REPUBLIC ITALIAN - N. REG.DEC 3072/09.
IN THE NAME OF THE ITALIAN PEOPLE N.1977 REG. RIC.
IN THE NAME OF THE ITALIAN PEOPLE N.1977 REG. RIC.
The Council of State in the courts (Fifth Chamber)
YEAR 2008 gives the following
YEAR 2008 gives the following
DECISION
appeal in writing to the NRG 1977 \\ 2008, proposed by Julius Pappas, represented and defended by Antonio Facondo and address for service at the Chambers of C. Head in Rome, Via Aurelia No 190;
against
City of Trani, in the person of the mayor pro tempore, represented and defended by Antonio Deramo, residing in Rome, via Cosseria No 2 at Dr. Alfredo Placidi;
and against
company of Andrea Cassese Cassese Gennaro & C. sas, in its legal representative pro tempore, and Giuseppe Sole proprietorship Dolphins, both represented and defended by lawyers Tania Enza Cassander and Emanuele Tomasicchio, address for service in Rome, via Brussels No 59, at the Chambers of Cassander.
for the reform of the Judgement of the Regional Administrative Court of Puglia, the third section, no 136, February 1, 2008.
Given the appeal;
seen acts of formal proceedings of the town of Trani and Company Andrea Cassese Cassese's Gennaro & C. sas and sole proprietorship Dolphins Joseph
considering the pleadings submitted by the parties in support of their defenses;
seen all the acts of the case;
date to read the public hearing on March 24, 2009 the report of the Vito Poli, heard lawyers eloquence, by delegation of Notarnicola 'avv.to Deramo and Mastroviti delegation from the' avv.to Cassander;
thought and reasoned as follows:
Given the appeal;
seen acts of formal proceedings of the town of Trani and Company Andrea Cassese Cassese's Gennaro & C. sas and sole proprietorship Dolphins Joseph
considering the pleadings submitted by the parties in support of their defenses;
seen all the acts of the case;
date to read the public hearing on March 24, 2009 the report of the Vito Poli, heard lawyers eloquence, by delegation of Notarnicola 'avv.to Deramo and Mastroviti delegation from the' avv.to Cassander;
thought and reasoned as follows:
fact and law
1. The town of Trani, by resolution giuntale No 280, July 24, 2000, decided, in accordance with order and on notice of the national and local public safety the funeral homes, which perform the processing of paperwork, are to be counted among the agencies business pursuant to art. 115 rd June 18, 1931, No 773 - consolidated text of the laws on public safety - and that there is a report of an agency every 25,000 inhabitants. With resolutions
giuntali nn. 309, 158, 10 August 2001 and May 22, 2002, the municipality, inter alios, and for our purposes, it confirmed the previous act of reaffirming GL and better specifying the meaning of the relationship of agency business every 25,000 inhabitants.
1.1. Determinations with local protocol. No 22928 of 12 July 2005, no 24035 of 21 August 2006, no 21944 of 17 May 2007, no 6869 September 5, 2007 have been refused permission or disqualified instances or allegations of logins (hereinafter dia) submitted by Mr. Pappas and Julie for opening an agency of the funeral home.
All refusals were motivated by the direct or indirect reference to Resolution No. 280 of 2000 and the report of an agency every 25,000 inhabitants of this introduction.
Some of these denials were contested before the Tar for Puglia.
1.2. Mr. Pappas submitted to the town of Trani, on September 21, 2007, should always be given yet another concerning the opening of a business agent for the processing of administrative funeral.
The town responded with determination prot. 42206 of October 22, 2007 merely quote in full the arguments previously spent to deny authorization for the agency.
1.3. Mr. Pappas act against that arose before the Tar Puglia for articulating five independent reasons.
2. The contested decision - Tar for Puglia, Section Three, No 136, February 1, 2008 -:
a) declared the application inadmissible for failure to timely notify at least one of the counterparties;
b) declared the application inadmissible for failure to timely resolutions giuntali No further appeal 280 of 2000 and 309, 2001;
c) has, however, dismissed the appeal on the merits;
d) rejected the application Damages;
s) ordered the applicant to pay the costs of litigation.
