Defensive Administration

By Stefano Battini and Francesco Decarolis

A substantial part of administrative law (and of administrative criminal law) seeks to counter the risk of the public official intentionally or unintentionally taking decisions or conducts that aim to satisfy a particular interest in place of the collective interest. On the other hand, a different concern regards the risk of the public official refraining from taking decisions or conducts that may be useful to achieve the public interest, and, instead, taking other decisions or remaining inert for fear that individual losses may result from those choices. Regarding this phenomenon, known as defensive administration, this study presents two new types of evidence. The first, based on data on insurance plans for public officers’ responsibility offered on the Italian market, aims to demonstrate the very existence of this phenomenon, that is much discussed but remains somewhat elusive to detect. The second, combining data on the interventionism of the Court of Auditors with data on the timing of the call for tenders for public works, aims to quantify the effects of defensive administration in a key sector for the economy. Based on the empirical findings presented in the study, we discuss a number of regulatory interventions that may be useful to limit the problems generated by defensive behavior.