Efficienza amministrativa paralizzata: il buon andamento tra dovere di provvedere e c.d. prassi della “burocrazia difensiva”

Abstract

This paper traces the evolution of the principle of good conduct, enshrined in Article 97 of the Constitution, in light of the growing prevalence of the phenomenon of so-called defensive bureaucracy, understood as a behavioral practice adopted by public officials, either by inertia or by choosing the least risky administrative path for fear of accounting or criminal liability. The analysis focuses on the principle of good conduct, no longer seen as a mere organizational standard of public administration but as a finalistic parameter of administrative action. The core of the research lies in the mutually integrated relationship between the criteria of efficiency, effectiveness, and cost-effectiveness, no longer understood merely as rules of good management, but as actual legal obligations aimed at achieving results. The research focuses on the tension between the effectiveness of administrative action and the protection of legality, examining how the legislator has attempted to curb the fear of signature through crucial reforms, such as the recent amendments to the abuse of office framework and the limitations on the liability of the Treasury for gross negligence—introduced by the Simplification Decree starting in 2020—as well as the introduction of the principle of results into the Public Contracts Code. Through a discussion of a wide range of doctrinal theories and the most recent case law, the paper aims to assess whether such interventions are truly suitable for promoting results-driven administration or whether, conversely, they risk weakening the guarantees of impartiality and legitimacy of administrative action. Finally, it will reflect on the need for a new management culture that transcends a merely formalistic approach in favor of balanced administrative proactivity, also attempting to propose concrete, remedial measures to limit this widespread practice today.