Semplificazione strutturale e razionalizzazione della regolazione
Creators: name: D'Ambrosi, Francesco
Publisher: name: Universita degli studi di Salerno
Year: 2016
Subjects: subject: IUS/10 DIRITTO AMMINISTRATIVO
subject: Autorità indipendenti
subject: Sistema di vigilanza
subject: CONSOB
subject: BaFin
subject: SEC

description: 2014 - 2015
description: This research wants to focalize its attention on the finance world, especially on the financial markets supervision in order to obtain their simplification and rationalisation. After the computer revolution, the world began a “global village” and most part of the economy has suffered a financialisation process; the decrese and the speed up of the economic exchanges in the space and time found its best expression in the speeding up of the financial exchanges. The current interexchanges have made the financial world more complex and in few years it took over politics. Particularly the categories, by which one used to study politics and States life, have no value anymore: the triad territory – state – nation has to be substituted by a sort of local, national, overnational and international interconnected networks. The crisis of the State moved the balance from the executive to the administrative and the legal certanty with the State monopoly has left the place to an interexchangeable sets of rules network. From here the independent authorities are born and they were succesful even thanks tothe process of liberalization-privatization of the economy. Above all in Italy these Authorities were born in a chaotic and no organic way, with a series of overlaps of competences that don’t let understand “who does what”: so it needs simplification and rationalisation. In the financial world, especially all after the crisis in 2007/2008, we understood that the world, as de Larosière report says, was in front of two ways: or to do chacun pour soi or to take again the destiny in its hands, i.e. to try to take back finance under the direction of politics. the UE chose the second hypothesis leaving Lamfalussy care (soft law) and moving to de Larosière care (hard law), as a doctor does towards ills people: he tries to prevent instead of caring. The European regulations in 2010 and the international institutions like G20, FSB, Basel Committee, IOSCO, IFAC, IASB and IAIS, by their standards, tried to put order again in the financial world and to prevent the socalled “systemic risks” (macroprudential supervision), including the microprudential supervision in the most important sectors of finance (banking, insurance, securities) too. So it is necessary to study and know better the international supervision sistems (coordinated inter se) especially the EU Authorities (EBA, ESMA, EIOPA). The UE needed to rationalise the sistem and imposed it by regulations on every member State; in other words the Bank of Italy, CONSOB, IVASS and COVIP (financial indipendent Authorities) began the longa manus of the European Authorities by introducing into the italian system some rules coming directly from Europe, without “passing” through government or parliament way. Considering that the other member States have more less adeguated their “organogram” of Authorities following the UE model, Italy is still late, no because it didn’t adopte the European binding rules, but because it persevered to retain a “set” of inadeguated Authorities for the financial markets challenge. There are a lot of overlaps – interferences of competences between CONSOB and the Bank of Italy, the Bank of Italy and AGCM, whithout considering the “financialisation” of the insurance sector; Germany faced questions like Bankassurance and Allfinanz by BaFin reform, Italy instead persists in a “mixed” model of supervision in which coexists the “pourpose” model (fixed by TUF) and the “sectorial” model (there are specific supervision Authorities in every sector). In the italian system, as Kant says, it is necessery a new criterion of truth that combines empiricism of the American approach (SEC and CFTC) with the organic system and the predictability of the European model. So it is strongly necessary a simplification – reduction of Authorities to two: one in the field of micropudential supervision (Bank of Italy – CONSOB) and one Authority for macroprudential supervision (like UE model); in this way we’ll have a regulation, with overnational legal standards, based on prefixed, general, abstract defined criterions that are possibly “waterproof” for private interests of strong big groups. [edited by Author]