Caranta Partinaples Def [1]

PARTICIPATION INTO ADMINISTRATIVE PROCEDURES : ACHIEVEMENTS AND PROBLEMS Roberto Caranta* TABLE OF CONTENTS 1. Foreword.........................................................................................311 2. The Rules on Participation Laid down at Art. 7 ff. L. 7 agosto 1990, n. 241...................................................316 3. Reforming the Reform: Conflicting Signals for Participation...321 4. Conclusions: The Wider Picture and the Way............................325 1. Foreword In the early ‘90s Italy belatedly awoke to the need for efficiency in administrative law. 1 The answer came in the guise of L. 7 agosto 1990, n. 241, on administrative procedure and right of access to the documents. Participation was one of a number of novelties in the new law. It is quite at ease with right of access, another development brought about by the 1990 statute, so relevant to have made it to its title. However, it sits uncomfortably with simplification, another main trend in the reform of Italian administrative law. 2 * Full Professor, University of Turin. 1 Already in 1979 Massimo Severo Giannini, a leading scholar in administrative law then serving as a Minister, drafted a report lamenting the overall inefficiency of the Italian bureaucracy (published as M.S. Giannini, Rapporto sui principali problemi dell’amministrazione , F.I. 289/V (1979)). He was pressed into resignation and nothing was done. 2 Both aspects were not present in the draft originally submitted by the expert commission set up by the Government and were brought in at later stage: see M. Nigro, Il procedimento amministrativo fra inerzia del legislatore e trasformazioni dell’amministrazione (a proposito di un recente disegno di legge) , Dir. proc. amm. 8 (1989). 311 The main idea around participation (and right of access to the documents), was to move away from the traditional top-down Franco-Napoleonic pattern of public administration. The pattern highlighted the superiority of the administration over all other public powers and a fortiori over the citizens: «During the new era that began with the Revolution, the Executive became, in this administrative field, the only holder of public power and could freely exert all the prerogatives of this power, freely meaning without judicial control. It was at this point confirmed that France was, even under Revolutionary principles, and here opposed to the UK, neither a judicial nor a parliamentary State, but essentially an administrative State. Of course, Napoleon left an important legacy on the institutions that reinforce this fundamental feature». 3 Unilaterally taken decisions were the tool of choice of the puissance publique : «like legislation and jurisdiction, administration, too, had its own decision-making functions and the Verwaltungsakt was vested with the task of declaring the law in concrete, individual case. In Germany, this concept became jus receptum , to the extent that it was codified by Article 35 of the general law on administrative procedures (Verwaltungsverfahrengesetz ). Running along the same line of reasoning, French and Italian legal doctrine identified those particular administrative decision-making functions through which imperium was exercised ( décisions administratives , provvedimenti amministrativi ), thereby limiting rights and liberties. This expressed the supremacy of the administration vis-à-vis private citizens, in the sense that the former declares what the law 3 E. Picard, The Public-Private Divide in French Law Through the History and Destiny of French Administrative Law , in M. Ruffert (ed.) The Public-Private Divide: Potential for Transformation? 28 (2009); the Author also point out that «the autonomy enjoyed by the absolute monarchy prior to the Revolution regarding administrative matters outlived the Revolution and came to be enjoyed by the new executive-with the strong support of the agents appointed to a large extent under the Ancient Regime and that the Consulate and Napoleon later reinforced in number and functions. The Executive, accompanied and supported by its administrative apparatus, inherited the ancient prerogative claimed by the king in administrative matters». 312 is for the latter, instead of being placed under the same legal rules». 4 This model could do very well without participation, and procedural rules generally were little considered, so much so that French law does not really have a category for them and refers in the negative to administrative procedure as to the procédure administrative non-contentieuse: a way to point out that the only procedure that matters is the one leading up to the Conseil d’Etat .5 Early adoption of the Franco-Napoleonic model had considerably boosted the efficiency of the then Kingdom of Sardinia allowing it, along with deft diplomacy, to unify Italy under the Crown of Savoy. 