3. By application notified February 29, 2008, and filed on March 11, Mr. Pappas has appealed against the sentence mentioned on the Tar contesting all of them unfavorable.
4. Have formed the town of Trani and defendant companies deducting the admissibility of the appeal el'infondatezza in fact and law and proposing the exception does not examined by Tar-admissibility of the application at first instance, as an act directed against merely confirming previous denials.
5. The final decision is due to public hearing on March 24, 2009.
6. The appeal is unfounded and must be rejected.
Waiting to rebut the appeal panel is independent examination of the admissibility of a case of the same, the parties' intimate, in the light of the entry into force of the Regional Law 34 of December 15, 2008.
6.1. Takes value absorbing examination of the second ground of appeal which the appellant complains was inadmissible the application at first instance in terms of failure to timely appeal the decision no 280, 2000.
In support of its argument, the appellant submits that:
a) Resolution No. 309 of 2001 as it merely confirms the previous Resolution No. 280 and not specifically mentioned weighed in the decision, was not to be contested;
b) Resolution No. 280, No. 2000 and the subsequent 158 of 2002, as conflicting with the provisions and principles of constitutional and Community rules on fair competition, but should not be challenged directly by the administration and set aside by the court;
c) the resolutions establishing rules for the address, could not have been superseded by a subsequent act of address issued by the Special Commissioner of the town - prot. No 22,590 on May 18, 2007 - which urged the municipal offices to adjust to the opinion of the Guarantor for the competition and the market (hereinafter AGCM) protocol. No 0023709 on May 10, 2007. The half
is unfounded and must be rejected.
6.1.1. The section states, first, that the damage to the applicant's legal situation stems from Resolution No. 280 of 2000 which established the agency relationship of a funeral every 25,000 inhabitants, this resolution, widely known by the appellant through the disclosure of previous refusals to license (some of which are disputed in other reviews) was not timely appeal and not is not formally contested the action at first instance. The following resolutions
- nn. 309, 158, 2001 and 2002 - also not contested although harming themselves, confirm that extent, the ratio of an agency every 25,000 inhabitants.
6.1.2. This premesso, osserva il collegio che non può trovare ingresso la tesi della disapplicabilità delle su richiamate delibere.
Sul punto la sezione non intende discostarsi dagli approdi ermeneutici cui è giunta la giurisprudenza di questo Consiglio (cfr. Cons. St., sez. V, 8 settembre 2008, n. 4263; sez. IV, 21 febbraio 2005, n. 579; sez. V, 10 gennaio 2003, n. 35), secondo la quale la violazione del diritto comunitario implica un vizio di illegittimità – annullabilità dell’atto amministrativo con esso contrastante, mentre la nullità (o l’inesistenza) è configurabile nella sola ipotesi in cui il provvedimento nazionale sia stato adottato sulla base di una norma interna (attributiva del potere) incompatibile with Community law (and then applying them).
logical corollary of this reconstruction are:
a) a procedural standpoint, the burden of the appeal of the decision is contrary to Community law before the administrative court within the prescribed time-limit, failing which the inopposability;
b) the obligation for the administration to implement the act unless the illegitimate use of powers of self-defense.
In this case there is no rule - the rank of primary or secondary - that is inconsistent with Community law; contrast, in the abstract and the thesis, it is conceivable only on the related guidance documents having content that is not regulate.
6.1.3. Equally irrelevant is the call of the appellant with the opinion of the Antitrust Authority and to note the special commissioner, because:
a) the opinion AGCM relates to the transportation service actually funeral is to be considered in all respects liberalized, not already the most diverse and delicate area of \u200b\u200bthe funeral homes brokerage that are subjected to a police authorization issued by the municipality in mind the provisions of Articles. 115 rd June 18, 1931, No 773 and 163, Leg. March 31, 1998, No 112; the local authority, indeed, must review aspects of security, public order and prevention of crimes that constitute the ratio of subjection to permit the opening of the police agencies of business (see Constitutional Court. July 25, 2001, No. 290, Cass. Civ., sec. I, August 28, 2006, No. 18619);
b) Prefectural Commissioner's note does not constitute evidence, a new act of merely forwarding address, for the sake of knowledge, the opinion mentioned above AGCM council offices.
