Autorità amministrative indipendenti e istituzioni politiche: questioni problematiche

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The independent Authorities represent a model of regulation that is foreign to the Italian legal tradition, and, for this reason, their legal positioning has aroused, and continues to arouse, doubts and uncertainties, re-proposing fundamental questions that appear to be anything but dormant. Furthermore, the dynamics connected to the functioning of the independent Authorities have shown a remarkable evolutionary capacity, so their role has undergone important changes, taking on different characteristics with respect to the functioning of the form of government, and involving new arrangements in relations with the organs of legislation, as well as with the organs of the jurisdiction. Functional autonomy, neutrality and independence, in fact, do not mean absolute separation from the circuit of the political direction, with which the decisions of the Authorities necessarily interface: the decisions of the Authorities, although adopted outside the logic of the political party, combine to form the legal system, not only with the production of acts attributable to “soft law”, but also through a concrete participation in the determination of the political-regulatory direction in the individual sectors of reference. The independent Authorities exercise heterogeneous competences, some typically administrative, some integrate decision-making functions, while, in other cases, their competences result in the production of juridical norms. This determines that they, by subtracting significant shares of activity from the political as well as from the jurisdictional bodies, are included in the decision-making powers in which the state apparatus is articulated, of which they constitute an indefectible structural side by material constitution . The independent Authorities occupy portions of statehood, no longer included in the traditional parliamentary model. At the base of the phenomenon we can identify the insufficiency of the classic system of separation of powers to resolve new questions, in which the high technicality intersects the problems of fundamental rights, projected against the background of economic and juridical scenarios animated by strongly evolutionary logics. This testifies that the state order, as it has evolved according to the schemes of representative democracy, has lost his completeness in the face of the evolution of the markets and the fundamental rights; hence the need to trace new organizational methods that go beyond the traditional cycles of political direction and responsibility: the structure of the material constitution has by now incorporated a type of regulation that representative democracy, not having the right tools to guarantee the proper functioning of complex sectional orders, cannot express. In this perspective, the legitimacy of the Authorities, based on the canons of procedural democracy that inform their functions, could be traced with reference to different constitutional formulas, responding to the schemes of participatory or deliberative democracy, which found alternative democratic models to the one built on political representation
Original languageItalian
Pages (from-to)227-266
Number of pages40
Publication statusPublished - 2019

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