Issue no. 1 - 2019 January / March

What remains of the public administration?


What Remains of the Public Administration

On the subject of the public administration, many critical voices have been levelled. Some express the impatience of those who hold political power and expect the administration to be the faithful and mechanical executor of their will; others are more concerned with the effective capacity of the administration to carry out its tasks; others still react to the excessive weight of rules and controls. Against this background, many factors give rise to crisis: some originate externally from the administrations, and the rest from within the same administrative body. On the whole, they cause a significant nar- rowing of the perimeter of action of public administrations, which is in turn the result of a more general tendency to consider administrative law as a field that is dominated by only two tensions: the tension between the law and the administration, and that between the judiciary and the administration.

Politics and Administration: «The Italian Style»

This article focuses on a crucial issue for understanding the vices and virtues of the Italian public sector: the relationship between politics and the public administration, especially in the case of the administration of the central State. The author analyses the reasons for and effects of two significant phenomena that illustrate how in Italy, politics and the public administration are not separate: the legislative «overflow» by the Parliament and the Government, which affects and limits the power of administration, and the evolution of the public management. The article also provides an account of two instances of administrative reform of the public management, one suc- cessful and one unsuccessful. Last, the author presents the main problematic issues relating to the relationship between politics and the administration, as well as possible remedies for the short and the long term.

How the Activities of the Court of Auditors Affect Public Administrations

The activities of the Court of Auditors can pervade the daily actions of public administrations, especially at the functional level. This essay examines how, with regard to the main categories of activity carried out by the Court (checks, accounting agents and ascertainment of administrative responsibility), the administrations are conditioned in many aspects of their action, including on the basis of conditioned reflexes or — more or less founded — fear. This analysis takes into account the enormous complexity of the regulatory framework governing controls on public administrations and malfunctions that arise also due to the overlapping of tasks and roles. The persistent crisis of public finances exacerbates such a situation. However, at the territorial level, where the Court’s activities cannot have the same pervasiveness that they reach at central level, inopportune uses of public resources are more frequent and widespread.

The Prevention of Corruption and the Illusion of a Spotless Administration

The paper critically analyses the current Italian system for prevention of corruption, to evaluate its impact on the improvement of administrative action. The emphasis on purity and ethics, together with the introduction of rules and regulations intended to guarantee the absence of corruption, conflicts of interest or external pressures, ends up exacerbating the structural and organizational causes that foster the malfunctioning of the administration. Corruption, however, is not the only cause of the current crisis in administration. Measures that are too strict or numerous may, in practice, undermine the constitutional provisions that, in affirming the principles of impartiality and good performance, aspire to provide a democratic administration that is capable of making choices and adopting complex decisions.

The Public Administration, Lost in the Labyrinth of Criminal Justice

This analysis focuses on the mutual interferences between criminal judgments and administrative discretion, starting from judicial cases, their ratio decidendi and their circulation in case law. Specifically, the analysis considers the cases in which the administrative decision is a precondition for punishment; those in which, on the contrary, the administrative decision legitimizes conduct that would otherwise attract criminal liability; and, finally, those in which the circumstances giving rise to the crime constitute the specific conduct put in place by the civil servant in the exercise of his official duty. The survey reveals inconsistency, instability and segmentation in the guidelines provided by the case law. This suggests that criminal justice ends up being a tool for dispersing the proper sense of the administrative function. This risk is intensified by the capacity of criminal courts to influence the choice of public interests and the quality of administrative discretion, as is often the case. However, the analysis also notes the presence of a different judicial approach: one that is keenly aware of the need to balance criminal policy and administrative action.

The Difficult Cohabitation between Criminal Action and the Administrative Function

What effects does criminal prosecution have on the exercise of the administrative function? How do judgements delivered by criminal law courts and administrative decisions interact? This essay examines the issue of the interplay between criminal law judgments and the administrative function in two sectors — territorial governance and environmental protection — in which this intersection occurs with greater frequency and, at the same time, leads to consequences that affect constitutionally relevant values. Based on an empirical analysis of data and emblematic cases, the authors identify the various forms that the relationship between criminal prosecution and administrative function may take and the problems that emerge from this relation- ship in terms of the stability of administrative decisions, the legal certainty that citizens may enjoy vis-à-vis public powers, and protection of constitutionally relevant values. The essay concludes by arguing in favour of a renewed balance between public powers and the identification of forms of connection between them.