6.2. For completeness, the section is based also notes that the plea of \u200b\u200binadmissibility of the application at first instance, revived the defense of the town of Trani in the memory of May 5, 2008, and is merely confirmatory of the centers on the refusal issue in this case.
Indeed, an examination of all the information in the file, it is clear that the municipal authorities, with the note of October 22, 2007, without carrying out any preliminary investigation has been limited, purely and simply to repeat verbatim what has been agreed with the previous measures No 22928 of 2005, no 24035 of 2006 and 21,944 in 2007. Neither can be recognized, in the diagnosis of September 21, 2007, elements of novelty compared to all previous instances disregarded and below this angle are irrelevant communications of the AGCM and the Special Commissioner of concern both because, as already seen, the transport service funeral and because in no way have been taken into consideration by the a view to adopting a note dated October 22, 2007.
On this point the section does not intend to depart from the traditional view (see Cons. St., sect. V, 4 March 2008, n. 797, sect. V, April 12, 2005, No. 1645, sect. IV, 27 November 1998 , No. 1637), which excludes the grip of the acts by which merely confirms the administration simply relies on a determination previously adopted, without a new investigation and a reassessment of the facts and law already considered, or other new, acquired in the meantime. In these cases must be regarded as non-actionable flows, for one thing, the recognition of the absolute lack of interest in obtaining the annulment of judicial review, since its elimination from the legal world would not be able to remove a lesion in any case due at the time confirmed when this has not been challenged, and second, vice versa if the latter has already been contested, 's futility of imposing a burden on appeal of acts that come to be content with a mere reproduction of other already burdened the courts and to be overwhelmed by the annulment of the first. The multiple
's appeal inadmissible originating far ESTABLISHED exempt the college from an examination of further means of appeal.
7. In conclusion, the appeal must be dismissed.
Court fees, regulated according to the criterion of ordinary unsuccessful, are awarded in the device.
giuntali nn. 309, 158, 10 August 2001 and May 22, 2002, the municipality, inter alios, and for our purposes, it confirmed the previous act of reaffirming GL and better specifying the meaning of the relationship of agency business every 25,000 inhabitants.
1.1. Determinations with local protocol. No 22928 of 12 July 2005, no 24035 of 21 August 2006, no 21944 of 17 May 2007, no 6869 September 5, 2007 have been refused permission or disqualified instances or allegations of logins (hereinafter dia) submitted by Mr. Pappas and Julie for opening an agency of the funeral home.
All refusals were motivated by the direct or indirect reference to Resolution No. 280 of 2000 and the report of an agency every 25,000 inhabitants of this introduction.
Some of these denials were contested before the Tar for Puglia.
1.2. Mr. Pappas submitted to the town of Trani, on September 21, 2007, should always be given yet another concerning the opening of a business agent for the processing of administrative funeral.
The town responded with determination prot. 42206 of October 22, 2007 merely quote in full the arguments previously spent to deny authorization for the agency.
1.3. Mr. Pappas act against that arose before the Tar Puglia for articulating five independent reasons.
2. The contested decision - Tar for Puglia, Section Three, No 136, February 1, 2008 -:
a) declared the application inadmissible for failure to timely notify at least one of the counterparties;
b) declared the application inadmissible for failure to timely resolutions giuntali No further appeal 280 of 2000 and 309, 2001;
c) has, however, dismissed the appeal on the merits;
d) rejected the application Damages;
s) ordered the applicant to pay the costs of litigation.
3. By application notified February 29, 2008, and filed on March 11, Mr. Pappas has appealed against the sentence mentioned on the Tar contesting all of them unfavorable.
4. Have formed the town of Trani and defendant companies deducting the admissibility of the appeal el'infondatezza in fact and law and proposing the exception does not examined by Tar-admissibility of the application at first instance, as an act directed against merely confirming previous denials.
