LA DECISIONE AMMINISTRATIVA AUTOMATIZZATA: PROFILI PROBLEMATICI E PROSPETTIVE FUTURE
Creators: name: PREVITI, LUIGI
Publisher: name: Universit� degli Studi di Milano
Year: 2021

description: The aim of this work is to analyse the most relevant issues related to the topic of the automation of administrative decisions. This phenomenon is, indeed, the result of the process of technological development that has recently begun to affect the traditional way of understanding the organization and the action of the public authorities. In particular, thanks to the spread of increasingly sophisticated computer systems, nowadays public administrations have the opportunity to adopt administrative acts using appropriate algorithms. In fact, although heterogeneous in structure and functions, these tools allow public action to achieve levels of efficiency and speed difficult to achieve through the ordinary conduct of administrative procedures. In the awareness of the significant benefits of this technological change, it is necessary to verify whether and how the use of computer programs by public entities can be considered compatible with the traditional procedural guarantees of administrative law. With the intent to answer this question, this study aims to analyse the phenomenon of automation of decision-making process into four main parts. The first part is dedicated to define the historical and legal framework of the process of digitalization of the public sector. Specifically, after having pointed out the most significant legislative measures adopted in this field in recent years, the work analyzes the main issues related to the implementation of the e-Government model within our legal system. In the light of brief terminological clarifications, the theme of automation is introduced and some interesting cases in which computer systems were used within the public procedures are examined. The second part of the analysis focuses on the issue of the admissibility and of the field of application of algorithmic decisions. Indeed, this topic has already been at the heart of the reflections of the most ancient doctrine, which stated that automation process was allowed only if the exercised administrative power can be considered constrained. However, this approach was overtaken by the more recent literature, which highlighted the opportunity of extending, despite some limitations, the use of automated systems where the public power is discretionary in nature. These are interpretative guidelines which seem to have also influenced the judgements of the administrative jurisprudence, which over time showed a more open attitude towards the use of algorithms in administrative procedures. The third part of the work focuses on the possibility of reconciling the main procedural guarantees provided by the Italian law on administrative procedure with the structural and functional peculiarities that characterize the phenomenon of automation. This analysis is carried out, in particular, by examining whether and in what terms the use of algorithms can be considered compatible with three fundamental principles related to the action of the public authorities: the principle of transparency of administrative decisions; the principle of motivation of administrative acts; the principle of private participation within administrative proceedings. Each topic is analyzed by examining both the evolution of the doctrinal debate and the interpretative solutions proposed in the case law, where for the first time the legal conditions that must guide any attempt to adopt administrative acts using computer software were defined. Finally, the last part of the study deals with the role and the responsibility of the public administrations in the automated decision-making process. Within this session, in particular, it is analyzed how the most relevant doctrinal and jurisprudential positions managed to state the direct accountability of public bodies for the effects deriving from the adoption of automated administrative acts. In the light of the framework carried out, some final considerations are formulated regarding the current needs to regulate the phenomenon within the public sector.