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.

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.

Judicial systems are experiencing a period of strong institutional and social pressure to improve, on the one hand, their effectiveness and efficiency and on the other, to increase their level of transparency and accountability. This is particularly evident in the Italian context, in which the debate regarding the judicial system has always been very heated and where numerous attempts at reform have taken place. Among other things, a new reform of the judicial system is considered the sine qua non for the National Recovery and Resilience Plan (PNRR). This article aims to explore the dissemination of socio-environmental and sustainability reporting among Italian judicial offices, with particular regard to the factors that facilitate and hinder such practices. To this end, a survey involving 430 offices belonging to the Italian ordinary justice system was conducted. The survey, based on 57 valid responses, highlights a very limited dissemination of sustainability reporting, despite the fact that there is a good knowledge of its function and therefore an awareness of its potential usefulness. Interesting results are highlighted in reference to the factors hindering or facilitating the related processes. Last but not least, the paper suggests some implications for policy makers and public administration that are willing to take this path.

Boris Johnson was swept to power as prime minister of the United Kingdom with an unassailable majority of eighty members of parliament (MPs) after the general election in December 2019. The man who was to ‘get Brexit done’ seemed in complete control of his party, the House of Commons and the country. One of the most controversial prime ministers in our history, Johnson was propelled from one cause célèbre to another. His rule exposed weaknesses in the contemporary UK constitution and how those weaknesses can be exposed by a politician determined not to be bound by conventional constraints on his office. The following tracks Johnson’s downfall and resignation and suggests areas in prime ministerial governance that need to be addressed by the incoming UK prime minister.

With constitutional law n. 1 of 11 February 2022, the Republic is assigned the task of protecting the environment, biodiversity, and ecosystems (including in the interests of future generations). State law has to regulate the methods and forms of animal protection. For the first time, the protection of animals is mentioned in the constitutional text and, significantly, that protection is in the part dedicated to 'fundamental principles'. The text has some limitations. Nevertheless, this reform represents a step forward in line with the experiences of other countries of the European Union (and beyond), as well as with European Union law.

This paper focuses on the topic of environmental remediation in the case of bankruptcy or judicial liquidation of an entrepreneur, in light of the most recent legislation and case law. After going over the jurisprudential debate that has developed on the issue, the Italian Council of State, with its judgment (Plenary) no. 3/2021, stated that the presence of waste on an industrial site and the position of the keeper of the site (a position which the bankruptcy trustee would acquire at the time of the declaration of bankruptcy or following judicial liquidation), would root the “legitimatio ad causam” of the trustee. In light of Constitutional Law Feb. 11, 2022, No. 1, constitutional dignity was granted to the environment, further developing the law in this area, especially in the context of the provisions laid down in the Bankruptcy Law.

In order to address the relationship between e-democracy, technique and politics, the meaning of each term must be identified. E-democracy only partly carries with it the essential core of the notion of democracy. Technique is the environment within which e-democracy unfolds. Its purpose is to appropriate technology. Politics are sets of particular aims at which the organised action of groups of individuals and interests tends. There are irreconcilable contradictions between e-democracy, technique and politics; and obvious dangers of e-democracy seen in the interactions between the three. These include manipulation of individuals; stratification between web users; exclusion of 'unable' users; the illusion of the spread of higher rates of democracy.

This contribution outlines the provision of preliminary assistance in administration as seen in recent legislation and case law. First, the key elements of preliminary assistance are described. Then, the analysis addresses the jurisprudential orientations related to its application in the context of digitalized administrative action. The authors propose that, on the one hand, preliminary assistance is an essential means of overcoming technological problems and the digital divide between citizens and government administration, and, on the other, it is a tool for implementing the principles of simplification by helping to reduce the burdens on private individuals who participate in the administrative procedure.

This contribution analyses two different approaches in responding to the pandemic emergency. The author focuses on the 'Pandemic Law' adopted by Belgium to ensure a comprehensive legal framework for administrative action against the pandemic. He then analyses the creation of a new administrative authority within the European Union.