Subjective rights and legitimate interest in passing the old theories that were

in the form of a personal right or power in a dominion of the will or interest p

rotected or subsequent combinatorial theory, the modern legal thought seems to a
gree, although to varying extents, in shedding out a few that come to constitute
the concept of subjective right: the existence of an interest that the law reco
gnizes deserving of protection, the protection afforded by the order and that th
e complex legal instruments that established for the protection of The suitabili
ty of this protection to the full realization of interest. Accumulating these el
ements can be said that the individual right is the fundamental position of adva
ntage made the order to a person concerning a well and consisting in the same ta
xable entity concretantesi a force in the availability of various tools (power,
claims, authority) for achieving the full interest in the well. Depending on the
type of interest protected person may make the interest only with his behavior,
and that without the active cooperation of other entities (absolute rights) or
the necessary cooperation of another person (cooperation, which in turn may be a
n active collaboration: the rights of credit or a mere subjection to the proprie
tor: right authority). Sometimes when you define a personal right that is added
to the legal protection is granted to direct and present, and this is said to di
stinguish their individual right to legitimate the interest whose protection is
indirect and incidental, but the introduction This connotation is useless becaus
e, as we shall soon see, is not on the ground that the two legal situations are
distinguished. We come now to the legitimate. The traditional definition of the
legitimate interests dictated evidently closely the model of subjective right an
d the terms of distinguishing the legitimate from the individual right in the se
nse mentioned just now, saw a personal interest in our situation closely linked
(for some, even coincident ) with the public interest protected by the legal pro
tection through the latter, that is not protected by direct and specific (as wou
ld have protected the individual right), but occasional and indirect (he also sa
id, with reference to the official act does not infringe, that the legitimate in
terest and interest occasionally breached). In this definition, which has roots
in the whole issue of the German public subjective rights of the last century an
d the rule of law understood in an objective sense, there's much truth but the t
ruth is incompletely expressed and errors committed by those with leave misrepre
sented. In this definition there is awareness, which remains crucial to our argu
ment, the connection between the position taken in private (for the protection o
f his interest) and the function of government (for the realization of the publi
c) and the intuition that there is still the legitimate interest moves a substan
tive standpoint, is that a way of protection of the individual by the order whic
h differs from the way in which security is a personal right but it is the same
quality of this. The flaw in the theory lies in this: that it, firstly, not full
y analyze the profile of the way as is the protection of the individual, the oth
er sees the link between public interest (public power) and interest
Private or (legitimate interest) as the second reduction to a mere accident of t
he first, or protected only when (he spoke so occasionally protected interest) o
r by (he spoke thus of interest indirectly protected rights, but this is already
a more correct) the protection of the public. That reasoning, the theory in que
stion also ends in order to create an insoluble contradiction, noted by several
parties, where it attaches importance to the legitimate on the basis of a provis
ion aimed exclusively to the discipline of public power and the satisfaction of
the public and only in reflection, protective of private (some people said graph
ically that the legitimate interests arising in relation to rules which by defin
ition does not deal with them [Guarino]). It was therefore logical that the focu
s of science focuses on ending the impasse in which it was to be the traditional
theory in an effort to give a real specific relevance to the legitimate interes
t in deepening the same time the profile of how to protect it interest.€Here we
find various answers to the problems of teaching, and answers that are as it we
re split time in the history of the subject and that, even through many shades a
nd combinations, can be linked to two guidelines: a) part of the doctrine is int
ended to seize the moment and the way legal collection of interest and identifie
d the legitimate interest with an interest in instrumental behavior by the admin
istration and in the final with an interest in the legality of administrative ac
ts. So it is defined as the legitimate interest of the interest that each person
claims against the administration under the law or as the interests of the excl
usive live coverage of the administrative power, which comes upon the subjective
position substantially, is exercised in accordance with the rules imposed by th
e order administrative action. This approach had the merit to begin to develop t
he profile of the relationship between individual interest and protective of the
public interest standard. But the rest is certainly unsatisfactory. Such an int
erest, first of all, postulates the existence of an unacceptable the duty to obs
erve the laws, which, however, if it existed, should pay a favorable legal posit
ion on the part of all stakeholders and not just some. Neither is very clear tha
t the interest in legality is determined in particular on the part of some subje
cts and only in such cases you have a legitimate concern. This version is still
