Gregorio Gitti

The rulemaking powers of the Italian Independent Agencies («Autorità Indipendenti») are examined pursuant to the principle of contractual autonomy provided for by paragraph 1322 of the Italian Civil Code. In particular, the author aims to find out the limits imposed by the above mentioned Agencies on the contractual autonomy within the public utilities marked; at least, two different approaches can be envisaged. On one hand, the contents of contracts can be authoritatively determined in order to preserve public policy: this is the case of the financial utilities field, where the rules of the Independent Agencies are inclined to restrict the contractual autonomy, so that, in the extreme, the parties can just decide if filing or not a proposal of sale or purchase into a telematic system. On the other hand, the contractual autonomy can be reconstructed by acknowledging the importance of collective bargaining. Actually, with reference to the other types of utilities, the rulemaking powers of the Independent Agencies reinforce the contractual autonomy. The most important example in this sense deals with the field of electrical energy and gas: the relevant Agency exercises its prerogatives in compliance with a specific procedure directly involving operators, consumers and, above all, their associations, and resulting as a «negotiated» administrative action pursuant to par. 11, cl. 2, of Law n. 241/1990. Therefore, the author demonstrates that the rulemaking powers of the Italian Independent Agencies does not contrast with the contractual autonomy and, furthermore, emphasizes its function inside a new context. Finally, the associations of operators and consumers themselves take part to the rulemaking activity, evoking features of what the author calls a «neo-corporative system».