AUTHOR
Ugo G. Pacifici Noja
ABSTRACT
The first thing to be understood, when we speak about the italian Public Administration, is that the wideness of that Administration has forced the State to find out for new models of organization different from the classic ones. The dominant position is, normally, occupied by Ministries or, as somebody would say, Departments. But, just aside from those models, there is the model of the indipendent administrations. They, basicly, are what in the french law is pointed as the autorit’s administratives ind-pendentes.
They were originated in the victorian England, but they specially found their biggest diffusion in the USA.
The ratio of their creation is to be found in making a non partizan institution, composed for the greatest part of technicians that, just quite for their intellectual characters, are to be said super partes.
Now, we could say that when we speak of the indipendent authorities, we mean authorities far from political influence. And this can explain why the escape from administration is still continuing, creating a phenomenon that someone has said of agencification. And always it has been said that only making bigger and bigger the distance between the government and the authorities, it will assured the freedom of movement necessary “to move”.
What is important to work well, is to have very thin structures, in which the degree of real indipendence from the central power is basic to decide the real capability of making a real policy. In this sense is very important to find solutions about the creation of the top managers of the State. Top managers who should be put under the control of an authority that would give at the same time a warranty of indipendence from the central power and warranty of continuous check of their institutional musts.
The term of five years normally given to the members of the indipendent authorities, has to be thought as the minimum time to establish a relation with the Government. At the same time, the creation of “private” budgets for the authorities has to be explained with the necessity of making real indipendence especially on the economical side.
But the authority is to be thought even as a tank of culture. And the reason is that for the most part of its activity, an authority is more proposing than “making”.
The characters of the indipendence are particular procedures for nominating, functioning and financing. We always can observe the authorities posed in a general attention but in a particular concentration. That is to say each of them has its particular field of action, but none of them ever declares its disinterest about the general situation outside its hortus conclusus.
It is as important as necessary to individuate (or, better, to try to individuate) the different kinds of authorities. But before making this list, it is very necessary to warn that we have to focus two different periods. The first one is the one in which models, different from the traditional model of public administration (as the public administration was meant in Italy till to that time) just represent an answer. The answer of the State to particular sectorial exigencies. And in this sense it is not wrong to put this period more in the public law of economy than in the public law in general.
The second period, instead, is represented by the creation of new organization models. Particularly this period can be distinguished because of the era of the privatizations. Moreover when we speak about authorities we have to learn that, for the biggest part, they can be said regulation authorities. That means that they are constituted as to regulate activities. What sort of activities they are, we better will see in the sequel. Now we just want to limit ourselves to say that are activities (public, but they also can be private) that in any case go to impact with the public interest.
Now, the prevailing doctrine makes a tripartition of the authorities by reason of the different kinds of interests protected.
1) Authorities in which the function of warranty of the community concern the system in its entirety; 2) authorities of prevailing interest in the economical sectors; 3) authorities with prevailing functions of trend, watch, co-ordination. We can not abstain from observing that a considerable part of authorities created (or going to be created) in the last ten/fifteen years in the majority of the countries of Western Europe have been established in the field of Technology, or better, Information and Communication technology. In the very last years we can add to this list data protection, and rights in general connected to technology.
When we speak of the indipendent administrative authorities we have to very understand that “their” law is not the normative result of political groups, but the very result of the theorical research of the jurists and of the experts. This law, so, will not be able to be named of the lawgivers, but will have, anyway, the right to be named law. Another question is the relation existing between the authorities and the judges. Particularly it is natural for everyone, interested in the problem, to ask himself why authorities receive the power to decide questions of public interest. But this question can be answered just if we accustom ourselves to consider the indipendent authorities as the holder of a peculiar position: the fourth power.
It must be considered that the force of indipendent authorities (and agencies) finds at its roots the compulsive power of the moral and intellectual authority of its members. (We are sorry for the double use of the same word, that could generate confusion).
At the same time we can observe that “ordinary” public administration makes its power based on an authoritarian power. So that the today public opinion less and less is going to accept this kind of relation.