Independence and how to get rid of it

13 April 20222 years ago babelfish

Independence is a rather central theme in this blog, at least with reference to central banks ( here you will find a few posts that have dealt with it). More generally, the independence of certain authorities (the AAI, Independent Administrative Authorities) has been one of the themes of my teaching for years, for the simple reason that these authorities, the reasons and the scope of their independence are talked about, or one should speak, in any decent course of economic policy (and the textbook I was adopting, this one, dedicates a paragraph to it, 5.8). The question so dreaded by the students arose, because it was simple: "What are the types and functions of independent authorities?" (if you have the book, you can see on page 155 that Bagnai is good: he only gives exercises reported in the text). It followed (or rather it did not follow, because the students do not know how to answer simple questions, for inscrutable reasons, a bit like you, after all, you do not see the obvious things – for example the fact that if everyone shoots at the League it means that the League is the only party that bothers …), followed, that is, did not follow, the answer, which more or less should have been something like this:

"There are three groups of AAI (for friends, authorities ): the guarantee authorities, the supervisory authorities and the regulatory authorities. The former (Competition and Market Authority or AGCM, Privacy Authority, …) protect interests of constitutional significance, with quasi-jurisdictional powers (arbitration functions) and sanctioning powers, which they use to ensure compliance with the rules. The latter (Bank of Italy, Consob) also perform legislative and regulatory tasks, as well as exercise supervision on the respective financial market segments. Finally, the regulatory authorities have been designed to favor the liberalization and privatization of public services, regulating tariffs, market access conditions, quality standards, and for example the Regulatory Authority of Transport, called ART, and the Regulatory Authority for Energy, Networks and Environment, called ARERA ".

In hindsight I must excuse the "poor student" who regularly crashed into this question whose simplicity is more apparent than real. Suffice it to say that we are dealing with entities that protect constitutionally guaranteed interests (such as privacy , art.13 and 15 of the Constitution – and probably others too – or the freedom of economic initiative, art.41), but have no constitutional significance , in the sense that the Constitution does not regulate them, and with entities that penetrate into disparate but extremely sensitive fields of our concrete life: from motorway tariffs to the safety of digital communications, the safety of our savings, access to the electricity networks and gas …

Of course, in this as in other cases, a question is in order: independent of whom?

And here the little grillino that is in all of you will have the answer ready! "Independent from #aaaaabolidiga!", Ça va sans dire …

Well, that's not exactly how things are, for the simple fact that "politics" does not exist (just as "Germany" does not exist, so to speak …). There are various articulations of the constitutional bodies of the State: the Parliament, the Government, the Presidency of the Republic, the auxiliary bodies (CNEL, Council of State, Court of Auditors, art.99 and 100 of the Constitution), the judiciary … who are independent administrative authorities independent?

They are independent of the government.

So not from #aaaaabolidiga, but from an articulation of it: the executive power, of which they are supposed to be an aid but also a counterweight, so much so that they perform a consultative or authorization function with respect to government measures.

Hence the fact that the appointment of these authorities, which is necessarily political, usually provides an essential role for Parliament, except in one case, that of the Bank of Italy, which essentially "autonomously" through a process tortuous and self-referential which constitutes a unicum in the European legislative framework and which is perhaps not unrelated to the remarkable successes achieved by the institute in the last ten years. For this reason, in the context of the yellow-green majority, we tried to adapt the appointment procedures to European standards with a special bill , which sooner or later will have to be revised, but we will talk about this on another occasion.

The situation is obviously quite confused, as could be expected from realities that have slipped stealthily between the constitutional bodies of the State in different historical periods, and you can find it very well summarized (if interested) on page 168 of this dossier of our Research Department. .

