The Automation of the Decision-making Process of the Public Administration in the Light of the Recent Opinion by the Italian Council of State Regarding the Draft of Regulations Concerning the Modalities of Digitalization in the Public Tender Procedures

The Italian Council of State delivered its opinion (Cons. State, Advisory section, 26 November 2020, n. 1940) – requested by the Minister for Public Administration – on the draft of regulations about the modalities of digitalization of the public tender procedures. The present contribution aims to highlight some of the main issues raised by the Advisory section, with particular reference to the statement made by the Council of State about the possibility of using the new “computerized” (automated) systems in case of discretionary activities carried out by the contracting Authority. In the above mentioned opinion, the Council of State has repeatedly stated the inadmissibility of the choice to give any “decision-making autonomy” or “technical-discretionary spaces” to the new electronic decision-makers, functions which must on the contrary be reserved to the contracting Authority. This Council of State stance, however, merges with the guidelines already expressed by the Italian Administrative Judge and creates a particular conflict with one of the Council of State own statements given in one of the most recent and relevant judgments on the matter (Cons. State, sez. VI, 13 December 2019, n. 8472).