6 By the time L. 7 agosto 1990, n. 241, was adopted, the original pattern had lost some of its shine (even if retained redoubtable partisans, first among them the Council of State which, asked an advice on the draft law, considerably 4 G. della Cananea, Beyond the State: The Europeanisation and Globalisation of Procedural Administrative Law , Eur. Publ. L. 566 (2003); see also P. Gonod, «La réforme du droit administratif»: bref aperçus du système juridique français , in M. Ruffert (ed.), The Transformation of Administrative Law in Europe. La mutation du droit administratif en Europe 72 (2007): «Le droit administratif reconnaît en effet des pouvoirs importants aux autorité administratives (la puissance publique), qui leur permettent de satisfaire leur mission de satisfaction de l’intérêt général (le service publicque). C’est pourquoi, pour reprendre la formule du juge, il semble « impossible, en bonne raison et en bonne justice, d’assimiler l’Etat à un simple particulier » [Conclusions E.M. David sur T.C., 8 février 1873, Blanco, R. 61]. Le droit administratif se présent aussi comme un droit d’inégalité , un droit de prérogatives (parmi lesquelles le pouvoir d’action unilatérale, les pouvoir reconnus dans l’exécution des contrats administratifs, le pouvoir d’ exécution forcée (...)». 5 For this remark R. Caranta, Procedimento amministrativo in diritto comparato , in XI Digesto disc. pubbl. 608 (1996). 6 The relevance of institution building was not lost on the contemporaries. In 1836 Pier Alessandro Paravia – an expatriate from Venice, then under Austrian domination – was charged with delivering a speech at the University to celebrate the namesake day of King Carlo Alberto: Orazione pel giorno onomastico di S.M. il Re Carlo Alberto (Torino, Tip. Chirio e Mina, MDCCXXXVI). Worried to overdo what was anyway a flattening exercise, he decided to leave facts do the talking («di lasciare che lodino CARLO ALBERTO gli stessi suoi fatti» at 9). The first fact listed to the King’s merits is the establishment of a Council of State, the paramount institution of French administrative law («volle raunare al grand’uopo i più savii uomini de’ suoi stati […]. Ed eccovi istituito con ciò il Reale Consiglio di Stato; utilissima istituzione […]» at 12 f). 313 watered down it). 7 Less State-centred and more bottom-up, market-friendly economies were proving themselves to be far more efficient than those which, like Italy, had seen the role of the State grow and grow. Private sector techniques and assumptions have made major inroads into government via the « new public management ». In formerly state-dominated polities like Italy (but the same holds true for France and Spain), «the autonomous institutions of civil society are being given more rein. Public- private partnerships, community-based partnerships and innovative forms of service delivery abound». 8 Possibly by no chance, those more performing legal systems shares a common law heritage. With it comes the idea of participation of those concerned by the decisions to be taken by public authorities, variously referred to as due process , audi alteram partem , or fair hearing .9 This tradition was foreign to Italy. In 1940 Aldo M. Sandulli wrote the leading text on administrative procedure.10 The concern underlying the book was dogmatic, it was about giving a proper place to the procedure in the Begriffshimmel alongside the final decisions and the various occurrences taking part during the procedure itself. 11 Participation was not even mention in the index. The input of the concerned parties was briefly discussed, with some passing reference to German scholars, to voice the 7 Contrast the more advanced proposition put forward by the Chairman of the commission charged with drafting the bill: M. Nigro, Il procedimento amministrativo fra inerzia del legislatore e trasformazioni dell’amministrazione (a proposito di un recente disegno di legge) , supra note 2, at 5. 8 M. Keating, Europe’s Changing Political Landscape: Territorial Restructuring and New Forms of Government , in P. Beaumont, C. Lyons & N. Walker (eds.) Convergence and Divergence in European Public Law 10 (2002). 9 See G.F. Ferrari, Il procedimento amministrativo nell’esperienza anglo-americana , in Dir. proc. amm. 421 (1993); S. Rodriquez, Representative Democracy vs. Participative Democracy in the EU and the US , in R. Caranta (ed.), Interest Representation in Administrative Proceedings 112 (2008). 10 A.M. Sandulli, Il procedimento amministrativo (1940); the book was reprinted without any amendment in 1959 and 1964; the Author felt that his dogmatic work would lose its meaning when taken out of its proper historical context (at vii), which by itself is

Load more