Digitalization

The pursuing of resilience and sustainability goals of communities and markets involves the digital transition of public services. Blockchain smart contracts by Distributed Ledger Technology (DLT) show a wide applicative potential within public services addressed to healthcare as well as agriculture and agri-food chain. Additionally, blockchain functionality could improve by the confluence of artificial intelligence (AI) algorithms. The work, privileging the aspects of administrative law of public services such as those leading back to the principle of transparency, analyses this scenario and focuses the regulation path of smart contracts in Italy in the light of the complex and dynamic EU framework. Some debates, including the doctrinal framing, remain open. In 2021 AgID launched a blockchain infrastructure project; in 2023 AgID, according to the new Public Contracts Code, recalled smart contracts within the published technical requirements and certification methods for digital procurement platforms, while the EU activated a blockchain regulatory sandbox and recently approved the AI Act proposed in 2021. Many efforts towards a standardised regulation of smart contracts, either at EU or national level, are being profused, but they must hardly compare with the technological innovation speed and the parallel need to keep all the legal and administrative aspects under harmonic, secure, transparent and efficient control.

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The Digital Paradigm of Public Contracts



Post author | 7 May 2024 | Not Yet in an issue

One of the main innovations of the Italian Code of Public Contracts (adopted with Legislative Decree n. 36 of 2023) concerns the rules on “digitalization” in Book I of the Code (art. 19-36). This paper sets out the main innovations introduced by these provisions (with particular regard to the digital life cycle of a contract and the possibility of using automation systems) and highlights how they form a new paradigm, which is relevant not only in the field of public procurement, but also for administrative action in a broader sense.

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The Author briefly reviews the major problems of administrative justice in the Third Millennium. These include: digitalization and judicial review of automated decisions by administrative judges; the relationships between national and EU law; legal measures to reduce delays in judgments without affecting their effectiveness and the uncertainty of rules and the excessive discretion left to judges.

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Digitalization of the Swedish administration has been the center of attention for the Government and legislator for decades, with the explicit goal of being the «best in the world» at using the possibilities of digitalization. The Swedish public authorities were early adapters and have utilized automated decision-making procedures since the 1970’s. The effects on two areas central to Swedish constitutional and administrative law are addressed here: general administrative law, with a focus on administrative decision-making, and transparency rules and access to documents. The regulatory responses in the two areas differ. While concerns regarding the negative effects of digitalization on access to documents prompted the Swedish legislator to include digital recordings among documents encompassed by the right to access already in the 1970s, general administrative law has been adapted to a very limited extent. The Government has over the years commissioned several governmental enquiries on technical, societal, and legal challenges of digitalization of the administration, but the main conclusions in regard to the suitability of automated decision-making have been left to the administration and the courts. Two reasons can be identified. First, it has been a longstanding aim that administrative procedural rules are to be technology-neutral, in order not to become obsolete through future developments. Second, administrative authorities hold a strong and partially independent position in the Swedish constitutional setting, combined with a tradition of pragmatism. Authorities can thus be trusted to perform their decision-making in accordance with the law, whether the procedures are carried out manually, digitally, or by automated means. Swedish courts have thus far refrained from intervening. Still, it is clear that the Swedish administrative law landscape in automated decision-making contains several central lacunas, which ought to be filled in order to safeguard the principle of good administration and the rule of law.

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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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