They range from cases in which members are elected in Parliament (with limited vote, as in the case of the Privacy Guarantor, or with a qualified majority of two thirds, as in the case of the Communications Authority, for friends AGCOM), to cases in which the competent parliamentary commissions express a binding opinion on a government initiative by a qualified majority (and this happens for ARERA, for ANAC, for ART), to cases in which the competent committees express a non-binding opinion (as happens for CONSOB and COVIP), to cases in which Parliament comes into play through the Presidents of the two branches, who have the power to appoint (and this applies to the AGCM and the Commission of guarantee for the right to strike in essential public services).

However, the cases in point are not only these four (election in Parliament, government appointment with binding or non-binding opinion of the Commissions, designation by the Presidents of the two branches of Parliament), because there is the not insignificant detail of the appointment of the President.

For example, in the two cases in which the Parliament elects the members (remember: Privacy and AGCOM), the appointment of the President, which obviously has a decisive importance, follows two different paths: in Privacy he is elected by the four components, in AGCOM it is appointed by the Government (rectius: appointed by Decree of the President of the Republic on the proposal of the President of the Council), with the non-binding opinion by a qualified majority of two thirds of the competent Parliamentary Commissions.

In short: we have 50 shades of nomination for entities that are actually quite different, while also being quite similar.

A logic can be glimpsed in this jumble. For example, it seems perfectly logical to me that the procedures for appointing the "guarantors" (Privacy, AGCOM, AGCM) are more deeply rooted in Parliament, because it makes sense that it is the direct expression of popular sovereignty that chooses who must take care of guaranteeing constitutionally protected rights. It also seems sensible to me that in the regulatory authorities (ART, ARERA) the appointment process has an impulse within the Government, originating from a proposal by the competent minister (unless, downstream, the filter of the binding opinion and qualified majority of the Commissions competent).

More generally, even if perhaps 50 shades of appointment are too many, it seems absolutely physiological that authorities that fall into different types and protect distinct interests have different paths of appointment, some more "biased" towards Parliament, others more biased towards the government.

The fact is that this Government, which had already distinguished itself in October with article 9 of the "capacities" decree for the attempt, partially rejected, to intervene on the Privacy Authority by limiting its powers and thus exposing citizens to any arbitration from part of the public administrations (a Government that intervenes by decree on an authority independent of the Government: but do you realize? This would be independence !?), in the draft law on competition returns to the office with an article, 32, which here I report:

Art. 32.

(Procedures for selecting the presidents and members of the independent administrative authorities)

1. In order to strengthen transparency and impartiality in the procedures for appointing the presidents and members of the independent administrative authorities referred to in article 22, paragraph 1, of the decree-law of 24 June 2014, no. 90, converted, with amendments, by law 11 August 2014, n. 114 , each person responsible for the appointment establishes a "Technical Commission for the selection of candidates for president and member of the independent administrative authorities", hereinafter referred to as "Commission". The President of the Chamber of Deputies, the President of the Senate of the Republic and the Chambers, within the scope of their constitutional autonomy, regulate the procedures for the appointment of their respective competence.

2. Each Commission is composed of five members chosen from among personalities of undisputed independence, morality and high professional qualification in the areas of their respective competence, in compliance with the principle of gender equality.

3. The Commission, also on the basis of the manifestations of availability received, following a public notice, from the persons competent to appoint the presidents and members of the authorities referred to in paragraph 1, verifies the existence of the requisites provided for by the current legislation in relation the appointment of the members of each authority and transmits to the persons competent for the appointment a list of at least four candidates for each member to be appointed, with proven competence and experience in the sector in which the authority operates, as well as well-known independence and undisputed morality , in compliance with the principle of gender equality. For the purposes referred to in this paragraph, the Commission may carry out interviews with candidates. In order to allow for the completion of the appointment procedure no later than three months prior to the date of expiry of the mandate of the chairman or member in office, the establishment of the Commission and the transmission of the list referred to in the first period must take place well in advance.

4. Without prejudice to the specific legal provisions governing the powers for the appointment of the members of each authority referred to in paragraph 1, the competent persons shall appoint the chairman and the members from among the candidates identified in the list sent pursuant to paragraph 3.

