The "reflexive" public administration

A peculiar aspect of the precautionary principle lays right in the reassessment and renewal of authorization provisions. Precautionary measures are provisional and subject to review upon acquisition of “new scientific information” or development of “best available technologies”. In the European administrative integration process, the re-examination of public decisions adopted in situations of scientific uncertainty reflects the idea of a permanent correspondence between the administrative function and the public interest (in cases of human and environmental safety). Because of such on-going correspondence, the administrative function cannot be fossilized in one single administrative provision (e.g., the authorization), but rather must adapt to the (ever changing) need of the public interest. Such idea also shows the need to reconsider the principle of administrative continuity: from an organization-based moment to a functional one.

The authorization of an industrial activity potentially harmful to human and animal health or the environment initiates an administrative relationship that is “unstable” ab origine. Such relationship with the Administration has a “procedural” character (maintained even after the authorization’s grant), which is characterized by a permanent modification of the administrative function. Therefore in a risk-based logic, all procedures of authorization, renewal and re-examination cannot be strictly separated one from each other and take the shape of an administrative function that gradually and permanently creates the features of the very administrative relationship itself. This happens along a continuum that seems not to distinguish between procedures of “first” or “second” degree.

Similarly, also risk management cannot be exhausted in the single authorization procedure. Risk management sets itself aside from the single administrative procedure and performs its many potentialities before, during and after the authorization’s renewal and re-examination.

Precaution, as a principle of administrative action, calls for the duty to evaluate thereby enhancing or (arguably) exacerbating the duty to pursue the public interest. In “risk law”, the action of public authorities cannot exhaust itself in one single administrative provision. The global relevance of the administrative function finds its expression in the continuous re-examination of the decisions taken in light of the evolution of the scientific and technological datum. It is right in the duty to evaluate and re-assess the scientific datum that the sociological concept of “reflexive” Administration becomes legally relevant.