Self-regulation as a regulatory strategy : The Italian legal framework 1

at the European University Institute in October 2005, where I first presented these issues. The workshop was organized by Prof. Fabrizio Cafaggi in collaboration with the RSCAS project entitled ‘New Modes of Governance’ (NEWGOV), www.eu-newgov.org and within a large comparative research project on ‘Self-regulation as a Regulatory Strategy. A comparative law perspective’. 2 Università degli Studi di Torino (Italy), (email: simona.rod@libero.it). 3 On the point, see F. Cafaggi, Rethinking private regulation in the European regulatory space, EUI Working Paper Law No. 2006/13, Italy. On the evolution of the regulatory state, see recently C. Scott, ‘Regulation in the age of governance: the rise of the post regulatory state’, in J. Jordana & D. Levi Faur (eds.), The politics of regulation, 2004, pp. 145 et seq. 4 There has also been a strong development of new modes of public regulation in recent years. For example, different models have developed among which independent regulatory agencies have become predominant. On this issue see recently R. Caranta et al. (eds.), Independent Administrative Authorities, 2004. 5 Recently see M.A. Frison Roche, ‘Définition du droit de la régulation économique’, in M.A. Frison Roche (ed.), Les régulations économiques: légitimité et efficacité, 2004, pp. 7 et seq. See also M.A. Salvati, ‘I rapporti tra Stato ed economia come rapporti tra regolazione pubblica e privata’, in C. Franchini & L. Paganetto (eds.), Stato ed economia all’inizio del XXI secolo, 2002, pp. 29 et seq.; G. Napolitano, Pubblico e privato nel diritto amministrativo, 2003, p. 160. 6 For these thoughts, see again Cafaggi 2006, supra note 3.

Self-regulation as a regulatory strategy: The Italian legal framework 1

Introductory remarks. The concept of self-regulation and the aims of this study
The increased regulatory function of private law and the development of regulatory strategies involving a plurality of actors have radically changed the traditional view of the regulatory State.These crucial changes require a new attention to the interaction between public and private regulators. 3n the one hand, important developments have occurred in relation to public regulation as well. 4If, in the recent past, private regulation has been useful to define regulatory areas not covered by the public sphere, today there is a relevant trend towards a different form of coregulation between public and private regulators. 5The role of private regulation is increasing more as a complement to public regulation rather than as an alternative thereto, reflecting the crisis of the regulatory state, but, at the same time, posing serious questions concerning the legitimacy of private regulators. 6n the other hand, the development of self-regulatory mechanisms has increased the role and power of private regulators.
In recent years, European legal and political sciences are paying growing attention to the concept of self-regulation, as a regulatory strategy in order to implement supranational policies.Despite this attention in the European context, self-regulation still remains a rather vague and elusive concept.As Price and Verhulst pointed out: 'The initial problem of every approach to self-regulation pertains to definition and semantics.There is no single definition of self-regula-tion that is entirely satisfactory, nor should there be': 7 this is so mainly because it has developed for different reasons, in different circumstances and in different countries.Rob Baggott, in an article published in 1989, 8 defined self-regulation as an institutional arrangement whereby an organization regulates the standards of behaviour of its members.The essence of self-regulation would be a process of collective government.In 1996, Julia Black specified that the term 'selfregulation' is used to describe the discipline of one's own conduct by oneself: 'self-regulation describes the situation of a group of persons or bodies, acting together, performing a regulatory function in respect of themselves and others who accept their authority'. 9his does not mean, however, that the State may not in fact have a role in the regulation.Many forms of self-regulation have involved the State either as an initiator of the self-regulatory exercise, or as a participant in the exercise or as the ultimate guardian of the rights of citizens. 10n other words, instead of taking over all the components of regulation, the self-regulator may be involved at the legislation stage by developing a code of practice, while leaving enforcement to the government, or the government may establish regulations, but delegate enforcement to the private sector.At times, the government may mandate a regulator to adopt and enforce a code of self-regulation.More often, however, a self-regulatory body may engage in self-regulation in an attempt to stave off government regulation.Alternatively, self-regulation may be undertaken to implement or supplement legislation.
In 1995, Ogus clearly underlined that 'there is no clear dichotomy (…) between "selfregulation" and "public regulation", but rather a spectrum containing different legislative constraints, outsider participation in relation to rule formulation or enforcement (or both), and external control and accountability.Thus, at one extreme, rules may be private to a firm, association or organization; at the other, they may have to be approved by a government minister or some independent public authority.Secondly, the rules or standards issued by the SRA may have varying degrees of legal force: they may be formally binding, codes of practice which presumptively apply unless an alleged offender can show that some alternative conduct was capable of satisfactorily meeting the regulatory goals, or purely voluntary'. 11ore generally, if it is true that self-regulation implies an organization regulating the standards of its members, why should an organization wish to do this?What are the advantages traditionally claimed for self-regulation over public regulation?First, in Ogus'view, 12 since selfregulatory agencies can normally command a greater degree of expertise and technical knowledge of practices and innovatory possibilities, information costs for the formulation and interpre-tation of standards are lower.Secondly, for the same reasons, monitoring and enforcement costs are also reduced.Thirdly, to the extent that the processes of, and rules issued by, self-regulators are less formalized than those of public regulatory regimes, there are savings in the costs of amending standards.
More specifically, the focus of the research will be on self-regulatory mechanisms at the national (Italian) level focusing firstly on the constitutional law dimension.Constitutional law may in fact envisage a number of legal provisions which are able to affect, directly or indirectly, recourse to self-regulation, either promoting or prohibiting it.It will be crucial to identify such provisions and to evaluate their relationships within the context of the constitutional order and their overall relevance vis-à-vis the practice of self-regulation.For instance, can the (Italian) constitutional conceptions of private autonomy affect the legal system's capacity to adopt selfregulation?Within this framework, it will be essential to answer some specific questions.Is there any direct or indirect link between self-regulation and constitutional values?Does the Constitution impose any duty on the State with regard to self-regulatory mechanisms, such as, for example, an obligation to monitor their activity, to control their internal organisation and procedures, to supervise their interaction with third parties?To what extent is self-regulation compatible with the rule of law?
Part II of this study will focus the debate on the specific sectors where self-regulation has been traditionally experienced, paying attention to the remarkable transformation in the lawmaking process, which is moving towards forms of co-regulation, delegated self-regulation and ex-post recognised self-regulation.13

