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Cassazione Civile, Sezioni Unite, 19 gennaio 2023, n. 1567

In the context of breach of legitimate expectation, resulting from the annulment of an unlawful administrative act, the Court of Cassation settles that, as legitimate expectation is an autonomous situation protected in itself and not in its connection with the public interest, the jurisdiction of the administrative judge exists only when the cause of action concerns the methods of exercising administrative power.

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Post author | 23 March 2023 | Not Yet in an issue

Consiglio di Stato, Adunanza Plenaria, 13 febbraio 2023, n.7

The existence of a judicial review pursuant to art. 34-bis, c. 6, of Legislative Decree 159/11, is not a cause of suspension pursuant to art.79 c.1 c.p.a. and 295 c.p.c. The suspension prevents only the contrast between judgements.

Post author | 9 March 2023 | Not Yet in an issue

E-Government and Digitalization

This article aims at analysing the decision-automation-systems currently used by public administrations in Italy. After an analysis of the legal framework, the different systems are classified and illustrated: in particular, the case of the so-called “good school” algorithm is discussed. The conclusions dwell on the reason for the scarce use of these tools in the Italian landscape, also due to the slow and uneven digitisation of the public sector.

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The present study aims to retrace the digitalization process of the public procurement starting from the previsions of the legislative decree n. 50/2016 to Public Procurement digitalization decree n. 148/2021, embraced with over four years delay compared with the previsions. For this purpose, we face the extremely wide jurisprudential production in matter of telematic tendering procedures. Namely, the decree is inserted in a context in which the jurisprudence has extensively addressed the issues related to the digitalization of the tendering procedures, attempting to make this heavy jurisprudential stratification, not devoid of inconsistencies and relevant developments.

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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 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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The following paper shows how the introduction of electronic instruments and databases for contracting authorities, like the e-procurement portal “Tutto Gare” used by Brescia Infrastrutture S.r.l., has brought a substantial simplification in public commitment procedures, allowing for the adjudication of public tenders even during the lockdown period caused by the COVID–19 pandemic. However, the path to digitalisation of tendering procedures hasn’t been concluded yet. The hope is that in the aftermath of the pandemic all the information concerning economic operators and tendering procedures could be found on uniform and centralized databases (like the so-called Economic Operator’s Dossier ex art. 81, c. 4, d.lgs. n. 50/2016), which will help both the contracting authorities in the selection of the contractor as well as the economic operators themselves.

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European Union

SOLVIT is an on-line, free-of-charge service operating in all EU countries (and in Iceland, Liechtenstein, and Norway), which officially started its activity in July 2002. It was born as a network of national SOLVIT Centres, connected via an internet-based, multilingual network, with the aim of getting the national Centres to work together to reach the goal of helping businesses and citizens to overcome cross-border issues. Over time, and not without possible weaknesses in both practical and legal terms, it has developed to a multi-faceted single market tool, which also serves the purpose of identifying and try to overcome incorrect application of EU rules by national and local authorities.

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A digital public administration is crucial for providing citizens (especially in times of crisis) with effective access to administrative services. Political leaders in Germany agreed on this principle during the global COVID-19 pandemic. However, the implementation of the Online Access Act - the main German law on administrative digitalisation - and of the Single Digital Gateway Regulation (EU) 2018/1724 has raised considerable (legal) problems. This article therefore not only looks at the current implementation status of the two pieces of legislation, but in particular identifies three challenges for the digital transformation of public administration in Germany: federalism, legal fragmentation and register modernisation.

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Fundamental Rights and Freedoms

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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The use of algorithms and A.I. systems in administrative action has strongly challenged the requirements of administrative due process. Due to the absence of national statutory rules on administration by algorithm, administrative courts have established a set of principles (the so-called “principles of algorithmic legality”) in order to protect the legal position of citizens involved in administrative procedures, borrowing them mostly from the EU General Data Protection Regulation (GDPR). Case law specifically requires public bodies to comply with: a) the citizen’s right to access to meaningful information concerning the automated decision-making; b) the citizen’s right not to be subject to a decision based solely on automated processing; c) the prohibition of algorithmic bias. After a brief overview of the content of these principles, this paper aims to analyse the relation between them and Article 21-octies, par. 2 of Law No. 241/1990. This paper questions whether they have been understood by the courts as reinforced procedural rules to avoid the “weakening” effect, provided by Article 21-octies with regards to procedural impropriety of non-discretionary decisions. In particular, this paper questions whether the strengthening of the procedural rules could be aimed at counterbalancing the lack of substantive legality, due to the exercise of implied powers by the public bodies in using algorithms, or whether it should be based on a different legal reasoning.

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