“when I reflect on the wise and good constitution of the Utopians, among whom all things are so well governed and with so few laws, where virtue hath its due reward, and yet there is such an equality that every man lives in plenty—when I compare with them so many other nations that are still making new laws, and yet can never bring their constitution to a right regulation …”
Thomas Moore, Utopia, Discourses of Raphael Hythloday, Of the Best State of a Commonwealth
- Introduction
Codification answers calls for clarity of legislation going back to centuries long past. If possible, this is even truer for administrative law. In 1837 already De Cormenin lamented that “La matière administrative est régie par une foule de lois monstrueuses […] indigestes, confusément entassées dans le réceptacle du Bulletin ; les unes sont noyées dans des détails fastidieux et perdent de vue le principe général. Les autres sont trop brèves et d’une disposition tellement générale qu’on ne peut y puiser aucune interprétation pour les cas particuliers” (‘Du Conseil d’État’ in Questions de droit administratif (Paris, 1837) t. I. 7).
In administrative law, general principles are good succedanea’s of codification. In Italy, general principles have a long tradition and keep growing – at times in tumultuous waves. Principles alone, however, are not enough to make administrative law accessible, let alone simple.
2. Constitutional principles
The Italian Constitution bears scant provisions concerning the administration of the State, its subdivision and their activities. It recalls the legality principle with reference to a number of detrimental administrative decisions (taxation, military draft, mandatory medical treatments, expropriations) and spells out the principles of impartiality and buon andamento.
Impartiality specifies the more general equality or non-discrimination principle enshrined in Article 3 of the Constitution. Buon andamento reflects early XIXth century terminology which in turn derives from the mediaeval idea of buon governo as epitomised by the world famous 1388-1389 fresco by Ambrogio Lorenzetti in the Palazzo del Governo in Siena. As such, buon andamento seems to have a different focus from and to be a less precise principle than the right to a good administration as protected by Article 41 of the EU Charter of Fundamental Rights. Indeed, buon andamento is not traditionally seen as grounding a right upon the users of public administration services and might be better translated in the more modern terms of efficiency and effectiveness.
According to the case law of the Italian Constitutional court, the principle of due process has no underpinning in the Constitution (Corte cost. 2 March 1962, n. 13; Corte cost., Ord., 24 November 2017, n. 243).
3. Case law principles
As administrative rules are dispersed across hundreds of sectoral rules and legal texts, it fell upon the case law of the Consiglio di Stato – the highest administrative court in the country – to develop general principles from these chaotic legislative materials. For instance, from the duty to give reasons in the law on expropriation (Article 3 of Annex E to l. 20 March 1865, n. 2248), the Consiglio di Stato deduced a general duty to give reasons for all decisions detrimentally affecting the addressee’s rights and interests (Cons. Stato, Sez. IV, 17 May 1907, n. 178).
The Consiglio di Stato went even beyond developing general principles from specific legislative provision. It was ready to fill the gaps in the system providing remedies where those were lacking. Italy had borrowed from France the rule of the recours préalable following which the Consiglio di Stato could be seized only after all administrative appeals had been exhausted. Too often administrative authorities short-circuited the system simply failing to decide on the appeals. In the famous Longo case, the Consiglio di Stato equated this omission, or the silence kept on the appeal notwithstanding a request to act, to a negative decision which could be challenged in front of it (Cons. Stato, Sez. IV, 22 August 1902 n. 429).
4. A ‘principled’ codification
Today the pointillist approach to administrative law of Italian lawmakers is to some extent remedied (a) by a partial codification enacted through l. 7 agosto 1990, n. 241, originally laying down general rules on administrative proceedings and the right of access to documents, and since the amendments in 2005 codifying the regime of administrative acts and decisions, and (b) by sectoral codification in areas such as urban planning and expropriation, environmental protection, cultural heritage, and public contracts.
