Azione amministrativa

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.

To what extent, and in what ways, is judicial review shaped by its specific constitutional context? Recent developments in Australian judicial review of administrative and adjudicative powers may be of some interest in exploring this terrain. This paper discusses the impact of Australia’s basic law, the Constitution, on judicial application of a concept central to judicial review: invalidity. It argues that the full impact of the separation of judicial power in Australia’s Constitution on thinking about the status of “invalid” decisions has yet to be revealed; and indicates some potential areas where doctrinal adjustments may be necessary to reflect and integrate the ‘constitutionalised’ role of invalidity.

The Italian Civil Code has been characterised, ever since the original text dated 1865, and also in the legislative act issued in 1942, and still in force today, by its durability and resistance over time: first of all the paper analyses the reasons underlying this temporal permanence. In the same way, and also over the course of time, strong connections have been highlighted between the rules contained in the Civil Code, and their application with regard to public administrations: these connections are also discussed in the paper, both with regard to specific areas of the organisation of public administrations, and with regard to the general principles, deriving from civil law, that are applied today within administrative activity.