Erronea decisione d'inammissibilità e rinvio al primo giudice per nullità della sentenza

The sentence in question returns to deal with the discipline on referral provided for in article 105 of the Code of Administrative Process, which had already been the subject of some decisions of the Plenary Session of the Council of State in 2018. Called to clarify whether, in the face of an erroneous sentence of inadmissibility, the appeal judge should refer the case back to the first judge, the Plenary Session of the Council of State has stated that the case should be referred back only if the erroneous sentences of inadmissibility are null and void due to an absolute lack of motivation. As partly stated by Sicilian Region Administrative Justice Council, the issue could have been differently framed as a violation of the right of defence, on the assumption that erroneous sentences of inadmissibility prevent the party from obtaining a ruling on the merits. From this perspective, all erroneous inadmissibility sentences –- not just null ones –– would lead to refer the case back to the court of first instance, so as to guarantee full compliance with the principle of double degree, which would, however, be violates if the decision on the merits were adopted in a single degree by the appeal judge.