Lecture 16

Question 1

Public Administration (characteristics, actualization, dualist nature)

Answer 1

• The Public Administration is a vital part of the executive power: “bureaucratic machine” needed to enforce the law, with the Ministries at its top (connection with the Government/political power)
• The administrative act regulates a specific situation in an actual case
• The Public Administration applies the law in actual cases (e.g.: police, universities, public schools, “motorizzazione”, public hospital, etc.)
• Characterized by:
  1. realization of public interests in the concrete: if the Legislative regulates matters in an abstract way (ex. right to education), the Administration translates it into concrete action, making possible the realization of this right by everyone
  2. discretionary power: intended as the capability of the Administrative to choose the means of realization among various options, yet always within the binding obligation of pursuing the public interest and actualization of the Legislative
  3. spontaneous action: the Administrative can act spontaneously within the spectrum of cases established by law (except in cases requested by public or private subjects)

Dualist nature of the Administrative:
1. Administration= intended as the public apparatus subject to specific public laws and regulations that rule its employment, expenditure and so on
2. Administration= intendend as administrative action for the actualization of abstract principles, accordingly to its duties and responsabilities

Instance:
private hospital is not a public apparatus, thus not subjected to Administrative Law, though it is duty of the Administrative to supervise the healthcare it provides, as safeguarding of the right to health

Question 2

Public Administration: fundamental principles

Answer 2

“Public offices are organised according to the provisions of law, so as to ensure the efficiency and impartiality of administration” (article 97 par. 1 Cost.)

• Legality: public administration must be organized and must exercise its powers according to the law– both primary and secondary law (in case of inconsistency the former prevails) (“Rule of Law”)
• Impartiality: the public administration must exercise its authoritative powers only in pursue of the public interest. It must ponder all the public interests at stake in a fair way, avoiding unreasonable discriminations and political-party/private lobbying influences– for that civil servants and elected bodies, vested with interests, are prevented from taking part in the choice of what interests to sacrifice
• Transparency: the public administration must act in an open and accountable way
• Sound administration: the public administration must operate efficiently (in the most efficient possible way)
• Shall ensure balanced budget and debt’s sustainability: in using public financial resources and goods (art. 81 Cost.)
• Responsibility: the public administration and civil servants are responsible, together with the State, for their activity (the way in which they exercise their powers)
• Civil servants: citizens that work in the Public Administration (e.g.: public school teachers; police officers; Ministries’ staff; etc.)
  1. Civil servants must perform their activity exclusively “in the interest of the Nation” (according to the impartiality principle)
  2. General rule: employment in the public administration is accessed through competitive examinations, except in the cases established by law (article 97 par. 3 Cost.)

Question 3

Public Administration: discretional powers

Answer 3

When the Public Administration exercises its authoritative powers, it might have to ponder (take into account) different (or even competing) public/private interests

• “Political discretion”: the PA enjoys a margin of appreciation in evaluating public interests (e.g.: regulatory plans; permits; licenses; etc.)
• “Technical discretion”: the PA enjoys a margin of appreciation based on technical evaluations (e.g.:
  evaluation of candidates in a public selection)
• “No discretion” (e.g.: execution of judicial decisions; communications; etc.)

Question 4

Public Administration: Rights (“diritti soggettivi) VS. Legitimate Interests (“interessi legittimi”)

Answer 4

• When the PA exercises its authoritative powers in pursue of the public interests, the individual is not vested with a “right” that can be fully enforced (as it would be the case in private relationships), as generally speaking PA’s will, pursuing public interests, wins over the particular interest– yet “legitimate expectation” indicates the capability of and individual of being judicially protected from administrative action
• The PA may legally compress a right (e.g.: expropriation; demolition) - “Oppositive legitimate interest”
• The PA may legally choose not to grant a right (e.g.: driving license’s exam; edification permit) “Pretensive legitimate interest”
• When the PA legitimately exercises its authoritative powers, the individual is vested with a qualified (legitimate) interest (expectation): the interest that the activity performed and the measures adopted by the PA are fair, impartial and lawful (adopted according to the law)– in the contrary case, the individual can address to the Council of State and other administrative courts for the safeguarding of its legitimate expectations before public administration
• Appeals to the Court of Cassation in cases of infringement are always allowed against decisions and measures affecting personal freedom pronounced by ordinary and special courts
• Law on the administrative procedure: law no. 241/1990
• Individuals (and the judiciary) must be able to verify how and why the PA took a decision