5. Participation in the Commission is free of charge. The members of the Commission are not entitled to any remuneration, allowance, attendance fee, reimbursement of expenses or emolument, however named.

6. The presidents and members of the authorities referred to in paragraph 1 in office at the date of entry into force of this law continue in their functions until the end of their mandate.

It is worth listing which Authorities are involved by the law (i.e. those referred to in Article 22 paragraph 1 of Legislative Decree 90/2014:

1) AGCM

2) CONSOB

3) ART

4) ARERA

5) AGCOM

6) Privacy

7) ANAC

8) COVIP

9) CGS (Commission of Guarantee of the implementation of the law on the strike in essential public services)

As you can see, the Bank of Italy remains outside (turris eburnea).

Without prejudice to the most obvious consideration (what does an article governing independent authorities other than the AGCM have to do with a bill dealing with competition?), The purposes of this article are as clear as they are inadmissible: parliamentary action (and therefore, without letting it be seen, expand that of the Government) in the power of appointment of the authorities "independent of the Government", with the result of undermining not only their independence, but also the transparency of the selection procedure, that is, ultimately , making more "political" a choice that pretends to make more technical.

The trick is in paragraph 3, where it is established that the Technical Commission for the selection of candidates " transmits to the persons competent to appoint a list of at least four candidates for each member to be appointed ". In fact, therefore, the Commission decides who not to appoint, that is, it makes a political choice (cloaking itself in the purifying and unquestionable inspiration of its technicality): the choice of removing some subjects from the group of those nominable by the bodies in charge for this purpose. In this way, however, the corrupting stench of the #aaaaabolidiga is not at all cleansed, but only moved a step further: because, as paragraph 1 clarifies, the "technical" Commission is politically appointed: that is, it must be appointed by the person responsible for the appointment. So "politics" does not nominate members, but somehow nominates the "nominators", or rather those who are given the power to decide who not to nominate. It seems obvious to me that the ratio legis is based on an assumption: Parliament is unable to choose the members of the Authorities because it is inadequate in various respects, the technicians must intervene.

Turn that turns you, we are the usual grillism, here in the jacket and tie version: the enemy is #aaaaabolidiga understood as Parliament. Because there is a detail that escapes everyone: anti-parliamentarism unites (with fascism) two anthropologically very distant realities: grillismo in the "economy" version (that of "vaffa") and grillismo in the "business" version (that of "competent"). The line of attack in the first case is "castacriccacoruzzione, warm up the armchair", in the second case it is "they are incompetent, they respond to a logic of belonging and not of promotion of merit". But although they are two different lines of attack, and both with their semblance of plausibility, the objective on which they converge is one: to annihilate the range of action of Parliament, that is of your representatives, that is yours. While it is clear why "the competent" (that is, the strong powers) do not want Parliament between their feet, it is a little less clear why those of the vaffa do not want it, even if we have given an answer here, and it was correct . In some way, it is in the results that you want to achieve, and that derive from the organic link (which I have the honor to have brought to your attention in unsuspected times) between grillismo (sans-culotto or grisaille) and PD. For a series of complex socio-anthropological reasons (the historical prevalence of the left within the pool of public employees and therefore of public administrations, the ability of the left to organize the academic "production" chains of technicians, in particular by fostering stable academic baronies in area of administrative law, etc.) in Italy when you write "technical" you read "PD". Those who support "technique" (also in the name of the mantra castacriccacoruzzione) therefore, objectively support PD. The "Giallorossi" majority had their own logic. In other words, the anti-parliamentary drift, vaguely assonant with grillini ideals (or other twenty years of your choice), as an objective result follows that of putting the appointments in the hands of a "PD Commission for the selection of candidacies for president and member of the administrative authorities independent ". Do not take this objective consideration as a sign of bias: I admire, as you well know, the colleagues of the PCI and the DC for their ability to exercise Gramscian hegemony over the institutions. I try to imitate them, in my small way.