I. The constitutional law dimension
The first part of the study is centred around the question of whether there are constitutional mechanisms affecting recourse to self-regulation in Italy.
The Constitution of 1948 is the basic law of the Italian State, occupying the main place in the hierarchy of legal sources. 14It consists of two parts, preceded by a section on fundamental principles.The two parts are concerned with the rights and duties of citizens and the structure of the Republic, respectively.To put it succinctly, the first part deals with the civil, political, economic and social rights of citizens, while the second part concerns the mechanisms by which the State creates laws, governs the country, provides for the resolution of disputes and polices the Constitution itself.
Generally speaking, the present Italian Constitution does not deal directly with selfregulatory mechanisms.Nevertheless, several constitutional provisions can be found which are able to indirectly affect recourse to self-regulation.An indirect but clear link can thus be established between self-regulatory means and constitutional law.

I.1. Fundamental rights
As stated above, the first section of the Italian Constitution deals with fundamental principles.A very important question must be answered before analysing individual rights and their potential relationship with self-regulatory mechanisms: who is entitled to constitutional rights?Under Article 2 of the Italian Constitution, 'the Republic recognizes and guarantees the inviolable rights of man, both as an individual and as a member of the social groups in which one's personality finds expression'.It is thus clear that not only the individual, but also the 'social groups' are entitled to constitutional rights.
The typical example of such a social group is the family, which is defined in Article 29 as a 'natural association founded on marriage', but local governments (Article 5), linguistic minorities (Article 6), trade unions (Article 39), 15 and political parties (Article 49) are all mentioned as well.Constitutional rights do not only involve relationships between the individual and the State.There is also an intermediate tier (the social group) through which the individual realizes his or her constitutionally protected liberty.
Nevertheless, it is fundamental -for the purpose of this study -to understand who is bound by rights afforded under the Constitution.Is it only the State (in the broad sense of all the public bodies), or does this responsibility also extend to private corporations, where such corporations represent the so-called poteri privati or 'private powers' (i.e.large corporations, political parties and, why not, self-regulatory bodies)?
The matter is highly controversial.With reference to the freedom of speech, for example, the Constitutional Court has held that no entity, public or private, can abridge an individual's constitutional rights. 16ithin this framework, it is thus clear that 'social groups mentioned in Article 2 as possible beneficiaries of constitutional rights can also be perceived as potentially threatening to a person's individual rights, and these groups are thus also bound by them'. 17

