Oggettività giuridica dell’energia elettrica. Beni comuni e servizi di interesse economico generale

Abstract

Abstract

Electric power summarizes different kinds of utilities and interests considered to be a responsibility of the State, of the person and of the market, taking into account that “not only the functioning of economy but above all of the institutions and of the basic public services and even the survival of people” depend on the security of energy supply. The energy sector has undergone a far-reaching process of privatization and liberalization which has demolished the organization structure provided for by article 43 of the Italian Constitution (public monopoly and vertically integrated undertaking) for the benefit of the market as a result of (alleged) advantages in terms of the efficient allocation of resources. Finally, the use of electricity meets existential interests to the point that it is a real need. In fact, several parties have claimed that the right of access to basic energy services should be elevated to fundamental human right. The specific characteristics of electric power – in other words the fact that it serves a multiplicity of interests –inevitably influence the legal classification of the resource and the related owner statute. Authoritative legal theory explain that the legal basis of the service lie not so much on the possibility of economic exploitation but on the suitability to become an objective reference point of (economic or existential) interests deserving legal protection. In this perspective, the question is whether electricity can be considered as a common good. However, in the present case, the selection of specific characteristics is not sufficient to solve the problem of the objectification sub specie iuris. This is mainly due to the fact that the concept of energy is unclear because “even if the term is generally understood, actually it includes a variety of events and situations which cannot be reduced to an unique ensemble”. In this respect, it should be noted right from the start that electrical current is the result of a multi-stage system and that each stage is regulated by specific laws and has its own legal status. [edited by author]