Article 1 of l. 7 agosto 1990, n. 241 lists general principles of administrative law. After being amended in 2005, Article 1(1) l. 7 agosto 1990, n. 241 mentions attention to costs (‘economicità’), efficacy, impartiality, openness and transparency, and the principles of Community law. The reference to “principles of Community law” – now EU law – is normally understood as covering proportionality and legitimate expectations. The former was already known in Italy at least with reference to fines and administrative sanctions generally. The latter was alien to the local administrative tradition with the exception of salary levels and other benefits of public servants. EU administrative law principles are made general principles of Italian administrative law; therefore, they apply in the country quite independently from whether or not EU law is being given effect and this by a decision of the national lawmakers.
Article 1(2) l. 7 agosto 1990, n. 241 enacts the rule that only in exceptional and duly motivated cases the public administration may impose procedural requirements not foreseen by the applicable law. This is considered to be the basis for a general principle forbidding procedural overkill (non aggravamento). This does not dispense from duly applying each and every crazily detailed rule of which Italian administrative legislation is overburdened. However, at least such a principle makes it difficult for public administrations to impose additional extra-legal requirements.
Some of the principles mentioned are relevant for the judicial review of the legality of specific administrative decisions; others are more policy-oriented or are used in a rather confined manner for assessing the output efficiency of services of the State or other public law entity.
5. Sectoral codification
Attempts at making administrative law clearer by gathering sectoral provisions dispersed across dozens of different texts often spanning a number of decades are not a new thing in Italy. Only those were not called ‘codes’ until fairly recently. These restatements of sectoral administrative law were rather called ‘testi unici’ meaning the one and only legal text regulating a given sector. One early example, still partially in force today, is R.D. 18 giugno 1931, n. 773, Testo Unico delle leggi di pubblica sicurezza (T.U.L.P.S.). Once its powers were consolidated, the Fascist Regime took no chance and recast and hardened domestic security rules, some of them then dating to Annex B of l. 20 marzo 1865, n. 2248 per l’unificazione amministrativa del Regno d’Italia.
Testi unici take the form of delegated legislation enacted by the President of the Republic based on a proposal from the government in turn acting on the basis of directives given through an enabling law adopted by Parliament. Delegated legislation has the same rank among the Italian sources of law as acts of Parliament have and so it can change a pre-existing primary law rule. Delegated legislation is the standard way to enact complex legislation for which lengthy debates in both houses of Parliament are ill-suited.
Codes too are enacted through delegated legislation. It is to be noted that from the formal and procedural point of view, codes are thus indistinguishable from testi unici or any otherwise called piece of delegated legislation. As such they have the same rank among the sources of law as any piece of legislation enacted by Parliament.
Sectoral legislation and codifications often embody ad hoc principles. For instance, the Code of the environment, enacted with D.lgs. 3 aprile 2006, n. 152, after being amended in 2008 spells out a number of principles specific to that area. Article 3 ter, concerning ‘principle of environmental action’, recalls the precautionary principle and the polluter pays principle (referring specifically to then Article 174 TEU). Article 3 quater is dedicated to the ‘principle of sustainable development’. Finally, Article 3 quinquies specifies the subsidiarity principle and that of loyal cooperation between the different territorial levels.
6. Conclusions
The problem is that whatever their names, codes are in constant flux. Because these complex pieces of delegated legislation often bear unclear provisions or show gaps as soon as their application starts, enabling legislation usually gives the Government the powerto enact additional delegated rules more than once over a time span normally going up to one year after the first legal text is enacted. For instance, D.lgs. 3 aprile 2006, n. 152, the ‘Environment Code’ was corrected and completed after a few months by D.lgs. 8 novembre 2006, n. 284. The number of times provisions of the ‘Environment Code’ have been changed is nearing thirty.
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Posted by Roberto Caranta (Professor of administrative law at the University of Turin; Network Coordinator of Sustainability and Procurement in International, European, and National Systems – SAPIENS -International Training Network (SAPIENS-ITN – H2020 – MSCA ITN: Grant 956696) (https://sapiensnetwork.eu/)
