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Discriminazione algoritmica. Una prospettiva comparata


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Consiglio di Stato, Sez. V, 28 febbraio 2023, n. 2084

The Council of State clarifies that during the selection procedures for external lawyers, the Public Administration must verify that the price offered is respectful of the principle of fair remuneration (“equo compenso”), which can protect the legal profession from anti-competitive practices and ensure the quality of the service.

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Post author | 15 May 2023 | Not Yet in an issue

Cassazione Civile, Sezioni Unite, 1 febbraio 2023, n. 3077

With regard to environmental damage, the “polluter pays” EU law principle does not imply any obligation on the part of the owner who is not responsible for the polluting event to adopt emergency safety measures; the criteria for attributing liability cannot disregard the need to ascertain a causal link between the activity carried out by the subject and the polluting event.

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Post author | 13 April 2023 | Not Yet in an issue

E-Government and Digitalization

This is the introductory speech to the Round Table which outlines some of the aspects that have characterized the progress made by administrative justice with a view to tackling a new challenge: that of continuing to ensure a balanced relationship between private and public interests even in the presence of, on the one hand, extensive and significant transformations and, on the other, judicial instruments that are evolving towards hybrid forms, different from the original models.

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Spain's legislation on automated administrative action is among the most advanced in the world. Enacted in 2007, it has remained the same in the current Administrative Procedure Act of 2015. Currently, more than one third of the Spanish public sector uses these systems. Some problems of compliance with general administrative law remain, such as the right to correct applications, the right to present arguments in the face of a draft before a rejection decision is issued, or the motivation of automated decisions or the transparency of programming. But despite the fact that thousands of automated decisions are taken every day, judicial litigation in this area has so far been merely anecdotal. This paper describes the requirements established by Spanish law for the implementation of automated decision-making systems used by Public Administration: their express prior approval, the auditing of the system, the electronic signature of the decisions, etc.; and the critical aspects that still remain.

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Starting the analysis from the question about what role the Administration should have in the provision of digital services, the book theorizes a legal model aimed at overcoming the alternative between internalization and outsourcing, to allow for stronger collaboration between the public and private sectors in this sector as well.

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The volume investigates the interactions prompted by the effet utile of EU rules on the administrative trial, when a national administrative act of indirect administration or intertwined administration is involved

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Transparency and open access

In 2025, the obligation for Austrian public officials to maintain confidentiality about all facts of which they have obtained knowledge exclusively from their official activity, enshrined in Article 20 (3) of the Federal Constitutional Law (B-VG) and thus of constitutional status, will celebrate its centenary. Since 1987, flanked by an obligation to impart information pursuant to Article 20 (4) B-VG, it guarantees the protection of information acquired by the public administration when communicating with citizens. With a view to a transparent administration, several attempts have been made since the beginning of the millennium to replace official secrecy with freedom of information in order to achieve a “transparent state”. However, despite the high degree of digitalization of the Austrian public administration, the path to this goal remains still challenging.

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In the current emergency situation, national legislators attempt to manage the invariance in public procurements by means of analytical rules of mechanical application. The consequent regulatory chaos (in a continuous – almost inconsistent – reformulation of the rules) makes it preferable to manage the emergency through undetermined legal concepts (good faith, first of all), which better perform the homeostatic function in the legal system.

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European Union

The Council of State, with its  judgment n. 11664/2022, deemed as unlawful the decision of the Gaeta municipality to deny the assignment of a new State-owned maritime concession and, particularly, the public administration's choice to recur to a tender procedure. Although in consideration of the effectiveness of the EU legal framework claiming for a «selective procedure» based on impartiality and transparency, the judges pointed out how this  concession should be granted in compliance with the general principles of a «comparative evaluation» as already  set out in article 37 of the Italian Navigation Code. The tender procedure is, instead, to be used as from 2024, according to the dead-line indicated to the legislator by the Plenary Assembly of the Council of State (decisions n. 17 and 18 of 2021) to carry out a structural reform of the bathing-facilities sector.

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Jurisdictions within the EU and countries around the world are beginning to regulate the use of public Automated Decision Making (ADM). The legal framework thereof differs considerably, and its development is at an early stage. This contribution sets out a possible comparative research framework, with other words elements to compare the different solutions developed by the legal systems in the face of challenges of ADM.

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Fundamental Rights and Freedoms

The article aims to explore the role of oral hearing in Slovenian and Italian administrative procedural law. In both countries the oral hearing is a pivotal moment in the judicial review of administrative decisions. The study aims to identify common elements in each system to determine a unitary content of oral hearing as a human right.

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This article critically analyzes the regulation of administrative penalties, starting with Decree Law No. 19/2020, that have the intention of sanctioning conduct that has the potential to increase the spread of Covid-19.

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