Software applications are particularly suitable tools for translating into practice the various phases of the administrative procedure. Their use, beyond pursuing the objectives of administrative action set out in art. 1 of Italian law 241 of 1990, fosters dialogue with citizens by making it easier to interface with various administrations. Public bodies, in order to deliver better services to users, have therefore over the years — driven by the digital revolution — equipped themselves with increasingly complex and efficient IT systems.
Strong budget constraints, however, resulting from public spending reduction policies, risk impacting negatively on the supply of constantly evolving technological systems. Hence the need for PAs to contain expenses while trying not to negatively impact the quality of administrative action and of the services delivered.
Pursuing the above goals, the legislator already intervened in 1993 with D.Lgs 39/1993, a rule that dealt with defining the principles of the rationalisation of IT in the Public Administration. Of note is the fact that the decree, still in force, establishes the principle of ownership of software systems vested in the contracting administration (art. 2 paragraph 3 d.lgs. 39/1993), in agreement with what is established by copyright law at art. 11.
The rule, by giving rise to the administration’s copyright on the commissioned IT applications and thereby removing the need to resort to use licences, in fact frees the PA from the supplier, making it free to choose the best contractor and to modify the application according to future needs. Clearly, in 1993 reuse of IT applications could not yet be talked about, since no kind of legal discipline of the institution was yet in place.
It is with law 340/2000 (art. 25) that for the PAs the option to grant the free use of IT applications to other administrations was established, so that they could adapt them to their own needs: for the first time, although in nuce, a legal concept of reuse appears in the legal system. It should be underlined that the granting of free use to other administrations was a possible option.
Only with the subsequent Stanca directive of 19 December 2003, after reaffirming at art. 5 the acquisition of ownership of IT applications by the contracting administration, do we have the first regulatory indication establishing an obligation for the PA to insert clauses favouring reuse (art. 7: “to favour the reuse of IT programmes owned by the administrations, the tender specifications or project specifications must provide, where possible, that programmes developed ad hoc are easily portable to other platforms”). The legislator therefore proceeded by successive interventions, following a soft policy of introducing new institutions so as not to cause a shock to the system.
The provisions contained in the Stanca directive were then used as the structure upon which to build the discipline contained in the Digital Administration Code. So this last regulatory text, after identifying at art. 67 the methods of development and acquisition of IT applications and having imposed with art. 68 the comparative evaluation of the solutions to be acquired, regulates at art. 69 the “Reuse of IT programmes”:
“Public administrations which are owners of application programmes made on specific instructions of the public client are obliged to provide them in source format, complete with available documentation, for free use to other public administrations that request them and intend to adapt them to their needs, save for motivated reasons. […] Public administrations include, in contracts for the acquisition of IT programmes, clauses that guarantee the right to dispose of the programmes for the purposes of reuse by the same or by other administrations.”
All administrations, in all cases in which they are owners of IT applications, are required to grant said applications for reuse upon request of a third administration. To this day, therefore, PAs are required to insert specific clauses in contracts that guarantee the right to grant for reuse the IT programmes acquired.
Analysing the evolution of the legislation of the last five years on IT applications, one notes how, at the close of a path propaedeutic to the introduction of the institution into the legal system, the legislator has opted for the imposition of the reuse obligation on all PAs. The individual administration may not deny the granting of acquired applications for reuse except where there are “motivated reasons”.
From the above it must be presumed that such “motivated reasons” can only occur in restricted areas, in which a public interest prevailing over that brought by the requesting administration — and fixed by the legislation itself — comes into play.
In conclusion, it is possible to observe how until today the institution has had a slow and alluvial formation compared to the possibilities offered by technological evolution; for this reason it is possible to affirm that there is still room for further regulatory interventions. Indeed, in a de jure condendo perspective, for the purpose of rationalising public spending and of efficiency and effectiveness of administrative action, it is desirable that reuse have priority over the other options indicated by article 68, thus avoiding remaining a frozen institution at the discretion of public administrations.