Il procedimento amministrativo digitale: la semplificazione al servizio dell’amministrazione e del cittadino

This work focuses on a subject that has been of constant interest and continuing centrality in the political agendas of different national legal systems: the procedural simplification that can be ascribable to the species of interventions that belong to the broader genus of the change of public administration’. Since the ‘70s, the transformation of public administration, among other different possibilities, chose the ambiguous and winding path of simplification. It has been taken as a guiding principle for the entire legal system and as a prevailing logic for the process of redesigning and restructuring the administrative organization and action. Administrative simplification was a ‘fashionable’ topic in the ‘90s, and since then a ‘central block’ and ‘driving force’ of both EU and national public policies, thus becoming a technical and cultural process for reforming administration. Its aim is ‘to give it a more suitable shape that is tailored to the needs of society’ for which its services are indeed intended. The procedural simplification is a topic of overnational interest that in several jurisdictions has been gradually occupying larger and larger spaces in the definition of public policies, according to the shared view that the simplification of the regulatory and administrative system is a fundamental condition for of socio-economic growth. Thanks to the awareness of the notion of ‘administrative risk’, or rather, the sensitive ‘mutual dependence’ between political-administrative and economic system, as Borruso noted in the preface to the European Commission Communication Europe 2020. A strategy for smart, sustainable and inclusive growth, the administrative simplification measures and, in particular, administrative procedures, have been dominating for a long time the political, legal, economic and social debates. Moreover, they are intended to occupy significant spaces in the near future, inasmuch as they are directed to keep within a threshold of ‘tolerance’ the inevitable organizational and functional complexity of an administration built on the principles of institutional pluralism, subsidiarity, competence and specialization, indispensability journalistic intervention, not to say of binding formalism. By establishing itself as a legal and social requirement to guarantee an administrative action that would be ‘simpler, more effective, more efficient and more economical’ for citizens, and by changing its status from mere collective aspiration to legal claim, the simplification of administrative procedures is an multi-faceted and poly-dimensional objective that the national legislature has pursued through different strategic actions, among which, the computerization process has been taking a central role. Not surprisingly, the development of digital administration has been considered by many as the most effective tool to simplify administrative action and respond to the issue of procedural complication. It has been sees as a process of ‘review of the administrative structures and their organizational links, [...] redefinition of tasks and optimization of the capacity for work in the offices, thus achieving a reduction of the steps and the time required for the performance of administrative acting, which is what the simplification of procedures consists of. A theme which, in the first instance, concerns the balance between interests and principles. Inevitable corollary to administrative impartiality, organizational structure and the distribution of skills, the procedural complexity, which is questioned for the number of its steps and intra-procedures activities, for the time taken to achieve them and the red tape that affects citizens, it is a challenge to be answered, in general, through the use of computerization and communication tools. It is a challenge to be carried out with the accurate use of computerization and communication technologies. First of all, as its digitization is able to give an adequate response to the need to combine functional demands and requirements of simplification and rebalance the relationship between the end-protection guarantee of the interest and the duty of non-compression ‘effectiveness, efficiency and economy of action that is traditionally made explicit while making the decision. From this remark, the added value that the process of computerization has shown in the policies of simplification can be understood precisely by evaluating in a negative way, how, the simplification of the administrative proceedings ‘cannot be prosecuted by dequotando (non so cosa vuol dire) and debunking the rules of procedure whose positivization has represented a civilized procedural achievement. The extra value of the process of computerization among the techniques of procedural simplification – we have already said – is ‘integration’ between the principles of effectiveness, efficiency and economy, of certainty of timing, transparency of administrative action; the ability to overcome the limits that are connected to this principle and process of public administration reform, summarized in the principle of ‘contradictory’, participation, impartiality, and the necessary complete investigation; in the introduction of better modes of interaction, enabling faster and more effective relationships with participants and a greater guarantee of legal claims. In short, it consists of the ability to re-balance, at the procedural level, the relationship between the needs of the function and the requirements of guarantee of the action, often ‘unbalanced ‘ in favor of one or the other. The ‘revolutionary’ aspect that we identify in the electronic administrative procedure is actually the result of a process that first passes through the definition of new information systems. The object of technological revolution is indeed information. The revolutionary aspect of computerization administration is the dynamic management of information and the possible reality of interconnected information systems that are integrated and shared, which does not mean less safe. And the verbal synthesis of a