Nudging pubblico vs. pubblico: nuovi strumenti per una regolazione flessibile di ANAC

This paper deepens the analogy between libertarian paternalism and flexible regulation, in order to assess if and to what extent the actual regulatory activity implemented by the National Anti-Bribery Authority meets the mentioned model. The conclusions of the work highlight that the Authority is the engine of a new juridical lexicon characterized by the principles of simplification, clarity and transparency, but without yet being the protagonist of the spread of an actual “flexible” or soft law. If it is confirmed that ANAC’s flexible regulation is a regulation different from the traditional one, since it is not formed by norms containing imperative orders formulated according to the assertive language of the typical sources of law, and carries out the principles of transparency and clarity of the regulation, however it does not appear to be as an external and indirect regulation, leading but not mandatory, which makes room to the administrative discretion. Often, indeed, the administrative action, in the field taken into consideration especially by the guidelines, is meticulously reconstructed, by including in it specific obligation burdening on the contracting authorities also in light of interpretations of the general principles of the sector that are the result of an autonomous assessment made by the Authority that, in this manner, are imposed on the regulation’s preceptors. While waiting for the hoped reconfiguration of the logical and methodological premises, at the basis of the regulation of the public contracts’ market, the paper explores some of the techniques that could already be used to improve the ability of the regulation to promote quality and efficiency of the contracting authorities’ activities.