Il regime delle assicurazioni

This article examines the role of liability insurance in shaping defensive administrative behaviour within public administrations, with a particular focus on the Italian legal system. Drawing on international literature on defensive decision-making, the analysis highlights the structural asymmetry between the varied benefits of administrative action and the concentrated personal costs borne by public officials in cases of liability. This imbalance incentivises excessive precaution and risk-averse behaviour, potentially undermining administrative efficiency. While insurance coverage may mitigate such effects by redistributing risk, it also raises concerns related to moral hazard and does not eliminate non-transferable costs such as reputational damage. Empirical evidence, both international and Italian, does not support a clear causal relationship between insurance schemes and the reduction of defensive bureaucracy. Rather, regulatory uncertainty and legal complexity emerge as the primary drivers of defensive practices. In the Italian context, the widespread diffusion of insurance policies for administrative liability reflects a high perceived risk among public officials, especially in sectors characterised by normative instability, such as public procurement. The article reconstructs the legal framework governing liability insurance prior to the 2026 reform (the socalled “Foti Law”), highlighting the restrictions on the insurability of administrative liability and the absence of a coherent public risk-management strategy. It then analyses recent legislative developments, including the new Code of Public Contracts and the introduction of a mandatory insurance requirement for public officials managing public resources. The reform aims to enhance the effective recovery of public losses and rebalance incentives by limiting personal financial exposure, while simultaneously introducing procedural innovations such as mandatory joinder of the insurer in liability proceedings. The paper argues that, although the reform may reduce the chilling effect associated with liability risks, it shifts the economic burden of insurance on to individuals and raises new issues concerning market sustainability, adequacy of coverage, and the interaction between insurance law and public liability regimes. Ultimately, the effectiveness of insurance as a tool to counter defensive bureaucracy depends on its integration with broader institutional mechanisms, including performance evaluation systems, internal controls and disciplinary frameworks.