The decision of the Court of Milan stands out because the solution adopted results from the direct and immediate application of Article 40 of the Directive, which is therefore considered a self-executing provision. [This is because the rule seems to assign the competence to decide on the admissibility of the application to an entity other than those provided by Articles 3 and 4 of Legislative Decree 25/08, except in the specific cases outlined in Article 4, paragraph 2, letters a) and b) of Directive 32/2013].
The interpretation under review adopts the criterion of disapplication of the domestic rule as a solution to the conflict between this rule and European Union law, a necessary solution but limited to the individual case, according to the guidance of the Constitutional Court (judgment No. 389 of 1989).
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