Papers by Francesco Tomasicchio
Public regulation of the market is a cornerstone of US political organization. It is well known h... more Public regulation of the market is a cornerstone of US political organization. It is well known how regulation of the economy is instrumental in ensuring free competition in the market, but, at the same time, it is equally well known how it is not always seen as an opportunity for all economic agents. Indeed, it can be a hindrance to the absolutist tendencies of some market participants, especially when it adopts conformative and heteronomous acts on the bargaining autonomy of private parties. In these reflections, an attempt will be made to highlight the risks due to the enormous power that some firms in the virtual reality market have managed to assume and the relative difficulty for the regulatory authority to assert its prerogatives to protect competition before the courts. Finally, some reflections are made on the US antitrust debate and the various hypotheses for solutions to counter the concentrations of power that have occurred in certain market segments.
In these pages, an attempt is made to summarise the jurisdictional dispute concerning the applica... more In these pages, an attempt is made to summarise the jurisdictional dispute concerning the application of the Bolkestein directive in Italy, examining the recent ruling of the Court of Cassation. The latter ruled on important procedural profiles, deferring the decision of the case to the administrative judge. However, the legal framework is still far from a uniform interpretation and a definitive solution. Finally, the political scenario was complicated by the reasoned opinion, containing the infringement procedure, sent by the European Commission to the Italian Government. This distances the legal and institutional conflict from a shared solution.
This paper will attempt to highlight the issues arising from the possible application in Italy of... more This paper will attempt to highlight the issues arising from the possible application in Italy of the Services Directive No. 123/2006/EC, known as ‘Bolkestein’, in the context of maritime state concessions. In this regard, an attempt will also be made to focus attention on the decisions rendered by the jurisprudence of the Council of State, on the recent ruling of the Regional Administrative Court of Lecce, which posed some preliminary questions on the validity and efficacy of the European directive, and on the response of the Court of Justice of the Union recently rendered through the publication of ruling C-348/2022. Finally, it will reflect on the current regulatory framework, characterised by unprecedented confusion, and the need for the European institutions to apply the principle of free competition in the market at all costs. All without concern for the situation of the internal market and the risks to competition itself.
In this short paper, an attempt is made to highlight the plurality of roles that the state can pl... more In this short paper, an attempt is made to highlight the plurality of roles that the state can play in relation to the economic sphere. The recent energy crisis involving the European Union has called into question the efficiency of neoliberal economic policies. Indeed, some states have opted for the nationalisation of energy companies in complicated financial conditions. It remains to be seen whether state intervention in the economy is a sign of a change in economic strategy or, instead, such intervention is simply aimed at safeguarding the competitive market.
The electricity market has been the subject of numerous disputes and
developments. In this work, ... more The electricity market has been the subject of numerous disputes and
developments. In this work, an attempt is made to observe the milestones
of the above mentioned market, and, in particular the changes made by the Italian legislator with the 1962 law nationalising the entire sector. Following the introduction of supernational constraints and the strengthening competition rules, the legal monopoly was dismantled in favour of the free market and the broader participation of private economic operators.
In this way, electricity, understood as an essential public service of general
interest, was liberalised and subject to free competition in the market.
As the economic strategy changed, the rules also changed: independent administrative authorities were introduced and new jurisdictional functions were assigned to the Italian administrative judge, who became, according to some doctrine, a judge of the market. This relieved the State of its economic and social responsibilities, and confned its role at ensuring the full functioning of free competition. Within this framework, adminis-
trative law and its judge are called upon to take decisions that also affect the relevance of the public interest in the various disputes.
This interest is increasingly jeopardised by the laws of the competitive
market and by the absence of a strong State in sectors of primary interest
in the economy, such as the electricity sector. It is in this direction that thefollowing refections are developed, namely on the advisability, at times of
great energy and fnancial crisis, of a new state intervention in the economy
and of a new role for administrative law.
