After many years of regulatory paralysis, the path towards the completion of the regulatory system of public utility services it finally left. In the space of a few months, now under the pressure of European constraints, now under the pressure of the referendum campaign, the legislator first set up the Agency for the regulation of postal services and then the Agency for the supervision of water resources.
Thus marks a significant step forward in the process started at the time with Law 481/1995 and with the birth of the Electricity and Gas Authority (Aeeg) and then abruptly interrupted immediately after the institution in 1997 of the Authority for the guarantees in communications (AGCOM). With these two provisions, on the one hand, the Government renounced the idea of conferring the regulating functions to already existing authorities, as instead had been proposed by the Executive in the previous legislature (the idea was to assign the regulation of water to the AEEG and that of the post office to Agcom). On the other hand, in establishing the new sectoral bodies, the Government has privileged, in name, and partly in substance, the model of the administrative agency over that of the independent authority. In reality, both models are a simple verbal synthesis of a plurality of legal institutions, as there is no general discipline, if not of a residual nature. Independent authorities differ from one another, as do administrative agencies, resulting in varying combinations and degrees of autonomy of judgment and action. Not even the two newly established regulatory agencies escape this fate, as will be better seen shortly.
There are many reasons that probably conditioned the legislative choice. First of all, it must be considered that even in the right terminological fads have their place. In the nineties of the last century, the legislator had begun to call "authority” each new public body that was established, even if operating in an instrumental position to the Government and responsible for the exercise of simple technical-administrative functions. Today, that term has become obsolete, because it is considered synonymous with a defeat of politics. Instituting mere"agencies”, the political decision-maker also wants to point out at the terminological level that these bodies remain, at least in some cases, under the control of the Government. On a substantial level, this control can take on different forms: now open and transparent, now hidden and indirect in the form of conditioning on the organs and their functioning. This also serves to combat the process of state fragmentation and to keep public finances and administrative behavior under control.
The choice in favor of the agency also depends on evaluations of the institutional design. According to some scholars (just remember for all the late Fabio Hunchback), a distinction must be made between market assurance authorities (such as the one 'antitrust') and industry regulatory agencies. For the latter, a lower rate of independence is justified, due to the nature of the interests served (which also concern the satisfaction of collective and social interests, and not only those of the market), the importance of industrial, economic and social policies, the therefore the need to ensure "teamwork" between political authorities and technical bodies, especially when, as in the water sector, there is a problem of 'multi-level' governance.
Finally, it should be considered the market context. The need to establish independent authorities is felt more strongly where the processes of privatisation, liberalization and integration of the European market are more advanced. A 'weaker' solution can therefore be justified in the water and postal sectors, where privatization processes are less frequent, the competitive dynamics weaker and profitability more uncertain.
To better understand the new regulatory design, however, it is necessary to analyze separately the 'head', the 'body' and the 'limbs' of the two bodies now established. As regards the 'head', the two agencies, in some respects, resemble an independent authority. This is true first of all due to the nature of the interests looked after - which coincide with those of the community in the use of quality services, the efficient functioning of the market and the protection of the environment - and not with those of the State-apparatus or a specific direction politic. Independence is then explicitly proclaimed in identifying the modus operandi of the two agencies, even if in a partial and opposite way in the two cases. In the case of water, it is stated that "the Agency is a juridically distinct and functionally independent subject from the Government", while, in the case of the postal services, the concept is reversed and independence from operators alone is affirmed.
As for the status of the college members (composed of three people), in both cases the requirements of high competence and professionalism are prescribed and a discipline of incompatibilities is introduced during and after the mandate (although less severe than that existing for other authorities). In the case of water, then, a bipartisan designation procedure is envisaged, based on the necessary consent of the competent parliamentary commissions with a two-thirds majority. The procedure already successfully applied to the AEEG is thus extended. The solution adopted in the postal sector is different, where the parliamentary opinion is expressed by a simple majority. L'independencemoreover, in both cases, it is seriously threatened by the short duration of the mandate (three years) and by the expectation of its renewal (only once). The risk is that the mechanism will be used by the majority and the opposition to maintain the original alignment and possibly to change the internal balance in the event of a change in legislatures and political relations. Some doubts, due to the generic nature of the conditions and the type of procedure, also raises the provision of early dissolution of the board and the appointment of a commissioner.
The organizational structure and therefore the 'body' of the two new bodies, on the other hand, are those proper to an administrative agency. In the case of the postal services, there is even an explicit reference to the residual application of the general rules established on the subject of government agencies by Legislative Decree no. 300/1999. Regardless of this, there are at least three elements which allow the structures in question to be traced back to the agency model. The first is the referral to specific decrees of the President of the Council of the ministers for the approval of the Statute and of the regulation of organization and functioning of the Agencies. It is therefore within a framework of external constraints established by the Executive that the organisational, accounting and financial autonomy recognized to the new bodies will be able to be exercised. The second element is the figure of General manager. This is appointed by the Government and stands as the strong subject within the Agency, for the superior duration of the mandate (five years) and for the ownership of all the powers that pertain to the organization and functioning of the body. The third element is the role of the Board of Auditors, whose members are appointed by the Government (the President by the Ministry of Economy and Finance).
This dependence of the car on the Government threatens to slow down the launch of new Agencies and to influence its concrete operation. Transaction costs can then explode if sector ministries and the Ministry of Economy and Finance do not develop adequate cooperative conduct. Added to this is the impossibility for the Agencies to procure their own and 'original' personal resources, selected through special competitions. The meager workforce of sixty and forty people respectively for the postal and water agencies, in fact, can only be filled through the transfer of officials serving the government offices previously operating in those sectors or through commands. The evaluation is still different when one examines the functions and powers (the 'arts') of the two agencies. In fact, both are entrusted with the tasks of regulatory and market surveillance authorities, unlike government agencies, which, on the other hand, normally carry out technical-operational activities.
The two bodies in question, in particular, set the tariff criteria and check its correct application, define the quality levels of the service, manage user complaints and impose the payment of automatic compensation, check the correct delivery of the service, also through comparative comparisons, promote competition and market efficiency. For the first time, therefore, also in the postal and water sectors, the limits of a purely contractual regulation are overcome, effective only in the bilateral relations between public administrations and operators. Rules and standards adopted by the Agencies, in fact, will also be able to directly conform the relationships between managers and users, as already envisaged by law 481/1995. In conclusion, it can be said that the establishment of the water and postal agencies represents a significant step forward in the regulation of the two sectors, to the advantage of market efficiency and user protection. In institutional terms, however, the result is a strange hybrid between the head and limbs of an independent regulatory authority (stronger in the case of water and less so in that of the post office) and the body of a government agency. The risk, therefore, is that the body does not respond to the head and that this makes it difficult to move the limbs in the right direction.
