The Role of Procedural Safeguards a Century After the Austrian Codification: Contemporary Challenges in the Context of Independent Administrative Authorities

Abstract

Starting from a historical reconstruction of the «proceduralisation» of administrative action in the major Western legal traditions, the essay focuses on the role attributed to the Austrian model by Italian scholars. The renewed attention paid by contemporary scholarship to this exemplary model of the «judicialization» of administrative rules also makes it possible to assess, within the national context, the extent to which this standard is respected, with particular reference to the phenomenon of the Independent Administrative Authorities. The article critically examines certain interpretative trends that tend to misrepresent the function of procedure in the exercise of the various powers entrusted to these authorities: on the one hand, the «myth» of «procedural legality» as a means of compensating for a deficit of substantive legality in regulatory activity; on the other hand, the questionable tendency to accept a substantive reading of the right to be heard in «individual» administrative proceedings. The analysis ultimately concludes that the Italian legal system is still far from fully internalizing the value of procedure.