obscure an essential point: namely, what exactly constitutes the legitimate inte
rest, this particular way of securing a material interest. The setting may expla
in who gets the interest, not what it is. The most elegant exposition of this do
ctrine was given by those who have legitimate interest in the joint subjective r
ight, seeing in it a necessary precondition to the legitimate and now, if these
formulas are interpreted strictly, it is true that upstream of the legitimate in
terests there is always a subjective right: this is true only for a category of
legitimate interests those related to administrative activities expropriation of
assets or rights of private or general interest which are positive, it is not a
lways true, is not true for example for the large category of interest related t
o a concession activities, and many other interests pretentious. If, instead, on
the form of individual right as a precondition to the legitimate means, as was
more recently explained, reconnect the interest in legal relationship quality, s
tatus related to
a given subject, not an occasion and means within the limits of positive law to
the substantial nature, the formula is acceptable but it remains to be determine
d not only how to produce this connection it is legal but what is rather hit a f
urther problem, that of identifying the legitimate. In fact most people who have
enriched this point of view of the conditions for setting finished to give a co
mplex exposure situations legitimating. B) orientation more important and had mo
re weight in the further development of the doctrine is that, in defining the le
gitimate, he stressed the power of reaction case allocated to the party to prote
ct its interests harmed by 'administrative activities. This guidance, which was
started by the teaching of Chiovenda, who sees a legitimate interest pure power
of action (basically the power or right of the individual, injured by an unlawfu
l administrative act, to cause the cancellation by the administrative court) has
many shades, ranging from the opinion of the person having total dissolution of
the legitimate position of the case, attributing to the substantial value of in
dividual interest of pure fact, who has voiced a position with the position of t
he case substantial (the annulment of unlawful administrative law). This approac
h had the merit of drawing attention to a profile of the fundamental concept of
legitimate interest, namely the way of protection of the individual, or, rather,
the element of the situation of legitimate interest constituted by instruments
protection granted by the law. But apart from that it considers strictly those i
nstruments, reducing the single reaction case for the elimination of the illegal
(coming from someone to assume the legitimate interest as nothing more than the
expression in advance, in terms of subjective existence of a court for annulmen
t), was neglected other fundamentalist viewpoint of legitimate€also closely lin
ked with the first, namely the material interest of the individual (the protecte
d interest) in connection with its administrative power, so more or less declare
d, more or less accepted, but in a way fatal to the individual to maintain his c
ondition and possible alternative. The most recent phase of studies on the inter
est is legitimate characterized by the development of two themes. On the one han
d we study the problems of connection between the material interest of the indiv
idual and the position and the exercise of administrative power, raw vision exce
eded the accidental relation to the public interest and the occasional individua
l of the protection of First, we emphasize the links of relationship, with power
, interest seen not only as the limit of power itself, but as an element that co
ntributes to the Services of public and therefore power. Second, and consistentl
y expands his view as regards the protection of the way, bringing attention not
only on the instrument case, the other powers that the legislation seems to prov
ide the holder of the interest in this protection. The search for a concept of t
he legitimate interests of richer content and more specifically characterized wi
th respect to how they operate and the government is now facilitated by various
things. Firstly, of course, the very large development that, in about a century,
case law (particularly
administration) has made the figure from various angles by analyzing hundreds of
cases. Secondly (this is not such a priority order, especially since the variou
s contributions are combined and interacting) Rearviewmirror that the doctrine s
hould be doing the procedure, the discretion of the legality of administrative a
ctions, which are themes that everyone back to the essential problem of administ
rative law, the problem of the public saw in the dynamic of his determination an
d then the confluence of different interests that are involved in this dynamic,
including the interests of individuals. Thirdly, dall'emersione widening at the
level of normative considerations, the interests of individuals to determine the
public interest: the center of this view law is found, needless to say, in cons
titutional principles, which enhance, in the formula general policy directives o
f the public administration, the administrator's position and contribution, whic
h directly connect the regulations (in particular, of course, the law 2241 of 19
90) which opened to the participation of the administrative organization citizen
s in the activities of the proceedings and theorized. With this cultural environ
ment and the most valuable experiences in doctrinal argument, you can define wha
t the state seemed more satisfactory conception of the legitimate. We must advis
e that the following considerations concerning the legitimate interest as it app
