With Decree Law No. 19 of 19 February 2026, published in Official Gazette No. 41 of 19 February 2026 and entered into force on 20 February 2026, the legislator – as part of the acceleration measures related to the implementation of the PNRR – intervened, among other things, on the regulation of extraordinary appeals referred to in Presidential Decree No. 1199 of 24 November 1971. The decree is currently being converted into law and the text may therefore undergo changes during the parliamentary process.
1. The changes introduced
Formally, the regulatory intervention appears to be a limited and specific amendment. In reality, however, the systematic scope of the reform seems to be anything but marginal. The decree eliminates all references to 'extraordinary appeal to the President of the Republic', replacing it with the more concise expression 'extraordinary appeal', and assigns decision-making power to the President of the Council of State, who adopts the final decree in accordance with the opinion of the Advisory Section of the Council of State itself (to which the previous reform of 2009 had already attributed binding force, effecting the so-called 'shift towards a judicialised nature' of the remedy). The final decision on the appeal is therefore also formally removed from the President of the Republic. However, the other characteristics of this institution remain unchanged, namely the time limits for filing (120 days), the principle of alternativeness with respect to judicial appeal to the Regional Administrative Court, the possibility of opposition with consequent transposition to the courts, the ministerial investigation and the revocation regime. The stated legislative intent is to simplify and speed up the procedure, in line with the overall structure of the PNRR decree. However, while it is true that the procedural structure remains unchanged, the regulatory choice shifts the centre of gravity of the institution to the highest administrative court.
2. The nature of the extraordinary appeal: an evolutionary process
Over the last fifteen years, the extraordinary appeal has undergone a process of gradual transformation. Starting with the 2009 reform (Law No. 69/2009), which made the opinion of the Council of State binding, the extraordinary appeal has gradually lost the typical features of a 'high administration' administrative measure and has moved closer and closer to the logic of judicial redress. The Code of Administrative Procedure then consolidated this trajectory, allowing recourse to enforcement in the event of non-compliance by the public administration with the decision of the extraordinary appeal and linking the admissibility of the remedy solely to disputes referred to the administrative jurisdiction. Case law has accompanied – and in part guided – this evolutionary process, though not always with consistent emphasis.
The Joint Divisions of the Court of Cassation (among others, Cass., SS.UU., no. 2065/2011; No. 23464/2012; No. 10414/2014) have emphasised the essentially jurisdictional nature of the decision-making decree, recognising its appealability on grounds of jurisdiction and emphasising its effect, which is comparable to that of a final judgment. The Constitutional Court has taken a more cautious approach (judgments no. 73/2014; no. 24/2018; No. 13/2020; No. 63/2023) and the Plenary Assembly of the Council of State (Nos. 11/2024 and 12/2024), which qualified the institution as a judicial remedy: that is, an alternative means of legal protection to litigation, with effects similar to a judicial decision, but not fully coinciding with the exercise of jurisdiction in the strict sense, also due to the procedural structure and the absence of some of the guarantees typical of proceedings before the Regional Administrative Court, such as public hearings.
3. The systematic meaning of Decree Law 19/2026
In this evolving context, Decree Law 19/2026 further shifts the focus towards the 'shift towards a judicialised nature' of the remedy. The decision is no longer formally attributed to a constitutional body outside the administrative justice system, but to the President of the Council of State, i.e. the head of the administrative court. The centre of gravity of the institution is thus (even more) firmly placed within the judicial sphere, making it even more evident that the extraordinary appeal operates, in fact, as an alternative form of single-tier adjudication, with the waiver of the two-instance system. It remains significant, however, that even in the parliamentary dossier relating to the conversion of the decree into law, the institution continues to be defined as a 'judicial remedy', a sign that the legislator – at least in lexical terms – did not intend to expressly transform it into a single-instance administrative court. Furthermore, the procedural structure remains unchanged, continuing to distinguish the remedy from the trial in the strict sense, in particular – as mentioned – in terms of the adversarial nature of the proceedings and the absence of a public hearing for discussion.
4. Conclusions
Decree Law 19/2026 does not change the substantive rules governing extraordinary appeals, but redefines their institutional scope. Whether this represents the completion of a process of progressive 'shift towards a judicialised nature' or whether the category of (administrative) 'judicial remedy' will continue to constitute an autonomous space with respect to jurisdiction in the strict sense will be clarified by case law in the coming years. Pending its conversion into law and its first applications, it can nevertheless be observed that the intervention marks a significant step in the evolution of one of the most distinctive institutions of the administrative protection system.
***
The authors of this note are Massimo Colicchia and Alessandro Castellini.
For further information or clarification on the topics covered in this article, please contact Massimo Colicchia
Todarello & Partners provides legal assistance on all issues related to the topics covered in this article. The firm's solicitors have significant experience in this area, regularly assisting some of the major operators active in the market and representing them in court before all competent jurisdictions.