I.1.1. Civil rights (negative rights) and welfare rights (positive rights)
Part I of the Constitution is divided into four titles, dealing respectively with civil, ethical-social, economic and political relations. 18ivil rights -listed in Articles 13 to 28 -are also considered as diritti negativi or 'negative rights', because they prohibit the State from regulating or intervening in certain areas of private life.
Specifically, according to Article 18 of the Constitution, citizens have the right to associate freely, without any authorisation, for ends which are not forbidden to individuals by criminal law.The principle of freedom of association, closely linked to the concept of private autonomy, can be considered as one of the most important constitutional provisions able to promote and justify self-regulatory mechanisms. 19reedom of association, as recognized by Article 18, undoubtedly has to be read in connection with the constitutional regulation of trade unions. 20Agreements and organizations which uphold and regulate labour rights are thus promoted and favoured.Trade unions are free to organize themselves without restriction and without any pre-established legal model. 21he constitutional foundation of social (welfare) rights can be traced to Article 3, Paragraph 2, stating that 'it is the duty of the Republic to remove all economic and social obstacles which, by limiting the freedom and equality of citizens, prevent the full development of the individual and the effective participation in political, economic and social organizations within the country'.Welfare rights are thus considered to be a necessary instrument for the implementation of civil rights.The Republic is obligated to remove economic and social obstacles that may hinder citizens from fully enjoying civil rights like liberty and equality and the right to participate in those social organizations which are so crucial in the Italian Constitution's idea of what 'rights' are.
In this context, it must be reminded that, under Article 41, Paragraph 1, private economic initiative is free.However, it cannot be exercised in such a manner as to damage safety, liberty and human dignity (Article 41, Paragraph 2).Parliament is entitled to determine appropriate planning and controls so that public and private economic activity is given direction and coordinated with social objectives (Article 41, Paragraph 3).
The freedom of contract might also be taken into account as a fundamental principle able to justify self-regulatory mechanisms and to affect the Italian legal system's capacity to adopt them.Nevertheless, it is not positively recognized as a general principle by the Italian Constitution of 1948.Some scholars argue that it is embodied in Article 2, while others refer to Articles 41 and 42 of the Constitution. 22On the one hand, any restriction on the freedom of contract is regarded as a restriction on private enterprise.On the other hand, constitutional provisions, and the values protected thereby, work to limit the private autonomy to contract. 23ast but not least, it must be borne in mind that, under Article 3, all citizens have equal social dignity and are equal before the law.Discrimination on grounds of sex, race, language, religion, political opinion, or social and personal condition is not permitted.This means that the rights and duties which are described in Part I of the Constitution cannot be limited to any one or more classes within the community, nor can any class be excluded from their enjoyment.

I.2. Sources of law and self-regulation. The concept of legislative delegation
A brief overview of the Italian system of sources of law is necessary in order to better understand the role and the position of self-regulatory mechanisms in the Italian legal order. 24he Constitution of 1948 is the basic law of the Italian State, occupying the main place in the hierarchy of legal sources, followed by statutes and regulations. 25A statute in conflict with the Constitution is invalid.A regulation in conflict with a statute is similarly invalid. 26The invalidity operates differently in the two hypotheses.In the case of an unconstitutional statute, the Constitution itself gives the Constitutional Court the power to declare that it 'ceases to have effect' (Article 136), 27 while for an illegal government administrative regulation, the Constitution deleghe legislative e delegificazione, 1999, p. 35.Some authors argue that there are no constitutional provisions which prohibit the legislator from delegating normative functions to bodies other than the Government.See G. De Minico, Regole -Comando e consenso, 2004, p. 17.
In the author's opinion, independent administrative authorities would be entitled to exercise secondary normative powers (through regulations).31 In addition to the above form of delegated legislation, statutes increasingly provide for 'codes of practice' (this is thus the so-called delegated self-regulation) which will have legal effect within the limits expressly specified by Parliament.This is the case, for instance, concerning Law No. 146 of 12 June 1990 which foresees that where a strike takes place in public essential services, minimum services shall be guaranteed, as agreed upon by the administration (or the enterprise that administers the essential service) and the union's representation at the enterprise level (or the workers' representatives where appropriate), through self-regulation codes (codici di autoregolamentazione).This is the case, again, with the Law of 27

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is silent, and a determination of the rule's validity is found in the machinery of judicial control over administrative activity. 28he Italian Constitution describes the organization of the Republic as being centred on Parliament, which is the only body empowered to legislate (Article 70: 'The legislative function is exercised collectively by both Houses').29 Nevertheless, the legislator (Parliament) can entrust some of its normative powers to the Government, within expressly specified limits.30 Under Article 76 of the Constitution, in fact, legislative power may not be delegated to the government unless Parliament specifies principles and criteria for guidance, and only for a limited time and in well-specified subjects.Again, by virtue of Article 77, the government may not, without delegation from the Houses, issue decrees having the force of ordinary law.31 The model of the sources of law rooted in the Italian Constitution, as mentioned above, is typically positivistic and centred on the pivotal role of Parliament.
For the purposes of this study, it will be interesting to analyse to what extent the selfregulatory phenomenon is compatible with Parliament's sovereignty and with the linked principle of the rule of law (principio di legalità). 32According to this brief overview (but the matter will be better discussed in the sectorial analysis), it should be clear that rules made by private actors (i.e.self-regulatory rules) that pretend to have external effects (binding erga omnes) can be considered as law (and, as such, as sources of law), as long as they can be 'incorporated' into some of the formal sources of Italian law. 33n this context, we can briefly recall some theories by certain authors, such as Santi Romano, 34 supporting pluralistic approaches of the law (teoria della pluralità degli ordinamenti giuridici) and arguing that spontaneous organisations could create private legal orders in competition with the State. 35This doctrine -as will be seen -has been followed by a consistent part of Italian legal literature in order to explain and justify self-regulatory mechanisms in the most relevant sectors in which they are applied. 36

II. Sector analysis. Introductory remarks
Italian legal scholarship rarely pays attention to self-regulatory mechanisms as a general issue.The debate usually focuses on specific sectors where self-regulation is typically applied.Selfregulation in the Italian legal order can thus be considered as a sector-oriented concept.
As it is impossible to give an exhaustive overwiew of all self-regulatory mechanisms in the Italian legal order, in part II of this study special attention will be given to the most relevant sectors in which the self-regulatory technique is applied.