technological simplified action is the digital administrative proceedings . The digital simplification of the administrative procedure is the product of different methods of collection, use, access, transmission and communication of information, all technology-based. And administrative digital procedure is nothing but a decision-making process that takes advantage of the tools that technology puts at governments and citizens disposal. ‘Neutral’ tools that the legislature adopts for political purposes aiming at simplification and exercise of the rights. Tools that, precisely because they are neutral, will act in terms of reducing procedural complexity according to the quantum assumed while legislative determining, on the one hand, and enforcement by public authorities on the other. From this perspective we must look at the tools that legislators, Italian as well as Spanish, have outlined in order to give the electronically processed work the same effectiveness as the one carried out traditionally and in order to fulfill the obligation of information management procedures: from the discipline of electronic documents and the electronic signature, to the discipline of registering incoming and outgoing communications through an automated system; from the rules of the communications of documents between public administrations through the use of electronic mail to the rules for the direct acquisition of data and documents in the digital archives of public administrations; and again, to the provisions of a computer file, taken in the path as the ‘centerpiece of the new mode of conducting administrative proceedings’. From this remark, the same computer file, created by national legislature as ‘informative base’ needed for a contextual work and shared between different subjects, ‘fulfilled’ with the expectations of simplification of the action and relationships, of the ‘right to be known’ of action both on the domestic side as on the external side, suggests, of course, a ‘new’ management process, but it remains only in the domain of attempt to reform if not accompanied by concrete implementation by individual administrations. It is their duty to start the processes of re-organization in order to manage the ‘new’ procedure based on shared information and transparent activities; on direct and immediate relationships; on a different value of time and space; on a simpler, more effective, efficient and economical, and at the same time, more able to guarantee rights and interests. The practical and proper application of these tools remains responsibility of each administration, asked to face the real challenge of procedural innovation. The following research is based on this fundamental interpretation and its methodological approach is developed, at first, starting from the acknowledgement of the legal category of the administrative procedure, the reconstruction of the lines of development and legal aspects that make of this administrative point as both action and organization, the place and the best opportunity to study the topic. Secondly, the working hypothesis is outlined. Starting from the construction of the simplification of the administrative procedure as recognition of a ‘right’ balance between complexity and simplicity of the action, the work continues by electing computerization as a ‘form’ of simplification that is able to envisage a possible solution for the problem of quality decision-making, resulting from the balance between the quantum and guarantees of effectiveness and efficiency of the action. In a third passage, we deal with the administrative digital proceedings, with particular attention to the developments which, from different management information mechanisms can derived in terms of modes of action that can develop horizontally, network-like or shared among stakeholders of the exercise of power. Finally, on the same lines, the work is enriched by the experience of the Spanish structure, in order to strengthen the thoughts on digital simplification of the procedure from a comparative perspective, which is always essential for the development of the research. From this point of view, the analysis of different time frequency of the stages of computerization in the two systems is an important key. The comparative analysis, despite showing an initial protagonism of the Italian legislator who, with the adoption of Digital Administration Code, anticipated a correct vision of modernization and initiated the ‘transformation’ of digital government, displays, in a second stage, a slowdown in the process, whereas it has a reverse path in the Spanish system, which, after assimilating the Italian model, proved able to proceed to the state of implementation with a more sustained dynamism and in shorter time. In the Spanish system what played an important role was the ‘codification’ of the awareness of the need for a transition phase, in which the digital system coexisted side by side with the paper-based system rather than automatically superseding it. This phase based on flexibitly proved to be effective for the change in the administrative system. First as a system of relations of public and private entities. Precisely this relational paradigm, in the analysis that is proposed here, has been the core of the thesis. This paradigm is both a thread of the investigation and the space where all the different approaches and issues related to procedural matters converge. The democratic nature of the administrative action, the implementation of the principles of impartiality and the participation in the Administrative Procedure Law, the introduction and the vindication of private sector criteria of efficiency, effectiveness and economy of the public actions are the background to the conclusion that the procedural simplification is primarily ‘simplification of the interaction’. All these elements also frame the structural and functional reorganization that the digitization process requires, and, at the same time, develops, in an eminently relational perspective; of a ‘new’ way of building and developing inner relationships within the administration, between different administrations and between them and the citizens.