1. Private and Public law lesson 7 The Independent Authorities

2. 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

3. 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

4. The Independent Authorities: main features

5. 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

6. 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

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

8. 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

9. 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

10. 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

11. 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.

12. ___________________________________
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

13. 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

14. 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*

15. The constitutional coverage

16. ___________________________________
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?

17. ___________________________________
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

18. ___________________________________
The Independent Authorities:
Citizens’ right to inspect files
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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

19. ___________________________________
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

20. ___________________________________
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

21. ___________________________________
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

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

23. ___________________________________
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)

24. Potential liabilities

25. ___________________________________
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

26. ___________________________________
The Independent Authorities:
potential liability for omission
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Originary approach of the Courts: individuals are not entitled to enforce any rights (neither a “diritto soggettivo”, nor a “interesse legittimo”) 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”) decision of the Supreme Court: confirmed the 2001 decision decision of the Supreme Court: confirmed the 2001 and 2003 decisions

27. ___________________________________
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)

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

29. ___________________________________
The Independent Authorities:
potential liabilities
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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)