II.1. Advertising self-regulation
Advertising can be considered as the most important sector in which there has been academic discussions on the role of self-regulation in the Italian legal order. 37n a broad sense, the term advertising regulation includes 'all controls or regulations from all sources, including self-discipline by individuals and by organisations involved in advertising'. 38n a strict sense, advertising regulation can be considered as the control of commercial behaviour through mandatory rules, laid down by statutes, often implementing European Directives, 39 and enforced through the intervention of statutory Authorities and State courts.
The Italian advertising self-regulatory system is the responsibility of a non-profit organisation (the so-called Istituto dell'Autodisciplina Pubblicitaria) 40 set up by the business organisation of all constituent parts of the advertising industry. 41Within the I.A.P. system, responsible for the practical interpretation and application of the self-regulatory code, there are two different bodies.Firstly, the Supervisory Committee -Comitato di Controllo -entitled to investigate and to prosecute those responsible for breaching the advertising code, in order 'to protect the general interests of consumers'. 42Secondly, the Jury -Giurì -, which works as a domestic tribunal, 43 with the task of interpreting and applying the code of practice.The Jury considers cases in which there seems to be a breach of the code, and which can arise as a result of complaints.According to Article 36 Italian C.A.P., in fact: 'anyone 44 who believes that he/she has suffered prejudice from advertising activities contrary to the Code may request the intervention of the Jury against those who, having accepted the Code in one of the forms set out in the preliminary and general rules, 45 have undertaken the activities alleged to have caused damage to the petitioner'.If the Jury decides that a complaint is justified, it will then decide upon the appropriate action to take.More in particular, when the decision establishes that the advertising in question does not comply with the rules of the Code and its Regulations, the Jury may order the interested parties to refrain from such activity.It has to be remarked that there is no appeal against the Jury's decisions (Article 38 C.A.P.). 46

II.2. Self-regulation and labour law
Trade union freedom has been solemnly proclaimed as a fundamental principle of Italian industrial relations by Article 39 of the Constitution, declaring that 'labour union organisation is free'. 47This latter norm regulates trade unions and specifies that only registered unions can obtain legal status and make collective agreements which are valid erga omnes (for all employers and employees). 48This provision, however, has not been enforced because a bill regulating the registration of unions has never been adopted. 49Therefore, in Italy unions do not need any recognition and can organize themselves without any pre-established legal model.They can conclude collective agreements (contratti collettivi di diritto commune) which are legally enforceable under civil law rules, i.e. on the assumption that the parties to a collective agreement have stipulated their respective membership.
Article 39 of the Constitution is, first of all, a confirmation of the more general principle of freedom of association sanctioned by Article 18 of the same Constitution; 50 the confirmation being necessary to mark beyond any doubt the distinction between the present practice and that of the fascist regime.
Trade union freedom has traditionally been held to imply the right of individuals to organise, to join a union without any condition required by law, to resign from the union, to choose among different unions and to refuse to belong to any union (negative freedom). 51But it implies, moreover, a constitutional prohibition on the State from interfering in internal union affairs: i.e. predetermining by law their aims and models of organisation and defining the areas of union jurisdiction. 52The only condition required by Article 39 is that union constitutions and by-laws be inspired by the principle of democracy. 53Nonetheless other conditions, such as a minimum number of members, have been, more or less legitimately, derived from the second part of Article 39 as conditions for recognition and are required to acquire the status of the 'most representative union'.
The Italian Constitution also recognises the right to strike, which must be exercised within the limits determined by the law (Article 40). 54However, the only statute concerning the right to strike is Law No. 146 of 12 June 1990, as amended in 2000 (Law No. 83 of 11 April), which regulates the right to strike in public essential services.Under Act No. 146/1990, the notion of public essential services (servizi pubblici essenziali) relates to certain rights protected by the Constitution referring to life, health, freedom, safety, freedom to circulate, social assistance and provident funds (previdenza), instruction and freedom of communication of the persons in question. 55This Act regulates strikes in essential public services, through a complex procedure based on a network of different sources (codes of practice unilaterally adopted by trade unions, collective bargaining, unilateral regulations and instructions issued by employers).More in detail, it foresees that where a strike takes place in such services, minimum services shall be guaranteed, as agreed upon by the administration (or the enterprise that administers the essential service) and the union's representation at the enterprise level (or the workers' representatives where appropriate), not only by collective agreements but also through self-regulatory codes (codici di autoregolamentazione). 56Some Italian authors 57 argue that Act No. 146/1990 represents a radical transformation in the law-making process towards a sort of delegated self-regulation (a so-called 'legificazione degli atti dell'autonomia privato-collettiva'). 58 In this case, since the legislator mandates the industry to adopt a code of self-regulation, collective agreements and, more in general, self-regulatory codes can thus be considered as sources of law ('fonti di ius singulare') 59 which are valid erga omnes.
The Commission regulating strikes in sectors providing essential services to the public (Commissione di garanzia in materia di sciopero nei servizi pubblici essenziali) -the first body to be created as an independent administrative authority -evaluates the rules regarding minimum levels of service set by collective agreements, by codes of practice, or by employers, and this evaluation constitutes the ground for the special sanctions provided under Law No. 146/1990.

