Market Regulation and Concentration of Powers of Independent Authorities

Abstract

The regulatory model entrusted to the Independent Administrative Authorities in the economic sectors is characterized not only by independence and technicality, but also by a peculiar concentration of powers of a different nature. The Independent Authorities have and exercise simultaneously regulatory, executive, judicial and sanctioning powers. In other words, the same institution dictates the rules on a given matter, applies them to specific cases, solves disputes and 'judges' by imposing sanctions.

The profile raises problems regarding the principle of separated powers of the State, that in modern systems is considered necessary to guarantee the plurality of the venues for the exercise of public powers and their mutual balance.

The issue is exacerbated by the fact that the concentration of powers has been accompanied by a certain 'confusion' between them: the various powers are often exercised in a contextual manner and have been subjected to substantially similar discipline. This has led to a 'loosening' of the principle of typicality, which has conditioned the procedural discipline provided for by secondary sources and applied by the authorities, with relevant consequences at the systemic level. The present essay aims to identify the critical issues that this configuration has generated, to identify the constitutional foundations with which it contrasts, and to suggest some solutions that could restore consistency between the purpose and nature of the functions attributed to the independent authorities and the legal regime applicable to the acts they adopt.