Question 5

Public Administration: the Administrative Procedure

Answer 5

• Historical evolution: from an unbalanced model (in which the citizen was subject to the PA’s powers) to an equal model (in which the citizen can interact with the PA)
• Right to participate in the administrative procedure
• Certain time-frame for the conclusion of the administrative procedure
• Right to challenge the PA’s decisions before the administrative Courts (“TAR”)

1. Initiative (“Fase dell’iniziativa”)
   - By private/public request or Ex officio (coming from the PA itself)
   - Identification of the administrative body responsible for the procedure
   - Notification to individuals involved
2. Fact-finding (“Fase istruttoria”)
   - Acquisition of all the elements of fact and of law and factual premises to inform the Administration of the interests involved
   - “Conferenza di servizi” (meetings with different public officials for the joint acquisition of advices, nulla osta, … by different offices)
   - Right to participate of individuals involved
3. Decision (“Fase decisoria”)
   - Adoption of the administrative act/decision by pondering all the public interests involved according to the law
   - Must be preceded by a communication to the individuals involved
4. Effectiveness (“Fase integrativa dell’efficacia”)
   - Publication / Notification– to inform all the parties involved
   - The individuals involved must be informed about the possibility to challenge the decision before the judiciary (and of the relevant time-frame)

Question 6

Public Administration: the Administrative Act (“provvedimento amministrativo”)– definition and characteristics

Answer 6

the act that concludes an administrative procedure, through which the PA exercises its power. Provvedimenti amministrativi alter and modify external situations affecting one or more private subjects and creating new rights and obligations.

• Typical (“tipizzato”): the public administration cannot adopt measures/acts that are not expressly envisioned by the law
• Unilateral: the administrative act does not require the consent of the individual/s involved– the pursuing of public interest has precedence; individual can but reach and understanding with the Administration (compromise)
• Authoritative: modifies the legal and material situation of the individual involved (see favourable/unfavourable)
• Effective (“efficace”) (has direct effects) and Enforceable (“esecutivo”) (can be directly executed by the public authority)– all because they pursue public interest; it does not need a judicial decision
• Favorable / Unfavorable: for the legal and material situation of the individual/s involved– favourable: the person enriches its position (receiving licenses, access to public resources, …); unfavourable: the person sees its rights being suppressed, modified, limited
• General (the effects involve a potentially undefined group of individuals) or Individual (the effects affect specific identifiable individual/s)

Question 7

Public Administration: the Administrative Act– elements

Answer 7

A “provvedimento amministrativo” is formed by essential and non-essential elements:
- failure to meet the essential requisites= annulment/non-existance
- failure to meet the non-essential requisites= invalidity

• Subject: the competent PA which is vested by the law with the power to adopt the administrative act/measure– it can be either:
• monocratic power (ex. city mayor)
• collegial body (metropolitan city council); under such circumstance there are further regulations that rule the way decisions must be taken– if they are not applied= invalidity
• Object: the legal and material situation on which the administrative act/measure intervenes
• Content: the heading; the motivation (reasons of law and of merits); the provision; the date and place; the signature– generally it is the what the act provides for
• Cause: the specific and legitimate public interest for the fulfillment of which the act/measure has been envisioned by the law– the concrete pursuing of law
• Form: the exterior appearance of the administrative act/measure (e.g.: written, electronic, oral, graphic, gesture, etc.) as prescribed by the law

The following are non-essential elements:

• Term (“termine”): the certain date from which or until which the administrative act/measure is effective in the legal system
• Condition (“condizione”): the future and uncertain circumstance/s under which the measure will start or stop to be effective in the legal system
• Mode (“modo”): determines certain behaviours or responsabilities required to the receiver of the measure so its effects can be produced