II.3. Financial sector. Introductory remarks
The regulation of the financial and banking system can be viewed as a very relevant case of public control over the economy.This can be considered as a sector in which Italian policy makers have traditionally opted for a high degree of public regulation. 60he major changes in the financial and banking sectors in the past three decades have come about under pressure from both European directives and increasing cross-border financial market integration.Such changes have been grafted on to a regulatory system characterized by a threeway division of the financial market into banking, securities and insurance sectors and a corresponding division of the regulatory authorities: the Bank of Italy; the Financial Markets and Stock Exchange Commission, usually known under the acronym of CONSOB (Commissione Nazionale per le Società e la Borsa); 61 and the Istituto per la vigilanza sulle assicurazioni private e di interesse collettivo (the insurance sector regulator), known under the acronym of ISVAP.The final outcome is a structure of controls which is quite difficult to classify into any one of the typical supervisory models. 62

II.3.1. Self-regulation in the financial sector
As mentioned above, the financial sector can be considered as a field in which Italian policy makers have traditionally opted for a high degree of public regulation.Nevertheless, since the so-called 'Decreto Eurosim' (D.lgs.23 luglio 1996, n. 415), a remarkable transformation can be seen in the law-making process, which is moving towards a form of co-regulation and delegated self-regulation. 63nder Article 46 Eurosim Decree, the activities of the organization and management of regulated markets of financial products are carried out by joint stock companies 64 ('l'attività di organizzazione e gestione di mercati regolamentati di strumenti finanziari … è esercitata da società per azioni'), which, according to the prevailing doctrine, can indeed be considered as selfregulatory associations. 65The same has been repeated in Article  The assignment of roles and responsibilities among the private joint stock companies -then called 'società di gestione' by Article 61, Paragraph 1 of the T.U.F. or 'società mercato' by Italian doctrine 66 -and the Consob (Commissione Nazionale per le Società e la Borsa) has been redefined by assigning to the latter the task of determining the minimum paid in capital ('capitale minimo delle società di gestione') and all the activities connected to the organisation and management of financial markets carried out by the 'società di gestione' according to Article 61, Paragraph 1 T.U.F.
However, under Article 74 T.U.F., 'the Commission has to supervise the financial markets in order to ensure the transparency, the fairness of the transactions and the protection of the investors'; all (wide) powers conferred to the Consob often involve technical decisions in which it enjoys a wide discretion (see, in fact, Article 62, Paragraph 2 and Article 63, Paragraph 1 T.U.F.): some Italian authors have doubts as to the future of self-regulation in the financial sector. 67

II.3.2. The Italian Banking Association and the Banking Ombudsman
In the banking and financial sector, some self-regulatory associations play a fundamental role.We only have to recall, among others, 68 the Italian Banking Association (ABI), a voluntary nonprofit organization with the purpose of representing, defending and promoting the interests of its member banks and financial intermediaries.In pursuit of these purposes, the Association develops codes of conduct and works for their adoption by members, 69 also collaborating in relevant initiatives undertaken by other national and international bodies.
In the area of the initiatives aimed at creating better relationships with customers, special attention has to be given to the 'Code of conduct for the banking and financial sector' (Codice di comportamento del settore bancario e finanziario), which is based upon the initiatives undertaken by the A.B.I.The document constitutes a tangible call for a system of ethics and a code of behaviour for the sector, identifying self-regulatory guidelines which prescribe regulations that should be observed by the associated members.It contains the rules and obligations already laid down in the banking legislation (on transparency, 70 credit installments, and operations on the stockmarket).Nevertheless, as a whole it is permeated by a series of general principles not completely governed by legislative or administrative law such as a commitment to offer credit, a better understanding of services, better financial conditions, security, and access to services. 71lso relevant are the Interbank Agreement of 15th April 1993 and the linked 'A.B.I.Regulations of the bank-complaint office and the Banking Ombudsman'. 72Section II of the A.B.I.Regulations provides for a Banking Ombudsman, 73 a collective body whose task is to settle any dispute concerning banking or financial transactions by credit institutions up to the value of 10,000 Euros.Specifically, only consumers having the characteristics reported in Decree No. 385 of September 1st 1993, Article 121 (now Article 121 of TUB -Testo Unico Bancario), Paragraph 1, can have recourse to the Ombudsman for disputes linked to services offered or transactions made by their bank or intermediaries (Article 7).The controversy must not yet have been referred to a Judicial Authority or a committee of arbitrators (Article 7, a)).
It is also important to point out that, while the decision of the Ombudsman is binding on both the banks and intermediaries, 74 'the customer can nevertheless apply to the State courts, as well as to the Committee of Arbitrators, at any time' (Article 14). 75

