The multi-dimensional nature of administrative impartiality and the principle of objectivity. Thoughts on the Italian experience

Abstract

Whilst the Spanish constitution (art. 103) expressly establishes the principle of “objectivity” in administrative procedure in the same article where the principle of “impartiality” is subsequently mentioned, the Italian constitution (art. 97) establishes the principle of administrative “impartiality” without mentioning the word “objectivity” at any time. Furthermore, the Italian general administrative procedure law (L. 241/1990) follows the same pattern in establishing the general principles of administrative activity. However, on examining the Italian legal system we come across many instances, both in the legislation in force and in case law, where specific reference is made to the principle (or canon or criterion) of “objectivity” in the action of the administration. In the light of these symptoms, it seems appropriate to question the existence and consistency of the paradigm of administrative “objectivity” in Italian law. This work explores the connections between impartiality and objectivity. An analysis of case law and the legislation sources points to a tendency to confine “objectivity” to a specific meaning. Within this meaning, the principle of objectivity is identified with a preventive and analytical self-limitation duty of the public administrations, through self-adhesion to assessment criteria and procedural frameworks established and published by the same administrations for the purpose of making subsequent decisions which do not fully adhere to the law. The principle of objectivity in itself can occupy an autonomous space within a broader circle represented by the principle of impartiality. The method in which the principle of objectivity reduces administrative partiality seems to consist of the “de-subjectivisation” of discretional assessments by the public administrations.