Question 8

Public Administration: Illegality

Answer 8

• Non-existent: in case of an administrative measure which is so heavily flawed that it is impossible to be qualified and identified by law
• Null and Void (“Nullità”): the act lacks one of its essential elements (e.g.: motivation; object, etc.); or there is an absolute lack of powers of the PA– nullity cannot be amended
• Voidable (“Annullabilità”)– can be amended and typically refers to a general sencation for invalidity of a measure
  1. Incompetence: relative lack of powers (of the specific authority within the PA)– the PA that created the measure was not competent in the field the measure belongs to
  2. Infringement of Law: any conflict or incompatibility of the administrative act with national laws or EU laws (legality principle)
  3. Abuse of discretionary power (“eccesso di potere”): the PA’s powers were used for a “cause” that diverges from the one set by the law (“symptoms”: contradiction in the motivation; unfairness: discrimination; inequity / severe and evident injustice; alteration or erroneous reconstruction of facts)
• Irregular (“Sanabile”): it is evident that the act could not have been other than the one adopted

Question 9

Public Administration: the Administrative Acts– remedies

Answer 9

Possible Remedies at the individual’s disposal against an administrative act/measure

• Removal (“Autotutela”): the act is revoked by the same PA that adopted it (the PA must clearly motivate with regard to the public interest that justifies the removal of the act)
• Hierarchical review (“Annullamento gerarchico”): by a higher administrative authority, or directly by the Head of State (President of the Republic)
• Judicial review: by the administrative judge (“TAR”), that has the power to annul an illegal act

Question 10

Public Administration: Independent Authorities

Answer 10

• Not directly envisioned by the Constitution
• Break away from the principle of division of powers envisioned by the Constitution as they basically have legislative, administrative and quasi-judicial powers all in one
• Independent (from the constitutional powers) Public Administrations with the task of protecting a specific constitutionally relevant interest (e.g.: privacy; antitrust; communications; etc.)
• Composition reflects their independency and impartiality (e.g.: Presidents of the Houses)
• Consultive, control, regulatory, sanctionator functionts

Authorities:
1. Authorities empowered to protect constitutional interests: the Bank of Italy– against them the Governmment has no power of direction
2. Authorities for the protection of constitutional rights: Commissions regulating striked in essential public services
3. Authorities with economic regulatory powers: most of them are born in compliance with the process of liberalisation and privatisation of the economy regulated by EU laws on competititon– ARERA with competence in spheres concerning energy, evironment and networks

Question 11

Public Administration: Auxiliary Bodies– National Council of Economics and Labour (CNEL)

Answer 11

constitutional bodies that support (and control) the Government and the Public Administration in the exercise of their functions

National Council of Economics and Labour (CNEL) – 99 Cost.

• Consultive body for Parliament and Government on the matters of Economics and Labour
• 64 members : experts (selected by the PdR and PdCM) and representatives of economic categories and associations
• President: appointed by PdR, selected by PdCM
• Power of initiative in the ordinary legislative process

Question 12

Public Administration: Auxiliary Bodies– Council of State

Answer 12

• The highest Court of the administrative jurisdiction (jurisdictional sections, art. 103 Cost.)
• both a judicial and adiministrative advisory institution with jurisdiction all over administrative authorities
• Consultive body for the Government on legal and administrative matters (consultive sections, art. 100 par. 1 Cost.)– advices and consultations are mandatory but not binding
• Composition: ½ senior administrative judges (TAR); ¼ Full Professors of Law, lawyers (15 years), high civil servants, senior ordinary judges; ¼ public selection
• Expresses mandatory opinions when required by statutory laws (especially relevant on the legislative powers of the Government: regulations)

Question 13

Public Administration: Auxiliary Bodies– Court of Accounts/ Court of Auditors

Answer 13

• The highest Court of the public account jurisdiction (art. 103 Cost.)
• Composition: public selection; selection by the Government

Powers:
- Exercises a preventive control over the legitimacy of the Government’s acts (especially important for the Government’s legislative powers – regulations must be “registered”)– they check for the confirmity to law. If no inconsistency is found in the “a priori” review the acts come into effect; else (= conflict with higher sources of law or the budget) they are sent back explaining why. The government might insist for political reasons= the Court files the act “under condition”= full responsability of the Government
- Performs the ex-post auditing of the administration of the State’s budget– participates in auditing the financial management of entities receiving regular budgetary support from the State; it reports directly to the Houses