La tutela giurisdizionale del silenzio rifiuto tra attività vincolata e discrezionale: spunti di riflessione

The silence by inactivity of Public Administration, ruled by laws 241/90 and 205/00, maintains several interpreting problems. In particular, we have many types of inactivity, but only in one case a Public Administration can be condamned of non fulfilling its task: this happens whenever the Publc Administration neglects its own duties to provide on the instance of a private. However, for the sentence here analized, that duty derives not only from a specific legal provision, but also from a constituzional principle - such as fairness and good administration (related to article 97 of Constitution) - which is the base of a situation of substantial justice. If the instance of a private concerns a discretionary activity of Public Administration, the only thing that the administrative judge must declare is the duty for the Administration to provide on the instance itself, while the content of the act is reserved to the Administration.