ANAC should recognise the ongoing shift towards ‘enabling legality’

Recent news reports have brought to the fore the issue of the appointment of the new board of ANAC, the Authority responsible for preventing corruption across all areas of public administration. Its mission is carried out through oversight on various fronts: anti-corruption and transparency, the appointment of public officials, conflicts of interest, and the awarding and execution of public contracts. The appointment of the new board is therefore a matter of great importance, but it also provides an opportunity to ask what the future holds for this Authority and how it should respond to the challenges of a changing society. Indeed, change has been underway for some time and, on such sensitive issues as corruption, transparency and public contracts, it requires a response – or, rather, an effective and prompt adaptation. The legal framework is changing. This is demonstrated by the so-called ‘tax shield’ and the subsequent reform of the Court of Auditors, the new Public Contracts Code, and the abolition of the offence of abuse of office.

These are all signs of a shift inspired no longer by a merely ‘formal’ concept of legality, but by the principle of outcome and a legality that is, so to speak, above all ‘substantive’. This is demonstrated by the Supreme Court’s stance on contracts: in 2020, it clarified that the time has come to set aside legal categories linked to the principle of pacta sunt servanda, and instead to adopt an approach that emphasises economic analysis and good-faith cooperation between the parties. Further evidence of this is the new framework taking shape in relations between the public administration and private individuals, aimed at resolving problems rather than referring them to a court; in this regard, confirmation comes from the figures on litigation before the Regional Administrative Courts (TARs), which have jurisdiction precisely over disputes between public authorities and private individuals: in 2014, the number of pending appeals before the TARs stood at nearly 270,000, whilst by 2024 this had fallen to around 87,000. This decrease can be attributed to greater efficiency within the judicial system, but also to reduced conflict between the public and private sectors. Further evidence of this is the evolution of technology in strategic sectors of the public sector: Take hospitals or transport, for example, where technological changes require us to rethink, almost on a day-to-day basis, what is being achieved: if a hospital is designed and built over a 10-year period, we must not be afraid to adapt to the constant changes that new techniques (such as radiological or diagnostic methods) offer for the more efficient delivery of healthcare services. Not to mention artificial intelligence, which should be viewed as a tool for greater effectiveness in terms of transparency and the fight against corruption, rather than merely as a means of simplification.

In short, there are many changes, and these call not for a response but for an adaptation to a changing reality. In such a context, it is worth asking whether ANAC’s role should be confined to monitoring compliance with the rules and the adoption of organisational measures, or whether, on the contrary, its very independence allows it to grasp the changes taking place by contributing – in accordance with its mission – to the spread of a form of legality that, so to speak, ‘empowers’. Today more than ever, within a framework centred on the principle of results, there is a need for an ‘enabling’ legality, so that the objectives of public administration are always pursued in accordance with the law. Elements of such an approach are already present in current legislation, such as the collaboration that ANAC can undertake in projects of particular interest, but a more general reconsideration of its role is, to some extent, necessitated by the changes currently taking place. Furthermore, with regard to contracting, this will also be necessitated by the shortage of public resources once the effects of the National Recovery and Resilience Plan (PNRR) have worn off. A scenario that is by no means remote is that of carrying out projects of public interest using private resources (so-called public-private partnerships).

Indeed, it is precisely this partnership with the private sector that, now more than ever, requires transparency, negotiating skills, risk prevention and the courage to adapt. It is also in this area that ANAC will have to prove itself in the coming years. These are among the reasons why the debate on the appointment of board members cannot be limited to the candidates alone, but can serve as an opportunity to consider the changes currently underway and the adjustments the Authority will be required to make if it is to keep pace with the times and assume an institutional role, whilst maintaining its independence.