II.4. Sport sector
Sport is one of the most significant fields to observe the functioning of self-regulatory mechanisms in Italy.It has been one of the few sectors where there has been academic discussion concerning the role of self-regulation. 76he exercise of sporting activities -now expressly recognized by Article 117, III Paragraph 3, Constitution, as modified by Law No. 3/2001 77 -undoubtedly involves constitutional rights and freedoms such as freedom of association (Article 18 Constitution) and the right to health (Article 32 Constitution). 78This is why the Italian legislator has delegated the functions of the promotion, regulation and organization of sporting activities to a public entity, such as the National Olympic Committee, known under the acronym C.O.N.I. -Comitato Olimpico Nazionale Italiano.It was set up by the Act of 16 February 1942, n. 426 79 (legge di costituzione e funzionamento del Comitato Olimpico nazionale italiano) as a public law entity (ente associativo pubblico), with independent legal status 80 but under the control and supervision of the government, with the express duty to act in the general interest. 81or the purpose of this study, C.O.N.I. can thus be considered as a public self-regulatory body 82 with delegated public powers. 83It carries out its activities under the control and supervision of the government.The government plays a pivotal role in the appointment procedure of the certified public account committee (collegio dei revisori dei conti). 84Because it enjoys indirect public funding, C.O.N.I.'s activities are also under the control (controllo contabile) of the Court of Auditors (Corte dei conti). 85he public powers or tasks entrusted to C.O.N.I. include the organisation and strengthening of national sports, as well as the orientation towards athletic improvement.Only the C.O.N.I. (as well as the other National Olympic Committees -NOCs) can select teams and competitors for participation in the Olympic Games.On the other hand, C.O.N.I. may delegate many of these tasks to other private subjects, known as the Federazioni Sportive Nazionali.
The National Sports Federations are expressly recognized ex lege as associations of a private nature 86 and, as such, they are generally governed by private law.However, they quite often carry out activities in the public interest, operating under the strict supervision of C.O.N.I. 87 More in particular, according to the prevailing Italian doctrine, 88 general interest activities can be considered to be: physical inspections of athletes; the control and supervision of professional sport companies (società sportive professionistiche); 89 all powers relating to the insurance and social security protection of athletes; the prevention and repression of doping; the use and management of public sport installations; all activities related to the Olympic training of athletes; and the use of public funds. 90ome authors argue that, since the legislator mandates the National Olympic Committee to undertake activities in the general interest and since C.O.N.I. may delegate its regulatory powers to other private associations, this can be considered as a relevant case of delegated selfregulation (a so-called 'legificazione degli atti dell'autonomia privato-collettiva'). 91 According to the Italian legal literature, acts adopted by the national federations in the public interest are to be considered as sources of law ('fonti di ius singulare') and, as such, are subject to a judicial review by the Administrative Courts. 92gain, by virtue of Article 16, Legislative Decree No. 242/1999, National sports Federations have to observe the 'principle of internal democracy' (principio di democrazia interna), the principle of equal treatment, as well as the principle of participation.It can thus be pointed out that the private nature of a self-regulatory body does not necessarily imply a total respect of private autonomy, so that the self-regulatory body may freely make, interpret and apply its own rules and determine its membership.In the case of national sports federations, in fact there are public law restraints on their freedom, expressly laid down by law, in respect of the principle of democracy, equality of treatment, transparency and participation.