ears in the field of administrative law as a phenomenon that is linked to the ex
istence and exercise of administrative power. We propose the question whether on
e can speak of a legitimate interest in other sectors particularly in the field
of private law, see the now-notorious ruling of Cassation, United Civil Sections
, 22.11.1979, number 5688, which, on employment relationship with government eco
nomic, reconstructed in this key subject positions of the workers in so-called "
private competitions for recruitment or promotion, opening the way for many year
s on which the Court has continued to move, but more recently seems to have been
abandoned by the same point of law: see for example Judgement 10.8.1987, number
6864. Probably he can not speak have been made about this much confusion - is b
rought back to the legitimate category, cumulative figure to its administrative
law figures that have very different nature of legitimate interest, if you give
this situation the value and Boil the function of administrative law, one can sp
eak for private law only where there is likely to exercise real power allocated
to the satisfaction of collective interests within an organization in which acqu
ire significance for their relationship with collective interests, the interests
of members of the organization. To grasp the concept of legitimate interest, we
start from the consideration of the legal rule that requires a power of governm
ent and governing the exercise.€This rule certainly protect a specific public i
nterest and the allocation of power and discipline are arranged to the satisfact
ion of such interest. Now, what is, than the norm, the position of private inter
ests involved in the explanation of the mechanism of power? The traditional doct
rine answered this question by denying that the provision directly involved in c
onferring the power of private interests and assuming
only an effect "bounce" of the legal precept of that interest. But surely the an
swer is incorrect: incorrect in general, especially with reference to the incorr
ect position of public administration in contemporary democratic state. In gener
al, there is to say that public interest (more precisely the collective interest
institutionally protected by the government) is not an interest that incorporat
es private interests, but who lives with them, in turn sacrificing and satisfyin
g. The administrative organization is precisely the place where you outlined the
institutional framework of the interests (public and private) taken into accoun
t nor are the established order of priority and resolved conflicts. The provisio
n conferring administrative power which is under organization, which then not on
ly does not ignore the consideration of private interests, but is precisely the
consideration of them together with a more public interests and their submission
by the rule , the incidence of power. I must add that the standard defines only
the abstract, the public interest, as only the abstract to determine the territ
ory concerned, and indicates the interests involved in the dynamics of satisfact
ion. And 'only with the administrative procedure that the picture comes to life
actually is with the administrative procedure that the public interest is determ
ined on time and in specific relation to all other interests. Through the admini
strative procedure is defined as well as concrete way of subjecting the incidenc
e of private power, but the individual enters the procedure not to feel dictate
the terms of his awe and not only set limits to power, but contribute to that pu
blic interest determination: that is to say that the administrative power is exe
rcised, and states, through a kind of dynamic exchange and cooperation with priv
ate interests, which has its headquarters proceedings. This situation is accentu
ated in contemporary democratic states, particularly in the Italian. In differen
t directions today is valued, for purposes of administrative justice, the princi
ple of impartiality implicit in Article 97 first paragraph of the constitution.
According to the prevailing view that public office should be organized to ensur
e impartiality of the administration, as stated in this rule means that your fir
st rule of organization must take account of private interests, primarily in ter
ms significant, "commensurate with" the power of their timeliness and consistenc
y, and secondly, in terms instrumental, providing the means to which the exercis
e of administrative power is ensured "the presence" of all the interests involve
d in the discipline dictated by that rule, which obviously excludes a mere rulin
g and subjection of private interests and their only occasional protection. Behi
nd this, there is still the very basic fact that the state consists of the repub
lican constitution, the administration continues to be an entity, or combination
of entities acting on their own interest (interest), and since it now seems ver
y popular tool immediate community and the organization that this is an expressi
on (Article 1) and as yet this community is essentially popular place of explana
tion of personality (Article 2), namely the satisfaction of the interests of sam
e, the result is a new relationship between the individual interest, interest of
the administration, final order, but upheld some difficult relationship that ca
n surely say that basically, in order to attain the goals, the interest of the a
dministration appears
always combined with the interest of the individual at least in the sense of sat
isfaction that the completion of the first demand the most consistently accurate
account of the interests of individuals. If it is true, and concluded that the
provision conferring the power, under preferential terms, is directly and intent
ionally facilitated, and the public interest, the interests of both individuals.
