Stefania Vasta

Confirmation of Administrative Decisions and Substantive Bias: A Reconstructive Hypothesis

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The author concerns herself with those administrative decisions having the specific aim to validate previous decisions made by the same authority. She starts from the traditional arguments used by legal doctrine to justify and explain the functioning of such cases, which are inspired to the theory of a quasi-judicial power that administrative authorities would possess, called self-remedial power. Analysing the current legal discipline - provided for by Art. 21 "nonies" of Law No. 241/1990, introduced by Law No. 15/2005 - the work sets forth the hypothesis that to such decisions of confirmation can be attributed contents broader than just reproducing the same decision only amended of formal flaws. On the basis of a literal and systematic interpretation of legal provisions, in fact, the outer reach of applicability of confirmation decisions seems to expand to the extent of involving even flaws that enter into the proper use of power. The author contends that in the applicative praxis the scarcity in recurring to confirmation decisions depends less on the reception of the traditional idea that just formal bias can be amended than on by virtue of deferment to general principles that superintend administrative action, such as transparency and trust. The consequence of this hypothesis thus entails the admissibility, at least theoretical, of a broadening of the contents and the operative scope of the legal figure examined to encompass substantive bias such as excess of power.

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