Effetti privatistici delle attività delle autorità amministrative indipendenti
Author(s)
Bucalo, Valeria
Date Issued
October 14, 2008
Type
Doctoral Thesis
Abstract
The thesis addresses the civil-law effects of several measures issued by the Independent Administrative Authorities.
A brief review of the historical and economic context leading up to the establishment of the independent authorities (market liberalization and privatization), is followed by a two-part systematic analysis of the Authorities themselves.
The first part focuses on the so-called “regulatory” authorities, such as the electricity and gas regulator, the telecommunications regulator, and the insurance market regulator (ISVAP), set up to regulate and control their respective market sectors.
The second part focuses on the so-called “supervisory” authorities, such as the Bank of Italy, the financial services authority (Consob) and the competition authority, set up to ensure the protection and safeguarding of constitutionally relevant public or collective interests.
The laws establishing each of the above mentioned Authorities are examined, including any later supplements and/or amendments.
Due to the vastness of this body of regulations, which, moreover, reflects the great complexity and diversity of the powers and functions of each organization, and the specific profile addressed, it has been necessary to selectively determine the more relevant civil-law rules and provisions, also in the light of their application.
Therefore, the thesis highlights the provisions vesting the Authorities with the following powers:
- powers of a predominantly “regulatory” nature, which translate into the issuing of secondary legislation (the “regulations” or “directives” issued by the electricity and gas regulator and the telecommunications regulator; the ISVAP regulation relating to the layout and contents of the “nota informativa” or notice providing information on insurance policies);
- administrative powers, translating into the introduction of discretionary administrative measures (in the form of the “autorizzazione in deroga” by the competition authority, namely authorized exceptions to the law);
- other powers without a specific name (such as, for example, the power of the Bank of Italy to lay down, in a pre-determined manner, a “template” for certain contracts or securities), leaving room for various legal interpretations.
With regard to the effects of the failure to comply with and abide by the measures introduced by the Authorities, a penalty of “nullità relativa” (relative voidness) is sometimes provided (in the case of failure to comply with the form laid down by the Consob, and in the case of contracts “differing” from the standard template set out by the Bank of Italy). In other cases (with regard to the regulated electricity market) there is the “amendment” or “revision” process of the supply regulation.
The in-depth investigation of the subject matter, with respect to the broadness of the statutory framework, clearly highlights the difficulty of addressing the “civil-law effects” of the (different) activities of the Independent Administrative Authorities in unitary terms, and, therefore, to reach univocal summary conclusions.
Additional information
Dottorato di ricerca in Diritto dell' economia
Subjects
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