II.5. Professional orders
Like the National Olympic Committee, professional orders can be considered as entities constituted under public law, better known as 'enti pubblici associativi', 93 with the right to regulate their members through codes of conduct, 94 whose violations they can sanction, 95 and with functions of strict control over those regulated. 96he Italian Constitution does not directly deal with professional orders.Nevertheless, their constitutional basis can be indirectly found in some constitutional provisions such as, for instance, Article 33, Paragraph V ('exams are defined for admission to various types and grades of schools, as final course exams, and for professional qualification'), as well as, more in general, in the general principle laid down by Article 1 of the Constitution ('Italy is a democratic republic based on labour') and in the several provisions recognizing and protecting rights potentially involved in professional orders' activities. 97s for ordinary legislation, under Article 2229 of the Italian Civil Code, 'the law specifies the intellectual professions for whose exercise registration in special rolls or lists is required.Verification of the requisites for registration in rolls or lists, the keeping of the same and disciplinary power over registered members are vested in professional associations, under the supervision of the State, unless the law provides otherwise.Judicial review of the denial of registration in or cancellation from those rolls or lists and against disciplinary measures which entail loss or suspension of the right to exercise a profession is admitted in the manner and within the terms laid down by special laws'. 98This means that, within the Italian legal order, there can be professions or professional activities which do not have a specific legal discipline (the socalled 'professioni libere', 'free intellectual professions') and for which it is not necessary to register in any professional rolls. 99n the other hand, the so-called 'professioni protette' are regulated firstly by national statutes which provide for the compulsory registration in a professional roll and for the institution of a specific professional order; 100 secondly, by regulations and disciplinary rules which implement and integrate ordinary legislation (there is thus a sort of 'mixed discipline'). 101

II.5.1. Professional ethical rules
As mentioned above, in the exercise of their self-regulatory functions, 102 professional orders may regulate their members through ethical codes, which generally have a voluntary basis.
The nature of ethical rules has been debated in Italy for a long time.According to the prevailing Italian doctrine 103 and the recent case law, 104 professional ethical rules find their basis in the professional order's autonomy ('autogoverno').They are thus to be considered as nonlegal rules ('precetti extra-giuridici', 'norme morali' 'norme di convenienza sociale'), as 'norme interne' ('internal norms') and, as such, they cannot be viewed as being part of the formal hierarchy of sources of law. 105ollowing Santi Romano's theory, 106 some authors argue that professional orders, as 'derived orders' (ordinamenti derivati), are not able to adopt ethical rules in violation of the general principles of the legal order (ordinamento derivante).If there is a breach of these latter precepts, a judicial review might thus be admitted. 107his also emerges from two quite important and recent judgments (Cassazione Civile, 4 giugno 1999, n. 5452 108 and Consiglio di Stato, Sez.IV, 17 febbraio 1997, n. 122 109 ).In both cases, the Courts held that a judicial review (literally: 'controllo giurisdizionale') is only possible when the ethical rules are in violation of constitutional principles, as well as the general principles of the legal order, and involve issues which are not related to professional duties ('Le regole deontologiche poste dagli ordini professionali sono soggette al controllo giurisdizionale solo in quanto violino precetti costituzionali o inderogabili o principi generali dell'ordinamento e in quanto incidano su oggetti estranei alla deontologia professionale').

III. Final remarks
This study is aimed at giving an overview of the evolution of self-regulatory mechanisms in Italy.
It is clear that self-regulation by itself is not a topic in Italian legal literature.It is even difficult to provide an all-encompassing definition of the phenomenon, self-regulation being a sector-oriented concept.From the research, it has been made clear that Italian legal scholarship rarely takes into account self-regulatory mechanisms as general principles.The debates usually focus on specific sectors in which the self-regulatory technique is applied: advertising, sport and professional orders can be viewed as fields where enthusiasm for self-regulatory solutions has always been apparent.
The sectoral analysis has showed the existence of different kinds of purely private selfregulation, ex post recognized by the State, and established in order to compensate the lack of public law rules (this has been the case concerning the advertising sector, where self-regulation has a long and powerful tradition), as well as fields in which there has been a radical transformation in the law-making process towards a sort of delegated self-regulation (this is the case, for instance, in labour law and the sport sector). 110ore in general, in order to better understand the role, the position, as well as the aims of self-regulatory mechanisms within the Italian legal order, a brief overview of the Italian system of sources of law has been absolutely necessary.
The research has shown that the model of the sources of law rooted in the Italian constitution is typically positivistic and centred on the pivotal role of Parliament, the only body empowered to legislate, either directly (Article 70, Constitution) or by delegating its normative powers to the Government (Article 77, Constitution), within expressly specified limits.
What room, if any, is there for self-regulatory rules?The study shows that, in addition to delegated legislation (Article 77, Constitution), statutes increasingly provide for the adoption of 'codes of practice' (through a form of 'delegated self-regulation'), which have legal effect within the limits expressly specified by Parliament.This was the case, for instance, concerning Law No. 146 of 12 June 1990: where a strike takes place in public essential services, minimum services shall be guaranteed, as agreed upon by the administration (or the enterprise that administers the essential service) and the union's representation at the enterprise level (or the workers' representatives where appropriate), through self-regulatory codes (codici di autoregolamentazione).This was the case, again, concerning Law No. 220 of 27 June 1991, which delegated the Consiglio Nazionale del notariato -National Council of Public Notaries -to adopt the ethical rules for notaries.Again, on 29 July 1998, the Garante per la protezione dei dati personali (Privacy Authority) approved a code of conduct, in the exercise of the power expressly delegated by Article 25, Law of 31 December 1996, No. 675.
If one of the most interesting aims of the research was to analyse to what extent the selfregulatory phenomenon is compatible with Parliament's undisputed sovereignty and with the linked principle of the rule of law, it should be clear that rules made by private actors (i.e.selfregulatory rules), which pretend to have external effects (binding erga omnes), can be considered as law and, as such, as sources of law, as long as they can be 'incorporated' into and recognized in some of the formal sources of Italian law.This seems the only possible and constitutionally compatible interpretation of a phenomenon (self-regulation) which, instead, could potentially be able to place the formal hierarchy of the sources of law in jeopardy.
More in general, it should be clear that Parliament can no longer be considered as the only body empowered to make rules.The legal order is embarking on a radical transformation towards a sort of 'reticular system', able to coexist with plurastic organisations which are increasingly making rules in competition with the State. 111n the other hand, the results of the study make clear that, even when Parliament confers its normative powers to any other bodies (i.e.either independent administrative authorities or professional orders, or, more in general, any self-regulatory associations), it is unlikely to give up determining the limits within which those normative powers have to be exercised.Some authors actually consider this sort of 'delegated legislation' as a means for the State to reassert its sovereignty. 112nyway, this new pluralistic 'architecture' will undoubtedly allow the legislator to retain some exclusive duties: first and foremost, the power to prescribe the institutional conditions underlying the basis of 'private self-regulatory governance', 113 as well as the aims of their future normative action; secondly, to intervene in order to correct, if necessary, the new consensual rules.
In the end, the general overview seems to show a promising future for self-regulation, a phenomenon which, in the next few years, will probably attract a great deal of attention.The current constitutional and legislative Italian framework seems to ensure a solid basis for the development of the self-regulatory technique.At the moment, all one has to do is to wait for a more resolute intervention by both the Italian Courts and legal scholarship.

