Fascicolo n. 1 - 2012 gennaio / marzo

The concept of the “imperativeness” of administrative acts has been of great importance for the development of the scholarship on Italian administrative law of the 20th century. The concept’s ambiguous nature enabled it to perform various different roles and to adapt to the evolution of administrative law. Its importance arises, firstly, in the context of the legal effects of administrative acts: indeed, it has been used to describe or highlight certain features of these acts that are not peculiar to administrative acts alone, but, rather, common to all unilateral acts, including those concluded within private law. Secondly, it informs the general understanding of the relations between citizens and public administrations: here, it first reflected the notion of administrations’ supremacy, but was later influenced by principles of democracy and legal protection of individual rights. Thirdly, imperativeness has been interpreted as a quality typical to all public law acts, common to administrative acts and to those issued by the other branches of government, such as statutes and judicial decisions. Finally, it has been used to distinguish between administrative and private acts, and therefore to distinguish between public law and private law and between the respective competences of ordinary and administrative courts. The present essay analyzes this variety in definition and role of the concept of imperativeness of administrative acts, while also addressing some fundamental issues of Italian administrative law and its evolution. This evolution eventually contributed to the decline of the imperativeness concept by revealing its underlying deceptiveness and the simplifications which it entailed. The concept was once important for the study of administrative law, but is now a burden that still gives rise to misunderstandings in the theory of administrative powers and acts.

The principle of separation between policy tasks — entrusted to politics — and managerial functions — assigned to the public administration — was introduced in the Italian administrative system in 1993. Eighteen years later, it appears appropriate to take stock. The original meaning of the principle, as conceived in 1993, was later abandoned by the legislature, as relationships of trust between the minister and public managers developed. More recently, the Constitutional Court declared the unconstitutionality several statutes that provided for the introduction of spoils system mechanisms, thereby partly restoring the authentic purpose of the principle. However, important issues have yet to be addressed, such as the means of identification of the top managerial positions to which spoils system mechanisms can be constitutionally applied, and the possibility of dismissing top managers upon expiry of their mandate, without observing principles of due process and the duty to give reasons. This article illustrates the evolution of the system, critically reviews its recent developments and offers some suggestions as to its interpretation.

The 2008 financial crisis cast doubt on the fundamental assumptions and theories, developed over the last two decades, advocating the retreat of the State and the rise of markets’ dominance over governments. The crisis forced governments to nationalize banks, financial institutions, and other strategic companies. Policies of deregulation nderwent serious attacks and regulatory reforms became a policy agenda priority. The 2010 sovereign debt crisis suddenly reversed these trends. Extraordinary taxation measures and public expenditure cuts were adopted. Safety nets were established, at international and European levels. The doubly shocking experience of the financial market failure and of the sovereign debt crisis led governments “into the storm”. To resolve these crises, governments must implement exceptional mutations in both external and internal frontiers of government, mutations which challenge many fundamental assumptions of public law.

This article analyzes the development of a new type of accountability mechanism that is proliferating in the field of development finance. Organizations operating in this sector have started to adopt social and environmental policies and procedures seeking to address the local impact of financed projects. Several of these organizations have also established Independent Accountability Mechanisms, modeled on the World Bank Inspection Panel, and that have the power to conduct investigations on specific projects to assess policy compliance. These mechanisms receive complaints from individuals adversely affected by projects, thus constituting a new avenue for third parties to gain redress. The mechanisms’ main weakness, however, consists in their lack of coercive powers and their vulnerability to external interference. To a certain extent, these mechanisms further administrative law principles such as the right to participate in administrative decisions, transparency, duty to give reasons and proportionality. However, when compared to other systems of review of administrative action, it is clear that they do not amount to fully-fledged judicial remedies, but rather comprise a mix of various functions: dispute settlement (problem-solving), quasi-judicial review of the organization’s activity (compliance review), and a “consultative” function within the organization. However, despite their intrinsic limitations, over the years these mechanisms have evolved, at times succeeding in overcoming some of their original weaknesses, and thus becoming an interesting model for administrative bodies also at national and European levels.

This paper proposes a comparative inquiry on the differences and similarities between two bodies of administrative law: the administrative law of the Roman Catholic Church — an institution that combines elements typical of legal-rational authorities with a number of charismatic and traditional features — and the administrative laws of those States and regulatory systems beyond the State that are mainly legal-rational in nature. The comparison between canon administrative law and the administrative laws of mainly legal-rational regimes is developed by considering four interconnected aspects: i) their processes of emergence and development; ii) their constitutive “materials”; iii) their position within the legal order; and iv) their overall explanatory paradigms. The inquiry reveals that canon administrative law is based on a complex combination of religious and state elements, that gives rise to an unstable regulatory framework in which several internal tensions are intertwined. On a more general level, the comparative inquiry sheds some light on the links between the features of administrative law and the types of power (legal-rational power, charismatic power and traditional power) that administrative law serves and regulates.

This essay focuses on a concrete evaluation of Italian public procurement legal rules to highlight the main risks of corruption they may entail. First, the institutional and legal framework is analyzed with regard to both national and international debates on corruption in public procurement. A close examination of a number of preventive solutions is also provided. Second, the main risks of corruption related to certain legal principles and norms of the Italian Code on public contracts (subcontracts, variances in public works, regularity of the qualification process and so on), considered by courts and by the National Authority for Public Procurement, are analyzed. Third, a short examination of certain practices and background elements of the national market for public contracts (secret public procurement contracts, urgent ordinances, outsourcing of services) which increase the risk of corruption in public procurement is given. Finally, the corruptive relationship between distortions of competitive bidding and the degree of inter-firm collusion is evaluated.