Atti vincolati, vizi procedurali e giudicato amministrativo

The aim of this paper is to analyse the consequences of res judicata that arise from the judicial application of the rule laid down by art. 21-octies, par. 2, first sentence, L. 7 August 1990, n. 241. In particular, the paper seeks to understand whether the judicial scrutiny pursuant to said provision is carried out ‘principally’, and thus is included within the res judicata, or, on the contrary, ‘incidenter tantum’, i.e. only for the purpose of resolving the applicant’s claim (without being included within the res judicata). The solution to the proposed theoretical question allows to resolve two important practical issues: the possibility to exercise the administrative power of ex officio annulment in case of rejection of the applicant’s claim, and the impact of factual and legal ‘contingencies’, in case of upholding of the applicant’s claim.