In this paper, an attempt is made to highlight the importance of the recent approval of the measu... more In this paper, an attempt is made to highlight the importance of the recent approval of the measures that established energy communities by the European Union. The main reason for this intervention lies in the attempt to incentivize as much as possible the consumption and production of energy from renewable sources, in order to achieve the objectives that the European legislator has set: the reduction of greenhouse gas emissions and, ultimately, climate neutrality by 2050. It is crucial to investigate the legal nature of these new actors, the role of public powers and the State in the promotion of sustainable energy, and the persistent influence of the canons of competition and free market that are cornerstones of the European construction overall.
The corollaries of the impolitic state-The purpose of this short essay is to discuss the recognis... more The corollaries of the impolitic state-The purpose of this short essay is to discuss the recognised role of public authorities in the framework of the economic recovery plans launched by the European Union and implemented by individual states. Moreover, the essay points out how private law has, over the last thirty years, replaced the role of public law in the discipline of several relevant domains. Finally, an attempt is made to highlight how the presence of the state and its public law is indispensable, particularly in times of severe economic crisis.
Il presente lavoro si propone di evidenziare i motivi per cui il Consiglio di Stato italiano ha s... more Il presente lavoro si propone di evidenziare i motivi per cui il Consiglio di Stato italiano ha sottoposto alla CGUE un secondo rinvio pregiudiziale nella stessa controversia. Nel dettaglio, l’organo giurisdizionale ha chiesto alla Corte se il quadro italiano, come stabili-to dall’Autorità italiana per le telecomunicazioni, in materia di servizi di telefonia sia con-forme al diritto dell’Unione europea. Le preoccupazioni del Consiglio di Stato riguar-dano il principio di legalità in relazione ad alcune misure adottate dall’Autorità italiana. enendo in dovuta considerazione queste ultime, si trarranno conclusioni sui principa-li temi affrontati dal giudice amministrativo, tra cui la legittimità delle misure adottate dall’autorità amministrativa indipendente, l’intensità del controllo del giudice naziona-le, il dialogo tra quest’ultimo e il giudice comunitario e il rischio rappresentato dal pote-re dei nuovi sovrani economici.
On 'ultra vires' judicial review in the Warsaw-Berlin-Brussels axis in the light of the recent ru... more On 'ultra vires' judicial review in the Warsaw-Berlin-Brussels axis in the light of the recent ruling of the Polish Constitutional Tribunal-This essay seeks to highlight the significant features of the operative part of judgment K3/21 of 7 October 2021 of the Polish Constitutional Tribunal and the reasons for the clash between the latter and the CJEU. The fundamental point of this brief work is the examination of the exercise of the «ultra vires» constitutional review as objected by the Polish judges aimed at affirming the primacy of the national constitution over the law of the European Union. This brief discussion also seeks to make a comparison with the decisions of the courts, the dialogue they have established and the conflicts that still prevail today: in particular, the recent decision of the German Constitutional Court of 5 May 2020 in the context of the PSPP, to which the ruling of the Polish Constitutional Court seems to be linked, at least from a political point of view, will be the subject of a comparative investigation. Finally, an attempt will be made to formulate conclusions on the legitimacy (or not) of the ultra vires review and on the real stakes between Warsaw, Berlin and Brussels, also for the future of the legal framework of the European Union.
This work seeks to highlight the peculiarities of the administrative judge’s review as exercised ... more This work seeks to highlight the peculiarities of the administrative judge’s review as exercised in the complex «Avastin-Lucentis» case law. In this controversy there was an evolution regarding the depth of the review «of greater reliability», which led him to enter into the merits of the sanctioning measure adopted by the Italian antitrust authority, demonstrating full knowledge of the fact. It also seeks to highlight the significant features of the dialogue that has taken place – and is still ongoing – between the Council of State and the Court of Justice of the European Union due to the further preliminary reference that the applicants have requested. and to which theadministrative judge replied, accepting the request, by means of an order. It seems that the case is still far fromthe final decision, especially following the decision of the Council of State to refer again some preliminaryquestions to the CJEU, which are the subject of this short paper. The purpose of this research is to analyze the logical and legal path adopted by the administrative judge during the different phases of the dispute – also characterized by the confrontation with the CJEU – and to carry out some final considerations regarding the nature of its review in relation to the rulings of the Court of Justice.