Certainly, however, that if the contestability of the ruling class (the possibility of involving it, establishing a dialogue with it, making it accessible to important positions) is substantially limited by law , everything becomes more difficult!

Moreover, this anti-parliamentarism is so visceral, so blinded by one's own hatred or terror of the possibility that you may express yourselves (or so ignorant: we thought that the era of the written norms with parts of the body other than the hands was over with Count 2 ), to discover their cards by producing a lopsided norm! In fact, as I explained to you at the beginning, some authorities listed (with reference) in paragraph 1 are in fact nominated by the government: ANAC, ARERA, ART, CONSOB, COVIP. In these cases, Parliament intervenes downstream, with an opinion that is not always binding. In other words, in these cases the "technical" Commission, which however is political, is the Government! It is therefore not clear why only " the president of the Chamber of Deputies, the president of the Senate of the Republic and the Chambers, within the scope of their constitutional autonomy, regulate the procedures for the appointment of their respective competence " (paragraph 1). Why not the government? If the rule were symmetrical, even the government, as a political body, would have to appoint a technical commission to filter the government's political appointments! But do you see a government that limits itself while it dedicates itself to the noble intent of limiting Parliament?

As soon as I realized it, I went to the Commission on the merits, intervening in the general discussion . Given the premises, I expected my intervention to arouse an outcry. Paradoxically, however, it has aroused a lot of attention and consensus, to the point that the rapporteur of the PD proposed that the general discussion be reopened to discuss the merits (proposal rejected for shareable procedural reasons by the president).

At this point we have proceeded to amend the rule with some amendments. We have presented in particular a suppressive and a replacement. The suppressive, as you know, comes at the top of the file, because if accepted it obviously makes it useless to modify an article that … is no longer there. You can see it here :

32.1

Marti, Mollame, Pianasso, Pietro Pisani, Bagnai, Ostellari

Delete the article.

The replacement comes a little later, and you can see it here :

32.3

Marti, Mollame, Pianasso, Pietro Pisani, Bagnai, Ostellari

Replace the item, with the following:

"Art. 32.

(Procedures for selecting the presidents and members of the independent administrative authorities)

1. In order to strengthen transparency and impartiality in the procedures for appointing the presidents and members of the independent administrative authorities referred to in article 22, paragraph 1, of the decree-law of 24 June 2014, no. 90, converted, with amendments, by law 11 August 2014, n. 114, starting from the appointments subsequent to the date of entry into force of the law converting this decree, candidates for such offices must be elected from among those who submit their candidacy as part of a selection procedure whose notice must be published on the websites of the person responsible for the appointment and of the authority concerned, at least sixty days before the appointment. Applications must be received at least thirty days before the appointment and the curricula must be published on the same websites. Nominations can be made by individuals who ensure independence and who have proven experience in the area of competence of the Authority concerned.

2. The president of the Chamber of Deputies, the president of the Senate of the Republic and the Chambers shall, within the sphere of their constitutional autonomy, regulate the procedures functional to the fulfillment of their respective competence.

3. The presidents and members of the authorities referred to in paragraph 1 in office at the date of entry into force of this law continue in their functions until the end of their mandate. ".

With the replacement, it is essentially requested that in all the appointment procedures (including governmental ones) the practice of Privacy is followed, which requires the publication of the CVs of the interested parties, to ensure the transparency of the procedure.

More interesting and articulated is another replacement, presented by an illustrious colleague, which you see here:

32.2

Zanda

Replace the item, with the following:

"Art. 32.

(General rules on independent administrative authorities)

1. This article establishes general principles and rules on the organization and functions of the independent authorities referred to in paragraph 2, hereinafter referred to as '' authorities ''. The sector regulations relating to each of the authorities dictated by the respective instituting laws remain valid as they are compatible with this article. The authorities are established and governed by law, with tasks of regulation and control of the market in order to ensure the promotion and protection of competition, the guarantee of the rights of consumers and users, the protection of established rights and interests of a fundamental nature. the Constitution and the Treaties on the European Union and the functioning of the European Union. In order to guarantee their independence of judgment and evaluation, the authorities have organizational, functional, accounting and management autonomy.

