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: technicaldiscretionary 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:
(A) 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
___________________________________
Powers to be jointly
exercised by the
State and 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”
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 Statecreated 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)