Conference Presentations by Francesco Tomasicchio
Venerdì 11 ottobre, il Centro Studi per la Giustizia nell’Amministrazione organizza un Convegno a... more Venerdì 11 ottobre, il Centro Studi per la Giustizia nell’Amministrazione organizza un Convegno a Trani su «Concorrenza e contratti pubblici» a un anno dalla riforma.
Si ringraziano la Città di Trani e l’ANCE Bari — BAT per il patrocinio concesso e il COA di Trani per la collaborazione.
Un particolare ringraziamento vada agli illustri relatori che hanno accolto l’invito.
Da anni il tema delle concessioni demaniali marittime (c.d. balneari) è al centro del dibattito p... more Da anni il tema delle concessioni demaniali marittime (c.d. balneari) è al centro del dibattito politico ed economico italiano. La recente missiva d'infrazione della Commissione dell'Unione europea indirizzata al Governo e la pronuncia delle Sezioni Unite della Corte di Cassazione offrono un'importante occasione per riflettere e discutere circa lo stato attuale del quadro giuridico-amministrativo e per proporre eventuali soluzioni all'annoso problema.
Uploads
Papers by Francesco Tomasicchio
developments. In this work, an attempt is made to observe the milestones
of the above mentioned market, and, in particular the changes made by the Italian legislator with the 1962 law nationalising the entire sector. Following the introduction of supernational constraints and the strengthening competition rules, the legal monopoly was dismantled in favour of the free market and the broader participation of private economic operators.
In this way, electricity, understood as an essential public service of general
interest, was liberalised and subject to free competition in the market.
As the economic strategy changed, the rules also changed: independent administrative authorities were introduced and new jurisdictional functions were assigned to the Italian administrative judge, who became, according to some doctrine, a judge of the market. This relieved the State of its economic and social responsibilities, and confned its role at ensuring the full functioning of free competition. Within this framework, adminis-
trative law and its judge are called upon to take decisions that also affect the relevance of the public interest in the various disputes.
This interest is increasingly jeopardised by the laws of the competitive
market and by the absence of a strong State in sectors of primary interest
in the economy, such as the electricity sector. It is in this direction that thefollowing refections are developed, namely on the advisability, at times of
great energy and fnancial crisis, of a new state intervention in the economy
and of a new role for administrative law.
Conference Presentations by Francesco Tomasicchio
Si ringraziano la Città di Trani e l’ANCE Bari — BAT per il patrocinio concesso e il COA di Trani per la collaborazione.
Un particolare ringraziamento vada agli illustri relatori che hanno accolto l’invito.
developments. In this work, an attempt is made to observe the milestones
of the above mentioned market, and, in particular the changes made by the Italian legislator with the 1962 law nationalising the entire sector. Following the introduction of supernational constraints and the strengthening competition rules, the legal monopoly was dismantled in favour of the free market and the broader participation of private economic operators.
In this way, electricity, understood as an essential public service of general
interest, was liberalised and subject to free competition in the market.
As the economic strategy changed, the rules also changed: independent administrative authorities were introduced and new jurisdictional functions were assigned to the Italian administrative judge, who became, according to some doctrine, a judge of the market. This relieved the State of its economic and social responsibilities, and confned its role at ensuring the full functioning of free competition. Within this framework, adminis-
trative law and its judge are called upon to take decisions that also affect the relevance of the public interest in the various disputes.
This interest is increasingly jeopardised by the laws of the competitive
market and by the absence of a strong State in sectors of primary interest
in the economy, such as the electricity sector. It is in this direction that thefollowing refections are developed, namely on the advisability, at times of
great energy and fnancial crisis, of a new state intervention in the economy
and of a new role for administrative law.
Si ringraziano la Città di Trani e l’ANCE Bari — BAT per il patrocinio concesso e il COA di Trani per la collaborazione.
Un particolare ringraziamento vada agli illustri relatori che hanno accolto l’invito.