Events like the one reported by our reader (read Letter to Online Defense) are unfortunately very frequent in the practice of competitions.
From the strictly technical-legal point of view, the first datum to highlight is not very comforting: in terms of evaluations on the possession of psycho-attitudinal requisites, the amplitude recognized by the jurisprudence to the discretion of the public administration is such that it almost encroaches on 'will.
However, this does not mean that the person concerned finds himself in the practical impossibility of availing himself of any form of protection to guarantee his juridically relevant interests, but that the concrete possibilities of using them in a profitable way are limited to well-defined cases.
Let's see what cases it is, tackling the issue at its root.
The prerogatives of which the owner is the pa in these cases
A particular is involved in these cases species of the genus of the administrative discretions, the so-called technical discretion, which is resolved in the possibility of choice recognized to the public administration among more abstractly practicable solutions, on the assumption of the use of specialized tools and knowledge made available by the state of science.
Think, just to make the idea, to the case in which a contracting authority is located, when designing a public work or in any case of awarding the same (in particular, in the hypothesis of project financing), having to establish which of the design solutions proposed by the competing companies should be considered preferable.
In the hypothesis we are considering (the one as mentioned in the aptitudinal assessments foreseen in the context of a selective procedure) the tools and technical knowledge at stake will obviously be those typical of psychology and psychiatry.
The limitations to the judge's union in the event of technical discretion
Now, the administrative judgment is known (except in relation to certain strictly identified hypotheses) a judgment of only legitimacy, not extended to the merit (to the content of the decision and its opportunity), in which the judicial authority can unify the exercise of the administrative power only with regard to defects that result from the comparison between the concrete act adopted and the normative framework of reference, since the judge is not allowed to substitute himself for the exercise of the powers that are legally due to him.
In the cases of exercise of technical discretion, the defects in concrete fact and due to the effect the scope of the union on the provision by the judge is further limited and limited to the macroscopic vices only, ictu oculi perceptible, of the manifest unreasonableness, of the insufficiency of the motivation, of the contradictory and of the misrepresentation of the facts, all symptomatic of the excess of administrative power, in conformity with the art. 21-octies of the law n. 241 / 1990 and in compliance with the prerogatives recognized by the law to the proper sub specie of technical discretion.
The administrative jurisprudence has defined the aforementioned limits for a long time and in a consolidated way. See ex multis Cons. State, section IV, n. 3554 / 2004 and TAR Lazio - Rome, 18 April 2017, n. 4682, which significantly states that the "censurability of technical discretion must never lead to the replacement of the judge to the administration in making questionable assessments, but must consist in the control, ab externo, of the accuracy and correctness of the parameters of the science used in the judgment".
Specifically, the judge's union in the case of psycho-attitudinal investigations
Given these premises, as regards the judge's union in the case of psycho-attitudinal findings and its limits, it will be necessary to apply the aforementioned principles to the specific case.
A confirmation of this way of proceeding, with reference to a selection procedure similar to the one in question, can be obtained from Cons. State, section III, 5 March 2013, n. 1326, according to which "the assessment of the psycho-aptitudinal requisites necessary for the purposes of recruiting in the State Police constitutes a typical manifestation of technical discretion, with the consequence that it escapes the legitimacy of the Administrative Judge, unless it is not affected by a gross misrepresentation of the facts assumed subject to assessment or illogical of the latter and inconsistency of the related conclusions, it being understood that, from the point of view of the motivation, the technical discretion must be exercised so that the interested parties can understand on the basis of which elements the evaluations have been made and choices".
In practice, therefore, it will be possible to challenge the defects mentioned above, once carefully examined the documentation related to the single specific case and included in the so-called collector of psycho-aptitudinal tests, composed as a rule by the battery of the tests to which the candidate is submitted, by the evaluation form, by the report of the psychologist and by the final judgment.
For example:
- discrepancies and contradictions between the documents that make up the collector;
- aporias that undermine the evaluation of the official psychologist (but only if manifestly unreasonable, illogical, contradictory);
- hypothesis of insufficient motivation (for example, due to the fact that no precedents of service were taken into account);
- any other hypothesis of motivational incongruity, provided it is not questionable and manifest.
How specifically to previous service, the possible execution of previous assignments by the candidate in other Weapons or Police Forces can not automatically allow the passing of the aptitude tests with regard to separate qualifications (TAR Lazio - Rome, Section I bis, No. 9692 / 2017).
However, the proceeding administration is obliged to take these precedents into account in the explanatory statement"the theoretical judgment concerning the psycho-attitudinal assessments, precisely in relation to the exclusive prognostic function connoted by a large margin of uncertainty, involves and requires that the final determination considers and evaluates also the factual objective constituted by the possible precedents of service of the candidates"(TAR Lazio - Rome, Section I bis, No. 4231 / 2017).
The possibility of strictly formal and procedural disputes remains unaffected, concerning the violation by the public administration of the formalities prescribed and of the formalities established in the call for tenders and, more generally, by the law, starting from the already mentioned law n. 241 / 1990. Consider, for example, the hypothesis of illegitimacy linked to the erroneous composition of the examining commission, the undue presence of an alternate in the absence of a justified impediment of the holder, the failed or incorrect notification of the outcome of the test, and so on.
Any further and more specific consideration, obviously, will be possible considering the single concrete case.
The protection tools available
As for the instruments of protection available, we recommend the appeal to the competent TAR, what is possible within 60 days from the notification or in any case from the communication of the provision for exclusion from the competition.
At that time, it will be necessary to request the granting of the appropriate measures to preserve the juridically deserving interests of the applicant, starting with the precautionary measures intended to provide urgent protection to the same, also through admission with reserve, where possible , to the competition tests following the psycho-attitudinal tests.
Avv. Francesco Fameli
expert in military administrative law
