Motivi aggiunti e procura nella plenaria 1/2010

For the purpose of not reducing by half the terms of notification in 'sensitive' areas of the shortened trial, the Plenary meeting of the Council of State, with decision no. 5 of 2002, had made a passing reference to the explicit equalization of the main appeal and the only incidental appeal, implicitly but clearly rejecting the equalization of old/new additional grounds and main/incidental appeals. The Plenary meeting, with decision no. 1 of 2010, reversing its implicit obiter, specifies that the deadline for notification of new and, obiter, old additional grounds cannot be halved (but see articles no. 54, 129 and, above all, 130 of the draft of the administrative procedure code). Instead, the Plenary meeting does not take a position on the obiter of first instance whereby new additional grounds do not need autonomous power of attorney (but see art. no. 29 of the same draft). Finally, the Plenary meeting does not take any position on the obiter of first instance relating to the conferment of power of attorney which is to be stapled only in case of the last page of the judicial act being completely filled. On this point, which is not resolved in the draft, a decision by case law would have been appropriate to say the least, since formalistic case law is prevalent (but by no means uncontested) in administrative trial proceedings of first and second instance, which does not take into account the reasons why the legislature retroactively intervened in 1997 on art. no. 83 of the civil procedure code, disavowing the joint sitting of the divisions of the Court of cassation and leading case law to take a considerably different position, which has remained uncontested since 1998.