LA EVOLUCIÓN DE LA INTERVENCIÓN PÚBLICA EN EL SECTOR ENERGÉTICO EN ITALIA Y LA INFLUENCIA DEL DERECHO EUROPEO: DEL SERVICIO PÚBLICO ESENCIAL AL SERVICIO DE INTERÉS GENERAL

The paper aims at explaining the development of the rules concerning the system of electric energy and natural gas delivery in Italy, before and after the enforcement of the related European directives. The implementation of these directives has contributed to establish the free market of energy and the privatization of the public companies ENEL and ENI. The last ones were previously in charge of providing those services in a monopolistic way. Those services are classified as services of general economic interest, so Member States may impose public service obligations, on undertakings operating in the electricity and natural gas sectors. They may relate not only to the promotion of the universal access, but also to the security, including security of supply, regularity, quality and price of supplies, as well as to the environmental protection, including energy efficiency, energy from renewable sources and climate protection. Therefore, the author reminds us that undertakings operating in these sectors are submitted to competition rules, in so far as the enforcement of such rules does not prevent them to achieve their mission, in the light of the principle of proportionality. The paper, once the role and the functions of the Italian Regulatory Authority for Electricity, Gas and Water have been described, analyses a few recent cases, where the administrative courts applied the principles stated by the European Court of Justice, in order to review the legality of the Authority’s decisions both on the liberalization of the electric energy delivery inside the small islands and the maintenance of public rates related to the gas retail to the final costumers. Finally, the author describes the influence of the European law on the interpretation of articles 41 and 43 of the Italian Constitution. He points out that such rules allow public authorities to limit the private undertaking or to reserve to any public or private person the exclusive rights to provide the citizens with essential public services.