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Private and Public law lesson 7 The Independent Authorities - April 4, 2014-

Private and Public law lesson 7 The Independent Authorities - April 4, 2014-.

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Private and Public law lesson 7 The Independent Authorities - April 4, 2014-

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  1. Private and Public lawlesson 7The Independent Authorities-April 4, 2014-

  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 • _________________________________ - 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 confused legislation; (iii) a shift from a “pyramidal” to a “polycentric” model

  4. 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

  5. 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

  6. The Independent Authorities • _________________________________ Some examples:- CONSOB- ISVAP- AutoritàGarantedellaconcorrenza e del mercato- Garante per la tuteladeidatipersonali- Autoritàsullavigilanzadeilavoripubblici

  7. The Independent Authorities • _________________________________ Some (uncertain) examples:- Consiglio di Statoand Corte dei Conti- Difensorecivico (“Ombudsman”)- Aurotorità di vigilanzasulle ONLUS- Banca d’Italia

  8. The Independent Authorities: the main features • ___________________________________ - powers analogous to ordinary administrative powers- power to solve 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 • autonomy = independence?

  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) total and absolute independence(just like “Independent Commissions” in the UK). Authorities are created to tackle any abuse of power and any overwhelming private interest

  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: • 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?

  14. 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

  15. 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

  16. 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

  17. 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

  18. 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

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

  20. 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)

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

  22. The Independent Authorities: • potential liabilityfor omission • ___________________________________ Originary approach of the Courts: individuals are not entitled to enforce any rights (neither a “dirittosoggettivo”, nor a “interesselegittimo”)2001 decision of the Supreme Court: Consobwas held liable for failing to supervise. Individual is entitled to claim restoration of damages suffered as a consequence thereof (“dirittosoggettivo”)2003 decision of the Supreme Court: confirmed the 2001 decision2005 decision of the Supreme Court: confirmed the 2001 and 2003 decisions

  23. 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 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

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