The Constitutional Court has clarified a principle destined to have relevant effects in the relationship between citizens and the public administration, including with regard to cultural heritage: the one-year term for the ex officio cancellation of illegitimate acts, provided for by Law No. 241 of 1990, also applies to authorizations related to cultural heritage, without implying an impairment of the public interest in the protection of the national historical and artistic heritage. This was affirmed in Judgment No. 88, filed on June 26 and published in the Official Gazette on July 2, declaring as unfounded the questions of constitutional legitimacy of Article 21-nonies of the said law.
The case examined by the Constitutional Court concerns the annulment, which occurred six years after its issuance, of a certificate of free movement for a work of art, i.e., the authorization required for the final export of a cultural asset outside Italian territory. In this case, the painting that was the subject of the procedure had initially been authorized for free circulation, only to be later recognized as being of significant cultural interest. The administration had attempted to correct its mistake by cancelling the authorization, but the action had taken place beyond the one-year time limit provided by the general rule on administrative self-protection.
In assessing the legitimacy of the rule, the Constitutional Court held that the interest in the protection of cultural heritage, although of constitutional importance under Article 9 of the Constitution, is not sacrificed by the provision of a strict time limit for the exercise of the power of ex officio cancellation. The reason for this conclusion lies in the observation that this interest finds adequate protection already at the initial stage of the administrative procedure, when the permit is evaluated and issued.
Indeed, the Consulta referred to the rules of the Administrative Procedure Act and the Cultural Heritage Code, which guarantee differentiated and enhanced treatment for “sensitive” interests, such as cultural interests. The precautions already in place when issuing the certificate of free movement should make it possible to avoid errors and protect artistic heritage. Consequently, the possibility of an error escaping and being recognized only after a long time does not justify an exception to the general rule of the annual time limit for self-protection.
A central element of the Court’s reasoning is the distinction between the power exercised at the time the favorable measure is taken (in the present case, the issuance of the certificate) and the subsequent power of review. Theex officio cancellation represents a different power, subject to its own rules, including the one-year time limit and the obligation to assess a plurality of interests.
In fact, when the administration considers whether to annul its own act, it must consider not only the original public interest, but also other factors, such as the legality and certainty of legal relations as well as the position of reliance of the recipient of the favorable determination, i.e., the private party, if the latter has not acted in bad faith or provided false information. The exercise of the power of self-protection, therefore, requires a broader balancing act than the consideration of cultural interest alone.
According to the Court, the introduction of a peremptory time limit for the exercise of self-protection does not undermine the principle of good administration; on the contrary, it strengthens it. In fact, the provision of a time limit, according to the Constitutional Court, not only promotes efficiency and accountability in the issuance of measures, but also ensures certainty and stability in legal relations.
From a constitutional perspective, the Court emphasizes that public power is exercised not to assert a position of preeminence over citizens, but as a form of service. This conception requires the observance of clear rules, including that of time: the lapse of one year makes the act irretractable, and this constitutes a guarantee for the citizen, who can rely on the stability of the title obtained by the public administration.
Judgment No. 88 is in the vein of a balanced view of the relationship between the individual and administrative power. While recognizing the primary value of the interest in the protection of cultural heritage, the Court excludes that this value can justify an indefinite compression of the rights of the private individual. Time, in its guarantee function, rises to an instrument of substantive justice, preventing public action from being prolonged sine die to the detriment of legitimate expectations.
With this in mind, even a relevant artistic asset, when already subjected to an evaluation by the administration and the subject of a favorable measure, cannot be subtracted from the ordinary rules governing self-protection. This approach does not debase cultural interest, but places its protection within a system that recognizes equal dignity to the rights of the citizen.
Finally, the Consulta’s pronouncement takes on broader significance, outlining a balance between the need for legality of administrative action, the efficiency of the procedure and the protection of individual rights. The annual limit is not an obstacle to legality, but a measure that, in fact, obliges the administration to exercise its powers in a timely manner, avoiding abuses or late reconsiderations that could harm the principle of trust. Legal certainty, according to the Court, is an essential component of the rule of law, and the stability of administrative acts is a constitutionally protected value.
With its ruling No. 88 of 2025, the Constitutional Court thus establishes a principle that is destined to become case law: the interest in the protection of cultural heritage, although of constitutional rank, does not require an exception to the one-year deadline for the ex officio annulment of illegitimate administrative acts.
|
|
| Cultural heritage and law: yes to one-year limit to nullify unlawful acts |
Warning: the translation into English of the original Italian article was created using automatic tools. We undertake to review all articles, but we do not guarantee the total absence of inaccuracies in the translation due to the program. You can find the original by clicking on the ITA button. If you find any mistake,please contact us.
