Administrative Automation and Judicial Review: Pathological Profiles and Legal Remedies in the Algorithmic Context

ABSTRACT This contribution aims to examine the cases of invalidity affecting administrative acts whose content has been determined, in whole or in part, through the use of electronic processing tools. The analysis will begin with the categories of invalidity established under Italian law, while also adopting a comparative perspective, in order to evaluate the solutions developed in legal systems that, although distinct, share structural and functional similarities with the Italian framework. The cross-cutting and recurring nature of the issues raised by the algorithmic transformation of administrative functions makes such a comparative approach particularly fruitful.

KEYWORDS Invalidity of administrative acts – Automation and legality

TABLE OF CONTENTS 1. The pathologies of the administrative act to the test of algo-rithmic transformation: preliminary remarks. – 2. The nullity of algorithmic acts: introductory remarks. – 2.1. The theory of the essential elements of administrative acts in the context of the robotic transition. – 2.1.1. Robotic decisions as administrative measures ascribed to public administrations. – 2.1.1.1. The prior identification of programming rules. – 2.1.1.2. The subsequent “acceptance” of the content of the act. – 2.1.2. The intent of the algorithmic decision. – 2.1.3. The form of the automatic act. – 3. Robotic decisions and judicial review of defects of the act. – 3.1. Lack of competence. – 3.2. Breach of law. – 3.3. Excess of power. Techniques for detecting defects in elec-tronically processed administrative decisions. – 3.3.1. Lack of proportionality, illogicality, manifest injustice, un-reasonableness. – 3.3.2. Symptomatic figures that can be compared with the public administration’s previous determinations. – 3.3.3. Symptomatic figures attributable to an error conditioning the decision. – 3.3.4. Symptomatic indicators attributable to a lack of preliminary investigation. – 3.3.5. The examination of the legitimacy of the act through the use of inferential techniques. – 3.3.5.1. The judicial review of motivation. – 3.3.6. Toward a new symptomatology of robotic acts: the adequacy of the tool as a validity requirement for the algorithmic act. – 3.3.6.1. Calibration and type approval. – 3.3.6.2. Platforms certification. – 3.3.6.3. The lack of quality of the data used as an indicator of the unlawfulness of the administrative act. – 4. Concluding remarks