INDEPENDENT ADMINISTRATIVE AUTHORITIES IN ITALYNAMES AND FUNCTIONS

June 2017

IT ALL STARTED IN THE NINETIES

The European Union imposed to Member States to liberalise strategic sectors of the economy (transportation, energy, telecommunications). To ensure respect for the rules governing the free market, the EU asked them to set up ad hoc public bodies. Italy created the independent administrative authorities.Although the authorities were established at different moments in time and there was no unitary plan, they all have common features: they are neutral, independent bodies separate from Government and have their own organisational, financial and accounting autonomy. Why create new independent Administrations?To protect the economic and social interests enshrined in the Constitution and avoid important strategic sectors, especially the more dynamic and highly technological, from being politically influenced.

WHAT DOES THE CONSTITUTION SAY?

Should a law affect a sector for which an independent Au-thority is competent, thereby interfering with its activity, the law can be contested before the Constitutional Court as having violated the principle of fairness and protection of the constitutional values for which the Authority is respon-sible.

Since the Constitution does not envisage independent authorities they were established by ordinary law. Legally some people call them the “fourth power” of an “unvaried” Constitution; others believe that they could be covered by Art. 41 of the Constitution:

Private economic enterprise is free... The law shall provide for appropriate programmes and controls so that public and priva-te-sector economic activity may be oriented and co-ordinated for social purposes.

Known as the “Antitrust”, it was established by Law n. 287/1990 “Regulations for the protection of competition and the market”. Its aim is to:

ensure protection of competition and the market;repress unfair commercial practices and misleading advertising;sanction unconscionable clauses in contracts between undertakings and consumers;monitor any conflicts of interest concerning persons holding government office;assign a legality rating to undertakings; present, every year, before March 31st, the Prime Minister with the Annual Report about the previous year’s activities and illustrate it during an ad hoc meeting with Parliament.

The ICA is a collegial body with a Chairman and two Commissioners jointly appointed by the Presidents of the Chamber of Deputies and Senate; they remain in office for a seven year non-renewable term. The Authority is a member of the European Competition Network.

THE ITALIAN COMPETITION AUTHORITY (AGCM-ICA)

HOW DOES THE ICA WORK?

When any case or complaint is brought to the attention of the Chairman, either by a citizen seeking justice (natural person and/or legal entity) or ex officio, he appoints a Commissioner as rapporteur. The in-house Directorates perform an enquiry and, after having heard the parties, the College of the Authority takes the final decision by a simple majority.

Sanctions: the Authority warns the undertakings to avoid similar behaviour in the future; depending on how serious the violation and how long it has lasted, the Authority can also levy a fine up to 10% of the turnover of the undertakings involved.The decision taken by the ICA can be annulled by appealing to the Regional Administrative Tribunal of Lazio (TAR).

THE ICA AND THE DECENTRALISED APPLICATION OF THE EU ANTITRUST LAW

The safeguard of the single market is a core competence of the EU. However since 2004, after approval of Regulation 1/2003, national Antitrust authorities apply articles 85 and 86 of the EU Treaty in a decentralised manner (these articles prohibit all agreements between undertakings which may affect trade, and abuse of a dominant position).The single intervention principle is in force, so there is no risk of overlapping between the national and EU level. Community interest is the parameter used to define the judicial level. The case is assigned to national Authorities if:

the current or foreseeable restrictive effects of competition essentially take place in the territory of a single Member State;there is no particular interest for the Community and/or it does not involve significant interests of actors in other Member States.

Every national Antitrust Authority can also ask the European Commission to be assigned competence for a specific case being examined at EU level should it believe there are grounds for it to be examined at national level.

THE ITALIAN COMMUNICATIONS SUPERVISORY AUTHORITY (AGCOM)

It is a “convergent” author-ity because it regulates and monitors multiple macro communications sectors: telecommunications, audio-visuals, publishing and, more recently, postal services.

This Authority was established by Law n. 249/1997 “Establishment of the Authority for communications and regulations regarding the telecom-munications and radio and television systems”. It was tasked with:

ensuring equitable conditions for fair market competition between operators;protecting the fundamental rights of users.

THE MEMBERS OF AGCOM

The AGCOM has a Chairman, a Board, a Commission for Infrastructures and networks, and a Commission for services and products. The Chairman is appointed by a Presidential Decree upon a proposal of the Prime Minister and in agreement with the Minister of Economic Development after a favourable opinion of the competent parliamentary Committees. It is a seven-year, non-renewable mandate.The Regional Committees for Communications (CO.RE.COM) are also members of AGCOM; they act as guarantors for local communications systems; the National Users Council (CNU), made up of five members and financed by the Regions, is also a member of AGCOM.

Among others:it assigns radio and television licences, establishes fees and contributions;it verifies the budgets of operators in the audio-television sector;it monitors any dominant position;it verifies observance of indications by the Parliamentary Committee for the aims of and vigilance of the radio and television services;when requested by the AGCM it expresses opinions in proceedings involving communications;it guarantees the application of regulations concerning so-called par condicio as regard electoral issues.

