Private and Public law lesson 7 The Independent Authorities

INDEX - the Independent Authorities: main features - are Independent Authorities legitimate from a constitutional point of view? What is their constitutional coverage? - the citizens’ right to have access to Authorities’ documents and files, and to participate to the proceedings - liabilities which may be incurred by the Independent Authorities

The Independent Authorities: _________________________________ examples _________________________________ Some examples: - CONSOB* - IVASS (formerly, ISVAP)* - Autorità Garante della concorrenza e del mercato* - Garante per la tutela dei dati personali - Autorità sulla vigilanza dei lavori pubblici

The Independent Authorities: main features

The Independent Authorities _________________________________ - The Authorities act in specific technical matters and policy areas - The “phenomenon” of the Authorities highlights: (i) a change in the State approach to the market; (ii) the Courts’ failure to cause remedy to a confused legislation; (iii) a shift from a “pyramidal” to a “polycentric” model

The Independent Authorities _________________________________ - The need for a neutral and technical “entity”, specially in areas in which strong private interests come into play - The Authorities do not report to / are not liable vis-à-vis the Government or the Parliament: a breach of the Constitution? Independent Authorities may be also entitled to legislate and to issue binding regulations

_________________________________ The Independent Authorities _________________________________ The Authorities are not regulated by any specific act (or set of norms), except for: - Law no. 59/1997 - Law no. 205/2000 procedural rules There is no specific norm clarifying the identity and common features of Independent Authorities

The Independent Authorities: ___________________________________ the main features ___________________________________ - powers analogous to ordinary administrative functions - power to settle disputes and conflicts: technical-discretionary powers; I.A. “anticipates” the Court decision - issue regulations and other “secondary” norms (to ensure application of “primary” rules); delegation by the Parliament - supervisory powers - power to impose sanctions and fines

The Independent Authorities: ___________________________________ the main features ___________________________________ They are independent from the Government and do not fall within the scope of the principle of political responsibility (art. 95 of the Constitution) They are not “instrumental entities”. They are not subject to directives and controls by the State (including account control by Corte dei Conti?) They do not necessarily have legal personality

The Independent Authorities: ___________________________________ the main features ___________________________________ How should “independence” be interpreted? Opinions: liability, in some cases, vis-à-vis the public power: The I.A. must disclose all acts and decisions (and the relevant reasons/legal grounds) to public The Government is liable for “culpa in eligendo” (B) absolute independence (similar to “Independent Commissions” in the UK). Authorities are created to tackle any abuse of power and overwhelming private interests

The Independent Authorities: ___________________________________ the main features ___________________________________ INDEPENDENCE = I.A.s are not bound by any directive by the Government. The latter may not cancel the I.A. decisions, nor may it interfere with the I.A. powers (so, opinion under (B) prevails). On the other hand, I.A. decisions may be challenged before Administrative Courts (and before the President of the Republic), for breach of law.

___________________________________ The Independent Authorities: the main features ___________________________________ The I.A.s are entitled to issue acts and decisions (regulatory powers) The I.A.s must ensure that the individuals concerned or affected by their decisions are in a position to participate to the proceeding and to raise any counter-interest

The Independent Authorities: _________________________________ examples _________________________________ Some examples: - CONSOB* - IVASS (formerly, ISVAP)* - Autorità Garante della concorrenza e del mercato* - Garante per la tutela dei dati personali - Autorità sulla vigilanza dei lavori pubblici

The Independent Authorities: _________________________________ examples _________________________________ Some (uncertain) examples: - Consiglio di Stato and Corte dei Conti - Difensore civico (“Ombudsman”) - Autorità di vigilanza sulle ONLUS - Banca d’Italia*

The constitutional coverage

___________________________________ The Independent Authorities: Constitutional “coverage” ___________________________________ Art. 95: responsibility of each Minister. How could Ministries could be “responsible” for acts done by Independent Authorities? Art. 97: “Public offices are organized according to the provisions of the law, in order to ensure the proper conduct and impartiality of administration”. Art. 101: independence of the Courts. May “independence” be only referred to Courts?