2. Authorities for the purposes of this article are:

a) the Antitrust Authority, established by law no. 287;

b) the National Commission for Companies and the Stock Exchange, established by the decree-law of 8 April 1974, n. 95, converted, with modifications, by the law of 7 June 1974, n. 216;

c) the Transport Regulatory Authority, referred to in article 37, paragraph 1, of the decree-law of 6 December 2011, no. 201, converted, with amendments, by law 22 December 2011, n. 214, and subsequent amendments;

d) the Regulatory Authority for Energy, Networks and the Environment, established by law no. 481;

e) the Communications Guarantee Authority, established by law no. 249; the Guarantor for the protection of personal data, established by law no. 675;

g) the supervisory commission on pension funds, established by legislative decree no. 252;

h) the Guarantee Commission for the right to strike in essential public services, established by article 12 of law no. 146.

3. Each authority is a collegiate body composed of the president and two members, with the exception of the Communications Guarantee Authority, which is composed of the president and four members. The members of the authorities are appointed by decree of the President of the Republic, on the proposal of the President of the Council of Ministers, in agreement with the competent Ministers, following a resolution of the Council of Ministers. The proposal of the President of the Council of Ministers is subject to the prior and binding opinion of the competent Parliamentary Commission, expressed by a majority of two thirds of the members, after publication of the curriculum vitae and hearing of the designated persons. The President of the Council of Ministers, in agreement with the competent Ministers, chooses the name to be submitted to the competent Parliamentary Commission, so that it expresses its opinion, among the subjects who have presented their candidacy as part of a public solicitation procedure launched with the publication in the Official Gazette of a notice prepared by the Presidency of the Council of Ministers. The selection procedure is started two months before the expiry date of the mandate of the members of the authorities in office with the publication of the notice referred to in this paragraph. The members of the authorities are chosen from among people of undisputed morality and independence and with proven experience and competence in the sectors in which the same authorities operate. The curriculum vitae of the members of the authorities is published in the Official Gazette as an attachment to the appointment decrees. Those who in the year preceding the appointment held elective political positions or held administrative or control positions, or managerial positions in regulated or supervised companies, as well as those who were members of the board of other authorities, cannot be appointed as members. The incompatibilities for holders of government offices envisaged by current legislation also remain valid.

4. The members of the authorities are appointed for a period of four years and can be confirmed in office only once. In the event of serious and persistent violations of the institutive law, impossibility of operation or prolonged inactivity, the Council of Ministers, on the proposal of the President of the Council of Ministers, may resolve the revocation of the college, subject to a favorable opinion expressed by a majority of two thirds. of the members of the competent parliamentary commission. The revocation of the college is ordered by decree of the President of the Republic. For the entire duration of their office, the members of the authorities may not exercise, under penalty of forfeiture, any professional or consultancy activity, be administrators or employees of public or private entities, or hold other public offices of any nature, including elective or representative positions in political parties, nor have interests in companies operating in the areas of competence of the authorities. Upon acceptance of the appointment, the members of the authorities, if employees of public administrations, are placed outside the role or in similar positions with respect to these posts, for which, in any case, they are not entitled to grants or emoluments of any kind. . The employment relationship of private employees is suspended and the employees themselves have the right to retain their job. For a period of one year after leaving office, the members of the authorities may not enter into, directly or indirectly, collaborative, consultancy or employment relationships with companies against which specific measures have been taken or against which they have been opened. supervisory investigations of the authority in which they carried out the mandate, nor can they exercise corporate functions. The aforementioned term is extended to two years for individuals who have been appointed for a second term. For the same periods, the members of the authorities referred to in paragraph 2, letters c), d), e) and g), may not entertain, directly or indirectly, relationships of collaboration, consultancy or employment with any company operating in the sector of competence, nor to exercise corporate functions. Without prejudice to criminal responsibility where the fact constitutes a crime, the violation of these prohibitions is punished with a financial penalty equal, at a minimum, to the return of the amount received and, at the most, four times this amount. Without prejudice to the other provisions envisaged by the sector regulations, the penalties provided for by article 2, paragraph 9, of law no. 481.

