Social Insurance Monopolies in Community Competition Law and the Italian Constitution: ‘Practical’ Convergences and ‘Theoretical’ Conflicts

• Published date: 01 March 2001
• Date: 01 March 2001
• Author: Stefano Giubboni
• DOI: http://doi.org/10.1111/1468-0386.00119

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Social Insurance Monopolies in

Community Competition Law and the

Italian Constitution: `Practical'

Convergences and `Theoretical' Con¯icts

Stefano Giubboni*

Abstract: An Italian judge, following earlier suggestions of the national antitrust

Authority, has referred to the Court of Justice for a preliminary ruling under Article

234 EC Treaty two questions on the interpretation of Articles 81 and 86 of the EC

Treaty. With those questions, raised in an action brought by a self-employee against the

Istituto Nazionale per l'Assicurazione contro gli Infortuni sul Lavoro (INAIL)

concerning the actor's refusal to pay for social insurance contributions, the Tribunale

di Vicenza has in summary asked the Court of Justice whether the public entity

concerned, managing a general scheme for the social insurance of accidents at work

and professional diseases, can be quali®ed as an enterprise under Article 81 EC Treaty

and, if so, whether its dominant position can be considered in contrast with EC

competition rules.

This article takes this preliminary reference as a starting point to consider in more

general terms the complex constitutional issues raised by what Ge

Ârard Lyon-Caen has

evocatively called the progressive `in®ltration' of EC competition rules into the national

systems of labour and social security law. The analysis is particularly focused on the

signi®cant risks of `constitutional collision', between the `solidaristic' principles enshrined

in the Italian constitution and the fundamental market freedoms protected by the EC

competition rules, which are implied by the questions raised in the preliminary reference.

It considers ®rst the evolution of ECJ case lawÐfrom Poucet and Pistre to Albany

International BVÐabout the limits Member States have in granting exclusive rights to

social security institutions under EC competition rules. It then considers specularly, from

the Italian constitutional law perspective, the most recent case law of the Italian

Constitutional Court on the same issues.

The `contextual' reading of the ECJ's and the Italian Constitutional Court's case law

with speci®c regard to the case referred to by the Tribunale di Vicenza leads to the

conclusion that there will probably be a `practical convergence' in casu between the

`European' and the `national' approach. Following the arguments put forward by the

Court of Justice in Albany, the INAIL should not be considered as an enterprise, in line

also with a recent decision of the Italian Constitutional Court. And even when it was to be

quali®ed as an enterprise, the INAIL should in any case be able to escape the `accuse' of

European Law Journal, Vol. 7, No. 1, March 2001, pp. 69±94.

#Blackwell Publishers Ltd. 2001, 108 Cowley Road, Oxford OX4 1JK, UK

and 350 Main Street, Malden, MA 02148, USA

* Researcher, European University Institute, Florence. Translation from Italian by Emma Jones.

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abuse of dominant position and be allowed to retain its exclusive rights, pursuant to

Article 86 of the EC Treaty.

This `practical convergence' in casu does not, however, remove the latent `theoretical

con¯ict' between the two approaches and the risk of `constitutional collision' that it

implies.

A risk of a `con¯ict' of that kind could be obviously detrimental for the European

integration process. The Italian Constitutional Court claims for herself the control over

the fundamental principles of the national constitutional order, assigning them the role of

`counter-limits' to the supremacy of European law and to European integration. At the

same time, and more generally, the pervasive spill over of the EC market and competition

law virtually into every area of national regulation runs the risk of undermining the social

and democratic values enshrined in the national labour law traditions without compensat-

ing the potential de-regulatory eects through measures of positive integration at the

supranational level. This also may contribute to undermine and threaten, in the long run,

the (already weak) democratic legitimacy of the European integration process.

The search for a more suitable and less elusive and unilateral balance between

social rights and economic freedoms at the supranational level should therefore

become one of the most relevant tasks of what Joseph Weiler has called the

`European neo-constitutionalism'.

In this perspective, the article, always looking at the speci®c questions referred to the

Court of Justice by the Tribunale di Vicenza, deals with the issue of the `rebalance'

between social rights and economic and market freedoms along three distinct but

connected lines of reasoning. The ®rst has to do with the need of a more open and

respectful dialogue between the ECJ and the national constitutional courts. The second is

linked to the ongoing discussion about the `constitutionalization' of the fundamental

social rights at the EC level. The third ®nally considers the same issues from the speci®c

point of view of the division of competences between the European Community and the

Member States in the area of social (protection) policies.

I

After the opinion sent in February 1999 to the Italian Government and Parliament by

the Autorita

ÁGarante della Concorrenza e del Mercato (Italian Antitrust Authority), it

could be predicted that the question of the compatibility of the legal monopoly of the

Istituto Nazionale per l'Assicurazione contro gli Infortuni sul Lavoro (INAIL) with the

Community competition rules would be, sooner or later, raised directly before the

Court of Justice. The stone had been tossed, and precisely from the institutional

subject most entitled to do it; the surface of the pond was by now threateningly rippled

and no matter how much that same legislator may have wanted it considered an

entirely temporary disturbance and, as such, devoid of any sound origin, the problem,

or at least the doubt, of the `Community legitimacy' over the monopoly of INAIL had

at this point been `objectively' raised or, at least, insinuated.

1

European Law Journal Volume 7

70 #Blackwell Publishers Ltd. 2001

1

The opinion of the Italian Antitrust Authority (published in Dir. Lav., 1999, I, p. 329) has naturally given

rise to diverse reactions, both solidly enthusiastic as well as severely negative. The opinion of labour

lawyers has in fact been mostly criticalÐsee M. Fuchs and S. Giubboni (1999), `Monopolio dell'INAIL e

Antitrust: pro®li di diritto interno e di diritto comunitario', Giornale di Diritto del Lavoro e di Relazioni

Industriali, p. 719.