5. The final decision is due to public hearing on March 24, 2009.
6. The appeal is unfounded and must be rejected.
Waiting to rebut the appeal panel is independent examination of the admissibility of a case of the same, the parties' intimate, in the light of the entry into force of the Regional Law 34 of December 15, 2008.
6.1. Takes value absorbing examination of the second ground of appeal which the appellant complains was inadmissible the application at first instance in terms of failure to timely appeal the decision no 280, 2000.
In support of its argument, the appellant submits that:
a) Resolution No. 309 of 2001 as it merely confirms the previous Resolution No. 280 and not specifically mentioned weighed in the decision, was not to be contested;
b) Resolution No. 280, No. 2000 and the subsequent 158 of 2002, as conflicting with the provisions and principles of constitutional and Community rules on fair competition, but should not be challenged directly by the administration and set aside by the court;
c) the resolutions establishing rules for the address, could not have been superseded by a subsequent act of address issued by the Special Commissioner of the town - prot. No 22,590 on May 18, 2007 - which urged the municipal offices to adjust to the opinion of the Guarantor for the competition and the market (hereinafter AGCM) protocol. No 0023709 on May 10, 2007. The half
is unfounded and must be rejected.
6.1.1. The section states, first, that the damage to the applicant's legal situation stems from Resolution No. 280 of 2000 which established the agency relationship of a funeral every 25,000 inhabitants, this resolution, widely known by the appellant through the disclosure of previous refusals to license (some of which are disputed in other reviews) was not timely appeal and not is not formally contested the action at first instance. The following resolutions
- nn. 309, 158, 2001 and 2002 - also not contested although harming themselves, confirm that extent, the ratio of an agency every 25,000 inhabitants.
6.1.2. This premesso, osserva il collegio che non può trovare ingresso la tesi della disapplicabilità delle su richiamate delibere.
Sul punto la sezione non intende discostarsi dagli approdi ermeneutici cui è giunta la giurisprudenza di questo Consiglio (cfr. Cons. St., sez. V, 8 settembre 2008, n. 4263; sez. IV, 21 febbraio 2005, n. 579; sez. V, 10 gennaio 2003, n. 35), secondo la quale la violazione del diritto comunitario implica un vizio di illegittimità – annullabilità dell’atto amministrativo con esso contrastante, mentre la nullità (o l’inesistenza) è configurabile nella sola ipotesi in cui il provvedimento nazionale sia stato adottato sulla base di una norma interna (attributiva del potere) incompatibile with Community law (and then applying them).
logical corollary of this reconstruction are:
a) a procedural standpoint, the burden of the appeal of the decision is contrary to Community law before the administrative court within the prescribed time-limit, failing which the inopposability;
b) the obligation for the administration to implement the act unless the illegitimate use of powers of self-defense.
In this case there is no rule - the rank of primary or secondary - that is inconsistent with Community law; contrast, in the abstract and the thesis, it is conceivable only on the related guidance documents having content that is not regulate.
6.1.3. Equally irrelevant is the call of the appellant with the opinion of the Antitrust Authority and to note the special commissioner, because:
a) the opinion AGCM relates to the transportation service actually funeral is to be considered in all respects liberalized, not already the most diverse and delicate area of \u200b\u200bthe funeral homes brokerage that are subjected to a police authorization issued by the municipality in mind the provisions of Articles. 115 rd June 18, 1931, No 773 and 163, Leg. March 31, 1998, No 112; the local authority, indeed, must review aspects of security, public order and prevention of crimes that constitute the ratio of subjection to permit the opening of the police agencies of business (see Constitutional Court. July 25, 2001, No. 290, Cass. Civ., sec. I, August 28, 2006, No. 18619);
b) Prefectural Commissioner's note does not constitute evidence, a new act of merely forwarding address, for the sake of knowledge, the opinion mentioned above AGCM council offices.
6.2. For completeness, the section is based also notes that the plea of \u200b\u200binadmissibility of the application at first instance, revived the defense of the town of Trani in the memory of May 5, 2008, and is merely confirmatory of the centers on the refusal issue in this case.