5. The provisions referred to in paragraphs 3 and 4 shall apply from the date of expiry of the mandate of the chairman and of the members in office on the date of entry into force of this law.

6. The general secretary is in charge of the administration, functioning of services and offices and the internal organization of each authority. The general secretary is appointed by the college, on the proposal of the president of the authority, from among the subjects who have presented their candidacy as part of a public solicitation procedure launched with the publication in the Official Gazette of a specific announcement. The general secretary remains in office for four years and his office can be renewed only once, unless revoked for just cause. The rules on subjective requirements, incompatibilities, bans during office and bans subsequent to the expiry of the office referred to in paragraphs 3 and 4 apply to the secretary general.

7. The authorities report to Parliament on the activities carried out and the results achieved by submitting an annual report to the competent Parliamentary Commission. Attached to the report is a list of the decisions taken by the authority, the open investigations and the decisions not to proceed with the preliminary investigation. The report referred to in this paragraph is illustrated during one or more hearings of the president of the authority, who illustrates the activity carried out, the main regulatory choices and the main decisions. The authorities can present to the Parliament and the Government. reports and, upon request, express opinions on legislative or regulatory initiatives necessary for the promotion of competition and the pursuit of the objectives established by the instituting laws. The authorities shall transmit to Parliament the regulations governing the regulatory impact analysis procedures and the reports of the regulatory impact analyzes carried out by them on the basis of these procedures.

8. The authorities collaborate with each other in matters of shared competence, also through the stipulation of specific agreements, and ensure loyal cooperation, also through reports and exchanges of information, with the competent authorities and administrations of the European Union and other States , in order to facilitate their respective functions. The authorities are the only entities designated to participate in the European Union and international networks and bodies that bring together the national regulatory, supervisory and guarantee authorities in the sectors and, in the areas of their respective competence. Public administrations are required to provide the authorities, in addition to news and information, with the collaboration necessary for the performance of their functions. In exercising the inspection and information gathering powers provided for by the institutive laws, the authorities may make use, in relation to the specific purposes of the investigations, of the Financial Police, which acts with the powers attributed to it to ascertain the value added tax and income tax, using available facilities and staff so as not to cause additional charges. All news, information and data acquired by the Finance Police Corps in carrying out the tasks set out in this paragraph are covered by official secrecy and are immediately communicated to the authorities who have requested collaboration.

9. For the issuance of regulatory and general acts with a normative content, excluding those relating to internal organization, the authorities adopt forms or methods of analysis of the impact of the regulation in the ways provided for by their respective legal systems. The measures referred to in this paragraph must be motivated with reference to the regulatory and supervisory choices of the sector or the matter on which they concern and are accompanied by a report that illustrates the consequences on regulation, on the activity of companies and operators and on the interests of investors, savers, consumers and users. In defining the content of the measures referred to in this paragraph, the authorities take into account in any case the principle of proportionality, understood as the criterion for exercising the power adequate to achieve the end, with the least sacrifice of the interests of the recipients. To this end, they consult the representative bodies of supervised entities, financial service providers, consumers and users. The authorities periodically review, at least every three years, the content of the regulatory acts adopted by them, to adapt them to changes in market conditions and the interests of investors, savers, consumers and users. The authorities govern with their own regulations the application of the principles referred to in this article, also indicating the cases of necessity and urgency or the reasons of confidentiality for which it is permitted to derogate from them.