€The attribution of the power of its concrete configuration (ie determining the
actual texture of it) will make all the satisfaction with the public and privat
e interests. In the sense that the imposition of limits on the power (the power
is, by its nature, limited) is also made to protect private interests. The affir
mation of the traditional doctrine that the legitimate interest is a protected i
nterest, reflecting and occasionally, it is completely inaccurate and crashed le
gal interests of an ideology that gave the individual an absolutely subordinate
to the administration and it. Certainly it is not easy to determine which privat
e interests are protected by laws governing the public power, but when this happ
ens it is certain that private interests are protected immediately and not only
reflected the standard of organization. Up to this point subjective right and le
gitimate interest not differ in any way: both situations are made intentionally
interests protected by the law. It is about the way of protection of material th
at is a personal right and that which is the legitimate interest that you open t
he main difference (but not alone: there are differences and you will see later,
as identification of the legal position). Type of protection can mean (consiste
ncy) and forms of protection. Now, as regards the former, we know that individua
l right coast of power to satisfy fully (always satisfy, whether the right holde
r you can be reached only with behavior, and whether he needs the cooperation of
others) interest of the individual. For the legitimate interest that satisfacti
on does not have full and safe, because if it is true that the rule by giving th
e definition of power protection with the public interest and private interests,
from this follows that the same mechanism ' public interest being protected thr
ough the exercise of power is immediately and fully protected, while the private
interest is also being protected through the exercise of power is indirectly pr
otected and may not always, in fact, the exercise of power meets the private int
erest that is true only to satisfy the private interest can only come later and
in relation to the satisfaction of the public. This is to the degree of protecti
on. But we must warn that there are many cases where proper exercise of power ne
cessarily carries with it the satisfaction of private interest: they are cases i
n which, or the character of the facts (among several candidates for an administ
rative concession, only one fulfills the requirements established by law) or is
regulated as the exercise of power (duty to provide the administrative authority
, and to arrange a time or a certain way), this exercise can only directed in th
e sense satisfaction of private interest. A warning that too need the increase o
f administrative process effect obtained primarily through the gradual strengthe
ning to review compliance, including work to value the effect increasing the int
erest intended to satisfy the process equipment and thus contributing to enlarge
the contents and the legitimate power hitting. In these
cases and in this respect, the expectation of private ends and then pose for the
claim arising out almost as a personal right, but the characters and limits of
the legal situation is, in principle, those. What forms of protection (this is t
he most interesting) is by far what has been said, that protection can only cons
ist in the possibility given to the holder of the interest to influence the exer
cise of power, operating the correct explanation of that and intervening to corr
ect the errors. The main form which expresses that protection is the power to re
act to the adoption of an unlawful administrative act causing, in the main stree
t and cross the annulment by the administrative judge or the power to always opp
ose the courts, to 'annulment of the administrative act requested by the applica
nt, but the protection afforded to not only occurs in it. Proceeding backwards,
it is manifested through the power to cause the elimination of an administrative
act in administrative and back, through the power of participation to the same
administrative procedure and, further back,€same power to cause the exercise of
administrative power, ie to initiate administrative proceedings when the openin
g of it is the private initiative. It is therefore possible all instrumental, bu
t a very wide range of instrumental possibilities, which have their peak in the
power to cause the annulment of the administrative court (or to resist such a re
quest), and explained throughout the arc of the exercise of administrative power
that help crystallize according to the requirements of the standard. It can the
refore say that the legitimate interest ultimately be the opportunity for partic
ipation of the private nature of the administrative function active, to which an
y formula is of essentially always expressed in the statement of the administrat
ive authority, and justified by of view of actual conditions or the profile of l
aw, draft administrative act that the person would like to see adopted by the ad
ministrative authority, you can also say that the legitimate interest ends up re
ally being a pure action in this regard (power or right of action) provided it i
s clear that such action is not only empowered to act in administrative proceedi
ngs but a complex of possibilities to act, either in court or in administrative
proceedings in order to influence the administration. It has been clarified so w
hat is the function of the material interests of the legitimate phenomenon, and
in what sense and to what extent the above phenomenon belongs not to the substan
tive scope of the case. It belongs to the legitimate interest of substantial sco
pe, either because the interest protected is a material interest, whether becaus
e of that protection does not derive primarily and originally Article 26 of the
Consolidated Law on the State Council, which grants the possibility of judicial
administration that was injured in his interest, but it's all plotted out by the
standard regulatory power, and is plotted with the fact that this rule also inc
ludes material interest of his plot, to the limit and completion of power, but i
s an area substantially dynamic, instrumental, non-static profit. Thus it is per
missible to confront the legitimate interest in individual rights as being of in
strumental (or rather the right to claim all), and in treating the relations exi
sting administrative set up with an administration that has become predominantly
structures and functions of a state services, peer relations order interpreted.
We have now the tools groped for a definition of the legitimate.
The legitimate interest is the position of advantage to a person order made in r
espect of a utility subject to administrative power and consisting in the same s
ubject of power likely to affect the proper exercise of power, so as to enable t
he realization of the alleged usefulness.