Lawyers

Bar exam, rejection in the written exam must be justified

For the Lombardy Regional Administrative Court, the judgement can no longer be expressed only in figures. The decrease in the number of candidates and the reduction of the tests weigh heavily

by Giovanni Negri

24 April 2025

lawyer --- 08/08/2017 - ILSOLE24ORE - QUOTIDIANO - 3 (fotina 1)

3' min read

Key points

The reform
No motivation in 2023
Previous intervention
The need for an afterthought
Reduction of candidates.
One test

3' min read

Therejection in the written forensic examination must be justified. The numerical assessment alone is now to be considered insufficient in light of the new physiognomy assumed by the test, a single written paper, and the significant reduction in the number of candidates. This was affirmed by the Lombardy Regional Administrative Court (TAR) in its sentence no. 1400 of 18 April, which upheld the appeal of a candidate excluded from the oral test for the forensic qualification in the session two years ago: she had in fact been awarded a mark of 14/30, but without any further justification.

The reform

Law 247/2012, recalls the Regional Administrative Court, reforming the legal system, also revisedthe discipline of the bar exam. Article 46 attributes to the board a specific motivational duty, revising the previous regulatory structure and establishing that it must note "the positive or negative observations on the various points of each paper, which constitute justification for the vote that is expressed with a number equal to the sum of the votes expressed by the individual components". Certainly an important novelty that has, however, been the subject of continuous referrals, including the 2023 session.

No motivation in 2023

The latter is based on Article 4c of Decree-Law 51/2023, which provides for a single written test (in addition to an oral examination in the event of passing the first), for the evaluation of which each of the three members of the sub-committee had ten merit points, without a motivational obligation being specified.

The previous intervention

In 2017, the Council of State (Judgment No. 7) ruled on the issue of exclusively numerical justification of the judgement, considering the choice not unreasonable given the legislator's wide discretion on the point and the absence of distorting effects in terms of protection. In line with the concurring orientation of administrative jurisprudence, the ability and suitability of the numerical vote, attributed on the basis of predetermined criteria, to express and summarise the judgement without the need for further explanations and clarifications was reaffirmed, given that the transparency of the judgement is in any case guaranteed.

The need for a rethink

Now, however, the Lombardy Regional Administrative Court emphasises that 'reiterated deferrals of the entry into force of a certain regulatory discipline appear in themselves constitutionally suspect, especially if one considers that, as time passes, the reasons, usually linked to the need to prepare an implementing discipline, that suggest postponing the effectiveness of a legislative reform can be mitigated'.

The reduction of candidates

In the case of the forensic qualification examinations, the Regional Administrative Court further observes, the 2012 legislature certainly assessed, in providing for the postponement, the impact on the good performance of the administration that the duty to state reasons would have produced, at a time still characterised by a large number of candidates for the forensic qualification examinations. An influx that by now, however, has considerably diminished, given that, the ruling states, if in 2016 there were 27,451 candidates, in 2023 under examination have decreased to 9,703.

One proof

It should also be borne in mind that the written tests have long since gone from three to one, in the wake of an emergency regulation that was then confirmed over time. And so the numerical-only judgement, justified by the balance between the principle of transparency and that of good administrative action, no longer has, the Court concluded, a reasonable basis, "due both to the choice expressed by the legislator for a motivation no longer entrusted only to a score, and to the recalled change in the factual situation. In the Court's opinion, the hermeneutic option that allows the legislative extension rules to be brought back to reasonableness is the one that highlights the topicality of the obligation to provide enhanced motivation of the examination papers".