A representative is chosen to be “responsible” for the preparatory enquiry regarding each proceeding; this representative may be summoned to attend either public or reserved auditions.

TASKS ASSIGNED TO AGCOM

Regarding sanctions, the AGCOM can:apply administrative sanctions in the case of ascertained violations;accept the proposal of “commitments” presented within 30 days of ascertainment of the illicit behaviour, so long as the commitment also includes the immediate suspension of the illegitimate conduct;or, in the case of reiteration of the illegitimate behaviour, AGCOM may impose interdictory behaviour, e.g., from suspended activity for a maximum of 6 months, to the repeal of the licence.

THE SANCTIONS OF AGCOM

Known as the “Garante della privacy” [Guarantor of privacy] it was established by Law n. 675/1996 on privacy and is regulated by the Data Protection Code (Legislative Decree n. 19 of 30 June 2003).It is a collegial body with four members (the President, Vice President and two members). The Chamber of Deputies elects two members while the Senate of the Republic elects the other two (the so-called limited vote system). Unlike other Authorities, Parliamentary Committees are not required to express an Opinion about the designated individuals. The non-renewable mandate lasts seven years. The Authority deals with all public and private issues that may interfere with the correct processing of personal data and information.Every year the Guarantor presents an Annual Report to Parliament and the Government, illustrating, amongst other things, the most significant acts and regulations adopted without the opinion of the Authority, on topics that affect the processing of personal data and/or issues regulated by the Code.

ITALIAN DATA PROTECTION AUTHORITY

The most important are:checking that personal data is processed in line with current regulations and, should there be irregularities, establish the measures necessary to rectify the status quo;handle any claims, reports and complaints based on the personal data protection code;promote dissemination of Deontological Codes and the Code of Good Conduct (from consumer credit to journalism, etc.);inform Government about any critical situations and, when requested, render ad hoc opinions about topics for which the Authority is competent;handle the Records that have been created based on the personal data protection code.

THE TASKS OF THE DATA PROTECTION AUTHORITY

The CONSOB was established by Legislative Decree n. 33/2013 “Reorganisation of the regulations regarding the right of civic access and the obligations of publicity, transparency and dissemination of information by public administrations”; it is the collegial body tasked with controlling the Italian financial products market.It has a Chairman and four members appointed by a Presidential Decree upon a resolution adopted by the Council of Ministers at the initiative of the Prime Minister and after a formally non-binding opinion by the competent Parliamentary Committees. The seven-year mandate is non-renewable.It is possible to contest the decisions of the Authority by presenting a reasoned appeal directly to the Commission.

THE NATIONAL COMMISSION FOR COMPANIES AND THE STOCK EXCHANGE (CONSOB)

It protects public savings, but in the Italian legal system it is not the only body responsible for protecting savers’ interests. To this end:

it regulates the provision of services and investments by intermediaries, the reporting obligations of companies listed on regulated markets and appeals for public investments;it authorises public invitations to bid and documents concerning takeover bids, the operations of regulated markets, and enrolment in the professional registers of investment companies;it monitors market management companies and the transparency of negotiations;it sanctions the entities monitored;

continued

THE ACTIVITIES OF THE CONSOB

it ascertains any anomalous trends in the trading of listed securities and verifies violations of regulations on so-called insider trading and market abuse;it collaborates with domestic and international Authorities appointed to organise and operate financial markets;

CONSOB works closely with the European Union and is a member of the European Securities and Markets Authority (ESMA).

THE ACTIVITIES OF THE CONSOB

The IVASS was established by Law n. 135/2012 to protect policyholders and, more in general, those entitled to insurance benefits, through a “sound and prudent” management of insurance undertakings. It also pursues the stability of the financial system and markets. The Board is made up of a President, who is the Director General of the Bank of Italy, and two Directors, chosen from amongst persons with a high level of expertise in insurance matters, and appointed by a Presidential Decree upon a resolution adopted by the Council of Ministers at the initiative of the Prime Minister acting on a proposal from the Governor of the Bank of Italy and in agreement with the Minister of Economic Development.

IINSTITUTE FOR THE SUPERVISION OF INSURANCE COMPANIES (IVASS)

IVASS also has a Joint Directorate. This is a collegial body made up of the Governor of the Bank of Italy, who holds the chair, the Senior Deputy Governor of the Bank of Italy – President of IVASS, the three Deputy Governors of the Bank of Italy and the two members of IVASS’ Board of Directors. It approves the Annual Report and provides opinions for other Authorities.IVASS works closely with the European Union and is a member of the European Insurance and Occupational Pensions Authority (EIOPA).

THE JOINT DIRECTORATE

Among others:it exercises “micro-prudential supervision”, i.e., through assets/liabilities, financial and technical controls over corporate governance and shareholdings;it also exercises “macro-prudential supervision” by controlling the stability of the entire insurance system; to this end it can carry out inspections, also in collaboration with the Bank of Italy and other public Authorities, both in Italy and the European Union and/or Member States;it keeps the RUI (single register of insurance and reinsurance intermediaries);it promotes the dissemination of good practices between operators in order to protect consumers;it publishes an Annual Report, other documents concerning its activities, and statistical data about the insurance market in Italy.

