Micaela Lottini

Associate Professor of Administrative Law at the University of Roma Tre

In the recent judgment of June 2020 in case C-378/19 (Prezident Slovenskej republiky), the Court is once again called upon to rule on the definition of ‘independencÈ regarding regulatory Authorities. In particular, it has to give an answer to the question on whether it can be considered as independent an Authority which is appointed by the Government and to which procedures are allowed to take part representatives of the ministries. Therefore, the Court has to assess whether the Slovak legislation implementing Directive 2009/72/EC, relating to the internal energy market can be considered legitimate, with particular regard to art. 35 of the same Directive, which precisely governs the designation and independence of the regulatory Authority. The Court concludes that, in accordance with the principle of institutional autonomy, which, inter alia, allows Member States to decide on their internal administrative organisation, the national legislation in question cannot be considered per se illegitimate, provided that all the requirements are met indicated by the Directive in order to ensure the independence of the Authority. In other words, governmental appointment and ministerial participation in the price-fixing procedures do not affect ex se the independence of the regulator. In any case, the criteria in accordance to which this appointment is carried out must be as such as not to compromise the objective of the integration of the specific market, precisely that of guaranteeing the independence of the regulator. This decision, despite being in line with the previous case-law (even if the Court does not give a definite answer left to the national judge) which leaves Member States wide margins of choice in relation to the organisation and powers of the independent Authorities, provided that minimum requirements are met aimed at guaranteeing the achievement of the objectives of the legislation considered, it gives us the opportunity to dwell on the issue of institutional autonomy in the specific sector of the independent Authorities and make some final considerations.

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