cassation settles that, as legitimate expectation is an autonomous situation protected in itself and not in its connection with the public interest, the jurisdiction of the administrative judge exists only when the cause of action concerns the methods of exercising administrative power.

The field of EU direct administrative law is steadily growing in importance, and issues relating to the consequences of procedural irregularities on the outcome of the procedure are becoming increasingly relevant. The question of when such a violation remains inconsequential – i.e., does not lead to the act being quashed during judicial proceedings, either because the error was rectified or because it can be considered irrelevant – is particularly important, and EU case law has developed a complex jurisprudence in this regard. The aim of this contribution is to systematize this case law with regard to the instruments of rectification and irrelevance of procedural irregularities. Moreover, it compares these legal instruments to their counterparts in Member States’ administrative systems. This comparison shows that EU courts have not co-opted a particular system currently in use in a Member State, but that they often use roughly similar criteria to decide whether an error leads to the annulment of the final decision.

Trademark protection in the European Union aims at helping businesses to distinguish their goods or services in overcoming national barriers that still persist in many areas of intellectual property protection. Deciding on European trademarks, EUIPO (as well as its Boards of Appeal) is sometimes called upon to assess the existence of "bad faith", "public order" and "morality". The recent declaration of invalidity of the trademark of Banksy's "Flower Thrower" highlights how EU trademark law was conceived to also protect other closely interconnected rights: fundamental rights, competition rights, and the rights of "Third Parties". Their protection is therefore directly linked to the logical interpretation of "undetermined concepts" in the relevant context.

With decision n. 466 of 17 September 2020, the first section of Tar Piedmont rejected the request for cancellation, subject to suspension of effectiveness, presented against the decree of the President of the Council of the Piedmont Region, no. 95 of 9 September 2020, with which the obligation for schools to verify that families measured the body temperature of students before the start of teaching was established.

The withdrawal of unlawful acts of public administrations aids the judicial function to guarantee effet utile. It follows the functionalization of procedural autonomy to the principle of effectiveness of EU rules. This, however, cannot go against the Community principle of legal certainty and the protection of legitimate expectations. Hence, the conflict between certainty and justice must be resolved through a synthesis of the opposing interests by the application of the principle of proportionality which conforms to the principle of legality.