Self-binding rule in administrative choice. Preliminary observations for a reconstruction of the administrative functions as a procedure

Abstract

This article aims to provide a critical analysis of the structural configuration of the administrative function in light of the recent legislative changes introduced by the Public Contracts Code. Specifically, this study examines whether and how these novelties concerning the principle of self-imposed constraint (autovincolo) impact the existing regulatory framework.

To this end, the paper reviews the historical emergence of the concept of self-imposed constraint. More precisely, it focuses on examining the mandatory nature and subsequently the self-binding nature of administrative power. This subject has, in fact, been sparsely addressed directly by legal scholars, particularly in the period following the enactment of the general law on administrative procedure.

Subsequently, the paper addresses the admissibility and scope of relevance of the self-imposed constraint in the current context, specifically analyzing the positions taken by legal commentary and case law on this issue. Jurisprudence generally invokes the self-imposed constraint principle, sometimes attributing to it a constitutional character, primarily to affirm the binding role of the lex specialis on subsequent administrative determinations. On the other hand, legal scholars, prior to the enactment of Law No. 241 of August 7, 1990, had focused on the self-limitation of the Public Administration, asserting its tendentially mandatory and general validity. Later, this administrative predetermination was interpreted as an anticipation of the exercise of discretionary power.

According to a more recent doctrine, the principle of result is argued not to have a significant impact within the regulatory framework, given that the so-called results-oriented administration is already largely accepted through judicial and doctrinal interpretation. Thus, the only way to safeguard the legal relevance of the principle of result is argued to lie in the self-imposed constraint.

In conclusion, the article seeks to offer original perspectives for the re-interpretation of this legal concept. While generally concurring with the prevailing judicial interpretation of the self-imposed constraint and the latest doctrinal considerations outlined above, it is maintained that the mechanism under examination warrants further study. In particular, the paper argues that the legislator, with the aforementioned legislative changes, has once again highlighted certain procedural characteristics of the administrative function. It is contended that the self-imposed constraint constitutes a procedural obligation of the Public Administration pertaining to the structural configuration of the administrative function. The administrative function cannot be fully exercised without a procedure aimed at its own self-regulation. Therefore, the preclusive effect arising from the self-imposed constraint is deemed immanent to the structural configuration of the administrative function, particularly from a procedural standpoint.