GIUDICE AMMINISTRATIVO E COGNIZIONE DEL FATTO (IL PENSIERO DI ANTONIO ROMANO)

Abstract This essay examines the persistent reluctance of Italian administrative judges to exercise full review over factual findings made by public administrations, particularly when such findings involve technical rules or indeterminate legal concepts. Drawing on the work of Antonio Romano Tassone and Franco Ledda, the author argues that the so-called "opinability" of technical assessments has been improperly shifted from the moment of factual subsumption to that of interest evaluation, thereby justifying a merely extrinsic judicial scrutiny based on formal logic. This deferential approach conflicts with the principle of effective judicial protection and with the "full jurisdiction" requirement imposed by Article 6 ECHR, as highlighted in cases such as Menarini, Grande Stevens and Di Placì. The essay maintains that fact-finding and discretionary balancing of interests must be kept conceptually distinct: technical assessment pertains to the cognitive stage of applying the norm, not to its prescriptive content, and can be objectified through systemic interferences drawn from the social context. Consequently, neither the indeterminacy of legal concepts nor the opinability of technical rules can justify limiting direct judicial review. Only the genuine "elasticity" of a concept leaves a residual space of administrative appreciation. The author concludes that, despite the procedural tools made available by the Code of Administrative Procedure, substantive effectiveness of judicial protection remains hindered by a cultural resistance of judges, who must finally embrace a full cognition of facts as a precondition for resolving the "administrative problem" raised by the citizen.