The Administrative Judge and the Public Administration: Control, Guidance, Interference

The Italian administrative judge has full jurisdiction on administrative action. This full jurisdiction is crucial in guaranteeing citizens’ rights, limiting arbitrary action and enhancing accountability. Many different conflicts, often highly significant, are considered and discussed by the administrative judges. These conflicts originate mainly in the growing normative chaos and in the weakness of Italian public administration. Italian public administration does not possess sufficient resources and utilizes old and antiquated instruments. The legal regimes governing liability and accountability are badly structured, such that inertia and passivity become preferable to action and proactivity. The Italian administrative judge often goes beyond the traditional boundaries of judicial review, assuming a role of guide and substitute toward the public administration. The risk is, therefore, of enhancing rather than reducing uncertainty and fragmentation.

The Labour Judge who «Ranks Against»

The settlement of disputes in public employment has been entrusted to ordinary judges for twenty years now. The change from a specialized judge to an ordinary judge produced significant impacts on the management of disputes, without, however, appearing to yield satisfactory results. If labour law proceedings are traditionally designed to protect the employee, who represents the weak party in the labour relations, when the employer is the public administration, there may be overprotection of the interests of civil servants. In addition, labour judges lack knowledge of the public administration’s systems and its functioning, and may therefore take decisions that are not correctly balanced or that could affect the administration’s prerogatives. These distortions may produce negative effects on both procedural and substantive aspects, as well as on the management of relations with trade unions.

Rights and Protections of Trade Unions in the Public Sector

The fourth reform of the public employment sector (the so-called Madia reform) is the latest of a series of efforts to reform public employment in over twenty years. The reform marks a partial reversal of the aim pursued by that of 2009 by restoring the role of collective bargaining, that had been eroded in 2009. This is why the last reform was overall welcomed. However, if it is considered in conjunction with the recent collective agreements in the public sector, it has a less positive outcome than may appear at a first glance. Indeed, collective bargaining ends up playing a highly significant role, even more than intended in legislation. The result is to diminish the role of the administration as an employer, returning to a shared management of many aspects of the employment relationship and slowing down the efficiency of the administration.

What is Left of the Public Administration: Public Employees between Old and New Recruitment Procedures

The quality of human capital in the public sector is a part of the ability to ensure achievement of the results for which the public administration was established. This essay analyses the current situation of Italian public employees, starting from some numerical data. Second, it investigates some consequences on administrative action arising from the conditions of public employees. Particular emphasis is placed on the predominance, within the administration, of a «pseudo-legal-administrative» culture. Finally, this study questions how the most recent reform of the recruitment procedure for the public sector contributes to shaping trends in public administration.

What Remains of the Technical Structures in the Italian Public Administration?

Does a strong technical structure still exist in the Italian public administration? Is it a threat to democracy, in line with the idea that a small number of bureaucrats take decisions in exclusive circles, especially international ones, despite the will of the People? Is it, rather, an opportunity or an anchor without which the State may be overwhelmed in light of multiple and complex events? This article illustrates that, in ministries and independent authorities, there exist technical structures, such as the Department of the Treasury and the State General Accounting Department, which have successfully resolved complex problems (for instance, the resolution of the banking crisis, the sustainability of the public debt, the stability of public finances). However, at the same time, the analysis discusses other cases in which technical ministries were deprived of professional skills, such as the Ministry of Infrastructure and Transport, or in which independent authorities were not fully able to perform their functions during the economic and financial crisis (such as the Italian Competition Authority and its antitrust functions). The article argues that, because of the complexity of the problems inherent in contemporary democracies, technical administrative structures are essential and must be protected. Any attempt to remove their autonomy and prerogatives to reaffirm the primacy of the politics on technical knowledge should be seen as a mistake.

Defensive Administration

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.

Book Review

pp 321-337

GUIDO MELIS: Giovanna PROCACCI, Nicola LABANCA e Federico GODDI (a cura di), La guerra e lo Stato. 1914-1918, Milano, Unicopli, 2018, 470 p., ISBN: 9788840020129.

GUIDO MELIS: Stefano MANGULLO, La Repubblica dei territori. Ludovico Camangi dall’ascesa del fascismo al centro-sinistra, prefazione di Carlo Scibilia, Milano, Edi- zioni Unicopli, 2018, 320 p., ISBN: 9788840019796.

MARTA CARTABIA: Lorenzo CASINI, Potere Globale. Regole e decisioni oltre gli Stati, Bologna, il Mulino, 2018, 151 p., ISBN: 9788815275196.

RITA PEREZ: Andrea MONORCHIO e Lorenzo MOTTURA, Compendio di contabilità di Stato7, Bari, Cacucci, 2018, 556 p., ISBN: 9788866117230.

GIORGIO MOCAVINI: Andrew HARDING e Khin Khin OO (a cura di), Constitutionalism and Legal Change in Myanmar, Londra, Hart Publishing, 2017, 266 p., ISBN: 9781849467902.

Brief Reviews

pp 337-346

by Guido Melis, Rita Perez, Federico Spanicciati

Books Received

pp 363

About the authors

pp 365-368

Instructions for authors

pp 379