28
See Comba 2002, supra note 17, p. 47. 29 See, however, Art.117 Cost., as modified by Constitutional law no.3/2001: 'Legislative power belongs to the state and the regions in accordance with the constitution and within the limits set by European Union law and international obligations'.The constitutional reform in 2001 modified Art.117 Cost., introducing the rule of residual legislative power to the Regions: it now lists the seventeen fields in which the State has exclusive legislative authority and another list of eighteen fields in which the State and Regions have concurrent authority.Any other field is subject to the exclusive legislative power of the Regions.30 For an exhaustive overview of the Constitutional Court's judgments on the limits laid down by Art.76 Cost., see E. Malfatti, Rapporti tra
June 1991, No. 220, which delegated the Consiglio Nazionale del notariato -National Council of Public Notaries -to adopt notarial deontological rules.On 29 July 1998, the Garante per la protezione dei dati personali (Privacy Authority) approved a code of conduct in the exercise of the power expressly delegated by Art. 25, Law of 31 December 1996, No. 675 (now Legislative Decree No. 196/2003).32 On the 'principio di legalità', see, among others, G.U. Rescigno, 'Sul principio di legalità', 1995 Diritto pubblico, pp.247 et seq.; F. Sorrentino, Lezioni sul principio di legalità, 2002.Recently see A. Ali, Il principio di legalità nell'ordinamento comunitario, 2005.33 Cafaggi 2001, supra note 7, p. 576, who states that there are two different kinds of self-regulatory codes: those that pretend to be generally binding and those that, being the product of private autonomy, only have an impact on the regulatees.The author argues that the selfregulatory codes which pretend to be binding erga omnes, necessarily need a formal legitimacy through the law.See, on this matter, the case of self-regulation in labour law.As we will see, Law No. 146 of 12 June 1990, as amended in 2000 (Law No. 83 of 11 April) and regulating the right to strike in public essential services, foresees that where a strike occurs in such services, a minimum service shall be guaranteed, the modalities of which shall be agreed upon by the administration (or the enterprise that administers the essential service) and the union's representation at the enterprise level (or the workers' representatives where appropriate), not only by collective agreements but also through self-regulation codes (codici di autoregolamentazione).Some Italian authors argue that Act No. 146/1990 represents a radical transformation in the law-making process towards a sort of delegated self-regulation.In this case, since the legislator mandates the industry to adopt a code of self-regulation, collective agreements and more generally self-regulatory codes can thus be considered as sources of law which are valid erga omnes.34 S. Romano, L'ordinamento giuridico, 1917.For a concrete application of the theory of 'pluralità degli ordinamenti giuridici', see Cass.Civ., 2 dicembre 1932, noted by W. Cesarini Sforza, 'La teoria degli ordinamenti giuridici e il diritto sportivo', 1933 Foro Italiano I, p. 1385.