Discussions at this National Interest event devoted to the topic of changing the way independent regulatory watchdogs are governed spanned a number of issues. It was noted that such authorities, representing an embodiment of the widespread phenomenon of polycentric decision-making characteristic of the modern state, emerged in order to meet certain needs of states, such as relieving overburdened parliaments by delegating regulatory functions and introducing a certain degree of pluralism in administrative structures to cope with the increasing frequency of international dealings. In addition, the participants stressed the need to bear in mind the heavy pressures from the European system, both to establish such authorities and for them to effectively exercise their functions, with regulatory watchdogs now finding themselves midway between being European and national government and administrative bodies.
Thirty years on since their establishment, it was reflected that these authorities have come to represent a key feature of the Italian institutional landscape. Thanks to a distinctive organizational model, the hallmarks of which are independence, a high level of technical expertise, and an accretion of powers, they not only play a fundamental role in protecting public and private interests, but also act as links between European and national laws. As emerged in the discussions, the time since their inception does not seem to have passed in vain, as over the course of the years – during which we have seen the so-called ascendent phase of the independent watchdog model – important regulatory gaps have been filled, decision-making procedures have been fine-tuned, and a good balance has been struck between expertise-based decisions – a defining attribute of their work – and judicial oversight and accountability.
Yet it was urged that while the independent authorities model is not in question, there is a push to better define how their operations are governed in a range of respects, such as, for example, relations with policy-setting bodies and with market operators, appointment procedures, improvement of regulatory procedures, the need to ensure greater transparency of action, and the conduct of enforcement proceedings. Within the context of this process, economists have raised the need to adopt an evidence-based approach: there cannot fail to be an evaluation of the effectiveness of measures taken so far, which should be the starting point of any reform, while public assets must also be a primary consideration, given that independent regulatory watchdogs were set up for their protection.
As for the key principles that should guide reform of regulatory authorities, it was suggested that there needs to be a clearer division of powers, but without encroaching on the independence of watchdogs and their respective fields of expertise. With regards to institutional design, the participants commented on the various options put forward in the review paper[1] , in which the integrated solutions outlined are aimed at overcoming potential conflicts of jurisdiction and overlapping measures. Some of those in attendance, however, expressed a preference for non-integrated solutions, with a view to safeguarding the complementary relationship and non-overlap between ex-ante market regulation activities and ex-post enforcement activities. Furthermore, it was reaffirmed that judicial oversight must continue to serve as an incisive balancing factor, considering that these authorities “make law” by intervening in the conduct of relations between private parties, both through regulation and through enforcement activity and soft law. It was also emphasized that sound market regulation is a crucial competitive factor in attracting investment, and that the digital revolution and the emergence of integrated corporate groups increasingly require that sector-specific or multi-sector technical expertise accompany convergence between sectors, as has been the case with IT and energy, for example.
Lastly, it was noted that any reform package must not be limited to revamping existing structures, but must also have the capacity to introduce changes geared to medium- to long-term developments, paying heed to solving the problematic issues that have arisen so far and not importing reform models that may not be a good fit for the Italian legal system.
Without any further context, this is my best guess at what this “documento di analisi” might be.