___________________________________ The Independent Authorities: Constitutional “coverage” ___________________________________ The 2002 decision of the Supreme Court on “Garante Privacy”: There is no “third option” between the legislative power and the Courts’ entitlement to solve disputes I.A.s are entitled to solve disputes, but they do not represent “new special judges” (this would be conflict with the Constitution) I.A. decisions may be challenged before Court (or before the President). In such case, the I.A. are entitled to take part in the trial

___________________________________ The Independent Authorities: Citizens’ right to inspect files ___________________________________ Art. 4 and 21 of the Law no. 241/1990 Citizens’ right to have access to acts, deeds and files of Independent Authorities; they may also inspect and ascertain the legal basis and factual backgrounds / reasons on which decisions are based; they may ascertain whether procedural rules were complied with

___________________________________ The Independent Authorities and their interaction with Regions ___________________________________ Regions’ exclusive power to act Powers to be jointly exercised by the State and Regions State’s exclusive power to act

___________________________________ The Independent Authorities and their interaction with Regions ___________________________________ Regions’ exclusive power to act Regions may create Independent Authorities in the relevant policy areas. The State may create Independent Authorities in order to ensure minimum performance levels, to be granted in favor of all citizens

___________________________________ The Independent Authorities and their interaction with Regions ___________________________________ The State may create Independent Authorities in order to ensure minimum performance levels and to set out “fundamental principles”: under art. 117, para 3 Constitution, “In matters of concurrent legislation, the legislative power belongs to the Regions except for the determination of fundamental principles which is reserved to the State” Powers to be jointly exercised by the State and Regions

___________________________________ The Independent Authorities and their interaction with Regions ___________________________________ The State may create Independent Authorities State’s exclusive power to act

___________________________________ The Independent Authorities and their interaction with Regions ___________________________________ “Regional” Independent Authorities and State-created Independent Authorities must liaise and interact with each other. I.A.s may be required to report to the Parliament (however, this does not entail that they are politically responsible)

Potential liabilities

___________________________________ The Independent Authorities: potential liabilities ___________________________________ According to the decision no. 500/1999 of the Supreme Court, the Independent Authorities may be held liable for damages vis-à-vis individuals, in case that acts or decisions are issued in breach of applicable laws NO RESTORATION IS GRANTED IN CASE THAT DAMAGES ARISE FROM OMISSION / FAILURE TO ACT

___________________________________ The Independent Authorities: potential liability for omission ___________________________________ Originary approach of the Courts: individuals are not entitled to enforce any rights (neither a “diritto soggettivo”, nor a “interesse legittimo”) 2001 decision of the Supreme Court: Consob was held liable for lack of supervision. Individual is entitled to claim restoration of damages suffered as a consequence thereof (“diritto soggettivo”) 2003 decision of the Supreme Court: confirmed the 2001 decision 2005 decision of the Supreme Court: confirmed the 2001 and 2003 decisions

___________________________________ The Independent Authorities: potential liabilities ___________________________________ The latest Supreme Court decisions have been criticized: - the individual claims that a “receivable” has to be paid by Consob. His restoration right, however, does not appear as something analogous to a “receivable”. The activity in discussion relates to the use of Authority (=> interesse legittimo, rather than diritto soggettivo) - the Court draws a distinction between “addressees” of Consob regulations (i.e., the financial intermediaries) and the “beneficiaries” of such legislation. Such distinction, however, appears unsatisfactory - the administrative Court (rather than the ordinary Court) should be competent to solve the dispute - the decisions in discussion do not clarify to what extent the judge should check or inspect the use of power by the Authority (technical discretion)

___________________________________ The Independent Authorities: potential liabilities ___________________________________ The burden of proof must cover the following: - negligence on the Authority’s part - damage suffered by the claimant - link of causation

___________________________________ The Independent Authorities: potential liabilities ___________________________________ Within the scope of EU law: the European Court of Justice explicitly allowed for restoration of damages claimed against the European Commission (illegitimate antitrust decisions issued against companies)