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

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 qualified 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´rard Lyon‐Caen has evocatively called the progressive ‘infiltration’ of EC competition rules into the national systems of labour and social security law. The analysis is particularly focused on the significant 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 first the evolution of ECJ case law—from Poucet and Pistre to Albany International BV—about 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 specific 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 qualified as an enterprise, the INAIL should in any case be able to escape the ‘accuse’ of 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 conflict’ between the two approaches and the risk of ‘constitutional collision’ that it implies. A risk of a ‘conflict’ 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 compensating the potential de‐regulatory effects 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 specific 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 first 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 finally considers the same issues from the specific point of view of the division of competences between the European Community and the Member States in the area of social (protection) policies.     

Beta-tryptase and quantitative mast-cell increase in a sudden infant death following hexavalent immunization

The association between sudden infant death syndrome and immunization is frequently discussed. Serious adverse events following vaccination have generally been defined as those adverse events that result in permanent disability, hospitalization or prolongation of hospitalization, life threatening illness, congenital anomaly or death. They are generally referred to the inherent properties of the vaccine (vaccine reaction) or some error in the immunization process (programme error). The event could also be totally unrelated but only temporally linked to immunization (coincidental event). A fatal case of a 3-month-old female infant, who died within 24 h of vaccination with hexavalent vaccine is presented. Clinical data, post-mortem findings (acute pulmonary oedema, acute pulmonary emphysema), quali-quantitative data collected from immunohistochemical staining (degranulating mast cells) and laboratory analysis with a high level of beta-tryptase in serum, 43.3 microg/l, allows us to conclude that acute respiratory failure likely due to post hexavalent immunization-related shock was the cause of death.     

Ambivalence in Intergroup Evaluation: The Role of Fairness Norm

We conducted two studies to examine the role of the social norm of fairness on cognitive (beliefs and judgments) and affective (emotions and feelings) ambivalence in an intergroup context of evaluation. As predicted, we found that ambivalence toward the ingroup is constantly higher in the cognitive dimension than in the affective dimension. Instead, cognitive and affective ambivalence toward the outgroup are generally similar but when the outgroup is highly protected by the fairness norm (i.e., the elderly), cognitive ambivalence is considerably lower than affective ambivalence. These findings provide evidence that (1) cognitive ambivalence is more controlled by the fairness norm than affective ambivalence, and that (2) it holds an adaptive function, changing in accordance with the demands of the normative context.

The Right to Gender Recognition before the Colombian Constitutional Court: A Queer and Travesti Theory Analysis

This article discusses the case-law on gender recognition of the Colombian Constitutional Court. It argues that the Court, paying attention to queer and trans theory and to the demands of trans activists, has interpreted mainstream constitutional rights in such a way that trans people can have their self-defined identities recognised. The article criticises the limitations of this case-law, which still does not explicitly include non-binary and gender fluid people. On the other hand, it highlights that the Court's doctrine has the potential to challenge both the gender binary and the very category of ‘sex’ or ‘gender’ in the law.     

Analysis of 11 tetrameric STRs in wild boars for forensic purposes

STR profiling of animal species has a wide range of applications, including forensic identification, wildlife preservation, veterinary public health protection and food safety. We tested the efficacy of a multiplex PCR-based assay including 11 porcine-specific tetrameric STRs in a population sample of wild boars (n = 142) originating from Piedmont (North West Italy). Multiple deviations from Hardy–Weinberg expectations were observed, mostly due to a reduction in observed heterozygosity indicative of a high degree of inbreeding. A value of θ of 0.046 and an inbreeding coefficient of 0.089 were estimated. Combined power of discrimination and probability of exclusion values for the STR panel were 0.9999999999996 and 0.99989. In order to test the suitability of the method for meat traceability purposes, a domestic pig reference sample (n = 412), consisting of commercial lines commonly used in the meat production process, was also typed. A Bayesian cluster analysis carried out using the observed genotypes, showed a percentage of correct subspecies assignment of individual samples of 0.974 for wild boars and 0.991 for pigs, thus demonstrating the usefulness of the multiplex STR-typing system for discrimination purposes.     