10. In article 7, paragraph 5, of the administrative process code, referred to in legislative decree no. 104, the following sentence is added at the end: “ In the exercise of exclusive jurisdiction over the measures adopted by the subjects referred to in article 133, paragraph 1, letter l), the administrative judge knows, in addition to the incompetence and violation of the law, exclusively of the obvious error of appreciation and the manifest illogicality of the contested provision ''.

11. The right of access, referred to in article 22 of law no. 241, and subsequent amendments, is applied to the authorities, which identify the operating procedures, within the context of the respective instituting laws, respecting the principles referred to in the same article 22. ».

Before going into the merits, I make a methodical observation.

We have added to the suppressive amendment the proposal to remove the article from the bill. It is not that because the Government makes an inadmissible proposal on the subject we should not talk. We can talk about it (even if objectively it is not a priority for the country at the moment), but with a serious and participatory discussion, given the complexity of the matter. The response of the PD was to implement by amendment (therefore essentially without discussion and without the possibility of sub-amendment) an overall reform of such a delicate issue, alongside the offer to conduct a confidential negotiation to find a "falling point".

Personally, despite being a man of mediation (although you are sorry), I radically contest that such an important issue, because it affects constitutional rights, must (or can) be resolved by me and my expert colleague in the secret rooms. A topic of this kind would require broad, participatory and public discussion, and the request for an excerpt derives from the need to satisfy this need. In fact, with the excerpt art. 32 would become an autonomous provision, a new AS (Senate Act) with a distinct number, with the possibility of presenting amendments after having made dedicated hearings etc.

But this seems to me to understand that the Government does not want it and therefore the PD does not want it (or vice versa).

Let us then enter, by points, the merits of the Zanda proposal, starting from general observations and going into the details.

Meanwhile, the proposal is based on the assumption that it is necessary to standardize the procedures for appointing the authorities. I contest this assumption, because, as mentioned above, in a logic of balance between powers it seems plausible to me that the supervisory authority and the regulatory authority (to name two) have different appointments paths based on their specific roles.

This uniformity is then lame, because not only the usual Bank of Italy (the only reality on which it would really be worthwhile to affect), but also the ANAC remain outside the list proposed in paragraph 2: why?

The limp also extends to the structural aspects, because all the authorities are brought to three, except AGCOM. Perhaps CONSOB (five members) or ARERA (five members) have less to do? It would make more sense to bring them all to five, including ART, which deals with non-trivial things like motorway concessions! But obviously the grill logic of the "armchair" creeps in here.

Conversely, uniformity is absolute in the appointment mechanism, which is structured as follows:

the President of the Council of Ministers hears the competent ministers and brings the appointment to the Council for resolution;
once approved, the appointment is submitted to the prior and binding opinion of the competent parliamentary committees with a qualified majority;
if this opinion is favorable, the appointment is proposed to the President of the Republic who makes it by DPR.

Now, on the one hand, it would seem that this mechanism strengthens the parliamentary range of action, because the opinion of the Commissions becomes preventive (with respect to the proposal that the Prime Minister makes to the President of the Republic) and binding (as it currently is only in a few cases: ARERA , ART and ANAC). On the other hand, however, be careful! The curriculum vitae of the designated members are published only after the resolution of the Council of Ministers. There is nowhere written in the Zanda amendment that the candidacies should be publicized, that is, that Parliament (or its Commissions) and citizens can know what the alternatives were, what the complete list of people who demonstrated interest in the position. That is, we pass from art. 32, in which a Technical Committee proposes no less than four names, to amendment 32.2 Zanda in which the Government proposes only one name! It doesn't seem like a huge progress to me. The requirement of independence of the Authorities from the Government is completely razed to the ground, among other things removing this process from the scrutiny of public opinion! Note that this goes against our replacement frontally, who instead wants to strengthen the public scrutiny of candidacies by imposing on all Authorities the practice established by Privacy and AGCOM (publication of CVs well in advance of the appointment).