THE TASKS OF IVASS

THE ELECTRICITY, GAS AND WATER AUTHORITY

The AEEG was established by Law n. 481/1995 “Rules for the competition and regulation of public utility services. Establishment of the Regulatory Authority for public utility services”. Its objective is to “ensure the promotion of competition and efficiency” in the electricity and gas sectors.

It is a collegial body with a President and four members appointed by the President of the Republic after a binding, favourable opinion by the competent Parliamentary Committees acting on a proposal by the Minister of Economic Development. One unique characteristic: it is not financed by State resources but by contributions paid by market operators calculated as a set percentage of contributors’ revenues (0.28‰ in the electricity and gas sectors and 0.25‰ in the integrated water sector).

ensuring “availability” and “distribution” of services throughout the country by establishing a “transparent and reliable tariff system based on predefined criteria” to protect the interests of users and consumers, but at the same time encourage protection of the environment and the efficient use of resources;promote the highest possible levels of competition and better standards of safety in the supply system;establish minimum levels of quality service as regards technical and contractual issues and service standards;

continued

THE OBJECTIVES OF THE ELECTRICITY, GAS AND WATER AUTHORITY

promote the rational use of energy, especially with regard to the dissemination of energy efficiency and the adoption of sustainable growth measures; monitoring and control in the fields for which it is competent, in collaboration with the Finance Police, the Equalisation Fund for the electricity sector, the GSE, etc., regarding quality service, safety, incentives for renewable sources and assimilated products, etc.; impose sanctions and assess and possibly accept commitments by companies to compensate infringed interests.

THE OBJECTIVES OF THE ELECTRICITY, GAS AND WATER AUTHORITY

ANAC was established by Law n. 114/2014 to fight corruption in the Public Administration and subsidiary and controlled undertakings, as well as safeguard the rights and interests of citizens and businesses. The Authority is a collegial body made up of a President and four members chosen from amongst anti-corruption experts. The members are appointed by a Presidential Decree after deliberations by the Council of Ministers upon a proposal of the Minister for Public Administration and Simplification pursuant to a favourable opinion with a two-thirds majority by the competent Parliamentary Committees. It is therefore a binding Opinion.The President is also appointed pursuant to a proposal by the Minister for Public Administration and Simplification, but in agreement with the Minister of Justice and the Minister of Interior.

continued

THE ITALIAN ANTI-CORRUPTION AUTHORITY (ANAC)

THE ITALIAN ANTI-CORRUPTION AUTHORITY (ANAC)

These appointments are explicitly envisaged to be incompatible with other elective public offices or posts in political parties and union organisations held during the three-year period prior to the appointment.The non-renewable mandate lasts six years.Its modus operandi basically consists in preventing corruption by creating a collaboration network with all levels of the public administration, and the efficient use of resources.Most of the documents approved by ANAC are official guidelines.

Established by Law 146/1990, and modified in 2000, the Commissione di garanzia dell’attuazione della Legge sullo sciopero nei Servizi pubblici [Strike Regulatory Authority] is made up of eight members indicated by the Presidents of the Chamber of Deputies and the Senate and appointed by Presidential Decree from amongst experts in the field of constitutional rights, labour and industrial relations.

They are formally appointed by a Presidential Decree.Specific rules lay down that members of this Authority cannot hold a public post or a post in a political party, union or other agency that often collaborates or acts as a consultant for the Public Administration.

THE STRIKE REGULATORY AUTHORITY

The most important are:decide if the “essential services” established in the agreements between social partners and in the Code of Self-regulation are adequate to ensure, on the one hand, the right to strike and, on the other, the rights of citizens, also enshrined in the Constitution. If they are deemed incompatible, one of the Authority’s tasks is to propose an agreement reconciling the interests of the parties involved;should constitutional rights be in serious danger, the Authority can avert a strike that has already been announced by activating the requisition procedure, in other words either by reporting to the Prime Minister or a Minister, if it is a national or interregional strike, or to the Governor; these persons will then issue the requisition order; continued

THE RESPONSIBILITIES OF THE STRIKE REGULATORY AUTHORITY

gather information from the public administration and businesses providing a public service, for example regarding strikes that have been announced and held, revocations, suspensions and postponements;inform the President of the Chamber of Deputies, either when requested or on its own initiative, about the activities for which it is competent;transmit its documents and decisions to the President of the Chamber of Deputies, the President of the Senate, and to Government; these institutions will then undertake to disseminate the information.

THE RESPONSIBILITIES OF THE STRIKE REGULATORY AUTHORITY

Telos Analisi & Strategie Palazzo Doria PamphiljVia del Plebiscito 107Roma 00186

T. +39 06 69940838telos@telosaes.itwww.telosaes.it

facebook.com/Telosaes

twitter.com/Telosaes

youtube.com/telosaes

https://plus.google.com/110655654803516890208

pinterest.com/telosaes/

linkedin.com/company/telos-a&s

slideshare.net/telosaes