Regulatory novelty after financial crises: Evidence from international banking and securities standards, 1975–2016

Financial crises are often presented as triggers for important innovations in international regulation of financial markets, but existing evidence for this claim primarily derive from the analyses of individual initiatives, assessed against noncomparable benchmarks. In order to provide systematic evidence of financial crises' impact on international financial regulatory change, this paper develops a novel text-as-data approach to measure regulatory novelty. We use this approach to analyze the full population of international banking and securities standards between 1975 and 2016. Contrary to theoretical expectations, our empirical findings indicate rules designed by international banking and securities regulators following financial crises are on average as likely to build on existing international regulations as those designed before a crisis. We also find that international banking rules published after the 2008 Global Financial Crisis are an important exception.     

Private and public authority interactions and the functional quality of sustainability governance: Lessons from conservation and development initiatives in Tanzania

The changing shape of sustainability governance has been a key academic and policy concern in the past two decades, as part of a wider debate on the interactions between public and private authority in governing the economy, society, and the environment. In this article, we contribute to these debates by examining how these interactions operate locally and across jurisdictions in three conservation and development initiatives in Tanzania and what impact they have on the functional quality of sustainability governance. We find that clear division of responsibilities, coupled with material incentives for communities and equal and transparent distribution of benefits, are key positive contributors to functional quality. These factors underpin the complementary interactions (collaborative at the local level; institutional layering across jurisdictions) that are needed to successfully negotiate and implement the compromises needed to balance conservation and development goals. We also find that competitive dynamics are harmful to functional quality, especially those taking the form of local institutional duplication and of dominance by central government across jurisdictions. These tend to appear especially when sustainability initiatives involve multiple stakeholders with wide discrepancies in resources, interests, and power, which leads to compromises determined in a top-down manner.     

Public orchestration,social networks,and transnational environmental governance: Lessons from the aviation industry

This article contributes to current debates on the potential and limitations of transnational environmental governance, addressing in particular the issue of how private and public regulation compete and/or reinforce each other – and with what results. One of the most influential approaches to emerge in recent years has been that of “orchestration.” But while recent discussions have focused on a narrow interpretation of orchestration as intermediation, we argue that there is analytical traction in studying orchestration as a combination of directive and facilitative tools. We also argue that a social network analytical perspective on orchestration can improve our understanding of how governments and international organizations can shape transnational environmental governance. Through a case study of aviation, we provide two contributions to these debates: first, we propose four analytical factors that facilitate the possible emergence of orchestration (issue visibility, interest alignment, issue scope, and regulatory fragmentation and uncertainty); and second, we argue that orchestrators are more likely to succeed when they employ two strategies: (i) they use a combination of directive and facilitative instruments, including the provision of feasible incentives for industry actors to change their behavior, backed up by regulation or a credible regulatory threat; and (ii) they are robustly embedded in, and involved in the formation of, the relevant transnational networks of actors and institutions that provide the infrastructure of governance. © 2017 JohnWiley & Sons Australia, Ltd     

Individual Behavior as a Defense in the “War on Cyberterror”: A System Dynamics Approach

ABSTRACT

The problem of cyberterrorism, despite its contested nature, is an important area of research. Scholars agree that the most dangerous targets for such attacks are critical infrastructure and organizations that are vital to society due to their interconnectedness to the modern world and their increasing reliance on the cyber domain for their operations. Thus, their security and protection against cyberterrorism is of elevated importance. Given the lack of documented cases of cyberterrorism, the purpose of this article is to simulate the threat of a terrorist act on a critical infrastructure, using a computer virus and to investigate how the individual behavior of employees affects security.     

Capital united? Business unity in regulatory politics and the special place of finance

While organized business is a key actor in regulatory politics, its influence is often conditional on the level of unity or conflict occurring within the business community at any given time. Most contemporary regulatory policy interventions put pressure on the normal mechanisms of business unity, as they are highly targeted and sector‐specific. This raises the question of how business unity operates across a highly variegated economic terrain in which costs are asymmetric and free‐riding incentives are high. In this paper, we empirically assess patterns of business unity within regulatory policymaking across different regulated sectors. Our analysis utilizes data from hundreds of regulatory policy proposals and business community reactions to them in the telecommunications, energy, agriculture, pharmaceutical, and financial sectors over a variety of institutional contexts. We find considerable empirical support for the “finance capital unity” hypothesis – the notion that the financial sector enjoys more business unity than other regulated sectors of the economy. When the financial sector is faced with new regulations, business groups from other sectors frequently come to its aid.