Even paragraph 4, under the guise of limiting the power of the members and encouraging virtuous behavior, offering everyone a renewable four-year appointment (instead of the current six or seven that cannot be confirmed), actually extends the appointments to eight years , because barring dramatic hypotheses, who could not be reconfirmed? But in dramatic cases the dismissal is obviously already foreseen. The truth is that the prospect of reconfirmation is obviously an incentive not to be good, but to be acquiescent towards those who appoint, that is, towards the Government: in the face of independence!

Paragraph 5 is sloppy: in ordering that the above enters into force from the expiry date of the Chairman and the members in office, it does not foresee what happens if these deadlines are different (as happens for example in CONSOB, where under the Presidency Savona two components were replaced).

Paragraph 7 adds the typical opacity mechanism of advanced democracies: the authorities should report ex post to a Parliament that has no say in their appointment by proposing such a quantity of papers as to be practically illegible.

But perhaps the most serious problem is posed by paragraph 10, which limits the possibilities of appeal for those who feel harmed by the provision of an authority. I'll bring it back here for convenience:

To understand how toxic this stuff is, you need to know two things:

1) in the technical language of law "knowing of" means "judging" (here "judging the vice of");

2) administrative union (ie the possibility of the administrative judge to review acts of the public administration, and therefore also of the authorities) is articulated on three fronts: violation of the law, incompetence and excess of power. The latter implies that the administration was competent to act and did not violate any law, but misused its power. The excess of power can take many "symptomatic" cases : the diversion from the typical cause (example: I impose a ban on stopping, which normally serves to ensure the fluidity of traffic, for the non-typical purpose of contrasting prostitution), the disparity of treatment, manifest injustice, etc.

With these premises, you will be able to appreciate that according to the Zanda amendment a citizen can challenge the provision of an authority for excess of power only in two limited cases among the many possible: obvious error of appreciation and manifest illogicality. For example, unequal treatment remains excluded (I don't know if you remember the events of a friend of ours, the only one sanctioned by a council that had taken a collegial decision: here, if the Zanda amendment passes, the friend should remain mute, despite the obvious difference in treatment …).

Now, to make you understand how serious the situation is and why it should be discussed calmly (i.e. remove the article from the bill), I present to you a new friend of mine, art. 113 of the Constitution , which speaking of the judicial protection against the provisions of the PA, in paragraph 2 states:

Such judicial protection cannot be excluded or limited to particular means of appeal or for certain categories of acts.

But paragraph 10 of the Zanda amendment proposes just such an exclusion / limitation! After all, it is not strange that the Government limits the power of citizens to contest an Authority when it claims the appointment of the same Authorities! There are two ways through which the Government strengthens its power, by compressing that of the Parliament, that is , of the citizens.

Here, just to make you take a little dip in the complexity of reality.

As with so many other things, perhaps all of them, the practical relevance of a stuff of this type will be understood by many only too late, only when it is their turn. You have something else in mind, and how can you not understand yourselves? So good. The important thing is that there are also those who think a couple of moves forward and try to avoid further degradation. I don't know if we will succeed, but not trying is the surest way to fail (although obviously it saves a lot of work that could prove useless, like what I wanted to share with you, since an open and public discussion probably won't be there. ).

And now, let's go and test the good faith of the other party …

(… ah, of course all this has nothing to do with the infamelasciapassareverdeeeeehhh1! 111 – but yes, because if we are reduced to this point it is because since the beginning of the pandemic the Privacy Guarantor is under attack, and only we have defended it – and of course #siccere you etc …. Do you know that it is there? )

This is a machine translation of a post (in Italian) written by Alberto Bagnai and published on Goofynomics at the URL https://goofynomics.blogspot.com/2022/04/indipendenza-e-come-sbarazzarsene.html on Tue, 05 Apr 2022 10:46:00 +0000. Some rights reserved under CC BY-NC-ND 3.0 license.