Administrative judge and regulation of the energy industry

Abstract

The work is part of the broad debate on the trade union on the technical discretion of the independent authorities with the aim of highlighting how the intensity of the judicial control - with particular reference to the regulatory function of ARERA in relation to the energy sector - is strongly influenced by the different attitude of technical discretion in function of the structure of power actually exercised and, therefore, of its inherence or otherwise in the choices concerning the definition of the structure of the interests at stake. It aims to investigate the relationship between jurisdiction and regulatory powers starting from the idea of the existence of a tension between the force of power and the force of reason, with respect to which judicial control plays an essential role in order to allow rational argumentation to fully perform its function of recognition, thus affecting the substantial legality of administrative action. The survey therefore develops starting from the analysis of the powers of the ARERA and the nature of the subjective legal situations claimed by the recipients of regulation in the energy sector and focuses on the reconstruction of the main guidelines developed by the doctrine and jurisprudence regarding review on technical discretion with the aim of outlining, on the basis of the recent rulings made by the administrative judge in the context of disputes on the regulatory, prescriptive and sanctioning powers of ARERA, the possible spaces for a union full of greater reliability.