Indeed, an examination of all the information in the file, it is clear that the municipal authorities, with the note of October 22, 2007, without carrying out any preliminary investigation has been limited, purely and simply to repeat verbatim what has been agreed with the previous measures No 22928 of 2005, no 24035 of 2006 and 21,944 in 2007. Neither can be recognized, in the diagnosis of September 21, 2007, elements of novelty compared to all previous instances disregarded and below this angle are irrelevant communications of the AGCM and the Special Commissioner of concern both because, as already seen, the transport service funeral and because in no way have been taken into consideration by the a view to adopting a note dated October 22, 2007.
On this point the section does not intend to depart from the traditional view (see Cons. St., sect. V, 4 March 2008, n. 797, sect. V, April 12, 2005, No. 1645, sect. IV, 27 November 1998 , No. 1637), which excludes the grip of the acts by which merely confirms the administration simply relies on a determination previously adopted, without a new investigation and a reassessment of the facts and law already considered, or other new, acquired in the meantime. In these cases must be regarded as non-actionable flows, for one thing, the recognition of the absolute lack of interest in obtaining the annulment of judicial review, since its elimination from the legal world would not be able to remove a lesion in any case due at the time confirmed when this has not been challenged, and second, vice versa if the latter has already been contested, 's futility of imposing a burden on appeal of acts that come to be content with a mere reproduction of other already burdened the courts and to be overwhelmed by the annulment of the first. The multiple
's appeal inadmissible originating far ESTABLISHED exempt the college from an examination of further means of appeal.
7. In conclusion, the appeal must be dismissed.
Court fees, regulated according to the criterion of ordinary unsuccessful, are awarded in the device.
PQM
The Council of State in the courts (Section V), finally pronouncing on the application in detail in the epigraph:
- rejects the appeal and confirmed the effect of the decision under appeal;
- condemns' appellant to pay in favor of the town of Trani and the Business of Andrea Cassese Cassese Gennaro & C. sas and Giuseppe Sole proprietorship Dolphins
costs, fees and responsibilities of these proceedings that the liquid in a total of EUR 3.000,00 (three thousand/00) plus accessories come per legge (spese generali al 12,50%, I.V.A. e C.P.A.), in favore di ciascuna parte.
Ordina che la presente decisione sia eseguita dall’Autorità amministrativa.
Così deciso in Roma, nella camera di consiglio del 24 marzo 2009, con la partecipazione di:
Raffaele Iannotta - Presidente
Cesare Lamberti - Consigliere
Claudio Marchitiello - Consigliere
Vito Poli Rel. Estensore - Consigliere
Giancarlo Montedoro - Consigliere
ESTENSORE IL PRESIDENTE
F.to Vito POLI F.to Raffaele Iannotta
DEPOSITATA IN SEGRETERIA
il 19/05/2009
(Art. 55 L. 27/4/1982, n. 186)
P. IL DIRIGENTE
Dott.ssa Livia Patroni Griffi
- rejects the appeal and confirmed the effect of the decision under appeal;
- condemns' appellant to pay in favor of the town of Trani and the Business of Andrea Cassese Cassese Gennaro & C. sas and Giuseppe Sole proprietorship Dolphins
costs, fees and responsibilities of these proceedings that the liquid in a total of EUR 3.000,00 (three thousand/00) plus accessories come per legge (spese generali al 12,50%, I.V.A. e C.P.A.), in favore di ciascuna parte.
Ordina che la presente decisione sia eseguita dall’Autorità amministrativa.
Così deciso in Roma, nella camera di consiglio del 24 marzo 2009, con la partecipazione di:
Raffaele Iannotta - Presidente
Cesare Lamberti - Consigliere
Claudio Marchitiello - Consigliere
Vito Poli Rel. Estensore - Consigliere
Giancarlo Montedoro - Consigliere
ESTENSORE IL PRESIDENTE
F.to Vito POLI F.to Raffaele Iannotta
DEPOSITATA IN SEGRETERIA
il 19/05/2009
(Art. 55 L. 27/4/1982, n. 186)
P. IL DIRIGENTE
Dott.ssa Livia Patroni Griffi
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