When the remedy overcomes the bad: decree law no. 76/2020 and the ineffective struggle against the “fear of signing”. identifying the causes to rethink the solutions

Abstract

The purpose of this paper is to analyze the changes introduced by “simplifications” Decree Law No. 76 of 2020 to the liability regime, highlighting its most critical profiles.
The study moves from the assumption that the principle of liability is inseparably linked to the one of sound administration as it is functional to its protection. The evolution of the latter, which, since the 1990s, has been subjected to a gradual process of «constitutional thaw» that has led to the valorization of the results pursued in order to maximize the collective welfare, has resulted in the exponential increase of public damages cases and in the subsequent expansion of the role of the Court of Auditors.
The “simplifications” Decree Law, aiming to combat the phenomenon of defensive bureaucracy which would prove particularly damaging in phases of emergency, has restricted the scope of both governmental liability, by intervening on its subjective element, and criminal liability, by partially rewriting the rule on misfeasance in public office. Although the lawmaker, prompted by the same need, had already intervened on both types of liability in the past and raised criticism that such measures would legitimize more “relaxed” management of public money, the impact of the changes made in 2020 was such as to raise more numerous and more serious concerns.
Not only has the short-sighted and hasty lawmaker moved in the opposite direction to that of promised simplification, but he also seems to have paved the way for careless management of public money and prejudicial conduct to the good performance of the public administration. Nor seems the initiative suitable to curb the «fear of signing» as the real causes of maladministration are to be should be elsewhere, inside and outside the administration itself. It is only through an «aggregate view» of such issues, to be investigated with the appropriate expenditure of time and resources, that it is possible to implement interventions meant to endure the test of time and positively affect the functioning of the administrative apparatus, while spreading a new culture of the common good.