Le nuove frontiere del sindacato del Giudice Amministrativo sulla c.d. discrezionalità tecnica, tra effettività della tutela e separazione dei poteri.

The object of the research is the study of the intensity of the trade union exercisable by the Administrative Judge on the decisions taken by the Public Administration based on technical-scientific evaluations, which - by their nature - involve the application of a rule specific to a given scientific sector, an operation at the end of which the Administration determines the content of its own measure. More precisely, this work aims to investigate the complex intersection between the potestas iudicandi of the Administrative Judge and the application of the so-called "technical discretion" when administrative decisions are inherently linked to judgments involving a qualitative assessment of facts, to which the norm attributing the power connects certain consequences that the Administration may or must translate into regulatory effects. This theme, that of the extension of the Administrative Judge's oversight on the measures of the P.A. expression of the so-called technical discretion, is of great relevance, not only due to the expansion of technology in the structure of legal relations and the consequent progressive technification of the system, but also in light of the assertion, now coming from multiple sources, that the Administrative Judge currently has full access to the fact even in the context of general jurisdiction of legitimacy and that, by virtue of this, the coordinates of the system seem to have changed compared to the traditional limitation of its oversight on discretion to only the logical and legal process leading to the formulation of the evaluative judgment of the Administration, inherently not subject to review. The reflection on the theme of the latitude and consistency of judicial oversight of legitimacy on administrative decisions expressing technical discretion has been carried out by dedicating, preferentially, to a reconnaissance investigation of the state of case law in the field and exploring certain macro-sectors in which the interaction between the Administrative Judge and technical discretion is particularly pronounced. Starting, therefore, from the examination of the most recent administrative case law, this work has sought to understand how the Administrative Judge currently deals with administrative decisions involving the exercise of technical discretion, deepening procedural dynamics, challenges, and legal considerations connected to this interaction and highlighting the practical and theoretical implications that derive from it. And it is precisely through this path that we have sought to demonstrate how the concrete modalities of oversight exercised by the Administrative Judge on measures based on the exercise, by the Administration, of technical discretion, albeit with a variable intensity from sector to sector, constitute, in substance, the - likewise variable - outcome of a constant tension in the search for a difficult balance between respect for the technical-scientific specialization inherent in the Administration called upon to adopt the measure based on the exercise of technical discretion and the guarantee of full and effective judicial protection of the recipient of the measure itself, consistently with the idea that the guarantee of substantive positions cannot be limited to mere access to a Judge and to a procedure regulated by law, but must - instead - imply also the possibility of obtaining measures of protection adequate and homogeneous to the need for protection of those who act.